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Old is New … Satire v. Parody

I’ve always been a bit uncomfortable with how the 9th Circuit dealt with the Cat in the Hat case. Dr. Seuss Enters., L.P., v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).

I just came across a 1998 article by Santa Clara intellectual property professor, Tyler Ochoa. Ochoa criticizes the 9th’s decision in DR. SEUSS, THE JUICE AND FAIR USE: HOW THE GRINCH SILENCED A PARODY, 45 J. Copyright Soc’y USA 546 (1998)

[The book] it was a satirical account of the O.J. Simpson trial written in the style of Dr. Seuss. Entitled The Cat NOT in the Hat! and labeled “A Parody By Dr. Juice,” the book recounted the events of the trial in simple and repetitive rhyming phrases like those used in The Cat in the Hat and 46 other children’s books written by Theodor S. Geisel under the pseudonym Dr. Seuss. The Cat NOT in the Hat! was illustrated with thirteen depictions of a cartoon caricature of O.J. Simpson, also in the style of Dr. Seuss, wearing the Cat’s distinctive red-and-white stovepipe hat.

Based on a pre-publication advertisement, Dr. Seuss Enterprises filed suit against the authors and publishers of the parody, claiming that it violated the Copyright Act, the Lanham Act, the Federal Trademark Dilution Act, and California Unfair Competition law by using copyrighted expression and registered and unregistered trademarks belonging to the plaintiff. The District Court entered a preliminary injunction against the defendants, holding that the plaintiff had demonstrated a likelihood of success on the merits of its copyright claim, and that the trademark claim presented serious questions for review and the balance of hardships favored the plaintiff. On an interlocutory appeal, the District Court’s rulings were affirmed by the Ninth Circuit in a published opinion.

In this article, I will demonstrate that the Ninth Circuit’s opinion was incorrect, both as a matter of law and as a matter of public policy. In its opinion, the Ninth Circuit misapplied controlling U.S. Supreme Court precedent in holding that The Cat NOT in the Hat! was not a parody and was not a transformative use; in holding that the defendants were limited to that copying necessary to “conjure up” the original; and in presuming that the defendant’s commercial parody would cause harm to the potential market for the original and licensed derivatives.

Part II of this article will discuss the social importance of parody and the related forms of burlesque and satire. Part III will briefly review the development of the parody defense to copyright infringement, with particular attention to the U.S. Supreme Court’s 1994 opinion in Campbell v. Acuff-Rose Music, Inc. [FN5] Part IV will summarize the Ninth Circuit’s opinion in the Dr. Seuss case, while Part V will offer an alternative analysis explaining how the Ninth Circuit erred in enjoining publication of The Cat NOT in the Hat!

I definitely place Ochoa at the top of the hill when it comes to IP professors that have earned and maintained my respect. (He could a bit of tutoring in 1980s pop culture, but that is a private joke). I really wish that I had read this article a long time ago.

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