The case of Dr. Seuss v. ComicMix isn’t over yet. In December 2020, the Ninth Circuit overturned the district court ruling stating that ComicMix’s use of Dr. Seuss’ materials was fair use. The district court had made this ruling at the summary judgment stage and in favor of defendant ComicMix. What the Ninth Circuit basically said was that the district court was too hasty to rule that it was fair use at the summary judgment stage of litigation. (A motion for summary judgment is an early pleading in litigation asking the court to make a final ruling as there are no questions about the facts in the case or that the other party has no legitimate claim.) It did not rule on whether there was infringement, sending the case back to the district court.
The Seuss Estate immediately submitted their own motion for summary judgment, asking the district court to find infringement, citing the Ninth Circuit’s opinion which found substantial similarity. According to the Seuss Estate, the findings of the Ninth Circuit required the lower court to find infringement.
On August 9, 2021, the district court denied the Estate’s motion for summary judgment. The court examined the two works under the two tests for determining subjective substantial similarity. The first is the “objective extrinsic test”. This test looks at the works in question and whether there is a significant overlap of concrete elements covered by copyright protection. The district court found that under this test, there was substantial similarity. However, the court then applied the “subjective intrinsic test” which looks at the overall look and feel of the two works to determine substantial similarity. The court held under this test that there were questions about the substantial similarity in the look and feel. These questions could only be resolved by a jury.
So the two parties will continue their voyage to the next stage of litigation, boldly going in front of a jury of their peers. (We’re assuming the jury will be made up of humans and not Klingons.)
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