Mashup's of fictional stories is something that has become more and more relevant in the digital age. You can search for stories that discuss the D.C. Comic superheroes versus the Marvel Comic superheroes. In an episode from the Golden-Globe winning show Parks and Rec in which Patton Oswalt guest starred, his character filibustered by giving his own Star Wars and Marvel cross over idea. Needless to say, we would all love for these types of epic universes to collide, but Copyright law stops that (for the most part) from happening without requisite permission.
So, when a former writer for the hit show Star Trek, and his company ComicMix, had the idea to write a book mashing together Go! by Dr. Seuss and the Star Trek universe without permission from Dr. Seuss Enterprise called “Oh, the Places You'll Boldly Go!” it led to a battle in court. Dr. Seuss Enterprise sued for, amongst other claims, Copyright Infringement.
Before getting to summary judgment, the court found that the book was not a Parody of Go! which laid the groundwork for fierce fair use battle at the summary judgment stage. When analyzing fair use, four factors are involved:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
For the first factor, Dr. Seuss Enterprise unsuccessfully argued that ComicMix's use of their copyrighted elements was analogous to Oracle America, Inc. v. Google. In that case, the court found that Google's use of Oracle's Java API packages in its Android operating system was not fair use. Google used only 37 of the 166 Java SE API packages when creating is own implementing code, yet this use was not transformative enough for the court. When looking at this, the judge stated:
“[The] key distinction [is] in Oracle, the Defendants copied the 37 SE API packages wholesale, while in Boldly 'the copied elements are always interspersed with original writing and illustrations that transform Go!'s pages into repurposed, Star-Trek-centric ones.' Defendants did not copy verbatim text from Go! in writing Boldly, nor did they replicate entire illustrations from Go! Although Defendants certainly borrowed from Go! — at times liberally — the elements borrowed were always adapted or transformed. The Court therefore concludes, as it did previously that Defendants' work, while commercial, is highly transformative."
The finding that the work was highly transformative was essential to this first factor tipping in the favor of ComicMix. For the next factor, the court gave a quick analysis tipping this factor in favor of Dr. Seuss Enterprise.
When analyzing the third factor, the court looked to how much of the protected copyright elements from Go! were used by ComicMix. Ultimately, the judge stated that "In short, portions of the old work are incorporated into the new work but emerge imbued with a different character" and "[The] Defendants here took less from Plaintiff's copyrighted works both quantitatively and qualitatively” than cases cited to by Dr. Seuss Enterprise. This factor tipped in favor of ComicMix.
The fourth factor, which is usually the most important factor, was found to be neutral. The judge stated that ComicMix version will likely appeal to a niche market of Star Trek and Dr. Seuss fans and will not likely usurp the children's market for Go!. The judge additionally found that Dr. Seuss Enterprise was unable to point to any “evidence tending to show that it would lose licensing opportunities or revenues as a result of publication of Boldly or similar works."
With all the factors analyzed, the judge ultimately determined that ComicMix made a highly creative transformative use and took no more than was necessary from Go!.
If you are thinking of writing a mashup or a crossover of someone else's work, the team here at Res Nova Law can advise you on the places that book can potentially take you!