“Who’s Holiday!” by playwright Matthew Lombardo features a grown-up Cindy Lou Who, a character described as “no more than two” in the classic tale “How the Grinch Stole Christmas” by Dr. Seuss, the pen name of author Theodor Geisel.
In the play, 45-year-old Cindy Lou Who has just gotten out of prison and recounts her troubled life, including a long-term relationship with the reformed Grinch.
Dr. Seuss’s estate, upon learning in July of 2016 that the one-woman play was in production, sent cease and desist letters to the playwright, director, theater company and venue. These parties agreed to halt production. The play, scheduled to go up in November of 2016, never did. The playwright decided to sue Dr. Seuss’s estate, seeking a declaration from the court that the play is a fair use of Dr. Seuss’s classic work “How The Grinch Stole Christmas.” The playwright also seeks monetary damages based on foregone earnings from the box office and on costs spent in producing the play.
What will the playwright have to argue to demonstrate fair use? As this handy guide from our friends at the US Copyright office shows, courts look at four factors when evaluating whether a use of previously copyrighted material is a fair use.
Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.
What would you have to know about the play in order to apply these four factors? If you were representing the playwright, what arguments would you make? Which of the four factors seems most promising? Which seems more problematic? To help you, take a look at a couple of arguments that appear in the complaint:
The Play humorously juxtaposes the rhyming innocence of Grinch with, among other things, profanity, bestiality, teen-age pregnancy, familial estrangement, ostracization and scandal, poverty, drug and alcohol abuse, the eating of a family pet, domestic violence and murder. The Play may reasonably be taken as a comment on the naiveté of Grinch.
To the extent that the Play mimics, draws upon, or copies Grinch, it does so to make its point and such use of Grinch is neither substantial nor excessive in relation to the parodic purpose. Grinch is an object of the parody, and the Play’s humor, or its comment, necessarily springs from recognizable allusion to Grinch through distorted imitation. Using some characteristic features of Grinch cannot be avoided, as the Play must be able to refer to recognizable elements of Grinch and conjure up at least enough of Grinch to make the objects of its critical wit recognizable.
How will Dr. Seuss’s estate reply to these arguments? (Their reply to the complaint is not yet public, so you’ll have to use your imagination.)
This should be an interesting one to watch. If you’re looking to read about other fair use cases, this site tracks them.