Who's Holiday | Intellectual property and business law blog

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Steve O'Donnell, Ph.D. Registered Patent Attorney

Who's Holiday

Society is not good and sweet, but coarse, vulgar and disappointing.

I had a call from someone about a month ago who wanted to use some song lyrics in a short story making fun of Congress and wanted to know if that would be a problem. Like any good lawyer my answer was “it depends, you should come in for a paid consultation.” He didn’t.

So, here’s part of what I would have said: “if you twist the lyrics so that you’re making fun of the song itself, that’s probably a fair use parody; but if you use the lyrics to make fun of something else, that’s satire and that could be a problem. Actually, are you sure you need to use those lyrics? Can you say the same thing with maybe a line or two instead of the whole verse?”

The case that really cemented protection for parody is Campbell v. Acuff Rose Music, 510 US 569. It’s one of my favorite cases to read, partially because of the discussion of Fair Use (which is always fun) and partially because I can’t help but imagine stuffy Justices listening to 2 Live Crew when a curtain drops behind them and suddenly they’re in a club with 2 Live Crew performing the song and the clerks are all wearing clothes one might expect to see in an early 90s rap video and at the end J. Scalia rips open his robe to reveal an “As Nasty As They Wanna Be” t-shirt...but I digress.

The case we’re talking about today, Lombardo v. Dr. Seuss Enterprises, SDNY 16-9974, involves an “adult-themed” parody sequel to How the Grinch Stole Christmas. In the play “Who’s Holiday“ little Cindy-Lou Who is a 45 year old woman and she’s been though some stuff. Turns out she became friends with the Grinch when she was in school and he got her pregnant on her 18th birthday. I’m not sure how old the Grinch was. In the original story, she was maybe 3 or 4. I think for the Grinch to be as hateful and bitter as he was at the start of the story he must have been at least in his mid-30s. So even if it wasn’t statutory rape, it shattered the ”half your age plus 7” rule. You’ve heard of that right? According to the rule the youngest that someone can date is half their age plus 7 years. So, if the someone is 34, the youngest person they could date is 24 (half of 34, plus 7). If the Grinch was 34 when Cindy-Lou was 4, then he would be 48 when she was 18, which is going to get people talking…but again, I digress.

The Grinch and Cindy-Lou get married and have a daughter named Patti, and then things really go bad. Unemployed, hungry, and starving, Cindy-Lou cooks the dog. The Grinch flips out and there’s a struggle which ends when he falls to his death off a cliff. Cindy-Lou goes to jail, and Patti goes to foster care. The play takes place after her release as Cindy-Lou is waiting for guests who never arrive.

Judge Hellerstein addresses each of the four prongs of fair use and finds the play to be fair use of the underlying subject matter.

The first prong is the purpose and character of the use, which mainly asks whether the use is transformative. So, if you record The Grinch next time it airs in Christmas and sell it on ebay…well, you’re not transforming anything. Here, the judge found the the play took bits of the original and twisted them around to turn the “Seussian staples upside down and [make] their saccharin qualities objects of ridicule” since the play’s coarse vulgarity mocks the “ridiculousness of the utopian society depicted in the original work: society is not good and sweet, but coarse, vulgar and disappointing.” Man, sounds like someone needs a hug.

The second prong is the nature of the copyrighted work. No one pays much attention to this. It’s supposed to allow a judge to consider that purely creative works are more worthy of greater protection than factual works. Since parody cases are necessarily going to involve creative works there’s not much need to think about this.

The third prong is the amount and substantiality of the use. Generally, don’t take more than you need, whether it’s a creative work you need to use for your parody, or a pizza buffet. I’m not good with buffets. They cause a switch to flip in my head and I won’t stop until I’ve “won.” I can’t even hit a toppings bar without things getting out of hand. Anyway, the judge noted that although the play reiterated the basic Dr. Seuss story, it didn’t copy blocks of text, show the Grinch himself, and weren’t set in Whoville. The play did use the character of Cindy-Lou of course, but that would be necessary to tell a story about Cindy-Lou. The play is in the familiar Seussian rhyming cadence, but that itself isn’t copyrightable, and is directly parodied when Cindy-Lou’s cellmate confronts her about her annoying speech pattern.

The fourth and last prong is the effect on the market for the copyrighted work. So, if the parody erodes the market for the original it’s more of a problem for the play. But, it’s kinda silly to think that a bawdy, boozy, and blue version of The Grinch is going to be shown on tv instead of the original cartoon or that parents are going to buy book versions of the play or doll of a mid-40s Cindy-Lou puffing on Whohash for their kids instead of the official Dr. Seuss products.

Case dismissed. The Cat in the Hat shrugs and dejectedly leaves the courtroom...or does he?!

Ok, so now that you know how to keep yourself within the warm embrace of “Fair Use” you’re ready to unleash your weird “Antiques Roadshow” fanfic on the world and you’ll never have to worry about the PBS goons coming after you, right?

Not exactly, even if you think you’re in the clear, and even if your team of attorneys think you’re in the clear, that doesn’t mean that PBS isn’t going to be angry, and it doesn’t mean that their team of lawyers won’t think there’s a reasonable argument that you’re not protected by fair use. That’s all they need, some reasonable basis to argue that their case is different enough from other parody cases. If they have that, you might find yourself on the receiving end of a few threatening letters and maybe even an expensive lawsuit. Even if you win like “Who’s Holiday,” it might not be over. An appeal was filed shortly after the decision, so I might need to update this post later.

Does this mean you shouldn’t test the waters with your own work? No, it’s your right to create a parody work. However, you should sit down with an attorney who knows copyright so you can access your risk and discuss ways of lessening it.