Mashups and Fair Use: The Bold Misadventures of the Seussian Starship Enterprise

Intellectual Property and Copyright and Trademark

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Shyamkrishna Balganesh, Peter Menell and David Nimmer


University of Pennsylvania Law School Public Law Research Paper No. 20-38, 2019


A book that placed Star Trek characters in illustrations from Dr. Seuss is an unauthorized derivative work under the Copyright Act. The District Court erred in ruling that the book was a “fair use.”

Policy Relevance

“Fair use” should not allow the unauthorized creation of commercial works that compete with the original.

Main Points

  • In Dr. Seuss Enterprises v. ComicMix, a federal district court ruled that an illustrated book that combined themes from Dr. Seuss with characters from Star Trek was “highly transformative” and a “fair use” of Dr. Seuss’s work under the Copyright Act of 1976.
  • The District Court misapplied the standards for determining when a work is a “fair use,” and should have granted summary judgment for the plaintiffs.
    • Fair use is intended to promote teaching, research, criticism, satire, or news reporting, not commercial products that compete with the original work.
    • The defendant’s book slavishly copies illustrations from Dr. Seuss’s original work.
  • Copyright law supports markets for the creation of authorized derivative works; the District Court’s decision allows a flood of unauthorized derivative works to flood film, television, merchandising, and publishing markets.
    • Warner Brothers could mash together Bugs Bunny with Iron Man.
    • Anyone could produce and distribute these unauthorized mashups.
  • Congress intended to grant copyright owners the exclusive right to create derivative works, with a limited fair use defense.
  • Mashups constitute “fair use” when they parody or satirize the original work, or when a student adapts his favorite stories for a school project; however, non-satirical mashups produced for commercial purposes are not “fair use.”
  • Congress could reform the Copyright Act to allow for the creation of more mashups, as creators seeking to build on existing work face high transaction costs.

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