Dr. Seuss (Ted Geisel) at work on a drawing of a grinch, the hero of his forthcoming book, “How the Grinch Stole Christmas”  /  World Telegram & Sun photo by Al Ravenna | Courtesy of the Library of Congress

We would like to thank Authors Alliance legal research assistant Allison Davenport for writing the following analysis.

Two courts in the Southern District of New York recently decided two fair use cases that, on the surface, may appear to be similar but ultimately reached different outcomes. In one, a beloved children’s classic is grown-up for an adults-only stage adaptation. In another, classic adult novels are presented as colorfully illustrated children’s books. Yet, the former was judged to be a fair use and the latter was not. What led the court to these opposite rulings, and what can it teach us about how fair use works?

Fair Use

Fair use is a limitation on U.S. Copyright law which allows authors to use portions of a copyrighted work without permission or payment, so long as that use is “fair.” Courts consider at least four factors when determining whether a use is fair: 1) the purpose and character of the challenged use (often asking if the use is “transformative”), 2) the nature of the copyrighted work, 3) the amount and substantiality of the copyrighted work used, and 4) the effect on the potential market for the copyrighted work. These four factors do not work in isolation and must be carefully weighed together to determine if a work is fair.

Who’s Holiday! – Matthew Lombardo and Who’s Holiday, LLC v. Dr. Seuss Enterprises

“In creating these juxtapositions, the Play, rather than trading on the character of Cindy-Lou Who and the setting of Who-Ville for commercial gain, turns these Seussian staples upside down and makes their saccharin qualities objects of ridicule.”

Who’s Holiday! is a one-woman stage play by Matthew Lombardo which features a 45-year-old Cindy-Lou Who from How the Grinch Stole Christmas recounting the circumstances that led to her life as a drug addict living in a trailer, alone on Christmas. In the play, Cindy retells the events of Seuss’ story but then goes on to describe how she became pregnant with the Grinch’s baby at 18, married him, and suffered through unemployment and starvation before eventually killing the Grinch and being imprisoned for his murder. The play is told in rhyming couplets similar to the style of Seuss’ original, with a few exceptions.

photo by 422737 |CC0

Last month, we reported in detail on our petition to the U.S. Copyright Office to renew exemptions to the DMCA for lawful uses in multimedia e-books. Now, together with Professor Bobette Buster and the Organization for Transformative Works, we have also filed a petition to modify the exemption to Section 1201 as part of the Copyright Office’s seventh triennial rulemaking process.

The new petition, filed today, requests the following:

• Lawful circumvention of DRM for use in fiction multimedia e-books (the current exemption is restricted to nonfiction multimedia e-books);
• Allowing circumvention of DRM for use in multimedia e-books on other subjects besides film analysis (the current exemption allows for uses in film analysis only);
• Removing limitations that refer to screen-capture technology.

We’re grateful to law students from legal clinics at the UC Irvine and the University of Colorado, Boulder for their work preparing the petition.

Further details can be found in the full text of our petition. Hover over the document below to view the petition in your browser, or download here.) Authors Alliance believes that multimedia e-books are an important form of authorship and wants to see authors empowered to fully realize their promise. We will continue to track the progress of the 2017-2018 rulemaking and provide updates as they become available.

photo by 422737 | CC0

While copyright law generally provides for exceptions like fair use that maintain our ability to criticize, comment on, and transform copyrighted works, some courts have held that these exceptions do not apply to the anti-circumvention provisions of Section 1201 of the Digital Millennium Copyright Act (DMCA), for the most part, do not recognize these kinds of exceptions. Evading digital rights management (DRM), even when done for otherwise lawful purposes—such as education and criticism—may be prohibited by law. However, every three years, the Librarian of Congress is empowered to approve discrete, temporary exemptions from the law in order to carve out space for non-infringing uses caught up in the DMCA’s broad sweep.

In February 2015, in response to the U.S. Copyright Office’s sixth triennial rulemaking session, Authors Alliance joined with author Bobette Buster, the American Association of University Professors, and counsel from legal clinics at the UC Irvine and the University of Colorado, Boulder to submit comments in support of exemptions that would allow authors to make use of DRM-protected multimedia content in e-books. That spring, our team attended hearings in Washington, DC to make a case for the exemptions, and in October 2015 the Copyright Office released its final rule, which includes an exemption for multimedia e-books offering film analysis.

That exemption allows e-book authors to circumvent digital locks on Blu-rays, DVD, and digitally transmitted video such as downloads and streaming for purposes of film analysis. The rule gives authors access to a wealth of high definition content—particularly, from Blu-ray—that they need in order to make fair uses in multimedia e-books.

Now, as we approach the seventh triennial rulemaking session in 2018, our team has submitted a petition to renew these exemptions. (Further details can be found in the full text of our petition. Hover over the document below to view the petition in your browser, or download here.) Authors Alliance believes that multimedia e-books are an important form of authorship and wants to see authors empowered to fully realize their promise. The freedom to author e-books that incorporate film for the purpose of analysis, consistent with the core tenets of the First Amendment and academic freedom, remains significant and important. We will continue to track the progress of the 2017-2018 rulemaking and provide updates as they become available.

The following is a Fair Use Week guest post by Authors Alliance President Pamela Samuelson.

Faculty members who assign a few scholarly book chapters to their students for nonprofit educational purposes should be able to rely on fair use when posting them on course websites, according to the brief Authors Alliance filed in support of Georgia State University’s (GSU’s) fair use defense in the copyright lawsuit brought by Cambridge University Press (CUP).

GSU’s fair use defense was bolstered by various limits it put on the posting of copyrighted book chapters. Faculty members had to fill out fair use checklists, taking into consideration, among other things, whether the amount assigned was reasonable in light of the pedagogical purpose they had in assigning the materials. Only enrolled students could access the in-copyright materials, they could access them only through password-protected course reserves, and this access was only authorized during the term the students were enrolled in that class or seminar. For the most part, only one chapter per work was assigned. GSU faculty mostly used the online course websites for supplemental materials, having assigned readings from textbooks and other materials that students had to buy. The overwhelming majority of the chapters at issue were scholarly works written by academic authors on specialized topics used for small courses or seminars from works published a decade or more before. All of these factors supported the trial court’s fair use ruling.

The Authors Alliance brief explained that academic author incentives to write scholarly book chapters would, contrary to CUP’s claim, not be harmed and might well be enhanced by such uses of the chapters for GSU classes. Academic authors generally write scholarly book chapters to share the knowledge and insights they have attained with others and hope that publishing the chapters will enhance their reputations for contributions the authors made to their fields. In addition, publishers’ incentives to continue to publish scholarly books should not be harmed by the limited uses GSU faculty and students were making of the book chapters because publishers get the chapters for free and expect to derive revenues largely from sales of books.

The fair use calculus changes if course websites hosting such materials are open to the general public, if multiple chapters from the same book are utilized in online courses, if the chapters are from textbooks relevant to especially large enrollment classes, and if the online course is part of a for-profit enterprise.

This is not to say that such uses could not be fair, but faculty members would be well-advised to be more cautious in posting in-copyright materials, such as book chapters, on course websites under these circumstances.

Fortunately, the proliferation of scholarly articles and book chapters on pre-print servers in various fields, the adoption of open access policies by universities, leading foundations, and government granting agencies, and the greater willingness of publishers to agree to nonprofit educational uses or open access licenses means that there are many scholarly works available to be used for online courses these days. It is unfortunate for authors who assigned copyrights in book chapters or journal articles back in the days when pre-print servers and open access policies were not available that their works will be less widely read than they would wish, but it may be worth asking publishers to be willing to agree to at least limited nonprofit educational uses such as those being made by GSU faculty and students.

That being said, CUP has filed an appeal of the trial court’s findings of fact and conclusions of law that all but a few of the challenged GSU online course reserves uses were fair. Until the appellate court ruling comes down, one cannot be sure that GSU’s uses are fair. Still, the appellate court upheld much of what the trial court held about fair use the last time CUP ruled, and sent the case back for further proceedings under a somewhat revised framework that the appellate court spelled out. Because the trial court carefully followed that revised framework and made findings in line with the appellate court’s guidance, I am cautiously optimistic that the court of appeals will affirm.

For further reading on fair use, refer to the Fair Use FAQ on the Authors Alliance Resources page.