ComicMix Sued by Dr. Seuss
I hadn’t checked in with the news/column aggregation site ComicMix in a while. It appears they’re just running press releases these days, as all of their columnists — who used to include Mike Gold, Martha Thomases, Michael Davis, and Denny O’Neil, among others — have posted what look like farewell pieces as of last month.
Update: The day after I posted this, Heidi ran a piece with few specifics that says “the site is still going strong” and “ComicMix has dropped many of its columnists, but they have a new business development person on board.” So don’t worry, ComicMix fans!
That’s not why I’m talking about them now, though — I recently saw them mentioned at Techdirt, one of my favorite sites covering copyright issues on the internet, because they’d been sued by Dr. Seuss Enterprises.
It seems that ComicMix, which was also an occasional publisher, ran a Kickstarter last year (September 2016) for a project called Oh, The Places You’ll Boldly Go! It was intended to be a Star Trek adventure drawn and told in the style of a Dr. Seuss book, and Kicktraq says it made over $29,000, well over its $20K goal. The Kickstarter was taken down, though, when the Dr. Suess owners sued. The page now says, “Oh, The Places You’ll Boldly Go! is the subject of an intellectual property dispute and is currently unavailable.”
It was going to be written by David Gerrold and illustrated by Ty Templeton. The sample art still available looks quite authentic, which may have been part of the problem. The Dr. Seuss company first sued a year ago, citing one of the listed Kickstarter risks as evidence:
While we firmly believe that our parody, created with love and affection, fully falls within the boundary of fair use, there may be some people who believe that this might be in violation of their intellectual property rights. And we may have to spend time and money proving it to people in black robes. And we may even lose that.
Turns out they were right. The Seuss company also included various examples of pages where layouts had been copied with redrawn figures included (examples at the previous link). This past summer, ComicMix took its fair use argument to court, and while claims of trademark infringement were dismissed, the copyright claims were allowed to proceed. (They were hoping for an outright dismissal under the fair use argument.)
The big question appears to be how transformative a use it is just to do one thing in the style of another, since derivative works are owned by the original copyright owner. That’s the point of mash-up culture, many times, just putting two things together, and whether that’s legally protected is still an open question.
It showed up on Techdirt recently because earlier this month, “the court has again denied the fair use claims on copyright, and also denied a new motion to dismiss on trademark grounds, meaning the case will move forward.”
The ComicMix group, making lemonade, trumpeted this as a win for comics:
It puts plainly what many artists in the comics industry already knew: you can’t be legally dinged for drawing like Jack Kirby, or Neal Adams, or John Buscema, David Finch, Jim Lee, or anybody else — not directly copying art, which might lead to a copyright infringement claim, but drawing in the style of a particular artist (or if you prefer, a particular school of art, like, say, the Bolognese or Kubert school) isn’t a trademark infringement.
Complicating the matter, a former roommate of Gerrold’s alleges that this idea was stolen from him.
The temporary lesson here seems to be, if you want to claim parody fair use protection, don’t make your thing look too much like the original thing (since one of the reasons the judge didn’t throw out the case the second time was that they used the same font for the title as the original book). Is Ty Templeton just too good at imitating other people’s styles?