n July 6, the U.S. Court of Appeals for the Second Circuit affirmed the Southern District of New York’s finding of fair use in Lombardo v. Dr. Seuss Enterprises, L.P., reiterating the protected nature of parody under the fair use doctrine even as it applies to some of the most beloved properties in entertainment – including children’s literature.
As a brief reminder of the facts, Lombardo was a copyright infringement case involving a parody of Dr. Seuss’ classic story How the Grinch Stole Christmas! The dispute centered around playwright Matthew Lombardo’s Who’s Holiday!, a one-actress play about a 45-year-old Cindy-Lou Who, the toddler-protagonist of the original story. Having long since “outgrew” her “no more than two”-year-old days and her wholesome, unflappable belief in the magic of Christmas, the play picks up where the Dr. Seuss tale left off: Cindy Lou has entered a turbulent marriage to the Grinch, borne his child, survived his untimely death, turned to drink and drugs, been incarcerated, and lost her daughter to foster care. A dark turn for Ms. Who, to say the least.
After Dr. Seuss Enterprises accused Lombardo of copyright infringement, he and his producer brought a declaratory judgment action before the district court in late 2016 seeking a ruling that the play was not an infringement. In its decision, the court conducted the traditional four-factor fair use analysis, focusing on the play’s parodic nature. Ultimately, the court ruled in favor of Lombardo, and in September 2017, granted Lombardo’s motion for judgment on the pleadings.
The Dr. Seuss estate appealed in March 2018. The Second Circuit addressed the estate’s arguments that the play was infringing by being both an unauthorized retelling and a sequel. In support of this argument, the estate focused on initial scenes in which Cindy Lou recounts the Grinch narrative, using it as a jumping off for the subsequent adult-themed storyline, which the estate, somewhat counterintuitively, argued so deviated from the original as to be a sequel. Unconvinced, the Second Circuit noted that Who’s Holiday!’s deviations were exactly what allowed for its transformative nature under fair use.
The estate argued that, at a bare minimum, it should be able to assert infringement based on the play’s retelling of the Grinch within its first sixty lines. The Court of Appeals, however, recognized that in order to succeed as a parody, the play had to retell enough of the story so as to comment upon it. In its decision, the Second Circuit, quoting the Supreme Court’s opinion in Campbell v. Acuff-Rose Music, Inc., emphasized that “parody has an obvious claim to transformative value,” as “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” Finding that the critical first factor, the purpose and character of the use, weighed in favor of Lombardo, the court stressed the play’s parodic nature, “imitating the style of the Grinch for comedic effect and to mock the naïve, happy world of the Whos.”
Glossing over the second factor, the court went on to analyze factor three, the amount and substantiality of the portion of the copyrighted work used. Acknowledging the unique difficulties presented by parodies, the court observed that the third factor hinges on the persuasiveness of a parodist’s justification for his copying and requires “recognizable allusion to its object” in order to comment on it. The court held that even though Who’s Holiday! used the Grinch’s characters, setting, plot, and style, it did so for the object of parody. The play neither copied nor quoted the original directly, recounting the plot merely in order to invoke it. The Second Circuit agreed with the district court that this factor weighed in favor of Lombardo.
For the fourth factor, the effect upon the potential market or value of the original work, the Second Circuit upheld the district court’s finding of there being little risk of market harm without elaboration or exposition. During oral argument, however, the court had addressed whether Lombardo had impinged upon the estate’s rights to license the story. Judge Pooler aptly stated, “No one would suggest that children should see this play,” and, as such, that there would be dissimilar audiences for each work. The district court had proffered a similar analysis, having dismissed concerns that the play would impact future licensing opportunities for the book, as the parody was “clearly intended for adult audiences.”
Potential parodists will be pleased with the outcome of Lombardo, and the decision should give content owners pause about enforcement strategy when it comes to uses that could reasonably be deemed legitimate parodies. Succinctly outlining the present state of the Second Circuit’s approach to fair use for parodic works, the decision upholds the liberal view of parody that has survived the 24 years since Campbell. The Second Circuit simply was not convinced by the Dr. Seuss estate’s novel arguments attempting to circumscribe the strong tendency to deem parody a fair use, and ultimately did not embark upon any great departure from settled law. This is not to say that all alleged parodies will be considered fair use; the analysis is still extremely fact-specific. However, parody remains one of the most protected types of secondary use under the fair use framework.