Dr. Seuss Enterprises, LP v. ComicMix LLC

United States Court of Appeals for the Ninth Circuit · 2020 · Property

983 F.3d 443 (9th Cir. 2020)

Updated July 23, 2026

PropertyCopyrightTrademarkFair UseRogers testtransformative useparodycommercial use

Facts

ComicMix created Oh, the Places You'll Boldly Go!, an unlicensed mash-up of Star Trek and Dr. Seuss works, chiefly Oh, the Places You'll Go!, but also Grinch and Sneetches. ComicMix planned to publish and sell the book, launched a Kickstarter campaign, and intentionally designed the title, text, and illustrations to evoke Go!, with side-by-side textual matching and painstakingly close visual copying. ComicMix did not dispute that it copied portions of Seuss's works as accurately as possible, including substantial portions of Go!'s pages and important illustrations from other Seuss works. Seuss, which owns the copyrights and trademarks in these works and licenses derivative projects, objected and sued after cease-and-desist efforts failed.

Issue

Whether ComicMix's use of Dr. Seuss's copyrighted expression in Boldly was protected as fair use under 17 U.S.C. § 107, and whether Seuss could maintain a trademark infringement claim over Boldly's use of Seussian title, font, and style in an expressive work under the Lanham Act. More specifically, the court considered whether Boldly was transformative or parodic and whether the Lanham Act applied under Rogers.

Rule

Fair use requires a case-by-case balancing of the four statutory factors in light of copyright's purposes: purpose and character of the use, nature of the copyrighted work, amount and substantiality used, and market effect. A use is transformative only if it adds something new with a further purpose or different character, altering the original with new expression, meaning, or message; parody requires commentary on or critique of the original work itself. Fair use is an affirmative defense, so its proponent bears the burden of proving it, including bringing forward favorable evidence about relevant markets. For trademark claims involving expressive works, the Lanham Act does not apply under Rogers unless the use of the mark is either not artistically relevant to the work or explicitly misleading as to source or content.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, a small publisher creates an unlicensed picture book called "Oh, the Cities You'll Bike!" It closely imitates the page layouts, meter, and whimsical visual compositions of a famous children's travel-themed book, but swaps in bicyclists, food carts, and bridges to tell a new story about urban commuting, which it plans to sell in bookstores.

If the copyright owner sues and the publisher raises fair use, which is the strongest analysis of the first factor?

Explanation. The majority held that a work is transformative only if it adds something new with a further purpose or different character, altering the original with new expression, meaning, or message. Merely overlaying new content on copied structure, text pattern, and visual composition is repackaging, not transformation. Commerciality still counts against fair use, especially where the use is nontransformative.