Big doings in copyright law the week before Christmas! The Congressional approval of a new federal statute providing low-cost, accelerated adjudication of low-value copyright disputes and criminalizing infringing streaming activities will be the subject of a future blog article. Meanwhile, the Ninth Circuit Court of Appeals has reversed a lower court’s holding in a copyright case that could have had a troubling impact on the concept of fair use.
Lawyers familiar with the parody defense in copyright cases know the 1997 case Dr. Seuss Enterprises v. Penguin Books USA, Inc., which pitted the iconic children’s author against an alleged “parody” called The Cat Not in the Hat—a retelling of the O. J. Simpson murder trial in the style of the Dr. Seuss classic The Cat in the Hat. The upshot of that case was that the book was not entitled to the fair-use defense as a parody because it did not criticize or comment on the work of Dr. Seuss, but only appropriated the popular Seuss rhymes and imagery as a medium for commentary on the Simpson trial. A work is not a “parody” if it does not make a comment on the thing it is parodying. Continue Reading