Earlier this year I wrote about a copyright dispute between playwright Matthew Lombardo and the estate of beloved children’s author Dr. Seuss. The issue was whether Lombardo had infringed on the Seuss copyright with his derivative play Who’s Holiday — or whether the play constituted fair use. As I wrote back in March:
Who’s Holiday is a profane, one-woman show that documents the life of Cindy-Lou Who after the denouement of Grinch. It finds Cindy living in a trailer park, after having married the Grinch, whom Cindy had murdered (allegedly in self-defense), before the curtain lifts.
After having his show shuttered because of the Seuss Estate’s infringement claims, Lombardo filed suit against the Estate for tortious interference:
Citing $75,000 in lost ticket sales, and an approximately equal amount in production costs, Lombardo sued the Seuss Estate, alleging that the estate tortiously interfered with the producer’s contract with the Shuberts. The producers wrote, “Before sending its letters, defendant — a sophisticated copyright owner who has litigated fair use in other cases — should have read the play and relevant case law … in order to analyze in good faith whether it constitutes copyright infringement.”
The court rejected Lombardo’s complaint of tortious interference, but on September 15, Judge Alvin K. Hellerman of New York’s Southern District granted Lombardo summary judgment and the declaratory judgment he sought, calling Who’s Holiday a transformative work — and therefore fair use. The court also dismissed the Seuss Estate’s counterclaims for trademark infringement and dilution.
Judge Hellerman applied the four-point test set forth in the Copyright Act, Section 107, to determine fair use:
- Purpose and character of use: The court found that Who’s Holiday “subverts the expectations of the Seussian genre,” which, by definition, is transformative use.
- Nature of the copyrighted work: Central to finding for the playwright, the court held that Who’s Holiday was parodic.
- Amount and substantiality of the use: Judge Hellerman wrote that “the use of Grinch is not excessive in relation to the parodic purpose of the copying.”
- Effect on the potential market for the copyrighted work: The court reasoned that the adult nature of the play’s content targeted a completely different audience than Dr. Seuss’s intended audience of children.
Notably, the court expressly distinguished this case from the other decision we recently discussed about the use of “Who’s on First” in the play Hand to God. In that case, the use of the entire, well-recognized Abbott and Costello routine was not transformative; rather, it was merely repeated (admittedly, via a sock puppet). It wasn’t made as something new, or mocked, or critiqued.
But in the context of this play, they’re making an entirely new work and commenting on the original Dr. Seuss work: “[In the Grinch], no problems trouble the residents of [Who-Ville], who have been blessed with an indomitably optimistic spirit that not even the Grinch can defeat. In the Play, by contrast, Who-Ville is plagued by problems and real-world challenges[:]…. Unemployment … criminal justice… foster care… families struggle to put food on the table…”
What’s curious to me about this case is that the declaratory judgment might be a pyrrhic victory, considering that the court dismissed Lombardo’s tort claim (for damages, resulting from the Seuss Estate scaring the theater owner into shutting down the play). As a practical matter, it’s not clear whether there’s enough money to open the show again. But, if there is, we know that the Grinch-like Estate of Dr. Seuss cannot stop the show from going forward.
I, for one, hope this play has its day,
and lives once again to be shown Off Broadway.
Mark S. Kaufman
Kaufman & Kahn
747 Third Avenue
New York, NY 10017
Tel. (212) 293-5556
Fax. (212) 355-5009