It Takes All Sorts of Torts, Indeed!

A copyright dispute late last year forced a holiday play to go dark before the Rockefeller Center tree was ever lit. The It Takes All Sorts of Torts, Indeed! by Mark Kaufmansuit centers around the play Who’s Holiday by Matthew Lombardo. No, the dispute is not over the apparent typo in the play’s name. Rather, it is that the defendant’s play is based on the character Cindy Lou Who from the beloved Dr. Seuss book The Grinch Who Stole Christmas. Whether the play is an unauthorized derivative work (from the perspective of the Dr. Seuss estate) or a parody (from the perspective of the playwright) is what the court ultimately may need to decide.

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.    

This sounded like a pretty clear parody to me, but Dr. Seuss’s estate wasn’t satisfied. According to the estate, its attorney sent “cease and desist” demand letters to Lombardo personally, as well as to the LLC that controlled the play. Defendants failed to respond to any of the letters, the estate said, so they turned their attention to the Shubert Organization, which owns the theater where Who’s Holiday was set to run. (The business of theater is, essentially, the business of real estate.)  Lombardo’s version of events casts him as the innocent one, claiming that he never received any demand letters from the estate; that the play was a parodic fair use of a Dr. Seuss character and the story; and that the estate did not even read the script in advance of contacting the theater’s owner.

What is not in dispute is that the Shubert Organization shuttered the play after receiving the demand letters from Dr. Seuss’s estate.

Citing $75,000 in lost ticket sales, and an approximately equal amount in production costs, Lombardo sued the Dr. 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 estate responded with a motion to dismiss, asserting that the Shubert Organization did not breach the contract, but instead terminated it. It claims that because nothing in the letters “is dishonest, unfair, improper, malicious or unlawful or reflects that the letters were sent solely to harm plaintiffs,” it does not constitute tortious interference. This is an interesting nuance that hinges on the difference between a party breaching a contract and simply choosing to no longer do business with the other party.

To paraphrase the latter-day Bard, “A lawsuit’s a lawsuit, no matter how small…” Lombardo et al v. Dr. Seuss Enterprises, L.P., 16-cv-09974 (AKH) is ongoing in the District Court of the Southern District of New York.

Mark Kaufman

Mark S. Kaufman
Kaufman & Kahn
kaufman@kaufmankahn.com

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