Fair Use Friday: Dirty Grinch Parody Transformative, Says Court

On Friday September 15th a judge in the Southern District of New York ruled that a raunchy play based on the Dr. Suess book "How the Grinch Stole Christmas!" amounted to a fair use of the underlying work.

"Who's Holiday!": A Raunchy Grinch Redux

Dr. Suess Enterprises, owner of the 1957 children’s book about a creature who tries to ruin Christmas for the people of the fictitious, utopian town of Who-Ville, threatened playwright Matthew Lombardo with legal action in November 2016 on the eve of a nine-week off-Broadway stint. In response, Lombardo and "Who’s Holiday!" producers sought a declaratory judgment of noninfringement in December; Seuss soon brought counterclaims of copyright infringement, and infringement claims for trademarks in the characters and lettering, which were also used by the play.

The play "Who’s Holiday!" is a one-woman show that imagines the life of Cindy-Lou Who as an adult. In the original, Cindy-Lou was a child who encountered the Grinch as he broke into her house dressed as Santa. However, in the play, an adult Cindy-Lou addresses the audience with rhymes mimicing the style of Seuss books while recounting in raunchy detail her marriage to the Grinch, their low-income life, and her stint in prison after Grinch's death.

Court: Transformative Parody, Not an Unauthorized Sequel

The court, in response to the counterclaimant's argument that the play copied rather than commented on the original work and was thus an unauthorized sequel, said this view “misses the mark,” and ruled that the play is protected by fair use as a "transformative" parody. “The play recontextualizes Grinch's easily-recognizable plot and rhyming style by placing Cindy-Lou Who-a symbol of childhood innocence and naivete — in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teenage pregnancy, drug and alcohol abuse, prison culture and murder,” wrote the judge. “In so doing, the play subverts the expectations of the Seussian genre, and lampoons the Grinch by making Cindy-Lou's naivete, Who-Ville's endlessly-smiling, problem-free citizens and Dr. Seuss' rhyming innocence all appear ridiculous.”

The court found that the play's depiction of Who-Ville as a hard-scrabble world “where young women are impregnated by green beasts, families struggle to put food on the table, paparazzi run rabid and citizens get high on ‘Who Hash’ to escape problems of daily life” was an interpretation that played on the book’s themes, and not a copy that was contrived "to avoid the drudgery in working up something fresh" as Suess had argued.  Judge Hellerstein pointed to other courts that have found mocking of an original work enough to constitute parody, in particular the Campbell v. Acuff-Rose SCOTUS decision, where 2 Live Crew’s song copying Roy Orbison’s "Pretty Woman” was a parody in part because bland lyrics were replaced with “shocking ones.”

"Purpose & Character of the Use" Factor Carries the Day

Not all of the fair use factors went the play's way; the court found that the play served commercial as opposed to educational purposes, and that it copied significant portions and elements from the original, fictional work. However, despite these factors weighing against fair use, the transformative use factor carried more weight in the court's view.

The trademark dilution and of unfair competition counterclaims were also dismissed because “public interest in free expression clearly outweighs any interest in avoiding consumer confusion,” which the court said was unlikely. And although use of images of the original characters on promotional materials was “a closer question,” these uses were also parodic in nature.

Procedural Posture

The outcome was precipitated because the plaintiffs moved for judgment on the pleadings under Rule 12(c), and for dismissal of the counterclaims for failure to state a legally sufficient claim for relief. In granting both motions, the court said a side-by-side comparison of the two works and prior case law was enough to determine fair use, obviating the need for further discovery as requested by Suess. The result in this case runs counter to other recent copyright infringement cases with motions on the pleadings where courts declined to decide fair use at such an early stage.

Photo by Nicholas Gemini (Own work) [CC BY-SA 3.0], via Wikimedia Commons.

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