Review of Intellectual Property Law Blog

The Grinch Teaches Fair Use

By Angela Curry, J.D. Candidate 2018 on Friday, August 18th, 2017
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It’s not quite Christmas yet but it looks like the Grinch who stole Christmas is making a cameo this summer to teach us all about Parody and Fair Use. Broadway Playwright Mathew Lombardo created a hilariously evil sequel to the famous children’s story How The Grinch Stole Christmas last year and planned to debut the show last November.[1] The play depicts a grown up Cindy-Lou Who, who has married the Grinch at 18, gotten pregnant, is abused by the Grinch, and eventually murders him.[2] Dr. Seuss Enterprises was not so thrilled with this story and sent multiple Cease and Desist letters to Mr. Lombardo, the director of the play, the general manager, and the venue owner where the play was to take place, resulting in the venue owner canceling the production of the play.[3]

In response to the letters, Lombardo filed a complaint in December 2016 alleging Fair Use and Tortious Interference.[4] The tort claims were dismissed with prejudice, leaving the Fair Use claim yet to be heard. The question on the table is whether the play can be accurately described as a parody of the original How the Grinch Stole Christmas. The Lanham Act and Copyright Act allow a Fair Use exception to the prohibition of the use of copyrights or trademarks when the use is done in connection with, “identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.”[5] “A ‘parody’ is defined as a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s owner.”[6] Four factors will be used to determine whether the Fair Use exception applies including: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use on the potential market for, or value of, the copyrighted work.[7]

Reading a few lines of the play makes it clear that Lombardo transforms the original children’s tale into a hilariously evil work of art.[8] Commentators write, “The Play humorously juxtaposes the rhyming innocence of Grinch with, among other things, profanity, bestiality, teen-age pregnancy, familial estrangement, ostracization and scandal, poverty, drug and alcohol abuse, the eating of a family pet, domestic violence and murder.”[9] Noting the recent trend in the expansion of Fair Use Protection,[10] the outcome is more likely to shift in favor of Lombardo.

For more insight into the Fair Use exception involving parodied works, check out Deborah J. Kemp, Lynn M. Forsythe & Ida M. Jones’ RIPL article at http://repository.jmls.edu/cgi/viewcontent.cgi?article=1348&context=ripl.

 

[1] The famous children’s story journeys through the life of a ridiculed little green monster who secludes himself at the top of a mountain and plans the destruction of Christmas in his town of Whoville. His plan is derailed after he is introduced to an adorable little girl Cindy- Lou Who, who reminds him that people can be good, kind, and loving (Dr. Seuss, How The Grinch Stole Christmas (1956)).

[2] See story details, complaint at Matthew Lombardo and Who’s Holiday Limited Liability Company v. Dr. Seuss Enterprises, L.P., 16-cv-09974 (2016).

[3] Id.

[4] Id.

[5] 15 U.S.C. § 1125(c)(3)(A).

[6] Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 260 (4th Cir. 2007).

[7] See Fair Use factors in general, available at https://www.copyright.gov/fair-use/more-info.html.

[8] Lombardo, 16-cv-09974.

[9] See Is a New Play Fair to Dr. Seuss? Available at https://rampages.us/circlearoundthec/2017/01/05/is-a-new-play-fair-to-dr-seuss/.

[10] Jim Burger, How the Grinch Stole Fair Use, Law 360 (August 4, 2017, 11:30 AM EDT).

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