“Who” Says What’s Fair Use?

ILN IP Insider

James P. Flynn, Member of the Firm and the Managing Shareholder of the firm’s Newark office, authored an article in ILN IP Insider, titled “‘Who’ Says What’s Fair Use?”

Following is an excerpt:

Bloggers naturally desire to write about new developments and new cases.  But, because writing on legal topics is often like pulling snap shots out of a film, there is also sometimes a feeling that one is obliged to return to a previously noted case to report back on the rest of the story (as one might say (if named Paul Harvey)).  So it is today for this blogger, as he reports on the developments in a case that occurred after the previous blog post freeze frame.

While tempted to return to Naruto and the “monkey selfie” case on which we previously commented, we cannot quite tell the rest of that story since there remains in play a motion for rehearing en banc.  By way of update though, we can mention that the United States Court of Appeals in an April 13, 2018 order rejected the parties’ efforts to moot the case, holding that “denying the motion to dismiss and declining to vacate the lower court judgment prevents the parties from manipulating precedent in a way that suits their institutional preferences.”  That Court thereafter found in a 2-1 panel decision on April 23, 2018 that Naruto, a monkey, had constitutional standing under Article III but lacked statutory standing under the Copyright Act.  But on May 25, 2018 an anonymous lone judge on the 9th Circuit has requested rehearing en banc.  Once that motion is ruled on, we can perhaps tell the rest of the story there or, because of recent developments in other fields, combine Naruto with Seuss in the same way that we combined Star Trek and Seuss.

Instead, we return to Whoville, and the matter of Lombardo v. Dr. Seuss, 279 F. Supp. 3d 497 (SDNY 2017) and its July 2018 appellate affirmance, to tell the rest of the story of an interesting case of the fair use doctrine in the copyright context.  Since we last reported on that case, both the United States District Court for the Southern District of New York (in August 2017) and the United States Court of Appeals for the Second Circuit (in a few weeks ago) held that the play Who’s Holiday! (the “Play”), a comedic play that makes use of the characters, plot, and setting of the Dr. Seuss book, How the Grinch Stole Christmas! (“Grinch“), was a parody protectable as non-infringing fair use.  Because those decisions not only represent further developments in a case previously blogged about here, but also represent an evolution in the parody/fair use jurisprudence also addressed on one or more occasions here, it seemed fitting to tell the rest of the story. ...