Along the way, she has about a decade and a half of data analysis work under her belt and currently works as a blog coordinator for a high-end wedding blog and also as a blogger for hire (topics include diverse subjects like ad retargeting but also the nursing job market), and has a shingle out to work on social media presence, with a focus on independent authors as she is also a published science fiction author. Plus, she has been a community manager for a large Q & A website since 2002, which is before that existed as a job title.
She was raised on Long Island so, when she is riled up, the accent gallops back out and she can sound like Fran Drescher with a law degree. She lives in Boston with her husband of over 20 years and more computers than they need.
She can always be bribed with pie.
Latest posts by Janet Gershen-Siegel (see all)
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Seuss v. ComicMix Amended Complaint
Because I don’t exactly have a lot of time these days, I will summarize a lot of the document. Want copies? Ask! This is a matter of public record and, as a member of the public, you have the right to know.
As you might or might not know, most court cases do not move that quickly. There are rarely any big gotcha moments in the law, despite what you have seen on television and in the movies. Frankly, a lot of the law is almost clerical in nature. File this, change that bit of wording. Lather, rinse, repeat.
So let’s delve into this lovely amended complaint, shall we?
A Look at the Documents
This bad boy is 31 pages long and comes from the DLA Piper firm. Namely, Gina Durham, Stanley Panikowski, Tamar Duvdevani and Ryan Compton. And as you may recall, the original complaint did not survive motion practice because the trademark infringement claim failed. However, that of course did not mean the case was over. It’s not, and so now we have a much clearer complaint.
Essentially what we now have is a number of side by side comparisons between the original and the copy, plus the trademark claim is gone, gone, gone. In addition, this pleading outlines some of the ramp up to the start of the case. But first, let’s look at some of the side by side stuff.
Side by Side
First of all, please note that we already looked at these comparisons. They were on page 8 of the original complaint, which I analyzed here.
So, why are we seeing the same image, but six pages later? It’s because the plaintiffs laid a foundation for their ownership of the intellectual property in question, plus they provided information on licensing. And because this intellectually property holder does grant licenses, that could turn out to be important in this matter.
Dollars to doughnuts, if this case goes to trial, at least one of the lawyers will make the argument that the defense could have at least asked about a license and that there were clear methods of doing so. But let’s not put the cart before the horse.
In addition, I would like to address something else that keeps coming up (helfino why) as some folks have latched onto it as somehow being a lot more vital than it really is. And they have taken it to carry a kind of ‘unfairness’ banner. Personally, I feel it’s clutching at straws. I’ll explain.
The Cease and Desist Letters
What Dr. Seuss Enterprises Did
First of all, on page 19, paragraph 50, it states:
After learning of Defendants’ unauthorized use and planned uses of the Dr. Seuss Intellectual Property in the Infringing Work, on or about September 28, 2016, the undersigned counsel for DSE sent Defendants a letter asserting DSE’s exclusive rights in the Dr. Seuss Intellectual Property, and stating that Defendants’ use thereof was an infringement of DSE’s rights. The letter demanded that Defendants immediately cease all use of the Dr. Seuss Intellectual Property.
This is what’s commonly called a cease and desist letter. Hence the plaintiff, Dr. Seuss Enterprises, sent a letter telling the defendants to knock it off. They clearly did not, and that’s why we are where we are.
But wait, there’s more!
So then on page 20, paragraph 57, it says:
On or about October 28, 2016, counsel for Defendant ComicMix sent a letter to the undersigned counsel for DSE responding to DSE’s October 7 takedown notice to Kickstarter, refusing DSE’s demands to cease all use of the Dr. Seuss Intellectual Property, threatening to pursue claims for tortious interference, unfair business practices, and violations of 17 U.S.C. § 512(f), and advising that Defendants would be sending a counter-notice, pursuant to 17 U.S.C. § 512(g)(3), to Kickstarter to reinstate its campaign.
N.B. 17 USC § 512 refers to limitations on liability relating to material online. Or, as the kids on the street call it, it’s the Digital Millennium Copyright Act (DMCA).
Hence the plaintiffs sent a C & D letter in September, and then in October, defense fired back. Defense also said they would file a counter-notice. More that later.
What CBS Did
In addition, further down on page 20, paragraph 59, it states:
On or about February 27, 2017, counsel for CBS Studios, the owner of the intellectual property in Star Trek, sent Defendants a letter asserting CBS Studios’ exclusive rights in the intellectual property in Star Trek, and stating that Defendants’ use thereof was an infringement of CBS Studios’ rights. The letter demanded that Defendants immediately cease all use of the intellectual property in Star Trek.
Because CBS did not join in this lawsuit, there are a few possible scenarios:
- Defense said: OMG! We’re infringing! We’re sorry!
- CBS’s lawyers did a bunch of research and determined that Dr. Seuss Enterprises had the best case and that they (CBS) might be confronted with a successful defense on the basis of parody and/or satire.
- CBS is waiting and seeing what happens before potentially joining the suit as a plaintiff.
It’s highly likely that the answer is – everything but #1. Because, after all, if the defense ceased and desisted with CBS, then pretty much by definition they would be doing so with Dr. Seuss Enterprises, yes?
Why People Are Going Bonkers
Well, there are lots of reasons why people might be going bonkers (I’m using the cleaner term here, folks), but in this instance it is due to the claim that, in the Axanar case, CBS (and Paramount) did not send a C & D. Instead, they essentially told defense to knock it off via an article in The Wrap. And then when that didn’t work, CBS and Paramount filed suit.
Why Didn’t CBS and Paramount send a C & D to Axanar and Alec Peters?
The truth is, they didn’t have to (and they also were under no obligation to send one to ComicMix, either). A C & D letter is not a prerequisite to an intellectual property infringement lawsuit. Furthermore, there are reasons not to send a C & D:
- Why bother sending a C & D if you truly believe the recipient will just ignore it?
- A C & D could potentially create a situation where the recipient would try to file for a declaratory judgment that they were not in violation of copyright. While such judgments can be fought, that would have created more headaches for CBS and Paramount.
- When an infringement is ongoing, sending a C & D just delays the inevitable lawsuit, while the defense continues to rack up violations and damages.
But They Should Have Sent One to Alec Peters and Axanar!
Except they didn’t have to, and it most likely would have only delayed the inevitable while compounding the damages.
But That’s Not Fair!
Actually, it is.
Hear (read) me out. Large intellectual property holders deal with copyright threats all the livelong day. Some threats are larger than others.
I direct your attention to Lenz v. Universal Music Corp., 801 F.3d 1126 (2015).
Can you hear the music at all on that short video? I confess it’s hard for me to hear it. It seems innocent, right?
It’s a half a minute long and parts of the video don’t even have music. The sound quality is spectacularly bad. Yet Stephanie Lenz received takedown notices.
Yes, Prince sent a takedown notice for the unauthorized use of Let’s Go Crazy.
And, c’mon, that’s nuts.
The courts agreed. Essentially, they said that a DMCA takedown notice should not be sent out without first considering fair use.
I bring this up not to argue fair use, but to point out that some infringements are far, far smaller than others. Prince Rogers Nelson could have used a lesson in understanding perspective and degree.
The point I am making is that a business/legal decision was made by CBS to send a C & D to ComicMix. Perhaps they felt ComicMix would comply. Maybe they thought the infringement wouldn’t be ongoing. Or maybe they felt, as I mentioned above, that a parody defense had too good a chance of being successful.
In addition, a business/legal decision was made by CBS and Paramount to not send a C & D to Peters and Axanar. I’ve already outlined possible reasons why so I won’t repeat them.
So You Mean Axanar Was So Awesomesauce That it Was a Huge Threat to CBS and Paramount?
What I mean is that there are differing degrees of infringement, with differing potentials for harm. And there are some infringement circumstances where sending a C & D would be advisable. Clearly, CBS felt that was the case with ComicMix. And there are other infringement situations where sending a C & D would be a waste of time and wouldn’t make a damned bit of difference. Guess which camp Axanar and Peters are in?
But That’s Not Ethical!
Actually, it is. You see, like I wrote above, Lenz was a small infringement. Yet Nelson went ballistic. ComicMix (to CBS) was a moderate to small infringement where they felt a C & D might have a chance of working. And Axanar and Peters, to CBS and Paramount, were seen as having the potential to be ongoing infringers.
After all, the whole infringement shebang had been going on there for a few years already. It had branched into a donor store, to ideas being kicked around about books and games, to ideas about a series and about a convention, and even to coffee. Furthermore, the production billed itself as being an “independent Star Trek film”, rather than a fan film, and it paid salaries to its people (and not just minimal SAG required amounts). And it did not seem to be showing any signs of letting up. Hence CBS and Paramount made a business decision to move ahead with a lawsuit rather than a C & D.
If things were different, the business decision might have differed.
And if my grandmother had wheels, she’d be a wagon.
The bottom line is such: there is no legal reason to treat all infringements the same. And there is no ethical or moral one, either.
Things to Come
Of course there will be more on this case as either it unfolds or it settles or it ends via motion practice. So stay tuned and thank you for listening!
PS YouTube video to come!