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Suess v. Gerrold, et al – Getting the Ball Rolling
We get the ball rolling with the Dr. Seuss Enterprises vs. David Gerrold, et al case. Because a number of new filings start the case in earnest right before the 2016 holidays.
First of all, these documents are a matter of public record and I have paid for them. Hence I offer them to you freely and without reservation. Furthermore, if you feel an explanation was rushed (or is missing altogether), please hit me up on the Contact page and I will try to respond in a timely fashion. The judge assigned to this case is the Honorable Janis Sammartino.
Defendant ComicMix Notice of Appearance
First of all, Michael Licari of D’Egidio Licari Townsend & Shah filed a notice to appear as counsel for ComicMix. And note: he does not list the other defendants, Glenn Haumann, David Gerrold, and Ty Templeton. Why not? Because he does not have to; Haumann in particular gets included as a part of ComicMix.
Pro Hac Vice Petition
In addition, Mr. Booth is a graduate of the Columbia School of Law. In his petition, he identifies Mr. Licari as his local counsel for this matter. Hence we will likely see Mr. Licari making most of the appearances until the rubber really hits the road.
Joint Motion for a Stipulated Extension of Time to Answer
In addition, as we would expect, defendant ComicMix moves for an extension of time to answer the complaint. And Judge Sammartino granted it.
Furthermore, in support of the motion, Mr. Booth filed an affidavit. And we learn a few interesting things from it:
- ComicMix tried to negotiate an end to the case and they sought to have the Kickstarter reinstated
- Mr. Booth represented ComicMix and told them the answer was due on December 16, 2016
- ComicMix didn’t retain him formally until December 14, 2016
- Mr. Licari did not get added as local counsel until December 16, 2016
- Because Mr. Booth was not yet admitted pro hac vice, he could not file electronically with the court. Therefore, the answer ended up late
- Finally, due to these technical difficulties, plaintiff’s counsel Marc Miller sent Mr. Booth requests to waive service for the other defendants
- Defense seeks a hearing date of March 16, 2017 for their Motion to Dismiss
Motion to Dismiss for Failure to State a Claim
Notice of Motion/Motion
Because there is not too much here, I will instead comment on the Memorandum of Points and Authorities, infra.
Memo of Points and Authorities
First of all, the memorandum cites some cases we have become somewhat familiar with while following the Axanar case. These include:
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)
- and Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (the Oh Pretty Woman case)
Furthermore, the memo cites a number of Star Trek TOS episodes, including:
- “And the Children Shall Lead” (broadcast Oct. 11, 1968)
- “The Apple” (broadcast Oct. 13, 1967)
- “Arena” (broadcast Jan. 19, 1967)
- “The Cage” (broadcast Oct. 14, 1986)
- “Day of the Dove” (broadcast Nov. 1, 1968)
- “The Deadly Years” (broadcast Dec. 8, 1967)
- “The Devil in the Dark” (broadcast Mar. 9, 1967)
- “Elaan of Troyius” (broadcast Dec. 20, 1968)
- “I, Mudd” (broadcast Nov. 3, 1967)
- “The Menagerie” (broadcast Nov. 17 & 24, 1968)
- “The Savage Curtain” (broadcast Mar. 7, 1969)
- “A Taste of Armageddon” (broadcast Feb. 23, 1967)
- “That Which Survives” (broadcast Jan. 24, 1969)
- “This Side of Paradise” (broadcast Mar. 2, 1967)
- “The Trouble With Tribbles” (broadcast Dec. 29, 1967)
- “What Are Little Girls Made Of?” (broadcast Oct. 20, 1966)
- “Where No Man Has Gone Before” (broadcast Sept. 22, 1966)
- “Wink of an Eye” (broadcast Nov. 29, 1968)
- and “Wolf in the Fold” (broadcast Dec. 22, 1967)
As we might expect, the defenses include parody and fair use. However, while the piece may very well constitute a parody of those several mentioned licensed Star Trek works, it might not be considered a Seuss parody. Furthermore, defense looks to claim that plaintiff fails to state a copyright claim. Much like we saw with Axanar, I suspect either this motion will be denied or plaintiff will be granted the opportunity to amend the complaint so as to include anything missing. This is because many judges do not care for dismissals based up mere technicalities; they can be seen as a waste of the court’s time.
Request for Judicial Notice #1
In addition, the first Request for Judicial Notice (RJN) points out that certain items seem to be, perhaps, missing from the complaint. And these include a full copy of the book in question and the DMCA takedown notice. However, defense provides same, infra.
Dan Booth Affidavit (different from the affidavit supporting the motion to extend time to answer, supra)
For the most part, the Booth affidavit consists of descriptions of the exhibits, infra.
Request for Judicial Notice #2
Since this RJN mainly consists of a vehicle for describing the exhibits, I won’t repeat it here.
Corporate Disclosure Statement
… defendant ComicMix LLC (“ComicMix”), by and through its undersigned counsel, certifies that it is a private
non-governmental entity organized and with a principal place of business in the state
of Connecticut. ComicMix has no parent corporation and no publicly held
corporation owns 10% or more of DSE’s stock.
First of all, this exhibit consists of a correct copy of screenshots reflecting the content of ComicMix’s Kickstarter campaign page as it appeared on or shortly after September 30, 2016, but before October 7, 2016. Furthermore, Glenn Hauman of ComicMix provided the screenshots.
In addition, this exhibit consists of a screenshot Mr. Booth took of a page on Kickstarter’s website reflecting the DMCA takedown notice that DSE sent to Kickstarter as it appeared on the website on December 16, 2016.
And then this exhibit consists of a screenshot Mr. Booth took of a page on Kickstarter’s website where the Kickstarter campaign webpage address redirected as of December 16, 2016.
Furthermore, this exhibit consists of a copy of a letter Mr. Booth sent to DSE (Dr. Seuss Enterprises)’s counsel on or about October 28, 2016.
In addition, this exhibit consists of a copy of ComicMix’s unpublished book, Oh, the Places You’ll Boldly Go!, which Mr Booth transmitted to DSE’s counsel on or about October 28, 2016.
Finally, this exhibit consists of a copy of the Dr. Seuss book, Oh, the Places You’ll Go!
Order Setting Briefing Schedule
Finally, the judge set the following briefing schedule:
- Plaintiff shall file its opposition to the MTD on or before January 19, 2017
- ComicMix shall file its reply, if any, on or before February 9, 2017
- A hearing is SET for March 16, 2017 at 1:30 p.m.
Keep your calendars marked! Because, apparently, initial settlement negotiations failed, we may see the judge push the parties to settle before the matter goes much further. However, stay tuned, as we don’t know how close the parties came. And maybe they’ll keep the ball rolling even longer.