Suess v. Gerrold, et al – Getting the Ball Rolling

Janet Gershen-Siegel

Jespah (Janet Gershen-Siegel) has been a fan of Star Trek since probably the first set of reruns of The Original Series. She has an eclectic background, including an undergraduate degree in Philosophy, a JD (she practiced insurance defense law for a few years in New York and is a lot happier since she retired from that in 1990), and a MS in Interactive Media, which is a real-live social media degree.

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.

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.

Suess v. Gerrold, et al – Getting the Ball Rolling

Suess v. Gerrold, et al – Getting the Ball Rolling

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

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.

Attorney Michael Licari of D'Egidio Licari Townsend & Shah - ball rolling

Attorney Michael Licari of D’Egidio Licari Townsend & Shah

Pro Hac Vice Petition

Booth Pro Hac Vice Petition

And then attorney Dan Booth of Booth Sweet LLP (here in Cambridge, Mass!) applied for pro hac vice admission. In addition, the chance of this petition succeeding is extremely high.

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.

Attorney Dan Booth of Booth Sweet - ball rolling

Attorney Dan Booth of Booth Sweet

Joint Motion for a Stipulated Extension of Time to Answer

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.

Booth Affidavit

Dan Booth Affidavit

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

Notice of Motion/Motion to Dismiss

Because there is not too much here, I will instead comment on the Memorandum of Points and Authorities, infra.

Memo of Points and Authorities

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:

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

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)

Dan Booth Affidavit Supporting Motion to Dismiss

For the most part, the Booth affidavit consists of descriptions of the exhibits, infra.

Request for Judicial Notice #2

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

Corporate Disclosure Statement

ComicMix states:

… 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.

Exhibit #1

Exhibit #1

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.

Exhibit #2

Exhibit #2

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.

Exhibit #3

Exhibit #3

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.

Exhibit #4

Exhibit #4

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.

Exhibit #5

Exhibit #5

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.

Exhibit #6

Exhibit #6

Finally, this exhibit consists of a copy of the Dr. Seuss book, Oh, the Places You’ll Go!

Order Setting Briefing Schedule

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.

What’s Next?

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.

Janet Gershen-Siegel

Jespah (Janet Gershen-Siegel) has been a fan of Star Trek since probably the first set of reruns of The Original Series. She has an eclectic background, including an undergraduate degree in Philosophy, a JD (she practiced insurance defense law for a few years in New York and is a lot happier since she retired from that in 1990), and a MS in Interactive Media, which is a real-live social media degree. 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.

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  1. Pingback: ComicMix Moves For Dismissal of Seuss Lawsuit | File 770

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