Just over 20 years ago, the U.S. Court of Appeals for the Ninth Circuit (9th Cir.) issued a decision in an interesting case involving two extremely different and yet incredibly important American pop culture touchstones from the 20th century. On March 27th, 1997, the 9th Cir. decided to affirm a preliminary injunction prohibiting the publication and distribution of The Cat NOT in the Hat!, a parody of the O.J. Simpson murder trial told in the style of Dr. Seuss.
In 1995, the same year in which a Los Angeles jury entered a not guilty verdict in favor of O.J. Simpson, author Alan Katz and illustrator Chris Winn created the parody with a title riffing on the 1957 classic by Theodor Seuss Geisel, to satirize aspects of the murder trial. The book was to be published and distributed by Penguin Books and Dove Audio, and it included such snappy lines as:
“A man this famous
When you’re accused of a killing scheme
You need to build a real Dream Team.
Johnnie, won’t you join the crew?
The Dream Team needs a victory.
Truly inspired stuff.
Geisel had passed in 1991 but Dr. Seuss Enterprises filed a copyright and trademark infringement suit against Penguin and Dove seeking the injunction before the work was published. Seuss alleged that The Cat NOT in the Hat! misappropriated protected elements of copyrighted works, infringed upon six unregistered trademarks and one registered trademark and diluted the distinctive quality of the Seuss marks. On March 21st, 1996, the injunction sought by Seuss was granted in district court, enjoining the distribution of 12,000 books, which were published at a cost of $35,000.
Penguin and Dove appealed to the 9th Cir., arguing five points: infringement cannot be based on the parody’s title as titles cannot claim copyright under U.S. Copyright Office rules; lettering designs cannot constitute infringement under rules set by Congress; the anapestic tetrameter poetic scheme employed in the writing of the parody isn’t capable of exclusive ownership; claims of ownership cannot be based upon “whimsical poetic style that employs neologisms and onomatopoeia; and the visual style of line drawing, coloring and shading techniques similar to The Cat in the Hat are non-copyrightable.
Much of this defense relied upon the status of The Cat NOT in the Hat! as a parody of Dr. Seuss’s original work. 9th Cir. cited a definition of parody as defined by now-retired Supreme Court Justice David Souter in the majority opinion in 1994’s Campbell v. Acuff-Rose Music decision. That definition surrounded the use of elements from copyrighted works used to create a new work which, “at least in part, comments on the author’s work. If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition… other factors, like the extent of its commerciality, loom larger.”
The court found that The Cat NOT in the Hat! simply took elements of the Dr. Seuss style from multiple Seuss works and applied them in the retelling of the O.J. Simpson murder trial. The authors of the supposed parody used those elements to retell aspects of the case like Simpson’s trip to Chicago, noises outside of Kato Kaelin’s room at the guest house, Mark Fuhrman finding a bloody glove, the Bronco chase and the assignment of Judge Ito to the case. There was no effort to create a transformative work with “new expression, meaning or message,” the court found.
Penguin and Dove further tried to justify The Cat NOT in the Hat! as a parody by arguing that the story reached a “similar moral dilemma” as the 1957 Seuss classic did.
“The Parody’s author felt that, by evoking the world of The Cat in the Hat, he could: ?(1) comment on the mix of frivolousness and moral gravity that characterized the culture’s reaction to the events surrounding the Brown/Goldman murders, (2) parody the mix of whimsy and moral dilemma created by Seuss works such as The Cat in the Hat in a way that implied that the work was too limited to conceive the possibility of a real trickster “cat” who creates mayhem along with his friends Thing 1 and Thing 2, and then magically cleans it up at the end, leaving a moral dilemma in his wake.”
The decision from 9th Cir. called Penguin and Dove’s fair use defense “pure shtick” and called their characterization of the work “completely unconvincing.” Further, the defendants’ argument that there was no trademark infringement causing likelihood of confusion because of the work’s supposed parodic qualities is not a useful defense against the infringement claim. Penguin and Dove also argued that the injunction was overbroad as the district court found that only the back cover illustration and the Cat in the Hat’s stovepipe hat were infringing elements, so the court shouldn’t have enjoined the entire book. However, 9th Cir. found that the defendants put themselves in the situation of enjoining the whole book; Seuss initiated the action before the book was bound, yet the defendants went ahead with their production schedule.