Joy in Who-Ville? Playwright Wins Fair Use Copyright Dispute in Parody of “Grinch”

Kelley Drye & Warren LLP

It’s not quite what Dr. Seuss envisioned: Kind-hearted and cheerful Cindy-Lou Who from the childhood classic “The Grinch That Stole Christmas” becomes a cynical adult who was thrown in prison after murdering her abusive husband, the Grinch.  Such is the premise of “Who’s Holiday!” – a play characterized by its playwright as “a dark comedic work with explicit language geared towards only adult audiences.”

The Southern District of New York recently agreed with the playwright that the play constituted fair use and therefore did not infringe on Dr. Seuss Enterprises L.P.’s copyright in the well-known children’s book or related trademarks.  See Lombardo et al. v. Dr. Seuss Enterprises, L.P., Case No. 1:16-cv—09974 (S.D.N.Y. Sept. 15, 2017).  The ruling allows plaintiffs to proceed with the show’s off-Broadway run, after the performances were delayed in November 2016 following cease and desist threats from Dr. Seuss Enterprises.

U.S. District Judge Alvin K. Hellerstein found that the play serves as a parody of Grinch and thus is a transformative work because it “recontextualizes Grinch’s easily-recognizable plot and rhyming style by placing Cindy-Lou Who – a symbol of childhood innocence and naiveté– in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teen-age pregnancy, drug and alcohol abuse, prison culture and murder.”

“Who’s Holiday” – We’re Not in Who-Ville Anymore

The plot of the play in question reads more like a tawdry novel than of a timeless children’s tale for the holiday season.  “Who’s Holiday” takes place 43 years after the end of Grinch and chronicles Cindy-Lou’s traumatic relationship with the Grinch character.  Cindy-Lou – who now drinks hard alcohol and abuses prescription pills – tells the audience that she engaged in sexual intercourse with the Grinch when she turned eighteen, resulting in a pregnancy.  She married the Grinch (“When I told my parents they weren’t pleased in the least / I mean, who wants their baby girl deflowered by a beast”) and moved into his cave at the top of Mount Crumpit.

As the marriage deteriorated after years of unemployment, lack of heat and hunger, Cindy Lou and the Grinch engaged in a physical struggle which resulted in the Grinch falling off a cliff and dying.  Cindy Lou was arrested for his murder, convicted and sent to prison.  The play begins soon after her release from prison, as she speaks to the audience in rhyming phrases while purportedly waiting for guests to arrive for a Christmas party.

In a commentary on the play’s plot, the court noted: “[T]he Play subverts the expectations of the Seussian genre, and lampoons the Grinch by making Cindy-Lou’s naiveté, Who-Ville’s endlessly-smiling, problem-free citizens and Dr. Seuss’ rhyming innocence, all appear ridiculous.”

Fair Use and Parody

To promote science and the arts, courts have developed the fair-use doctrine, which permits unauthorized copying in some circumstances, with the goal of furthering copyright’s purpose.  According to one of copyright law’s seminal cases – Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994) – the “threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived.”  Id.  In Campbell, the Supreme Court determined that the defendant’s rap video parodied the notable “Oh Pretty Woman” song because the rap video was “clearly intended” to invoke, and scorn, the original song.

Seuss Enterprises claimed that “Who’s Holiday” infringed on its intellectual property rights because the play “does not poke fun of, ridicule, comment upon, criticize, or otherwise transform Grinch.”  Instead of a parody entitled to fair use protection, Seuss contended that the play was a sequel – a derivative work subject to copyright laws.  Seuss asserted: “Turning Charlie Brown into a middle-aged drug addict would not be parody, and turning Cindy-Lou Who into a middle-aged widow is not parody, either.”

The playwright plaintiff, on the other hand, argued that the play was an obvious parody in that it contrasted Cindy-Lou Who’s innocence and cheer with R-rated topics such as profanity, teen-age pregnancy, drug and alcohol abuse, domestic violence and murder.  Additionally, the playwright claimed that the play was transformative in that it “contains original dialogue, a newly devised plot, and the structure, tone and themes of the Play are materially different from that of the Grinch.”

The court agreed with plaintiffs, in finding that the play needed to evoke the style and message of Grinch in order for there to be an object of the parody. By poking fun at the “utopic depiction of Who-Ville,” the play “turns these Seussian staples upside down and makes their saccharin qualities objects of ridicule.”  The play was not, as the Seuss estate asserted, a duplicate of the children’s classic designed “to avoid the drudgery in working up something fresh” but instead functioned as a reimagining that merely played on the book’s premise.

Thus, the court held that the play constituted fair use and did not infringe on Seuss’ copyright in Grinch.  The court also determined that the play wouldn’t impact the market for the original Grinch, because there was no logical claim that the two would serve as competing substitutes, or, as the court wrote, “no possibility that consumers will go see the play in lieu of reading ‘Grinch’ or watching an authorized derivative work,” since they would appeal to such different audiences.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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