Updated: December 21, 2021
In 2018, the Second Circuit Court of Appeals in New York City affirmed a ruling of the Southern District of New York which held that Who’s Holiday—a modern play in which the main character, Cindy-Lou Who from Dr. Seuss’ How The Grinch Stole Christmas, is now an adult, humorously engaging in adult behavior—is a parody, protected from copyright infringement by fair use.
This protection means that the creators of Who’s Holiday, though they are obviously appropriating and performing original creative elements of 1957’s Grinch, do not need to obtain permission from Dr. Seuss Enterprises to perform the play.
The case was originally appealed to the Second Circuit after the playwright of Who’s Holiday sued for a declaration that their send-up of The Grinch was protected from infringement liability as fair use. The lower court granted the playwright’s declaratory judgment, holding in relevant part that the four fair use factors properly classified Who’s Holiday as a parody.
The Copyright Act, 17 U.S.C. section 107, sets forth four non-exclusive factors which courts consider in “determining whether the use made of a work in any particular case is a fair use” and therefore not requiring permission of the owner of the original work to perform. These four factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Courts ruling on the first factor analyze to what extent a secondary work is “transformative” of the original work. In the Grinch case the trial court held that parodies can be transformative, but only where they imitate and ridicule an original work’s characteristic style for comic effect. Dr. Seuss Enterprises argued that the play merely usurped a commercial work, but the court disagreed. In comparing the two works in detail, the court held that Who’s Holiday was clearly parody that poked fun at Grinch, using stylistically similar rhyming couplets from Grinch to imply bawdy or vulgar punch lines to jokes, or to mock the nonsense words used by the Whos of Whoville (take, for example the song “Fahoo Fores Dahoo Dores” or the Grinch’s “goo-goo-gums” or “foo-foo-fluffs”). The trial court ultimately held that all this amounted to a play transformed from Grinch. Accordingly, Who’s Holiday properly altered the original work with a new meaning and message. Because of this transformative nature, the trial court held that the fact that Who’s Holiday is a commercial work accordingly did not weigh heavily against a fair use finding.
The trial court disposed of the remaining three factors in relatively short order. As to the second, the court held that the nature of a copyrighted work does not weigh heavily where parodies tend to be copies of well-known, expressive works, and so this factor had little bearing on the case. The third factor favored fair use, the court held, because parodies are permitted a more extensive use of the original work than would ordinarily be acceptable, and therefore determined that Who’s Holiday took a reasonable amount of Grinch in proportion to the need of the parody. Finally, the court held the fourth factor strongly favored fair use where, due to the adult nature of Who’s Holiday, it would be virtually impossible for consumers to seek out the play if they were looking for the 2000 film or the children’s book.
The Second Circuit agreed with the trial court’s reasoning and summarily affirmed the lower court’s finding that Who’s Holiday was a protected fair use parody of Grinch. In assessing the third factor specifically, the court referenced a 1994 U.S. Supreme Court case, Campbell v. Acuff-Rose Music, Inc., in which the Court held:
“Parody presents a difficult case. Parody’s humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to conjure up at least enough of that original to make the object of its critical wit recognizable.
What makes for this recognition is quotation of the original’s most distinctive or memorable features, which the parodist can be sure the audience will know. Once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the [work’s] overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original. But using some characteristic features cannot be avoided.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (emphasis added).
Accordingly, parodists should be cautious to use the original’s most distinctive and memorable features only for recognition and identification of the original and beyond that only add original elements with the overriding purpose to parody the original. Be aware; even a seemingly obvious parody may require litigation to determine that it is a fair use.
Applying the ruling in Campbell to this case, the Second Circuit held: “While the Play does use the Grinch’s characters, setting, plot, and style, it is in service of the parody. The Play does not copy verbatim or quote from the original book, and while it does recount the plot, it does to invoke the original.” (emphasis added.)
Therefore, the transformative purpose of the use counts. The purpose should be in service to the parody – to conjure the essence of the original work, and then to add starkly contrasting original elements to parody the original. Essentially, the purpose should be, as the court held in Campbell, “distorted imitation.” The parodist should also aim to ensure the parody occupies an entirely different market space than the original work.
As is the case in most areas of copyright law, however, there are no bright line, quantitative rules for how much of a certain kind of use is infringement and how much is not, which is why litigation still tests them – and why Dr. Seuss Enterprises opted (unsuccessfully) to try to put a stop to Who’s Holiday. “You’re a mean one, Mr. Grinch.”
If you have questions about fair use or possible copyright infringement of your own work, consult with an experienced attorney to learn more about your rights and obligations.