United States: A Christmastime Copyright Tale Featuring A (Very) Grown Up Cindy-Lou Who

Last Updated: December 20 2017
Article by Julia Huston

Are you sick and tired of the Christmas spirit? Apparently, you are not alone. Meet Matthew Lombardo, the author of a comedic play called Who's Holiday! Billed as "the show Dr. Seuss doesn't want you to see," Who's Holiday! is a one-woman play running Off-Broadway until December 31 featuring Cindy-Lou Who as a down-and-out, hard-drinking, Who-Hash-smoking, 45-year old woman recovering from her disastrous relationship with the Grinch.

Although Theodor Seuss Geisel died over 25 years ago, the IP rights to his works are held by Dr. Seuss Enterprises, L.P., and you are darned right that they don't want you to see this play. After Dr. Seuss Enterprises sent a number of demand letters, Lombardo filed a declaratory judgment action seeking a declaration that Who's Holiday! does not infringe any rights of Dr. Seuss Enterprises. As you would expect, Dr. Seuss Enterprises counterclaimed for infringement.

In September, Judge Alvin Hellerstein of the Southern District of New York dismissed the infringement claims on the pleadings on the basis that Who's Holiday! is a parody and that Lombardo's use of Seuss-based copyrighted and trademarked material constitutes fair use. In the true holiday spirit, the parties thereafter bickered about attorneys' fees and whether a bond should be posted pending appeal. Dr. Seuss Enterprises' appeal brief is due on December 21. Ho, ho, ho.

Parody v. Satire

The case is a useful reminder of the difference between parody (which generally qualifies for fair use protection) and satire (which does not). In a parody, the accused work refers to the copyrighted work in order to make fun of or otherwise comment upon the work itself. A satire, by contrast, uses elements of the copyrighted work as a springboard for something new that may not relate to the original work at all.

Parody cases are not always intuitive, particularly where the challenged work is not commenting upon the copyrighted work directly but rather the ideas or themes that are perceived from it. In Campbell v. Acuff Rose Music, Inc., the Supreme Court found that "Big Hairy Woman" by 2 Live Crew was a non-actionable parody of the Roy Orbison classic "Oh, Pretty Woman," in part because it substituted shocking lyrics for predictable ones, thus derisively demonstrating how "bland and banal" the Orbison song seemed to 2 Live Crew. As the Supreme Court stated, "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." These challenges are evident in the case of Who's Holiday!

Lombardo's Vision of a Grown-Up Cindy-Lou Who

In a lengthy and interesting opinion, Judge Hellerstein described the Who's Holiday! play as follows:

The Play takes place at Cindy-Lou's 1970s era trailer in the hills of Mount Crumpit. Cindy-Lou speaks to the audience only in rhyming couplets that are clearly intended to evoke the work of Dr. Seuss. While waiting for guests to arrive for her Christmas party, Cindy-Lou tells the audience the story of her life, beginning with her first encounter with the Grinch at the age of two. Throughout the Play, as she shares her history, Cindy-Lou drinks hard alcohol, abuses prescription pills, and smokes a substance she identifies as "Who Hash," which she describes as just "like a prescription" which keeps her in check to avoid a "conniption." She engages in this self-medication following her realization that none of the guests she invited to her party is likely to attend, as they keep calling throughout the Play to cancel.

As Cindy-Lou recounts her initial encounter with the Grinch and his subsequent change of heart, paralleling the plot of the original Grinch, she incorporates age-inappropriate language and details that do not appear in the original work. ("I watched for a while as he was stealin' our shit / Then I cooed by mistake and he saw me. That twit."); ("How would I know he was evil or crass? / He gave me some water. Then patted my ass."). After recounting the plot of the original Grinch, Cindy-Lou goes on to tell the audience — using rhymes involving bawdy, ribald innuendo — that she became friends with the Grinch during her school-age years, and that she engaged in sexual intercourse with the Grinch upon turning eighteen. Cindy-Lou refers to the size of the Grinch's genitalia growing "three sizes that day." After learning that she is pregnant, Cindy-Lou informs the Grinch, who asks her to marry him. Over her parents' protestation ("When I told my parents they weren't pleased in the least / I mean, who wants their baby girl deflowered by a beast."), Cindy-Lou marries the Grinch, moves into his cave at the top of Mount Crumpit, and gives birth to their child ("With the fur and the paws it looked just like its Daddy / With no who dilly attached, I named the kid Patti.").

As the years go by, Cindy-Lou and the Grinch's relationship begins to sour as they struggle with issues such as unemployment, access to health care, lack of heat, and hunger. One day, Cindy-Lou discovers that the family dog Max has frozen to death, and she decides to cook his carcass in order to feed her family. When the Grinch discovers what his dinner is made of, he attempts to physically abuse Cindy-Lou. During the ensuing scuffle, the Grinch falls off the edge of a cliff and dies. Following the Grinch's death, Cindy-Lou is arrested, convicted and incarcerated, and her daughter is put into foster care. After describing how her time in prison ultimately made her stronger and wiser, Cindy-Lou eventually finds out that all of her guests have declined to attend her party and begins to cry. It then dawns on her that she can celebrate Christmas with the audience instead. After singing a few Christmas songs, the door bells rings. Cindy-Lou expects it to be a local prankster, but it turns out to be her daughter, Patti.

The Fair Use Holding

In holding that Who's Holiday! is subject to the copyright fair use doctrine, Judge Hellerstein referred on several occasions to Judge Loretta Preska's opinion in Adjmi v. DLT Entertainment, in which the Court reviewed a similarly dark Off-Broadway take on the television program Three's Company (we blogged about that opinion here). Like Judge Preska, Judge Hellerstein applied the familiar four-part fair use test and determined that the play is a parody and not a satire:

The Play 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. In so doing, the 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.

Judge Hellerstein went on to find that Lombardo did not use an excessive amount of the copyrighted material in relation to the parodic purpose of the copying, and, well, you can guess the rest. Judgment was entered for Lombardo on the trademark and copyright claims.

But it is not over until it is over, and the Second Circuit will have its say. Dr. Seuss Enterprises may yet stop Christmas from coming – for Lombardo, at least – but it will not be until Christmas 2018.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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