In an opinion filed on September 15, 2017, Judge Alvin K. Hellerstein of the Southern District of New York held that a comedic play parodying Dr. Seuss’ “How the Grinch Stole Christmas!” qualifies as fair use.
“Who’s Holiday!” is a one-woman play that tells the story of a 45-year-old Cindy Lou Who, a fictional character from the Dr. Seuss book. Performances of “Who’s Holiday!” was originally intended to begin Off-Broadway at New World Stages in November of 2016. However, after receiving multiple cease-and-desist letters from Dr. Seuss Enterprises alleging infringement, the Off-Broadway production was cancelled. Playwright Matthew Lombardo and the play’s producers subsequently filed a claim against Dr. Seuss Enterprises seeking a declaratory judgment that the play constitutes fair use, as well as $130,000 in tort damages for the cancelled production. The estate responded by filing counterclaims alleging copyright and trademark infringement.
Going through the fair use test, Judge Hellerstein first noted that the play qualifies as a parody of Dr. Seuss’ book due to its subversion of “the expectations of the Seussian genre.” The juxtaposition of the easily recognizable Seussian rhyming style with the adult-themed plot of substance abuse, prison culture, and murder successfully ridicules the utopian plot of the book. As a parody, the play is a transformative use and the court dismissed the commercial nature of the use as of little significance. The court similarly gave little weight to the second fair use factor in light of the play’s parodic nature. As for the third fair use factor, Judge Hellerstein found that the play’s use of material from the book was reasonable and not excessive for the purposes of parody. Finally, the court determined that the fourth factor also weighed in favor of Lombardo. Judge Hellerstein opined that it is impossible that consumers will choose to see the play as a substitute for reading the book. Further, the book is intended for an all-ages audience, whereas the play is clearly intended for adult audiences.
Due to the court’s finding of fair use, Lombardo and the show’s producers are expected to be moving forward with “Who’s Holiday!” in November 2017, depending on theatre availability.
Lombardo v. Dr. Seuss Enters., L.P., 2017 U.S. Dist. LEXIS 150213 (S.D.N.Y. Sept. 15, 2017).
Alexandra Alter, “A Green Light Is Given, It’s True, for a Grown-Up Cindy Lou Who,” N.Y. Times (Sept. 15, 2017), https://www.nytimes.com/2017/09/15/books/dr-seuss-grinch-law-suit.html?_r=0;
Adam Hetrick, “Who’s Holiday! Playwright Matthew Lombardo Wins Case Against Dr. Seuss Enterprises,” Playbill, (Sept. 20, 2017), http://www.playbill.com/article/whos-holiday-playwright-matthew-lombardo-wins-case-against-dr-seuss-enterprises.
Robin Pogrebin, “How the Grinch Ended Up in Court,” N.Y. Times (Dec. 29, 2016), https://www.nytimes.com/2016/12/29/books/matthew-lombardo-sues-dr-seuss-enterprises-whos-holiday-grinch.html.