Ron DiCerbo Quoted in Bloomberg Law Article, “Places a Seuss-Trek Mashup Will Go May Include Back to Court”
In a copyright fight over the comic book Oh, the Places You’ll Boldly Go! that combines elements of both a Dr. Seuss book and Star Trek themes, the Ninth Circuit Court is considering whether or not the mashup is transformative and considered fair use.
When discussing the Ninth Circuit’s questions regarding derivative rights versus creating something new, DiCerbo observed that the Court seems to be “leaning toward protecting the statutory derivative rights” of the original works.
With regard to the potential of the burden-shift issue as a path for remand, DiCerbo acknowledges that proving a negative is difficult and that established case law puts the burden to establish no economic harm on the accused infringer: “The easy way to push it back is to say there was a procedural error,” said DiCerbo, who thinks the Court will find Boldly a derivative work. “The law requires the defendant to establish no commercial harm, and that analysis wasn’t conducted.”
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