17-2952-cv

United States Court of Appeals

for the

Second Circuit

MATTHEW LOMBARDO, WHO’S HOLIDAY

LIMITED LIABILITY COMPANY,

Plaintiffs-Counter-Defendants-Appellees,

– v. –

DR. SEUSS ENTERPRISES, L.P.,

Defendant-Counter-Claimant-Appellant.

––––––––––––––––––––––––––––––
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF OF THE DRAMATISTS LEGAL DEFENSE FUND AS

AMICUS CURIAE IN SUPPORT OF APPELLEES

DAVID H. FAUX, ESQ.

LAW OFFICE OF DAVID H. FAUX, P.C.
Attorneys for Amicus Curiae
1180 Avenue of the Americas, 8th Floor
New York, New York 10036
(917) 391-9468
 CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned

counsel for The Dramatists Legal Defense Fund hereby certifies that it is

not a publicly-traded entity, it does not have a corporate parent, and there is no

publicly held corporation that owns 10% or more of its stock. 

Table of Contents
PRELIMINARY STATEMENT ............................................................................... 2
INTEREST OF AMICUS CURIAE .......................................................................... 4
STATEMENT OF FACTS ........................................................................................ 9
ARGUMENT ........................................................................................................... 11
I. Appellees’ Who’s Holiday! is a Parody of How the Grinch Stole Christmas! . 11
A. Introduction to Who’s Holiday! as Parody ..................................................... 11
B. Parody Is Demonstrably Reasonably Perceived ............................................ 12
C. Parody Is Described Within Counterclaim-Appellant’s Own Pleadings ....... 13
D. Conclusion of Who’s Holiday! as Parody ...................................................... 15
II. Who’s Holiday! is a transformative use of How the Grinch Stole Christmas! . 15
A. Introduction of Who’s Holiday! as Transformative: ...................................... 15
B. Who’s Holiday! Has a Transformative Aesthetic........................................... 16
C. Who’s Holiday! Has a Transformative Message ............................................ 17
D. Who’s Holiday! As a Sequel .......................................................................... 17
E. Conclusion of Who’s Holiday! as Transformative ......................................... 18
III. Who’s Holiday! Complies With the Other Fair Use Factors ......................... 19
A. Introduction to Other Fair Use Factors .......................................................... 19
B. Second Factor: The Nature of the Copyrighted Work ................................... 19
C. Third Factor: Amount and Substantiality of the Portion Used ...................... 20
D. Fourth Factor: Effect on the Market for the Value of the Copyrighted Work
21
IV. Public Policy Favors a Strong Declaration of the Rights of the Dramatist ... 23
A. Fair Use is the First Amendment’s Ambassador in Copyright ...................... 24
B. Broader Social Costs Outweigh Private Corporate Interests ......................... 25
C. Economic Disparity Could Erode Constitutional Rights ............................... 28
V. Conclusion ......................................................................................................... 29 

i
TABLE OF AUTHORITIES

CASES
Abilene Music Inc. v. Sony Music Entertainment, Inc., 320 F. Supp.2d 84, 91
(S.D.N.Y. 2003) ................................................................................................... 13
Adjmi v. DLT Entm’t Ltd., 97 F. Supp. 3d 512 (S.D.N.Y. 2015) .............................. 7
Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013) ...... 16, 22
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) .... 20
Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) .......................................................... 8
Bourne Co. v. Twentieth Century Fox Film Corp., 602 F. Supp. 2d 499 (S.D.N.Y.
2009) ............................................................................................................... 11, 16
Brownmark Films LLC v. Comedy Partners, 682 F. 3d 687 (7th Cir. 2012) ........... 23
Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) .......................................passim
Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) ................................................passim
Castle Rock Entertainment, Inc. v. Carol Publishing Group, 150 F.3d 132 (2d Cir.
1998) ..................................................................................................................... 16
DC Comics Inc. v. Reel Fantasy, 696 F.2d 24 (2d Cir. 1982) ................................. 23
Dr. Seuss Enters., L.P. v. ComicMix LLC, No. 16cv2779-JLS (BGS) (S.D. Cal.
June 9, 2017) ........................................................................................................ 22
Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir.
1997) ..................................................................................................................... 13
Harrell v. Can Der Plas, 2009 U.S. Dist. LEXIS 104828, *23 (S.D.N.Y. 2009) .. 28
Hudson v. Universal Studios, Inc., 2009 U.S. Dist. LEXIS 18729, *2 (S.D.N.Y.
2009) ..................................................................................................................... 28
Int’l News Serv. v. Assoc. Press, 248 U.S. 215, 250 (1918) .................................... 27
Iowa State Univ. Research Found., Inc. v. Am. Broad. Cos., 621 F.2d 57 (2d Cir.
1980) ....................................................................................................................... 2
Jovani Fashions Ltd. v. Cinderella Divine, Inc., 820 F. Supp. 2d 569 (S.D.N.Y.
2011) ..................................................................................................................... 29
LaChapelle v. Fenty, 812 F.Supp. 2d 434, 448 (S.D.N.Y. 2011) ........................... 23
Leibowitz v. Paramount Pictures Corporation, 137 F.3d 109 (2d Cir 1998) ... 13, 23
Maxtone-Graham v. Burtchaell, 631 F. Supp. 1432 (S.D.N.Y. 1980) ...................... 4
Nash v. CBS, Inc., 899 F.2d 1537, 1540 (7th Cir. 1990) ......................................... 27
Penguin Books U.S.A., Inc. v. New Christian Church of Full Endeavor, Ltd., 2004
U.S. Dist. LEXIS 5648, *5 (S.D.N.Y. 2004) ....................................................... 28
Salinger v. Colting, 641 F.Supp. 250 (S.D.N.Y. 2009) ........................................... 14
Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001) ................ 18
Third Degree Films v. Does 1-47, 286 F.R.D. 188, 190 (D. Mass. 2012) .............. 28

ii
STATUTES
17 U.S.C. §107 ......................................................................................................... 11
H.R. Rep. No 94-1476 (1976) ................................................................................... 2
S. Rep. No. 94-473 (1975) ......................................................................................... 2

OTHER AUTHORITIES
Ben Depoorter and Robert Kirk Walker, Copyright False Positives, 89 Notre Dame
L. Rev. 319 (2013) ...............................................................................4, 26, 27, 28
C. Edwin Baker, First Amendment Limits on Copyright, 55 Vand. L. Rev. 891
(2002) ................................................................................................................... 27
Elisabeth Vincentelli, ‘Who’s Holiday!’ Is a Raunchy Riff on Dr. Seuss’s Yuletide
Tale, N.Y. Times, Dec. 4, 2017 ............................................................................. 13
Judge Pierre Leval , Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107
(1990) ........................................................................................................... 2, 8, 16
Nimmer on Copyright § 19E.05[C][2] ................................................................ 3, 25
Rebecca Tushnet, Copyright Law as a Model for Free Speech Law: What
Copyright Has in Common with Anti-Pornography Laws, Campaign Finance
Reform, and Telecommunications Regulation, 42 B.C. L. Rev. 1, 2 (2000) ....... 24
Regina Robbins, Who’s Holiday!, Time Out New York, Nov. 28, 2017 ................ 13
TheaterWorks Pearl Street, Christmas On The Rocks (2013) ................................. 12
William M. Landes & Richard A. Posner, An Economic Analysis of Copyright
Law, 18 J. Legal Stud. 325 (1989) ................................................................. 26, 27
Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on
Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354, 411 (1999) ................ 27
YouTube (Nov. 10, 2009) ........................................................................................ 12
Zachary Steward, Who’s Holiday, Theatermania, Nov. 28, 2017 ........................... 13

iii
 The Dramatists Legal Defense Fund (the “DLDF”) respectfully submits this

memorandum of law as amicus curiae in support of Appellee Matthew Lombardo

(“Mr. Lombardo”), the author of the play Who’s Holiday!, and to apprise the Court

of theater industry practice and underlying policy considerations. Dr. Seuss

Enterprises (“DSE”), displeased with Mr. Lombardo’s commentary and criticism

of its property, sought to silence his speech with claims of infringement. But, as

demonstrated in the District Court’s thorough and comprehensive decision founded

on well-established precedent, Who’s Holiday! is clearly within the Copyright

Act’s “fair use” exception as a parody and otherwise transformative use of the

book entitled How the Grinch Stole Christmas! A ruling that Who’s Holiday! is not

a fair use would have negative reverberations throughout the theater industry,

particularly for dramatists, who are not only authors who make fair use of elements

of works that have come before, but are also copyright owners whose works may

be fairly used by others.

Furthermore, failure to recognize a fair use defense here would subject

playwrights to vexatious and costly litigation brought by well-heeled corporate

entities, and allow such entities to use their superior economic power to chill

protected speech by means of “copyright false positives,” which are overreaching

assertions of intellectual property rights that subvert the principles embodied by

both the First Amendment and the Constitution’s Copyright Clause.

1
 PRELIMINARY STATEMENT
DSE is an entity that owns How the Grinch Stole Christmas! (the

“Children’s Book”). Its ownership, however, should not prevent a playwright like

Mr. Lombardo from making fair use of elements of the Children’s Book, as such

“rigid application of the copyright statute . . . would stifle the very creativity which

that law is designed to foster.” Iowa State Univ. Research Found., Inc. v. Am.

Broad. Cos., 621 F.2d 57, 60 (2d Cir. 1980).

“From the infancy of copyright protection, some opportunity for fair use of

copyrighted materials has been thought necessary to fulfill copyright’s very

purpose, ‘[t]o promote the Progress of Science and the useful Arts.’” Campbell v.

Acuff-Rose Music, 510 U.S. 569, 575 (1994). According to legislative policy, this

doctrine was meant to “continue the common-law tradition of fair use

adjudication.” H.R. Rep. No 94-1476, at 66 (1976); S. Rep. No. 94-473, at 62

(1975).

In the Second Circuit, the stage was set for fair use jurisprudence with

Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990), by Judge Pierre

Leval. In this seminal article, Judge Leval states, “The copyright is not an

inevitable, divine, or natural right that confers on authors the absolute ownership of

their creations. It is designed rather to stimulate activity and progress in the arts

for the intellectual enrichment of the public.” Id. at 1107; see also Cariou v.

2
Prince, 714 F.3d 694, 705 (2d Cir. 2013). The DLDF believes it is important to

keep the words of Judge Leval in mind to ensure that the law encourages the

creative activity of authors like Mr. Lombardo, whose works draw on our cultural

history and simultaneously contribute to the intellectual enrichment of the public.

However, the necessity for the Court to uphold Mr. Lombardo’s fair use

claim on this appeal is not limited to furthering the purposes of Copyright; it is also

imperative for the protection of the First Amendment itself. First Amendment

protections are “embodied in the Copyright Act’s distinction between

copyrightable expression and uncopyrightable facts and ideas, and the latitude for

scholarship and comment traditionally afforded by fair use.” See Harper & Row

Publishers, Inc. v. Nation Enters., 471 U.S. 560 (1985).

It is this doctrine of fair use that acts as our society’s safety valve for free

expression when, in the context of our copyright laws, we would otherwise be

granting an exclusive monopoly over certain speech to private interests. So when

the Copyright Clause and the First Amendment are in conflict, the courts are well

advised to consider that “the fair use defense is recognized as not merely a nicety

of copyright law. It is tasked by the Constitution to be the First Amendment’s

ambassador in the territory of copyright, to champion free speech concerns; hence,

it cannot be abolished or even narrowed.” Nimmer on Copyright § 19E.05[C][2].

3
 Furthermore, curbing the over-broad assertion of copyright is particularly

important in a matter like the one now before the Court, where one party is an

emerging playwright and the other is an established, well-financed assignee of

another author’s works. The exception for fair use is necessary to mitigate “the

chilling effect of copyright law upon free expression,” Maxtone-Graham v.

Burtchaell, 631 F. Supp. 1432, 1435 (S.D.N.Y. 1980), especially when owners of

well-known properties attempt to frighten artists away from commenting on them

or making other fair use, a practice so dangerous and pervasive that it has been

branded with a label, the “Copyright False Positive.” Ben Depoorter & Robert

Kirk Walker, Copyright False Positives, 89 Notre Dame L. Rev. 319 (2013).

The pertinent commentary exhibited by Who’s Holiday! is parody, which

tends to tease, mock, or even scorn the underlying work by definition. Parodies

may draw heavily on characters and situations in the works they parody because

audiences need to recognize the resemblance to appreciate the dramatists’ points.

An equitable understanding of fair use is needed to permit and encourage the

creation of new works protected by the First Amendment that will enrich the

culture and someday enrich the public domain themselves.

INTEREST OF AMICUS CURIAE

Amicus is a 501(c)(3) corporation advocating for writers, theaters, and other

theater artists (as well as audiences, schools, students, and the culture at large), all

4
of whom are confronting censorship and other related issues of public import,

including diminishment of the public domain.1

The Dramatists Guild of America, Inc. (the “Guild”) formed the DLDF in

2009 to advocate for free expression in the dramatic arts as guaranteed in the First

Amendment of the United States Constitution, and to encourage the vitality of a

robust public domain, in support of the purpose of the Constitution’s “Copyright

Clause.”

The DLDF is governed by an elected Board of Directors that currently

includes such renowned dramatists as J.T. Rogers (Oslo, Blood and Gifts), Sarah

Ruhl (In the Next Room), Lydia Diamond (Stick Fly), and the current President,

John Weidman (Assassins, Contact, Anything Goes). The Board also includes

several lawyers well established within the theater industry. The sole member of

the DLDF is the Dramatists Guild, a century-old trade association with a governing

board of playwrights and musical theater authors that includes Marsha Norman

(The Color Purple, ‘Night Mother), Stephen Sondheim (Sweeney Todd, Company),

Tony Kushner (Angels in America), John Guare (House of Blue Leaves, Six

1
Counsel for all parties have consented to the filing of this amicus curiae brief.
No counsel to any party authored this brief in whole or in part, and no person or
entity other than amicus and its counsel made a monetary contribution intended to
fund the preparation or submission of this brief.
5
Degrees of Separation), and Stephen Schwartz (Wicked, Godspell, Pippin). The

current president of the Guild is Doug Wright (I Am My Own Wife, War Paint).

Mr. Lombardo is not a member of the DLDF, but he is a member of the

Guild. Regardless, the DLDF and the Guild recognize that their interests and the

interests of the public are threatened by DSE’s attempts to silence his critique of

How the Grinch Stole Christmas! The freedom of expression guaranteed by the

First Amendment is central to the DLDF’s mission, as well as to the professional

life of all dramatists, including but not limited to Guild members. It is for this

reason that the DLDF participated as amicus and submitted an amicus brief in the

proceedings below and is submitting its views as amicus on this appeal as well.

Dramatists often draw on a broad variety of source material for inspiration

for their works. Some have drawn on material in the public domain, like Phantom

of the Opera, Les Miserables, and Natasha, Pierre & The Great Comet of 1812.

But this practice is not a recent phenomenon. Shakespeare’s King Lear was based

on a well-known folk tale, and there was another play at the time based on the

same story (The True Chronicle History of King Leir). In modern times, The

Disney Company has adapted public domain stories into films and then into stage

musicals like Beauty and the Beast, The Little Mermaid, and Aladdin, not to

mention The Lion King, which is loosely based on Hamlet. Several shows on

Broadway recently are based on stories or historical facts in the public domain,

6
such as Come From Away, Indecent, and Oslo. Sometimes plays are based so

closely on existing works that are protected by copyright (such as films, novels,

television shows, or even other plays) that the new works may be developed in

collaboration with the original creators and, in any event, rightly require the

permission of the owners of the original works. Examples in the last Broadway

season include Groundhog Day, Anastasia, Amelie, Charlie and the Chocolate

Factory, and A Bronx Tale.

In many instances, however, playwrights are inspired by other works to

create works of their own that cannot be considered adaptations. Often, they want

to comment on or develop ideas expressed in works that have had significant

cultural impact. One recent example is Clybourne Park, a drama that won the

Tony Award and Pulitzer Prize in 2012. The author incorporated a character from

the classic drama, A Raisin in the Sun, as well as some historical events of the

period. Off-Broadway, too, we have the example of David Adjmi’s play 3C, a

parody of the TV situation comedy Three’s Company that the Second Circuit

recognized as a transformative work and a fair use. See Adjmi v. DLT Entm’t Ltd.,

97 F. Supp. 3d 512 (S.D.N.Y. 2015). Another example is Who’s Holiday!

Of course, the DLDF, as established by the Guild, is keenly aware of the

need to protect copyright. Copyright infringement can have a significant negative

impact on a dramatist’s income and reputation; many of the nation’s dramatists

7
who are most vulnerable to these harms sit on the Guild’s Council. Similarly, a

fledgling playwright may not gain deserved attention or be able to maintain control

of his or her work if copyright is infringed; many of these emerging talents are

among the Guild’s 6,500 members nationwide. In fact, the dramatists’ rights to

own their copyrights and to control their work are the founding principles on which

the Guild is based, and dramatists have forgone unionization, accepting an

economically disadvantaged labor status for the last ninety years or so, in order to

preserve these rights.

Because the DLDF’s mission is to advocate for free expression while

advancing the interests of a trade association of copyright owners, our every

statement is preceded by a consideration of “the property rights [that copyright

law] establishes in creative works, which must be protected up to a point, and the

ability of authors, artists, and the rest of us to express them- or ourselves by

reference to the works of others, which must be protected up to a point.” Leval,

supra at 1109. See Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006); see also

Cariou, 714 F.3d at 705. This gives the DLDF a unique perspective – and duty –

to present a balanced and reasoned view without an ideological predisposition one

way or the other. From this rare vantage point, the DLDF can see that Who’s

Holiday!, like 3C before it, is a transformative work of parody and believes, as

Judge Hellerstein correctly found, that Mr. Lombardo’s creative activity is

8
protected as a fair use so that dramatists (and others) will be assured and aware of

the freedom they have to comment on important cultural phenomena. A decision

affirming the lower court’s ruling on fair use will curb the chilling effects that

over-aggressive copyright owners can have on free expression.

STATEMENT OF FACTS
How the Grinch Stole Christmas! is a famous children’s book by the author

known as Dr. Seuss, originally published in 1957 and still under copyright

registration. In the book, the Grinch hates Christmas enough to plan its ruin in

nearby Whoville. While ransacking one of the many Whoville houses, he is caught

by little Cindy-Lou Who, with whom he has a brief verbal exchange. He

eventually realizes that the Whos’ celebration of Christmas is not related to the

decorations and things, but to a genuine feeling of love shared by the Whoville

community. This transforms the Grinch into a kind being who ends up returning

the Christmas loot and celebrating the holiday with his erstwhile victims.

Mr. Lombardo is an established Broadway playwright who wrote a parody

of the Children’s Book, first as part of a larger evening of theater called “Christmas

on the Rocks,” later developed to the subject work, Who’s Holiday! This work

parodies How the Grinch Stole Christmas! by discussing the ideas from the

Children’s Book not through the Grinch’s point of view, but the point of view of a

9
middle-aged Cindy-Lou Who. What ensues is a vivisection of the innocent, rosy

picture presented by the underlying work.

In the summer of 2016, Who’s Holiday LLC was formed towards a

production for the coming holiday season. DSE, through its attorneys, began

sending cease & desist letters almost immediately, which ultimately caused

cancellation of the show. This cancellation eventually led to the case at bar.

The District Court rendered summary judgment in favor of Mr. Lombardo

based on the pleadings. DSE filed this appeal relying on several arguments, but

predominantly on the tenuous theory that Mr. Lombardo’s stage work, in

transforming the underlying themes to a new and original message, told from a

completely different point of view, is actually a sequel to the tale of how the

Grinch tried to steal the spoils of Christmas only to discover the purity of holiday

cheer—ostensibly a natural progression of its plot.

This amicus brief addresses the copyright question of fair use in this case, as

well as its constitutional and public policy implications. The DLDF believes that

Judge Hellerstein was unquestionably correct in holding that Mr. Lombardo’s work

was both parody and transformative—as thus protected by the fair use doctrine—

and that First Amendment considerations also support affirmance of the decision

below.

10
 ARGUMENT
I. Appellees’ Who’s Holiday! is a Parody of How the Grinch Stole Christmas!

A. Introduction to Who’s Holiday! as Parody

Mr. Lombardo authored an original play entitled Who’s Holiday!, which

parodies the 1957 children’s book How the Grinch Stole Christmas!, in which DSE

holds the copyright, and as such constitutes a proper fair use under copyright law.

17 U.S.C. §107. Anyone reading the script of Who’s Holiday! can tell that Who’s

Holiday! is a parody. Assertions to the contrary ignore the very definition of

“parody” well established by the Supreme Court in Campbell and by this court in

Bourne Co. v. Twentieth Century Fox Film Corp., 602 F. Supp. 2d 499 (S.D.N.Y.

2009), among many others. DSE’s position that Who’s Holiday! is merely a sequel

that should have been pre-authorized, or that it offers no commentary or criticism

of the underlying work, is clearly contradicted by the play itself. See Answer to

Compl. and Countercls. at 17. In making such a claim, DSE exhibits a staggering

lack of self-awareness. How the Grinch Stole Christmas! was published as a

children’s Christmas book, and its success was based on its entertaining appeal to

children, and its ability to instill in them a love of reading and to teach life lessons,

but not such life lessons as the risk of poverty, domestic violence, teenage

pregnancy, or drug abuse. Answer to Compl. and Countercls. at 14. DSE is

clearly disturbed by Mr. Lombardo’s depiction of its property, and now seeks to

11
use superior economic power to suppress what it perceives as a disrespectful threat,

regardless of the cost to the dramatist’s right to free expression.

B. Parody Is Demonstrably Reasonably Perceived

The fair use defense requires only “that ‘a parodic character may be

reasonably perceived,” Bourne, 602 F. Supp. at 507, quoting Campbell, 510 U.S. at

582-83. In fact, the original ten-minute iteration of Who’s Holiday!, then named

Going Green, was presented in a show called Christmas on the Rocks, which was

received and advertised in the theater community as a parody. TheaterWorks’

video of the Christmas on the Rocks production refers to the show as a “delightful

holiday parody.” TheaterWorks Pearl Street, Christmas On The Rocks (2013),

YouTube (Nov. 10, 2009), https://www.youtube.com/watch?v=blNW0zz9Qmo.

The Hartford Courant described the show as a “sassy, easy-going parody.” Frank

Rizzo, TheaterWorks’ ‘Christmas On The Rocks’ A Sassy, Funny Parody, Hartford

Courant, Dec. 9, 2013. In one review, Mr. Lombardo’s Going Green was

described as having an “extra dollop of style on top of the parody.” Karen Bovard,

BWW Review: CHRISTMAS ON THE ROCKS at TheaterWorks, Broadway World,

Dec. 7, 2015. The disputed production was also advertised as a parody. The Who’s

Holiday! website and website for ticket sales both describe the play as a “heartfelt

parody.” Am. Compl. at 13. Apparently, no one but the underlying copyright

holder had any trouble perceiving the parody.

12
 DSE produced reviews that did not use the word “parody.” See, e.g.,

Elisabeth Vincentelli, Review: ‘Who’s Holiday!’ Is a Raunchy Riff on Dr. Seuss’s

Yuletide Tale, New York Times, Dec. 4, 2017; Regina Robbins, Who’s Holiday!,

Time Out New York, Nov. 28, 2017; Zachary Steward, Who’s Holiday,

Theatermania, Nov. 28, 2017. However, the omission of reference to “parody” in

some reviews does not undermine the many reviewers who reasonably perceived

Who’s Holiday! as the parody that it is.

C. Parody Is Described Within Counterclaim-Appellant’s Own Pleadings

“Parody is regarded as a form of social and literary criticism, having a

socially significant value as free speech under the First Amendment.” Dr. Seuss

Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir. 1997). As

stated in Campbell, “For the purposes of copyright law, the nub of the definitions,

and the heart of any parodist’s claim to quote from existing material, is the use of

some elements of a prior author’s composition to create a new one that, at least in

part, comments on that author’s works.” 510 U.S. at 580; Bourne, 602 F. Supp. at

504-05; Abilene Music Inc. v. Sony Music Entertainment, Inc., 320 F. Supp.2d 84,

91 (S.D.N.Y. 2003); Leibowitz v. Paramount Pictures Corporation, 137 F.3d 109,

114 (2d Cir 1998); Seuss, 109 F. 3d at 1400. Additionally, “[p]arody needs to

mimic an original to make its point, and so has some claim to use the creation of its

13
victim’s (or collective victims’) imagination . . . .” Campbell, 510 U.S. at 580-81.

Furthermore, the “parody must target the original, and not just its general style, the

genre of art to which it belongs, or society as a whole (although if it targets the

original, it may target those features as well).” Id. at 597 (Kennedy, J.,

concurring); see also Salinger v. Colting, 641 F.Supp. 250, 256-57 (S.D.N.Y.

2009) (stating that a “parody must critique or comment on the work itself”).

From assertions by DSE, it is beyond question that Mr. Lombardo used

some elements of the prior work, including the setting of Who-ville, key

characters, and rhyming couplets to target the original and perhaps also target the

themes the book represents. Answer to Compl. and Countercls. at 12.

Additionally, also as stated in the counterclaims, Who’s Holiday! builds on the

original, mimicking the story arc and “’look and feel’ of an authorized Dr. Seuss

work.” Id.

In Abilene, the court found that the new work’s “sarcastic” use of “What a

Wonderful World” was protected as parody because “the song’s take on the world .

. . highlights the contrast between the two worldviews, and expresses the rapper’s

belief in the realism of his own perspective.” Abilene, 320 F. Supp. 2d at 91. This

finding is “on all fours” with the fact-pattern here. Mr. Lombardo’s work, as stated

by all parties in this dispute, is an attempt to bring adult humor and themes to the

classic family Christmas story How the Grinch Stole Christmas!

14
 D. Conclusion of Who’s Holiday! as Parody

As Judge Hellerstein correctly concluded, Who’s Holiday! fits neatly within

the definition of parody set forth by well-established precedent of the Supreme

Court of the United States, the Second Circuit, and the Southern District of New

York. To avoid chilling critical comment on significant cultural works, Who’s

Holiday! must be seen as what it is: a parody; a form of social and literary

criticism, with a socially significant value as free speech.

II. Who’s Holiday! is a transformative use of How the Grinch Stole Christmas!

A. Introduction of Who’s Holiday! as Transformative:

Even if Who’s Holiday! was not so obviously a parody, it would certainly be

found to be transformative.

[T]he law imposes no requirement that a work comment on the original or its
author in order to be considered transformative, and a secondary work may
constitute a fair use even if it serves some purpose other than those
(criticism, comment, news reporting, teaching, scholarship, and research)
identified in the preamble to the statute.

Cariou, 714 F.3d at 706. Transformation occurs when

the secondary use adds value to the original—if [the original work] is used
as raw material, transformed in the creation of new information, new
aesthetics, new insights and understandings—this is the very type of activity
that the fair use doctrine intends to protect for the enrichment of society.

15
Leval, supra at 1007; see also Castle Rock Entertainment, Inc. v. Carol Publishing

Group, 150 F.3d 132 (2d Cir. 1998); Authors Guild, Inc. v. Google Inc., 954 F.

Supp. 2d 282 (S.D.N.Y. 2013). When determining whether a new work is

transformative, the court investigates “whether the new work merely supersede[s]

the objects of original creation, or instead adds something new, with a further

purpose or different character, altering the first with new expression, meaning, or

message.” Campbell, 510 U.S. at 579.

B. Who’s Holiday! Has a Transformative Aesthetic

The Second Circuit has consistently found a new work transformative when

it manifests an entirely different aesthetic from the original work. For example, in

Cariou, the court found fair use transformation where the original photographs

were “serene and deliberately composed portraits” but the new works were “hectic

and provocative.” Cariou, 714 F.3d at 706. The original works were reproduced,

but adjusted in “composition, presentation, scale, color palette, and media.” Id.

Not only related to the visual arts, but even from a literary perspective, the

Second Circuit has pointed to different aesthetics as indicative of a transformative

work. For example, in the precedent of Bourne Co., the court found that a cynical

take on a well-established, pop-cultural work of art, a song about wishing on a star,

was sufficiently transformative.

16
 In a much more obvious way, Mr. Lombardo has transformed the premise of

the Children’s Book into something dark, troubling, and destructive, thus

manifesting an entirely different aesthetic.

C. Who’s Holiday! Has a Transformative Message

The Second Circuit has consistently found a new work transformative when

it updates the message of an old work. For example, in Bourne, the court stated

that a new work that is both “very similar to the original” but “strikingly different

in tone and message” is transformative. Bourne, 602 F. Supp. 2d at 509. Mr.

Lombardo has referenced characters and the plot of How the Grinch Stole

Christmas! superficially, but transformed the characters significantly and used a

strikingly different tone, meaning, and message by, for example, exposing ways in

which innocent Cindy-Lou Who’s life turned upside down as she grew older. See

Am. Compl. at 5. This is clearly an updated message to a work that is nearly sixty

years old.

D. Who’s Holiday! As a Sequel

DSE claims that Mr. Lombardo’s transformative play is actually a sequel to

the work, relying on Salinger v. Colting, 607 F.3d 68 (2d Cir. 2009). However, the

Second Circuit clearly set forth the indicia of a sequel: incidents in the subject

work parallel those in the underlying work, the subject work comments satirically

17
on the underlying work’s author, and the subject work was explicitly marketed as a

sequel of the underlying work. Id. at 73-74.

Here, Who’s Holiday! briefly recounts the events of the underlying work,

though from the point of view of a different character (Suntrust Bank v. Houghton

Mifflin Co., 268 F.3d 1257 (11th Cir. 2001)), from a jaded innocent rather than a

redeemed villain. Moreover, there is no comment on Dr. Seuss himself. Finally,

Mr. Lombardo never marketed his work as a sequel. Consequently, DSE’s reliance

on Salinger is misplaced and inaccurate.

E. Conclusion of Who’s Holiday! as Transformative

Where Who’s Holiday! seems to have borrowed plot devices, characters, or

premises, it clearly has transformed the original work from teaching the “true”

meaning of Christmas to a dramatic work that reflects unforgiving reality from the

point of view of a redeemed villain to that of a fallen innocent, just as seen in

Suntrust, 268 F.3d at 1257; Bourne, 602 F. Supp. 2d at 499. This new aesthetic

yields new messages from the original, especially with respect to ostracization,

unplanned pregnancy, and violence. Far from being a sequel, Who’s Holiday! has

no parallel plot lines, does not attempt to satirize Dr. Seuss as the original author,

and never marketed the work as a sequel.

18
 Furthermore, the stageplay has done so as a form of criticism of the original

work, which is a use that would not be licensable for the very reason that DSE has

pursued this case against Mr. Lombardo: it does not like what the playwright has

said about its book. Nevertheless, the stage play at issue is a form of expression

that is at the core of fair use. “Transformative works . . . lie at the heart of the fair

use doctrine’s guarantee of breathing space.” Campbell, 510 U.S. at 579. For

these reasons, Who’s Holiday! must be seen as transformative, as Judge Hellerstein

so held.

III. Who’s Holiday! Complies With the Other Fair Use Factors

A. Introduction to Other Fair Use Factors

In examining the other three factors applied in a fair use analysis of Who’s

Holiday!, the Court will note that any reasonable assessment of the other factors

will result in a finding of fair use on those bases as well.

B. Second Factor: The Nature of the Copyrighted Work

This factor is of little import to parodies as “parodies almost invariably copy

publicly known, expressive works.” Campbell, 510 U.S. at 586. Even with

otherwise transformative works, “this factor ‘may be of limited usefulness where,’

as here, ‘the creative work of art is being used for a transformative purpose.’”

19
Cariou, 714 F.3d at 710, (quoting Bill Graham Archives v. Dorling Kindersley

Ltd., 448 F.3d 605, 612 (2d Cir. 2006)). Hence, this factor is irrelevant to Who’s

Holiday!’s status as a parody or an otherwise transformative work.

C. Third Factor: Amount and Substantiality of the Portion Used

“[T]he extent of permissible copying varies with the purpose and character

of the use.” Campbell, 510 U.S. at 579. In fact, neither the Second Circuit “nor

any of our sister circuits has ever ruled that the copying of an entire work favors

fair use, [but] courts have concluded that such copying does not necessarily weigh

against fair use . . . .” Graham, 448 F.3d at 613; see Cariou, 714 F.3d at 710.

Moreover, “the law does not require that the secondary artist may take no more

than is necessary . . . The secondary use ‘must be [permitted] to ‘conjure up’ at

least enough of the original’ to fulfill its transformative purpose.” Cariou, 714

F.3d at 710 (quoting Campbell, 510 U.S. at 587-88 (emphasis added by Cariou)).

Because Who’s Holiday! is clearly a parody and otherwise transformative,

the amount and substantiality of How the Grinch Stole Christmas! is, like the

nature of the copyrighted work, irrelevant as well. Mr. Lombardo conjured up the

original and fulfilled his transformational purpose.

DSE attempts to mischaracterize part of Who’s Holiday! as a slavish copy of

the original. Amicus has read the script and is only able to find original

20
expressions of the ideas presented in the Children’s Book. Mr. Lombardo appears

merely to recount the underlying work’s plot, giving the theater audience context

and establishing that this is not a sequel but a transformative comment with a

different aesthetic.

D. Fourth Factor: Effect on the Market for the Value of the Copyrighted

Work

Transformative works rarely have an impact on the market of the

copyrighted work. “Indeed, as to parody pure and simple, it is more likely that the

new work will not affect the market for the original in a way cognizable under this

factor, that is, by acting as a substitute for it.” Campbell, 510 U.S. at 591.

Furthermore, while a bona fide critique or commentary may cause harm to

intellectual property, “it does not produce a harm cognizable under the Copyright

Act.” Id. at 591-92; see also Bourne, 602 F. Supp. 2d at 510 (stating, “the parody

and the original here serve different market functions”).

Here, it seems clear that the book How the Grinch Stole Christmas! and the

dramatic play Who’s Holiday! can co-exist, each on its own terms. Whereas

DSE’s book and authorized derivative works are a Christmas tradition for children

and their families, Mr. Lombardo’s play is an evening out for adults. To wit, the

21
performance of Christmas on the Rocks was well-received as an adult re-evaluation

about the “true meaning of Christmas.”

Moreover, the Southern District recently stated, “Although transformative

use is not ‘absolutely necessary’ to a finding of fair use, ‘the goal of copyright, to

promote science and the arts, is generally furthered by the creation of

transformative works.” Authors Guild, 954 F. Supp. 2d at 291-92 (quoting

Campbell, 510 U.S. at 579). Therefore, the most likely effect Who’s Holiday! will

have on the potential market for How the Grinch Stole Christmas! is a positive

one: “an important factor in the success of an individual title is whether it is

discovered—whether potential readers learn of its existence.” Id at 293. Adults

may be inclined to share How the Grinch Stole Christmas!, as a book, movie, or

television special, with a more sophisticated perspective on its themes vis-à-vis

childhood, adulthood, and family life, generally.

DSE may try to bootstrap its recent survival in Dr. Seuss Enters., L.P. v.

ComicMix LLC, No. 16cv2779-JLS (BGS) (S.D. Cal. June 9, 2017), as justification

for the Court to silence a playwright in the Southern District of New York.

However, this case is easily distinguished: the lawsuit against ComicMix survived

a motion to dismiss, taking as true DSE’s statement of market harm; here, DSE has

already lost its dismissal against the playwright, Mr. Lombardo, while emphasizing

the benefit of the book’s continued popularity, including numerous derivative

22
works from 1966 through 2018, “as well as film strips used in classrooms, an

annual Grinchmas event at Universal Studios Hollywood theme parks, other

Grinch books, and licensed goods bearing source-identifying indicia related to the

work, such as downloadable and hosted digital books, games, and digital

applications.” Answer to Compl. and Countercls. at 9. Beyond this, Who’s

Holiday!, as a highly transformative parody, militates against the very notion of

harm to the original work’s market. See, e.g., Leibovitz at 137 F.3d at 116;

Brownmark Films LLC v. Comedy Partners, 682 F. 3d 687 (7th Cir. 2012); DC

Comics Inc. v. Reel Fantasy, 696 F.2d 24 (2d Cir. 1982); LaChapelle v. Fenty, 812

F.Supp. 2d 434, 448 (S.D.N.Y. 2011). DSE cannot reasonably assert or even

identify any cognizable form of market harm created by Mr. Lombardo’s theatrical

parody, so one must conclude, therefore, that this corporation’s manifest mission is

to protect its assets from criticism.

IV. Public Policy Favors a Strong Declaration of the Rights of the Dramatist

More is at stake here than mechanical application of the fair use factors.

Public policy concerns require clarity in the protection of an individual artist’s

freedom of expression. The narrow interests of a private corporation cannot be

allowed to generate heavy social costs that harm not only the artists, but also the

broad social interest. Consideration should also be given to the risk that economic

23
disparity between parties may endanger foundational Constitutional rights.

Thankfully, there is well-established precedent for the court to weigh these public

policy concerns—and these concerns clearly weigh in favor of Mr. Lombardo.

A. Fair Use is the First Amendment’s Ambassador in Copyright

The principle that courts should protect against private censorship was first

embodied in the Statute of Anne and later the Copyright Clause “to be the engine

of free expression.” See Harper & Row Publishers, Inc., 471 U.S. at 558. First

Amendment protections are “embodied in the Copyright Act’s distinction between

copyrightable expression and uncopyrightable facts and ideas, and the latitude for

scholarship and comment traditionally afforded by fair use.” Id. at 560. In fact,

the Copyright Act was meant, among other things, to encourage free speech. See

Rebecca Tushnet, Copyright Law as a Model for Free Speech Law: What

Copyright Has in Common with Anti-Pornography Laws, Campaign Finance

Reform, and Telecommunications Regulation, 42 B.C. L. Rev. 1, 2 (2000) (stating

that “[t]he First Amendment gets government off speakers’ backs, while the

Copyright Act enables speakers to make money from speaking and thus

encourages them to enter the public marketplace of ideas”). When the Copyright

Clause and the First Amendment come into conflict, it is not surprising that courts

are advised to consider that “the fair use defense is recognized as not merely a

24
nicety of copyright law. It is tasked by the Constitution to be the First

Amendment’s ambassador in the territory of copyright, to champion free speech

concerns; hence, it cannot be abolished or even narrowed.” Nimmer, §

19E.05[C][2].

In the instant case, it is far-fetched to assert that Who’s Holiday! will be

viewed by the public as an authorized adaptation, or that it will obliterate the

benefits that DSE has reaped and is entitled to continue to reap from the book sales

and any strictly-controlled, approved licensing of actual derivative works. Clearly,

however, in seeking to suppress Who’s Holiday!, DSE’s main concern is not any

economic threat Who’s Holiday! could pose as a market substitute (which is so

unrealistic as to be preposterous), but the artist’s negative critique of its property: it

simply does not like what the playwright has to say. Yet Mr. Lombardo’s

commentary and critique of How the Grinch Stole Christmas! is exactly what the

Copyright Act was designed to protect, and the Court should employ fair use as the

First Amendment’s ambassador, championing this dramatist’s free speech.

B. Broader Social Costs Outweigh Private Corporate Interests

In addition to potentially curtailing an individual’s First Amendment rights,

there are significant costs to society for the court to consider. Should the court

allow DSE to stop Mr. Lombardo’s speech, it risks adding to a growing body of

25
“copyright false positives” that will impair freedom of speech for the U.S. as a

whole, add to unnecessary litigation and transactional costs for appropriate use of

pre-existing artistic material, and weaken the public’s willingness to adhere to the

Copyright Act. The DLDF requests that the court weigh these social costs in favor

of Mr. Lombardo’s fair use.

“False positives” occur in law when an individual is found guilty or liable of

some wrong doing when he or she should not be.” A. Mitchell Polinsky & Steven

Shavell, The Economic Theory of Public Enforcement of Law, 38 J. Econ. Lit. 45,

60 (2000). “Copyright False Positives” are “instances in which copyright

enforcement actions target activities that are not infringements . . . .” Depoorter &

Walker (2013), supra at fn.13. “Copyright False Positives often motivate

copyright owners to seek enforcement of rights that are . . . outside the scope of

copyright.” Id. at 321. Enforcement of non-existent intellectual property rights

can have a variety of unnecessary and negative social costs that should be avoided.

See William M. Landes & Richard A. Posner, An Economic Analysis of Copyright

Law, 18 J. Legal Stud. 325, 332-33, 349-59 (1989) (describing social costs of the

copyright system).

One significant social cost of Copyright False Positives is that they can

“hamper free speech and the rightful exercise of copyright exceptions.” Depoorter

& Walker (2013), supra at 340. See C. Edwin Baker, First Amendment Limits on

26
Copyright, 55 Vand. L. Rev. 891 (2002); Yochai Benkler, Free as the Air to

Common Use: First Amendment Constraints on Enclosure of the Public Domain,

74 N.Y.U. L. Rev. 354, 411 (1999); Marci A. Hamilton, Copyright at the Supreme

Court: A Jurisprudence of Deference, 47 J. Copyright Soc’y USA 317 (2000).

Copyright False Positives threaten to erode the tradition of jurisprudence in favor

of the First Amendment, and, if they are not curbed, have the effect of bestowing

property rights upon copyright owners for material that should be “free as the air to

common use.” Int’l News Serv. v. Assoc. Press, 248 U.S. 215, 250 (1918)

(Brandeis, J., dissenting). This stifles the production of new work, even in

situations where, as here, the benefits of allowing authors, as a class of

professionals, to make fair use of others’ works outweigh any theoretical

detriments to that same class from lost royalties. Landes & Posner, supra at 332-

33, 349-59.

Another social cost is “increased litigation and transactional costs” for valid

uses of pre-existing works. Depoorter & Walker (2013), supra at 343; see, e.g.,

Nash v. CBS, Inc., 899 F.2d 1537, 1540 (7th Cir. 1990) (stating, “Once a work has

been written and published, any rule requiring people to compensate the author

slows progress in literature and art, making useful expressions too expensive,

forcing authors to re-invent the wheel, and so on. Every work uses scraps of

thought from thousands of predecessors, far too many to compensate, even if the

27
legal system were frictionless, which it isn’t”). The widely acknowledged trend of

“copyright trolling” also attests to these increased social costs. See, e.g., Third

Degree Films v. Does 1-47, 286 F.R.D. 188, 190 (D. Mass. 2012). The instant

case is the epitome of this social cost: an individual artist has been forced to prove

that his use is non-infringing, or risk the sharp end of Damocles’ sword.

Finally, “a perception that copyright law reaches beyond reasonable

boundaries and serves private but not public interests” could weaken society’s

willingness to adhere to the Copyright Act by respecting owners’ rights. Depoorter

& Walker (2013), supra at 345-46; see, e.g., Lawrence Lessig, Free Culture 184-

87 (2004). The DLDF hopes the court will address this demonstrated social cost.

C. Economic Disparity Could Erode Constitutional Rights

The courts have long acknowledged in contract law that inequitable

bargaining positions, most often due to financial disparities, can create

unconscionable, and therefore unenforceable, agreements. Courts in this district

have also considered the financial disparities between parties in copyright

infringement suits. See Harrell v. Can Der Plas, 2009 U.S. Dist. LEXIS 104828,

*23 (S.D.N.Y. 2009); Hudson v. Universal Studios, Inc., 2009 U.S. Dist. LEXIS

18729, *2 (S.D.N.Y. 2009); Penguin Books U.S.A., Inc. v. New Christian Church

of Full Endeavor, Ltd., 2004 U.S. Dist. LEXIS 5648, *5 (S.D.N.Y. 2004). They

have acknowledged the concern that the threat of a lawsuit may deter people “from

28
exercising [their] rights, because pressing a meritorious defense is more costly than

surrendering it.” Jovani Fashions Ltd. v. Cinderella Divine, Inc., 820 F. Supp. 2d

569, 575 (S.D.N.Y. 2011) (internal quotes and citation omitted).

This recognized concern is at the center of the facts here. DSE’s letter to the

Shubert Organization prompted Shubert to terminate its license agreement for the

theater with Mr. Lombardo. See Am. Compl. at 10. The Shubert Organization was

unwilling to be subject to lawsuits for any copyright infringement, perhaps for fear

of a costly suit by a deep-pocketed corporation. After delay of his play’s debut and

the opportunity to produce his play late last year, Mr. Lombardo resolved to pursue

and enforce his First Amendment rights in keeping with the purpose of the

Copyright Act. Who knows how many other authors may have decided not to

fight, or not to create new works that refer to any successful properties, just

because they or the theater they are working with cannot risk the cost of a lawsuit

and cannot risk investing their time and talent in creating a work that the threat of

litigation may prevent from ever being published or produced?

V. Conclusion

From the DLDF’s dual perspective in promoting free speech while

protecting copyright ownership, the play Who’s Holiday! is patently a

transformative parody of How the Grinch Stole Christmas!, it complies with all the

29
factors of a fair use analysis, and it is thus deserving of the benefits of the First

Amendment via the fair use exception. Judge Hellerstein carefully and sensitively

weighed the relevant factors, and correctly reached the same conclusion.

Furthermore, the public policies that underlie our constitutional values prompt the

DLDF to urge a strong declaration that the law provides plenty of room for a

parody like Who’s Holiday! This is exactly the kind of creative activity by an

individual artist that risks being stifled by the overbroad assertion of copyright

ownership rights by a well-financed corporation. Copyright owners may prefer not

to have their properties targeted for mockery, but dramatists recognize that, when

they publish or perform their own works, they too are subject to criticism that may

take the form of parody, and elements of their work may be transformed by other

artists. They recognize that artists have the right to mock, and more than that, they

have an obligation to critique such vestments of our culture.

For all of the foregoing reasons, and in keeping with both the Copyright

Clause of the United States Constitution and the Copyright Act, controlling

Supreme Court and Second Circuit case law, and well-accepted practices of the

theater industry, the Dramatists Legal Defense Fund respectfully submits that the

decision below be affirmed.

Dated: New York, NY

March 19, 2018
30
 DRAMATISTS LEGAL DEFENSE FUND, Inc.

By: _/s/David H. Faux____________

David H. Faux (DF-9130)
1501 Broadway, Suite 701
New York, NY 10036
(646)360-1106
Attorney for the Dramatists Legal
Defense Fund as Amicus Curiae

Ralph Sevush, Board of Directors

The Dramatists Legal Defense Fund, Inc.
1501 Broadway, Suite 701
New York, NY 10036

31
 CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rules of Appellate Procedure 29(a)(4)(G) and 32(g)(1),

I hereby certify that to the best of my knowledge and belief, the forgoing complies

with the type-volume limitation under Federal Rules of Appellate Procedure

29(a)(5), 32(a)(7)(B) and 32(f). This brief contains 7,000 words. I also hereby certify

that to the best of my personal knowledge and belief, the forgoing complies with the

typeface and typestyles requirements of Federal Rules of Appellate Procedure

32(a)(5) and 32(a)(6). This brief has been prepared using a proportionately spaced

fourteen (14) point Times New Roman font.

              /s/David H. Faux
David H. Faux, Esq.