Will the Greedy Grinch Find His Heart?: Dr. Seuss Enterprises Sends New York Play a Cease-and-Desist Letter

Dr. Seuss Enterprises tries to stop a parody of Who's Holiday before it even has a chance to take the stage.
March 25, 2017

I grew up on Dr. Seuss stories.  I watched the movie adaptations and all the various iterations on TV, and I even went to the National Theater in Washington, DC to see How the Grinch Stole Christmas during the holiday season.  These stories are imbued with whimsy and nostalgia for many people.  However, Dr. Seuss Enterprises LP (Dr. Seuss Enterprises) does not take a standard approach when it comes to protecting its copyrights in these childhood stories.

Matthew Lombardo wrote a one person show called Who’s Holiday, which was scheduled to premiere in November of 2016 in New York.[1]  The creator claims he wrote the show as a parody of How the Grinch Stole Christmas, which would be protected by fair use.[2]  Dr. Seuss Enterprises sent a cease-and-desist letter claiming that the show infringed its copyright without seeing the script.[3]  The producers of Who’s Holiday are suing Dr. Seuss for tortious interference and asking that the court declare that there is no copyright infringement and award over $130,000 in damages in part for the cancellation of the production.[4]  The producers claim that Dr. Seuss is “shooting in the dark first, and asking questions later.”[5]  Dr. Seuss Enterprises believes that it had every right to send this letter because “[i]t is well-established that cease-and-desist letters cannot form the basis for tortious interference claims, particularly where, as here, there is no dispute that Dr. Seuss owns the intellectual property asserted in its letters, and where plaintiffs merely assert that their appropriation of Dr. Seuss’ copyright is shielded” by the fair use defense.[6]

The New York Times summarized the legal battle with a cute little poem of its own:

“And the playwright who called his work ‘Who’s Holiday!’
and this fall had to cancel his one-woman play,
has now fired back with a suit of his own,
saying those pesky plaintiffs should leave him alone…

Filing in federal court Tuesday night,
he said his play did not violate ‘Grinch’ copyright.
He remade the character, altered the plot.
The court papers say: ‘Dr. Seuss this is not.’” [7]

It is common that artists are limited by threats of lawsuits from copyright owners who may be large corporations protecting their territory.  The owners of the classic “Who’s on First” by Abbott and Costello sued the play Hand to God for incorporating part of the classic monologue into the play; however, that situation is distinct because, unlike the Dr. Seuss play, Hand to God incorporated the monologue verbatim.[8]  This is an important distinction because Lombardo used his creativity to develop a new play without copying How the Grinch Stole Christmas.  In this context, Lombardo wanted his audience to understand the parody through prior knowledge of that classic children’s book.

Despite a fair use argument, Dr. Seuss Enterprises’ copyright is lucrative, which incentivizes legal battles even if an artist is expressing himself creatively.  Live theater is not always known to be the most profitable business, unless you become the Andrew Lloyd Webber (“The Phantom of the Opera”) or the Lin Manuel Miranda of the world (“Hamilton”). [9]  A theater in New York City called “Playwrights Horizons” had a yearly budget of $10.5 million for all its shows in the 2014-2015 season.[10]  Compare that with trying to recoup a $123,000,000 budget to make the movie How the Grinch Stole Christmas released in 2000.[11]

The producers of “Who’s Holiday” are taking this to federal court, but not all artists can afford to stand up to large companies.[12]  The threat of a legal battle led to the closure of the parody before the Dr. Seuss company even saw the script or the performance to decide if this was a case of copyright infringement or actual fair use.  We will all just have to wait and see whether the Grinch will continue to be mean and nasty or whether he will have a heart and recognize fair use.

This lawsuit is slightly different from others because the plaintiff emphasizes that Dr. Seuss Enterprises should never have sent the cease-and-desist letter without ever seeing the script or the production. [13] Dr. Seuss Enterprises discovered forthcoming play and, without seeing the actual play or the script, decided that it would not meet the fair use standard. [14]  Despite this lawsuit, other Dr. Seuss parodies are available to purchase online including the book The Cat in the Mat is Flat by Andy Griffiths for purchase on Amazon, How the Sith Stole Christmas can be viewed on YouTube, and The Simpsons episode “Treehouse of Horror XXIV” is available with the 25th season of the show. [15]  However, Penguin Books lost a legal battle against Dr. Seuss Enterprises in 1997 for the book “The Cat NOT the Hat!” because Penguin Books failed to show that the book would not impact the market even though it was about the O.J. Simpson trial.[16]  Depending on the outcome of this current dispute, the ruling could further restrict an artist’s ability to create and express ideas through parody.

[1] Bill Donahue, Dr. Seuss Estate Says Copyright Threat Letter Was Legal, L. 360 (Feb. 6, 2017), https://www.law360.com/articles/888602/dr-seuss-estate-says-copyright-threat-letter-was-legal; Peter Shapiro, Is There Copyright Infringement in Whoville?, BakerHostetler (Feb. 14, 2017), https://www.copyrightcontentplatforms.com/2017/02/is-there-copyright-infringement-in-whoville/.
[2] Dr. Seuss Estate Says Copyright Threat Letter Was Legal, supra note 1.
[3] Bill Donahue, Dr. Seuss Copyright Threat Against Play A 'Shot In Dark', L. 360 (Feb. 21, 2017), https://www.law360.com/newyork/articles/893817/dr-seuss-copyright-threat-against-play-a-shot-in-dark-.
[4] Johnathan Stempel, Dr. Seuss Company is a Grinch, NY Playwright Says in Lawsuit, Reuters (Dec. 28, 2016), http://www.reuters.com/article/us-drseuss-lawsuit-idUSKBN14H18H.
[5] Pls.’ Mem. Op. of Law in Opp’n to Defs.’ Partial Mot. to Dismiss and in Support of Pls.’ Cross Mot. 3.
[6] Dr. Seuss Copyright Threat Against Play A 'Shot In Dark', supra note 3.
[7] 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.
[8] TCA TV Corp. v. McCollum, 839 F.3d 168, 179-80 (2d Cir. 2016).
[9] Diep Tran, Paying Playwrights More Than Play Money, Am. Theater (Dec. 10, 2014), http://www.americantheatre.org/2014/12/10/paying-playwrights-more-than-play-money/.
[10] Id.
[11] How the Grinch Stole Christmas, IMDB, http://www.imdb.com/title/tt0170016/business (last visited Feb. 22, 2017).
[12] See Dr. Seuss Estate Says Copyright Threat Letter Was Legal, supra note 1.
[13] Id.
[14] Id.
[15] See The Cat on the Mat is Flat, Amazon, https://www.amazon.com/Cat-Mat-Flat-Andy-Griffiths/dp/0312535848 (last visited Mar. 4, 2017); Jon Brandao, How the Sith Stole Christmas, YouTube (Dec. 15, 2009), https://www.youtube.com/watch?v=qROIj0Y2nn4; Treehouse of Horror XXIV, IMDB, http://www.imdb.com/title/tt2930940/ (last visited Mar. 4, 2017).
[16] Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1402-03 (9th Cir. 1997).