The Case of the Purloined Hat

In 1995, Penguin published an illustrated book about the O.J. Simpson trial. The book was called The Cat NOT in the Hat! A Parody by Dr. Juice and included at least eighteen images showing O.J. Simpson wearing a scrunched-up red-and-white stove-pipe hat. While the book’s title, its narrator (Dr. Juice), and the hat all conjured up images of Dr. Seuss and his best-known character, the book itself was not about Dr. Seuss or his famous cat. Neither did it criticize either the substance or the style of the Dr. Seuss book.

According to the 9^th Circuit, the authors of The Cat NOT in the Hat! used the hat and the other Dr. Seuss references to get attention, or maybe they were simply too lazy to be creative. Unfortunately for them, the image of the well-known hat was copyrighted.

Last month’s post on "The Case of the Disappearing Wind" introduced the use of parody as a defense to a copyright infringement claim. As that post noted, the Supreme Court has defined a parody as something that comments on the substance or style of the original work in a way that makes the original appear ridiculous. A new work that makes fun of something other than the original work may be a satire, but it is not a parody.

“The Cat NOT in the Hat! A Parody by Dr. Juice” was, despite its name, NOT a parody. Its criticism had nothing to do with the Dr. Seuss book. So after considering all four factors described in my July 25, 2013 post, the 9^th Circuit Court of Appeals ruled that it was not a fair use, and it prohibited Penguin and the authors from publishing or selling the book.

This doesn’t mean that a satire can never be a fair use. But the satirist does not have to use as much—or perhaps anything at all—from another copyrighted work in order to make his point. As a result, a satirist is not allowed to borrow as much as a parodist can.

The image of the cat’s hat was also a registered trademark. The test for copyright infringement is very different from the test for trademark infringement, however. In this case, the 9^th Circuit agreed with the district court that it needed a trial before it could decide whether there was trademark infringement.

So how does parody work in a trademark case? Tune in next month for the Case of the Sarcastic Spy.

* * * * *

Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.