Cat in the Hat Parody Infringes on Seuss

By Robin D. Gross
November 1997

In a recent Ninth Circuit case, Judge O'Scannlain reaffirmed a circuit court's ruling holding that a poetic account of the O.J. Simpson double murder trial entitled, "The Cat NOT in the Hat!  A parody by Dr. Juice," infringed the copyright and trademark rights of the earlier work, "The Cat in the Hat by Dr.Seuss" (a.k.a. Theodore Geisel).

Dr. Seuss Enterprises v. Penguin Books USA involved a case about a book written by the fictional "Dr. Juice".  The book depicts O.J. Simpson, wearing the Cat in the Hat's distinctive red and white striped stove-pipe hat, holding a bloody glove, and narrating a rhyming whimsical version of the Simpson murder trial with verses such as, "A man this famous/Never hires/Lawyers like/Jacoby Meyers/When you're accused of a killing scheme/You need to build a real Dream Team" and "One knife?/Two knife?/Red knife/Dead wife."

Dr. Seuss's widow, Audrey Geisel sued for a preliminary injunction to prevent publication of the book, claiming she was eager to prevent a commingling of the Seuss image with that of the accused killer.  In its defense, Penguin claimed the book was merely a parody and therefore protected from copyright infringement by the "fair use" doctrine.  The appellate court held, "we completely agree with the district court that Penguin's fair use defense is 'pure shtick' and that their post-hoc characterization of the work is completely unconvincing."  The court held that because the book ridiculed Simpson and the murder case, rather than the original work or its author, it is not a true parody eligible for the fair use defense.  "The stanzas have no critical bearing on the substance of style of The Cat in the Hat.  [The defendants] merely use the Cat's stove-pipe hat, the narrator (Dr. Juice), and the title (The Cat NOT in the Hat!) to get attention or maybe even to avoid the drudgery in working up something fresh," O'Scannlain opined.

This decision is significant because it has clarified a coherent standard in copyright law for determining whether a potentially infringing work is a fair use parody.  A parodist must ridicule the original composition or author in order for fair use to apply.  Therefore, one hoping to use the parodist's fair use defense must realize that the legal definition of a parody in copyright and trademark law is narrower than the general understanding of the term.