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<img class="alignright wp-image-4622 size-medium" src="https://copyrightcontentplatforms.bakerhostetlerblogs.com/wp-content/uploads/sites/21/2017/02/whoville-193x300.jpg" width="193" height="300" />The name “Cindy-Lou Who” likely invokes thoughts of the holiday season and Dr. Seuss’s beloved How the Grinch Stole Christmas (“Grinch”), which reminds us that the holidays are not all about toys and trinkets. But what happened after the Grinch “carved the roast beast”?

Matthew Lombardo’s play Who’s Holiday! (the “Play”) tells us that story in a script he claims “humorously juxtaposes the rhyming innocence of Grinch with, among other things, profanity, bestiality, teen-age pregnancy, familial estrangement, ostracization and scandal, poverty, drug and alcohol abuse, the eating of a family pet, domestic violence and murder.” The Play is not, he claims in a suit filed in the Southern District of New York on December 27, 2016, “a perfect holiday outing for the family.” Lombardo and Who’s Holiday LLC’s lawsuit seek a declaratory judgment that the Play does not infringe Grinch’s copyright, owned by Dr. Seuss Enterprises, L.P. (“Dr. Seuss”). Lombardo asserts that the Play is a transformative parody, not an adaptation, and is thus a fair use under the Copyright Act, imbuing “Grinch with a character different from that for which Grinch was created.” For example, in the Play we find Cindy-Lou Who, now age 45, living in a broken-down trailer, having just been released from prison.    

Lombardo’s suit also seeks damages for Dr. Seuss’s “tortious conduct” in allegedly sending multiple cease and desist letters, without having first read the Play in detail and considering in good faith whether the Play infringed on Dr. Seuss’s rights. These letters, Lombardo claims, resulted in the termination of the Play’s production and the loss of production costs and anticipated box office earnings, totaling more than $75,000.

The tortious interference claim is the focus of Dr. Seuss’s motion to dismiss filed on February 3, 2017. Dr. Seuss argues that Lombardo’s tortious interference claim is deficient as a matter of law because Lombardo’s complaint did not identify a contract provision breached by a third party as a result of Dr. Seuss’s actions, a required element under a claim for tortious interference with a contract. Dr. Seuss’s brief also points to the cease and desist letters themselves, stressing that the letters repeatedly requested a copy of the script and an explanation from Lombardo as to why he believed the Play did not infringe. According to Dr. Seuss, it received no response to the first three letters sent over a period of two months. Nothing in the letters, Dr. Seuss argues, “is dishonest, unfair, improper, malicious or unlawful or reflects that the letters were sent solely to harm plaintiffs.” Rather, the letters show an effort to protect Dr. Seuss’s copyrighted works. Dr. Seuss references a plethora of case law in the Second Circuit claiming that a cease and desist letter cannot be the basis of a tortious interference claim under New York law. Lastly, Dr. Seuss relies on the Noerr-Pennington doctrine that protects a party’s right to act in furtherance of its First Amendment rights to petition governmental authorities for redress absent engaging in sham litigation, noting that courts in the Second Circuit have extended Noerr-Pennington to pre-litigation letters concerning intellectual property.

The case is before Judge Alvin K. Hellerstein in the United States District Court of the Southern District of New York, 16-cv-09974 (AKH).

Is There Copyright Infringement in Whoville?