please the court my name is andrew deutsch i am speaking for dr seuss enterprises the opinion below made three fundamental errors at the rule twelve c stage in finding the play whose holiday to be a fair use of dr seuss how the grinch stole christmas and dismissing the complaint but i'm going over a review of the courtroom reverse and remand on the first factor of fair use mr lombardo did not transform the material he took from the grinch he simply did two things he retold the second half of the grinch book using different words but is a very close paraphrase without alteration without new insights and without new meaning and the second half of the play is a sequel he takes the same characters starts them at the end of dr seuss's story and tells a new story again without transforming the original material or commenting on the original material in a transformative manner play appears in the grinch other than the characters he what the definition of a sequel i think we have three dictionary definitions in our brief is you start where the old story left off and you continue the story and that's what he does he picks up cindy who at eighteen and the grinch at whatever age the grinch is and then tells a whole series of stories adult they may be but they have nothing to do with the original story at all that's why it's transforming it's not transformative in a sense that that's protected by the doctrine the rights for example if you've ever read the sue grafton book sue grafton had the same character in a as for i forget what and all the way through the next twenty five books use the same character in the same setting in different stories based on the characters telling different stories i'm not saying dr seuss would have written this i'm saying this is an appropriation of a right that belongs to dr seuss or in fake today's terms to his estate and  to the factor of the market for other works no it goes it goes to the first factor your honor it there is simply no transformation and he and it i the first part which i have to emphasize sixty lines of this play is nothing more than retelling the second half of the grinch everywhere with cindy lou who is in the book she retells not exactly in the word the original story nobody in a very close paraphrase everything that happens happens in the same sequence with the same plot and there is simply no ridicule reversal darkening or any of the things that we expect to see in a transform work well let me think that that might be a concern of the lot at work transforms it in a way that makes the regional work worthless because it's now no longer going to be viewed as was what it was a children's story but i want to turn i'll turn to that as soon as i talk about the third factor because let's assume that it was a parody as mr lombardo asserts that it is there is an enormous amount of the original take it far more than any of the parody cases that this court's looked at that involved literary works as i say sixty lines of the original are simply taken this court said in t c a television that it is the burden of the defendant who has the burdens on all issues on fair use to provide a persuasive justification for taking as much as he took and mr lombardo simply doesn't do this all he says is well i'm trying to reacquaint the audience with the characters so they know where they are while this is a famous children's book hope we may all know and i don't know but certainly our children do if we don't and the excessive taking is itself a factor cutting against her use a setting for the parent but they even worth the even with the par if you go to campbell the supreme court case on or on to two live crew the court found it was a parody but the court remained did for determination of whether too much was taken of the music and at a minimum we have the right to go back to the district court and establish that too much was taken even were this truly a parity you can exceed the test is reasonable necessity and i believe it was exceeded here let's go to  short you lead story you're not going to read your i'm not going to read mike you wouldn't have read my kids to bed with some long novels say we have a short story how much is too much of a short story it you don't your honor had it truly depends i can't there are no bright lines and fair use all we can really say is in a reasonable judges can differ on that they can but this goes beyond but the test is reasonably necessary and sixty lines in the play one third of the play one half of the grinch book is more than reasonably necessary when you come to the point that the original most of the original elements are never referred to again they're not made fun of they're not dark and they're not shown in a different context they're just there to entertain the audience i do want to move to the fourth factor which is the most important market and this was a rule twelve motion we alleged as a credibly and and plausibly the dr seuss has been licensing the grinch for all sorts of other works for theatrical adaptations and has made money off of it and that this is an active licensing market under the court's decision in t c a television the district court was required to find this factor in favor of my client and it did not it used what i can only say was its gut instinct to say nobody who's going to go see the who's holiday play will ever go to see a play the dr seuss ideas that different audience that's a fact your hon it's never been proven it's a matter for evidence we have one would suggest that children should see this is it we are not suggesting the children would either we are suggesting that doctors who is can license to adult audiences can license this story but adult doesn't necessarily mean obscene or references to drug use or abuse jalebi as the district court thought was important what it means is that it's appealing primarily to adults and we have the right to present facts to that evidence the fourth fact inherently factual in campbell the supreme court re mandan on the fourth factor to find whether the music the defendant's use of the music impaired the plainest right to authorize a rap song based on o woman we have that right and we were denied it we think that we are going to get the burden remains on mr lombardo to prove each of these elements we don't have the burden but we think we can show in the a different count i probably thank you and i please the court jordan greenberger for matthew and bardot mr lamar just play whose holiday is a fair use of how the grinch stole christmas by dr seuss the works speak for themselves we asked the district court to do exactly what we're asking this court to do which is simply read the play read the book compare the two and analyze it under relevant fair use case law the fourth point the pros and counsel just made that they have a right to market other versions of the grids to adults to anyone else and that that is a factual consideration and they never had an opportunity to put in facts on the shore and that's exactly where the rubber meets the road in this case is whether or not they should have had an opportunity to put in a factual submission on the market harm factor which is the fourth fair use factor will put in an affidavit or a declaration and the court has the right to then convert it to a motion for summary judgment all they did start dealing with that kind of a motion for not making a summary judgment submissions fair enough your honor i merely suggesting that when you're arguing that we shouldn't hear them to complain about this now because they could have put papers in the district court ruled on twelve respectfully it was that's what the seventh circuit does it did in the brown mark case which this court in carey you called instructive it's what the district court did in the agony case which has really been at the forefront of this case from day one before the lawsuit was even commenced  there's another district court case called arrow which involved a fair use of a pornographic film into a biographic film and courts have rejected the need for discovery ok there's a another case there's a southern district case in new york called mattel against pitt and there's a ninth circuit case called mattel against walking mountain productions that had to do with barbie doll ok and these were uses of barbie dolls that were in a sexualized manner dressed in  costumes and other suggestive positions and the ninth circuit said we think it's fair to assume that mattel the maker of barbie dolls would never authorize the use like this ok which leads to another important point the play is a parody they can't control the market for parodies no matter what we have the right to criticize and comment especially on a work that is famous and that they allege susi and is in the dictionary ok literally the dictionary definition of susi and says how the grinch stole christmas which is a whimsical childlike play we have the right to comment on that and they don't have the right to stop us there's another case called keeling against harz where this current court said the fair use finding by a jury was fine the district court didn't even instruct the jury on factor number four the only instruction was on factor number one which was the transformative use in the court said that was ok that wasn't reversible error because in the case the parity the other factors are reduced factors two three and four they're all interrelated but when a case like this where it's a parody on its face the facts are for market harm is of less importance what about the fact that use sixty live from the original speak to that i invite the court to read those alleged sixty lines which is the first fourteen pages of the book it does not set state verbatim anything from the book it  alludes to the story to reacquaint the audience as to what its with actually the only thing i read was rereading the book in the play recently the only thing it says the same is the word who hash in the book who hashes something that the grinch steals from a refrigerator like a can of or something like that in the play it's a cannabis subject that she smokes because of her addiction to drugs and abuse of drugs and alcohol that's literally the only words that mirror in the first fourteen pages of the book now to his point that it's an abridgement fair use factor three says you can conjure up the original and in fact in the case of a parody you can go right to the heart how else would we have parodied the book unless we reminded the audience of what happened in the book the second thing they say is it's a sequel not translated i understand i understand it's a sequel in the sense that the characters shared a single christmas eve together when cindy lou was not more than two  after that it takes a drastic left or right turn ok the case at the district court and on appeal that they rely upon is the salinger against colton case which had to do with a sequel with catcher in the rye excuse me they're the characteristics in the sequel of the characters was the same they had the same personality traits they use the same language where in the book it doesn't suggest that this cindy lou who would grow up have premarital sex with the grinch had his baby her parents would reject the baby and reject her that she would have to work for the circus cleaning up elephant dung and then murder her husband after they've the right to anything that talks about what happens after the events of the book and that you do not somehow come within the protection of parody just because you chose to tell the sequel in a particularly crude way now you want to tell us why you don't think that that is a an argument that they should be allowed to pursue sure it's and particularly in a context where they've pointed out that they have not merely published the book they have licensed any number of uses of the character and the story and that you don't suddenly acquired the right to sequels by telling the crude rather than a touching sequel two things your honor the first is that dr seuss is conflating derivative works with transformative works and footnote six of the keeling case which also involved a derivative work it was a stage adaption of a movie a movie certainly has the derivative right to turn into a state by the court said there are different things a derivative work transforms the  form transformative work transforms the purpose here it's transforming the purpose for common criticism that's the first point i want to make the second point is dr seuss has a bit of wordplay in their argument that they have the right to do things that appeal to adults ok there's a difference between appealing to adults and something that is geared or targeted solely to adults this is not a reasonable traditional or likely market that they're going to go into they allege a number of derivative markets that they've entered they allege a musical they allege a movie there's a movie coming out this fall which happens to be a cartoon they have a two thousand movie starring jim carrey that's rated p g this is not a p g movie in adult can be interested in and like a movie that appeals to children as well i will give you that the book appeals to adults who are probably reading with their children around the holiday it does not mean that they have the market to do something that is solely geared towards adults i mean the website itself says this is a parody and mature audience is only the website meaning the one that mr wynn bardot had for the tickets again that even assumes that they have the right to control the derivative market for fair use that it's a parody they cannot control the market for parity so i hope that addresses your question on factor number four are there any other factors that the court wants to address or kind of turn to the trademark trademark wester to the trademark ok thank you the trademark claims have always been somewhat of a sideshow in this case the briefing suggested all of the allegations have really focused on the fair use copyright issue but on the trademark thing what they allege to be an ad that really wasn't an ad there's no allegations in the complaint as to where when how it was was it on t v in a magazine it was and it was an invitation sent by e mail to a select group of private investors none of these people would have been confused as to whether or not this was authorized by dr seuss their investing or would have been investing hopefully tens of thousands of dollars there would have been a number of disclosures made to them it would have said matthew embargos name on it so there would have been no confusion but turning to the substance the rogers test says when its the purpose is to amuse and not to confuse the lanham actually be construed narrowly there's a two factor task the first is that artistically relevant and the second is that explicitly misleading it's not  it's artistically relevant because it refers to the parody of dr seuss and it's not explicitly misleading because nowhere does dr seuss even mentioned it says written and directed by matthew vaughn bardot i see that my time is up if there's no further  of the original work precisely by rendering it no longer innocent with that that is the essence of its market i suppose there could be a parody that destroys the market but in campbell the supreme court case the supreme court says you know little book review which is fair use can destroy the market for people buying the book because nobody's going to want to read a book that gets a terrible review in the supreme court and campbell said that th type of quite a different type of use critical commentary harrity is making fun of the original work and i'm sick and that is that is an accepted use but i'm wondering whether the  the holder of the work can say mot the value of my work is that people in this market know that these works are purely innocent  and appropriate for children under the age of ten etc by parroting it in the way you do you're actually adversely affecting my market because now people are not sure that seuss work s fit that audience is that something the courts should even consider i submit that if they should it's not this case your honor that if anything the play anybody who's going to see it is going to i really like that book i'm glad that i had to laugh at at the expense i don't believe i'll also point out that they never alleged that and in their reply brief i believe on page five they say we're not alleging any harm to the original book itself they're only focusing on the derivative market which is the alleged sequel doesn't there come a point when parity can converge with critical commentary or at least or come close to intersect and i would say that's exactly what parody is to the point is to have a laugh while also commenting on the original and its whatever comment the author has on it and if any author's ultimate comment is this is ridiculous in your original and turns that and conveys that by way of parity that approach test as it stated in campbell and stretch reggie said in her opinion in t c a television is if everyone could take as much from the ground as mr lombardo has taken what would be the effect on my clients ability to license that first of all because as we say we think not only are the product elements weak but the amount taken from the original far too excessive to be reasonably necessary and in any event there is no case where the cases that my colleague has cited are cases where the plaintiffs did not say you are experiencing or affecting one of our markets in one of those cases that they actually make allegations with respect to the fourth factor we have the court the supreme court has said you must consider all four factors and then you must consider them holistically that wasn't done by the district court on the first factor we do believe that the court has to take a much closer look as to whether or not this is a true parity particularly the second half on the third factor we believe the court has to take a look at both of them both the original and the and the lombardo works and say did they need to take all this as a reasonably necessary purpose if there is a parity and on the fourth factor we have our procedural rights which we were denied we were at a motion for judgment on the pleadings and we had to take the court at its word that they were making the determination on the pleadings that they were going to take our allegations to market harm and accept that and take them as true as you're supposed to do on a rule twelve c motion because the district court didn't do that and because of its other errors we ask the court to reverse and remand thank you thank you both just think yes well reserved decision