Copyright Fair Use: How the Grinch Stole Cindy Lou Who’s…Theater Cred?

April 12, 2017

In December, Broadway playwright Matthew Lombardo filed a lawsuit against Dr. Seuss Enterprises (Seuss) alleging fair use of a copyright and tortious interference.  Lombardo wrote a one woman play, “Christmas on the Rocks,” which tells the story of what happens to Cindy Lou Who after Dr. Seuss’s “How the Grinch Stole Christmas” ends. The play is a racy departure from the wholesomeness of Dr. Seuss’s characters in his beloved children’s book.

You can read the entire play for yourself; it is attached as an exhibit to Lombardo’s complaint on the docket.  (Spoiler Alert!) “Christmas on the Rocks” opens on Cindy Lou Who, age 45, is freshly released from prison and preparing for a Christmas party.  We learn that she married the Grinch, gave birth to his daughter, and lived with him and his dog Max on top of Mt. Crumpet. The play is written in rhyme and features audience participation as Cindy breaks the fourth wall to tell her story.

Upon hearing about the play, and seeing some promotional materials advertising it using the same type-face as Dr. Seuss’ work, Seuss Enterprises wrote a series of cease and desist letters.  First, it sent a letter to the director implying that the play might constitute copyright infringement and requesting a copy of the script for review.  After sending three unanswered communications to the director, Seuss sent letters to the theatre, where the play was to be shown, and Lombardo.

In his complaint, Lombardo alleged that his work does not amount to copyright infringement because it constitutes fair use and a large departure from the children’s book.  He stated that “The Play 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.”

Lombardo also alleged that Dr. Seuss Enterprises tortiously interfered with the play, which was set to open in November 2016 in New York City, causing the theatre to pull the production and Lombardo to lose a lot of money.  There is only one tort claim in the complaint; however, Lombardo later wrote in his opposition that the complaint adequately stated claims for injurious falsehood, defamation per se, and tortious interference with prospective business relations.

Last Friday, April 7, 2017, the Southern District of New York granted Seuss’ partial motion to dismiss the tort claims.  Seuss alleged that Lombardo had not stated the tort claim with enough specificity and the court agreed.

In its opinion, the court reasoned that Lombardo’s tort claim was unclear, in that he did not mention his specific claims by name.  It further reasoned that even if he had made the specific claims of tortious interference with prospective business relations, injurious falsehood, and defamation, he had not alleged facts to support them.

The issue of fair use has yet to be decided.  Seuss has fourteen days following the order granting its partial motion to dismiss to file its answer to the fair use claim.

The order is not yet available on Westlaw.

The complaint can be found here.

The docket (and the play) can be found here.


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Image credit: STR New/REUTERS from 2000 film by Imagine Entertainment/Universal Pictures