Although countless children have embraced the notion advanced by Theodor Seuss Geisel, aka Dr. Seuss, that goodness beats in even the darkest heart, playwright Matthew Lombardo didn’t. Instead, he created, Who’s Holiday! his own twisted take on Dr. Seuss’ Christmas classic and its characters, purporting to tell what happened to the Grinch and the adorable little girl Cindy Lou.

Lombardo envisions a sad, vulgar fate for Cindy Lou, whom he depicts in middle age as a bawdy, boozing, rhyming single mom with an illegitimate daughter fathered by the Grinch. She has killed him, has done jail time, and is lamenting her lonely poverty in Lombardo’s play.

Sound a little eeeew? It did, too, to  Dr. Seuss Enterprises LP, which tangled with Lombardo in a federal court in New York over copyright to the work and whether he and his 75-minute prospective play, which was cancelled before it hit the stage, were damaged by cease-and-desist measures over what he claims was a fair use.

Alas, Dr. Seuss Enterprises won’t get to play Grinch to Lombardo, blocking his work further, U.S. District Judge Alvin K. Hellerstein has ruled (a tip of the hat to the law firm Loeb & Loeb for posting the decision online).

The judge resolved the legal dispute over the play’s status as a parody and a protected fair use, just in time for the holidays.

It’s a season for many to reconnect with the works of Geisel, with adults fondly remembering his literary gems for grown-ups and children, still and also. Dr. Seuss entranced readers with his characters’ distinctive poetry in iconic works like Cat in the Hat and The Lorax. He imagined a literary menagerie, which included the Whos. They’re oddly shaped, human-like creatures. They’re ridiculously jolly and often at the center of Seuss stories, especially How the Grinch Stole Christmas, with protagonist Cindy-Lou Who.

Dr. Seuss Enterprises LP argued to Judge Hellerstein that Lombardo’s play unfairly exploited the Grinch’s characters and themes, especially Cindy Lou. But the playwright’s work also explores themes like substance abuse, poverty, early pregnancy, profanity, domestic violence, murder, and social and familial ostracization. The tragedy is wrapped in Seuss-like rhymes. They’re too X-rated to repeat here (but, not of course, to be included in the court ruling).

So where does Lombardo get off taking a wrecking ball to beloved Cindy Lou? Chalk it up to fair use and transformative use.

Fair use and transformative use

To meet the standard of fair use, in which to encourage robust, free expression some legally may borrow from work for which others hold copyrights, judges weigh four factors: 1) the purpose and character of use, 2) the nature of the copyrighted work 3) the amount and substantiality of the portion taken and 4) The effect of the use upon the potential Market.

There are no hard and fast rules as to what weight courts may give to any of these factors, individually or in combination. But in this matter, it’s key to look at the judge’s consideration of Lombardo’s play and its transformative nature.

In examining the purpose and character of the use of Dr. Seuss’ original materials, Hellerstein considered the transformative factor in copyright law, particularly looking to Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994). That case offered courts guidelines in defining parody, a form that works for an audience only if there is sufficient reference in a new piece to a known original. At the same time, to be protected as fair use, the work also must be highly “transformative, altering the original with new expression, meaning, or message.”

Lombardo, the court found, did not simply mirror Seuss characters and themes, instead, moving quickly beyond them to mock modern society and its mores, especially with its adult themes. The Grinch always was a sardonic guy. But he’s a central player in a story with a happy ending, right? Lombardo’s twist isn’t so jolly, and, as Hellerstein observed: “Using some characteristics of the Grinch cannot be avoided, as the Play must be able to refer to recognizable elements of Grinch and conjure up at least enough of Grinch to make the objects of its critical wit recognizable.”

But “the play’s coarseness and vulgarity lampoons Grinch by highlighting the ridiculousness of the utopian society depicting in the original work: society is not good and sweet, but coarse vulgar and disappointing. The play would not make sense without evoking the style and message of Grinch, for which there would be no object of the parody.”

Potential market effects

Meantime, a potentially infringing work’s effect on the original’s market is another crucial fair-use element for courts to consider. Would Who’s Holiday! whack at book sales or box office numbers for works based on the Grinch? Most parents wouldn’t let their kids near Lombardo’s play.

Besides the Grinch has continuing strong sales of the kid’s book (which Amazon ranks a solid No. 10 in the children’s Christmas category), a 1966 Boris Karloff-narrated version remains well received (Amazon rank No. 17 in Anime), as does a 2000 Ron Howard-Jim Carrey film. And, of course, Universal/Illumination Picture has its new animated film version ahead, How the Grinch Stole Christmas! starring Benedict Cumberbatch set for November, 2018, release.