Amicus Curiae Brief — Eldred v. Ashcroft

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(49 Supreme Court, U S.

SA FILED

No. 01-618 Ave - 5 2002 |

Supreme Court of the United States

ERIC ELDRED, et ai.,

Petitioners,

JOHN D. ASHCROFT, in his Official Capacity

as Attorney General,

Respondent.

On Wait oF CERTIORARI TO THE

UnNitep STATES Court OF APPEALS FOR THE

District oF COLUMBIA CIRCUIT

BRIEF AMICI CURIAE OF DR. SEUSS ENTERPRISES, L.P.,

ALLENE WHITE, MADELEINE BEMELMANS, AND

BARBARA BEMELMANS A.K.A. BARBARA BEMELMANS

MARCIANO IN SUPPORT OF RESPONDENT

HERBERT B. CHEYETTE Kar ZOBELL

40 West 57th Street Counsel of Record

New York, NY 10019 Nancy O. Dix

(212) 556-5749 CatHy ANN BENCIVENGO

RANDALL E. Kay

Gray Cary WARE

RECEIVE D & FREIDENRICH LLP

5 4365 Executive Drive

Suite 1100

AUS - 6 2002 San Diego, CA 92121

o- moe OURRK (858) 638-6800

eee ess AndSvehor Amici Curiae

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TABLE OF CONTENTS

Page

Table of Cited Authorities ...............+-+05. iV

Interests of Amici Curiae ...........eeeeeeeees l

Tine Wess OE IE. GOMES nw ccc cccccsecccccces l

Be We CUED vive vsccccecnvccaesosse 2

Ludwig Bemelmans’ Books ................. 3

Summary Of Argumemt .........cccccccccccess 4

ey errr e rr rr re rer rer s 6

I. Amici’s Experience Supports Congress’

Conclusion That Extending The Copyright

Term Would ‘Promote Progress’. ......... 6

is TED bcc cccdsedaccceeciccssess 7

Wh CHE obese vesbssdeevesshesed« 9

C. Ludwig Bemelmans................. 10

II. Children’s Books Typically Take Decades To

Become Classics And To Generate Derivative

ee eee ee ee ee ia oe 11

li il

Contents

Page Page

II]. Congress Reasonably Found That The Term 2. Fair Use and Parody Law Also

Extensions Of The CTEA Do “Promote The Protect First Amendment Interests in

Progvess OF Golenee.” ....sccccesneaneen 15 Copyrighted Works. ............ 24

A. The Promotion of Progress Occurs EES ELE 27

Through the Creation of New Works as

Well as Through Enhancement of

Kaowleles. ...ccscccsssssebanveunn 15

B. Enriching the Public Domain Was Not

the Framer’s Purpose. .............. 18

C. The Incentives of the Copyright Term

Extension Act Promote the Creation of

Now WEED. .ccccccccseccesneeneee 20

IV. Neither Copyright Law In General Nor The

CTEA Impinge On The Important Rights

Associated With The First Amendment. ... 20

A. Petitioners’ First Amendment Position is

Fundamentally Flawed. ............. 20

B. The Constitutional Interests at Stake

Under the First Amendment Challenge

to the CTEA are Protected by the Idea/

Expression Dichotomy, Fair Use and

Pasady LOW. cccccoccccessessscoucs 22

1. The Idea-Expression Dichotomy

Addresses First Amendment Concerns.

TABLE OF CITED AUTHORITIES

Federal Cases: Page

Campbell v. Acuff-Rose Music, Inc.,

510 U.S. 569, 114 S. Ct. 1164,

— pR 8 rr 25

Dr. Seuss Enterprises, L.P.

v. Penguin Books USA, Inc. et al.,

109 F.3d 1394 (9th Cir. 1997) ............... 25

Dr. Seuss Enterprises, L.P.

v. Penguin Books USA, Inc. et al.,

924 F. Supp. 1559 (S.D. Cal. 1996) ........... 25

Goldstein v. California,

See ED 60cccnsceeceecnsivesess 16

Harper & Row v. Nation Enterprise,

Pe Gs SEED ee cccnecsessnecs 16, 21, 22, 23

International News Service v. Associated Press,

a re ae Ee ee 22

Mazer v. Stein,

Sy ED cococebasebeceecescueas 16

New York Times Co. v. United States,

Ga es SEE ovencunnencunsesseneess 22

Sony Corp. v. Universal City Studios, Inc.,

GEO TE Gee GE oc ecccccecctecsccccs 16, 22, 23

Twentieth Century Music Corp. v. Aiken,

GER UB. BER GGGSD cccccccccscccscccevcess 16, 22

Cited Authorities

Page

United States Constitution:

DIT, dancaunudssesdounsesaeecuens 4, 16, 25

Federal Statutes:

Py EEE EE Gebédedes dues ceuducsedesenes passim

gE SP Sen ener ae Ce er 22, 23

PE sec ceceenenecuauénunuenuas 22, 23, 24

S. Rep. No. 104-315 (1996) .................. passim

Miscellaneous:

Andy Seiler, How the Grinch Stole Hollywood,

USA Today, November 15, 2000 ............. 7

James Morton Smith,

The Republic of Letters (1995) .............. 16

Edward C. Walterscheid,

The Nature of the Intellectual Property Clause:

A Study in Historical Perspective,

83 J. Pat. & Trademark Off. Soc’y 763 (2001) .. 18, 19

INTERESTS OF AMICI CURIAE'

Amici curiae own copyrights for children’s literary works

authored by Dr. Seuss, E.B. White and Ludwig Bemelmans.

Amici Curiae are Dr. Seuss Enterprises, L.P. (owner of the

copyrights of Dr. Seuss and referred to as “Seuss”), Allene

White (owner of a majority of the copyrights of E.B. White

(“White”), and Madeleine Bemelmans and Barbara

Bemelmans a.k.a. Barbara Bemelmans Marciano (owners of

the copyrights of Ludwig Bemelmans and referred to

collectively as “Bemelmans”). Amici curiae bring a unique

perspective to this matter based on their longstanding

association with the advancement of creative arts through

famous children’s works which have brought delight to

succeeding generations of children.

The Works of Dr. Seuss

Seuss is the exclusive owner of most of the copyrights

in the books and illustrations of Theodor S. Geisel (“Ted

Geisel”’). Ted Geisel lived from 1904 to 1991. Over a 60-year

period, under the pen names Dr. Seuss and Theo LeSieg, he

wrote and illustrated 44 children’s books and created the text

of numerous others, of which more than 90 million trade book

and 200 million book club copies have been sold in the United

States and English-speaking Canada. His books are

distributed world-wide and have been translated into

24 languages.

1. Counsel for Amici Curiae Seuss, White and Bemelmans

authored this brief in its entirety. No person or entity other than the

amici curiae and their counsel made any monetary contribution to

the preparation or submission of the brief. Consent of the petitioners

is on file with the Court and the consent of the respondent is being

lodged herewith.

Dr. Seuss’ mischievous Cat character with his distinctive

red and white stovepipe hat from The Cat in the Hat is not

only among the most famous and recognizable Dr. Seuss

characters and images, it is among the most recognizable

images in children’s literature. Seuss’ The Cat in the Hat,

Green Eggs and Ham and One Fish Two Fish Red Fish Blue

Fish are among the top 10 best-selling children’s books of

all time, and 12 of Dr. Seuss’ books are among the top fifty.

Seuss’ work Oh, the Places You'll Go holds the record for

the number of years it has appeared on the New York Times

bestseller list for fiction (every year since first published in

1990). Dr. Seuss remains the best-selling author of children’s

books in the world.

E.B. White’s Writings

White is the owner of a majority of the copyrights

originally obtained by Elwyn Brooks (“E.B.”) White.

E.B. White, who lived from 1899 to 1985, authored such

famous children’s works as Stuart Little (first published in

1945), Charlotte s Web (first published in 1952) and Trumpet

of the Swan (first published in 1970). White’s three children’s

books, Charlotte's Web, Stuart Little and Trumpet of the

Swan, have all become classics of children’s literature.

White’s works continue to fascinate children from generation

to generation.

White’s writings were not limited to children’s books.

Prolific and versatile, he had many essays published in The

New Yorker and Harpers and later republished in a series of

collections, such as One Man's Meat, a chronicle of the first

years after White’s 1938 move to Brooklin, Maine, The Points

of My Compass published in 1954 and Essays of E.B. White

published in 1977. White contributed to the New Yorker Talk

of the Town section for many years. He wrote several

collections of poems and short sketches. White also wrote

short non-fiction books such as Here is New York, which

was recently republished for the centennial of the consolidation

of New York City, and humorous works such as /s Sex Necessary

or Why You Feel the Way You Do, in which he collaborated

with James Thurber. Also widely known for his work in the

genre of composition and style, White contributed to three

editions of the famous The Elements of Style with William

Strunk, Jr.

Ludwig Bemelmans’ Books

Bemelmans holds the copyrights to the works of writer

and artist Ludwig Bemelmans who lived from 1898 to 1962.

Ludwig Bemelmans’ first children’s book, Hansi, was

published in 1934. In the late 1930’s, Ludwig Bemelmans

created the classic children’s character Madeline. The first

book in the series, Madeline, was published by Viking in

1939 and named a Caldecott Honor Book. Five sequels

followed (Madeline's Rescue, Madeline and the Bad Hat,

Madeline and the Gypsies, Madeline in London and

Madeline's Christmas). Over the years these books have been

translated into several foreign languages and have sold more

than ten million copies worldwide. The Madeline books tell

the adventures of Madeline, a young red haired girl in convent

school. The Madeline series of books have become children’s

classics.

The copyrighted works by Dr. Seuss, E.B. White and

Ludwig Bemelmans have educated and entertained youngsters

during the authors’ lives and afterwards. Works such as The

Cat in the Hat, How the Grinch Stole Christmas!, Stuart Little

and Madeline continue to appeal to the grandchildren and

great grandchildren of the original readers.

Amici support the affirmance of the District of Columbia

Circuit Court of Appeals opinion and present this brief to

offer the perspective of the copyright owners for three world-

renowned children’s authors regarding factors pertinent to

the determination of this case. As copyright owners, Amici

represent a view that is distinct from the parties. Amici know

first-hand how crucial the exclusive rights afforded by

of existing works. Amici maintain that the term extensions

provided by the Copyright Term Extension Act create

incentives for copyright holders to continue the development,

evolution and distribution of copyrighted works, both

existing and future.

SUMMARY OF ARGUMENT

The Constitution gives Congress the power “To promote

the Progress of Science by securing for limited Times to

Authors[] the exclusive Right to their respective Writings . . .”

U.S. Const. Art. I, § 8, cl. 8. Pursuant to this Constitutional grant,

Congress passed the Copyright Term Extension Act of 1998

(“CTEA”), Pub. L. No. 105-298, 112 Stat. 2827 (codified as

17 U°S.C. § 101, et seg. (1998)) which extended the term of

both existing and future copyrights by an additional twenty years.

Petitioners’ challenge to the constitutionality of the

CTEA rests primarily on two grounds: First, Petitioners argue

that the retrospective extension of existing copyrights

exceeded Congress’ authority under the Copyright Clause

because the CTEA fails to fulfill the Constitutional mandate

“To promote... Progress.” Petitioners argue that once a work

has been created, the CTEA cannot possibly stimulate or

encourage any further artistic creativity or induce the

production of new works. (Pet. Br. at 15.)

Petitioners further argue that the term extensions afforded

by the CTEA violate the First Amendment by restricting the

speech of those with expectations that works would enter

the public domain at some specified time. (Pet. Br. at 41.)

While this Court has found that the incentive to create new

works provided by copyrights justifies restrictions on speech,

Petitioners conclude the CTEA can provide no such incentive

because its retroactive extensions were granted long after

the moment of creation and in many cases after the author’s

death. (Pet. Br. at 42.)’

The basic premise underlying both arguments is the

assumption that once the initial creative effort is complete,

there can be no further contribution to the creative process,

at least not by the copyright holder. Relying on this

assumption, Petitioners conclude that extending an existing

restraint on speech. (Pet. Br. at 22, 42.) This unfounded

assumption is central to Petitioners’ arguments for if

works, as Amici will demonstrate to be the case, then the

CTEA’s term extensions, both prospective and extant,

necessarily afford incentives for creativity that “promote the

Progress of Science” and justify the restraint of speech.

The flawed assumption on which both arguments rest is

inconsistent with the realities of the marketplace for creative

works. Extending the term of copyright protection can and

2. Petitioners also argue that the CTEA’s 20-year retroactive

extension to the copyright term creates a perpetually expandable term

that is somehow not a “limited Time.” (Pet. Br. at 17-18.) Following

enactment of the CTEA, copyright terms, for both subsisting and future

works, remain fixed, circumscribed and “limited.” Thus, a 20-year

extension to a period of “limited Time” remains a “limited Time.”

does encourage further creative activity by copynght holders.

As demonstrated by the legislative record, copyright holders

in the real world, such as Amici here, have distributed their

works in new forms of media not available when the works

were originally created. Amici have embellished existing

works and created and developed derivative works in the form

of television programs, videos, motion pictures, stage

productions, interactive CD-ROMs and more. None of these

activities would have occurred without the exclusivity

afforded by the copyrights in the underlying work. The

retroactive extensions of the CTEA were intended not to

reward the past, as Petitioners suggest, but rather, as Congress

reasonably concluded, to stimulate the development of future

creative works.

ARGUMENT

I. AMICI’S EXPERIENCE SUPPORTS CONGRESS’

CONCLUSION THAT EXTENDING THE COPY-

RIGHT TERM WOULD ‘PROMOTE PROGRESS’.

Petitioners’ view that the CTEA cannot stimulate or

encourage the creation of new works is inconsistent with the

legislative record and the experience of Amici. Senate Report

No. 104-315 contains the Committee on the Judiciary’s

July 10, 1996 report on the bill that later became the CTEA.~

This report recited certain legislative history and explored

the many considerations and rationales for enacting the

CTEA. /nter alia, this report acknowledged that technological

advancements in communications and electronic media were

accelerating, causing an increased likelihood that copyright

terms would be insufficient for American authors to benefit

from those advancements. The Committee specifically

recognized that copyright holders had incentives to create

new and derivative works and that an additional twenty years

for copyright terms would increase those incentives. S. Rep.

No. 104-315, at 11-12 (1996). This legislative record is

consistent with Amici s experience.

A. Dr. Seuss

Seuss’ works have been adapted into a vanety of new media

over the years. Having originally appeared in magazine or

book form, these works have been transformed into animated

television programs, videos, motion pictures, legitimate stage

productions, phonograph recordings, interactive CD-ROMs,

a theme park, a memorial park and a broad spectrum of

learning tools and merchandise.

Seuss’ classic work How the Grinch Stole Christmas!

was first published in 1957. The Grinch became an ammated

television special produced by Metro-Goldwyn-Mayer, Inc.

in 1966. This work became a big screen feature film starring

Jim Carrey in 2000 — 43 years after the original publication.

The 2000 Universal Studios film, directed by Ron Howard,

tells the heartwarming Christmas story in an entirely new

fashion. Although the 2000 Grinch film, which cost more

than $125 million to create, is derived from the original 1957

work, it transforms the story into a new medium with a new

spin, and with special effects, sets, makeup, costumes, and

musical score not imaginable back in 1957. The set for the

Grinch film was reported to be the biggest ever built at

Universal Studios in Hollywood.’

3. Andy Seiler, How the Grinch Stole Hollywood, USA Today,

November 15, 2000 at 1D.

The Academy of Motion Picture Arts and Sciences

recognized the Grinch film with three Oscar® nominations

(for art direction, costume design and makeup) and the

Academy Award for best makeup in film. In 2001, the Grinch

film was released in another new format, on Digital Video

Disk (“DVD”) which contained bonus materials on topics

such as the film’s visual effects, set decoration, makeup

application and makeup design, as well as outtakes, deleted

scenes, recipes, music videos, an interactive play set and

sing-alongs.

The release of the Grinch film also created renewed

interest in the 1957 original work, stimulating the growth of

U.S. sales of the 1957 Grinch book by more than 20% over

the same period the previous year and spurring demand for

publication of the original 1957 work in nine additional

foreign languages.

Seuss’ children’s books have led to the creation of a

variety of additional works in other media. The Broadway

show “Seussical the Musical” debuted in 2000 at a cost of

over 10 million dollars. This musical tells an entirely new

story based on the characters created long ago by Dr. Seuss.

The show will tour the nation beginning in September 2002,

starring Cathy Rigby as the Cat in the Hat. The original cast

recording from “Seussical the Musical” contains twenty-eight

newly created songs, some with verses from Seuss’ books as

well as newly written lyrics.

The Children’s Theater Company in Minneapolis,

Minnesota, the largest children’s theater in North America,

is featuring a play based on a Seuss work in its 2002-03

season. This play, “The 500 Hats of Bartholomew Cubbins,”

adapts Seuss’ 1938 work into a stage play with newly created

music. The Minneapolis theater also commissioned a

legitimate stage version of How the Grinch Stole Christmas,

which is not only penodically performed there, but also annually

at the Old Globe Theater in San Diego.

Seuss’ works also have been transformed into a children’s

theme park. Built at a cost of more than $100 million, “Seuss

Landing” is a 1 5-acre section of Universal’s Orlando, Florida

“Islands of Adventure,” where many Dr. Seuss characters are

brought to life. The Seuss Landing area of the theme park is

immediately recognizable to youngsters. At Seuss Landing,

children can enjoy a “Caro-Seuss-el” merry-go-round and

other ndes derived from such famous Seuss books as The Cat

in the Hat and One Fish Two Fish Red Fish Blue Fish.

In addition to entertaining children, the theme park also

creates and renews interest in the original Seuss works.‘

This park would never have been created had the Seuss works

not been protected by copyrights.

B. E.B. White

All three of White’s works have spawned recorded

readings, stage plays for stock and amateur theater and motion

pictures. Paramount released the motion picture Charlotte s

Web in 1973. Columbia TriStar released the first Stuart Little

film (Stuart Little) in 1999 and Columbia Pictures released

the sequel, Stuart Little 2, in July 2002. Columbia TriStar

released the animated film 7rumpet of the Swan in 2001.

The 1999 film Stuart Little, based on the 1945 work, stars

4. Seuss Landing also supports the Make a Wish Foundation

and Give Kids the World programs.

Michael J. Fox as the voice for the mouse named Stuart being

raised by a human family. This film is estimated to have cost

more than $90 million to bring to market.

The Academy of Motion Picture Arts and Sciences

nominated the 1999 Stuart Little film for Best Achievement

in Visual Effects. Visual effects creators John Dykstra, Jerome

Chen, Henry F. Anderson III and Eric Allard won this

Academy Award nomination for their innovative digital

creations of characters including the mouse Stuart Little.

This film renewed interest in the original Stuart Little book

and created interest in new adaptations of the original work.

The success of the Stuart Little film led directly to the creation

of yet another derivative work — the film Stuart Little 2 —

released in July 2002.

C. Ludwig Bemelmans

Bemelmans published his six Madeline books beginning

in 1939. Madeline’s popularity has continued unabated, and

the original 1939 story has repeatedly been adapted in other

media, including a 1952 animated short (nominated for the

Best Short Subject - Cartoon Oscar® in that year) and the

1998 live-action TriStar film Madeline. Madeline animated

television series have appeared on the Family Channel and

ABC, and the current animated Madeline series, now airing

on the Disney Channel, recently won the 2002 Daytime

Emmy for Best Children’s Animated Program. The half hour

Madeline animations have also been produced in VHS and

DVD formats.

Il. CHILDREN’S BOOKS TYPICALLY TAKE

DECADES TO BECOME CLASSICS AND TO

GENERATE DERIVATIVE WORKS.

Successful children’s books have an enduring shelf life

compared to the transitory nature of most adult fiction. While

it 1s the smash bestseller that supports adult trade fiction, it

1s the incremental backlist that supports children’s publishing.

The backbone of the backlist is, of course, the Copyright

Act. One of the principle victims of a reduction in the term

of copyright would be the children’s book publishing

industry.

CHILDREN’S BOOKS

As depicted on the chart below, it typically takes decades

to bring children’s classics to the large screen. Of the more

than 50 children’s books created by Amici, White's

Charlotte 's Web was the only book to have a children’s film

produced during its author’s lifetime.

Author Year Of Year Of Years

Publication Motion Between

Picture Publication

And Motion

Picture Release

How the Dr. Seuss 1957 2000 43

Grinch Stole

Christmas

The Cat in Dr. Seuss 1957 2003 46

the Hat

Charlotte’s E. B. White 1952 1973 21

Web

Stuart Little E. B. White 1945 1999 54

Trumpet of

the Swan E. B. White 1970 2001 31

Madeline Ludwig 1939 1998 59

Bemelmans

Title Author Year Of Year Of Years

Publication Motion Between

Picture Publication

And Motion

Picture Release

The Wizard Frank Baum 1900 1925 (i* pic) | 25

of Oz

Dr. Doolittle Hugh Lofting 1922 1967 45

Mary Poppins P. L. Travers 1934 1964 30

Lord of J. R. R. Tolkien 1954 2002 48

the Rings

James and the Roald Dahl 1961 1996 35

Giant Peach

It is the continued existence of exclusive copyrights for

these classic works, decades after their initial publication,

that provides the incentive to the producers of these films to

devote the immense resources necessary to bring the Grinch,

Stuart Little and Madeline works into the medium of modern

day feature films or to invest millions to create musicals for

the legitimate stage. It is the exclusivity of copyright

protection that provides the incentive for the producers of

other derivative works to invest the capital to transform these

books into new media.

In order to compete for the interest of the viewing public,

films like Men in Black, Spiderman, and Star Wars create

demand for movies with cutting-edge sets and special effects,

all of which come at significant cost. Had the original Grinch

and Stuart Little works already been in the public domain,

the producers and film studios would never have invested a

hundred million dollars or more to bring the adaptations of

these works to the big screen with such dramatic and award-

winning special effects. Moreover, without copyrights, there

is no ability to maintain control over the quality of the work

or to manage the merchandising that accompanies such movies

and which provides an important secondary source of revenues,

reducing the risk of the initial investment.’ In light of the

legislative record and publicly available information,

Congress reasonably understood that without the exclusivity

5. The Committee on the Judiciary specifically recognized the

desire to allow copyright holders to maximize the return on creative

investment by exploiting their works throughout the course of the

works’ marketable lives. S. Rep. No. 104-315, at 11-12 (1996).

Similarly, the Brief of Amicus MPAA further documents Congress’

desire to provide financial incentives to copyright holders to create

new works as well as to restore existing works such as films.

of copyrights movie studios are far less likely to gamble on

these ventures which add so much to the creative arts.°

As a further example, Universal Pictures, Dream Works

Pictures and Imagine Entertainment are currently making a

feature film live-action adaptation of Dr. Seuss’ 1957 work

The Cat in the Hat. The film version of the 1957 work

The Cat in the Hat, starring Mike Myers in the title role,

is projected for a 2003 release. It will require a significant

investment to bring this film to market. Without the exclusive

rights afforded by copyrights, this work would not be made.

Ill. CONGRESS REASONABLY FOUND THAT

THE TERM EXTENSIONS OF THE CTEA DO

“PROMOTE THE PROGRESS OF SCIENCE.”

A. The Promotion of Progress Occurs Through the

Creation of New Works as Well as Through Enhancement

of Knowledge.

The Copyright Clause gives Congress the power:

To promote the Progress of Science and useful

Arts, by securing for limited Times to Authors and

6. Congress recognized the need to provide incentive to motion

picture studios and publishers to take risks in financing films by

extending the terms of copyrights. The Committee on the Judiciary

reported that “extended protection for existing works will provide

added income with which to subsidize the creation of new works.”

S. Rep. No. 104-315, at 11-12 (1996). Although the examples the

Committee referenced were the financing of marginal works and

works of young or emerging authors, the principle applies equally to

financing films of famous children’s works based upon the great risk

taken to bring these works to the big screen.

Inventors the exclusive Right to their respective

Writings and Discoveries;

U.S. Const. Art. I, § 8, cl. 8. As noted by Petitioners, this Court

has said the words “To promote ... Progress” means to

stimulate, encourage or induce artistic creation, Goldstein v.

California, 412 U.S. 546 (1973); to stimulate artistic

creativity, Twentieth Century Music Corp. v. Aiken, 422 U.S.

151, 156 (1975), or to “motivate the creative activity of

authors,” Harper & Row Publishers, Inc. v. Nation Enter.,

471 U.S. 539, 546 (1985) (citing Sony Corp. v. Universal

City Studios, 464 U.S. 417, 429 (1984)). This Constitutional

phrase is not, however, limited solely to the creation of

incentives. It also means the enhancement of knowledge.’

The Copyright clause was intended to advance knowledge

and the public welfare.* Mazer v. Stein, 347 U.S. 201, 219

(1954); Harper & Row 471 U.S. at 558. Congress thus fulfills

its Constitutional mandate to “promote ... Progress,” by

spurring the creation of new works as well as by encouraging

the broad dissemination of existing works and other acts that

enhance knowledge. As demonstrated by the legislative

record as well as Amici’s experience, the exclusivity afforded

by copyrights does stimulate the creation of new works as

well as the enhancement of knowledge and the public good.

7. At the time of the framing, the term “science” meant

“knowledge.” The power to promote knowledge was through the

exclusive grant known as a copyright. The useful Arts were to be

promoted through the exclusive grant known as a patent. Edward C.

Walterscheid, The Nature of the Intellectual Property Clause: A Study

in Historical Perspective, 83 J. Pat. & Trademark Off. Soc’y 763,

781 (2001).

8. /d. at 769-770, citing Letter from James Madison to Thomas

Jefferson (Oct. 17, 1788), in The Republic of Letters 630 n.11 (James

Morton Smith, ed., 1995).

Amici have over the years undertaken significant efforts

that have enhanced both knowledge and the public good.

Works by Ted Geisel, E.B. White and Ludwig Bemelmans

promote children’s literacy and the love of reading. Ted Geisel

won the 1984 Pulitzer Prize for his special contribution to

the education and enjoyment of America’s children and their

parents. The National Education Association celebrates

Dr. Seuss’ birthday with its annual Read Across America day

during which children throughout the nation read Dr. Seuss’

books. Approximately 40 million people participated in the

March 2002 event. In 1999, the Cat in the Hat was selected

by school children of America for depiction on a postal stamp

and was the only book character so honored.

Seuss’ The Lorax is widely used for imparting to children

lessons regarding the environment and conservation. Seuss

granted the United Nations the gratis right to create a special

edition of The Lorax for worldwide distribution in connection

with a 1983 conservation campaign.

In 1997, Seuss allowed the United States Centers for

Disease Control and Prevention the free right to use Seuss’

1939 work The King’s Stilts and a variety of other books for a

two-year poster campaign. This initiative encouraged parents

to have their children inoculated as part of the Department of

Health and Human Services’ national Dr. Seuss Immunization

Awareness Campaign. This campaign featured Seuss characters

that told immunization stories in rhyme in order to increase

childhood immunization rates while reducing the rates of

vaccine preventable childhood illnesses. The CDC characterized

the Seuss posters as incredible tools to promote immunization

awareness.

In 1997, Seuss donated rights for the creation of a Dr. Seuss

interactive learning exhibit at the Children’s Museum of

Manhattan. This exhibit, featuring displays based on Seuss

works such as The Cat in the Hat and Green Eggs and Ham,

drew 700,000 visitors in its two year run at the Children’s

Museum of Manhattan. The exhibit has since toured 11 other

children’s museums around the United States and has attracted

over 2 million visitors.

As a contribution to the economic rejuvenation of

Springfield, Massachusetts, Ted Geisel’s hometown, Seuss

participated in the creation of a multimillion-dollar Dr. Seuss

National Memorial sculpture garden, which opened in June

2002. The garden consists of bronze replicas of Mr. Geisel and

many of his most popular characters erected in the quadrangle

of the Springfield library and museums. ’

The efforts of Seuss, White and Bemelmans demonstrate

that copyright holders contribute to the promotion of the progress

of science, in many different ways, long after a work’s original

publication.

B. Enriching the Public Domain Was Not the Framer’s

Purpose.

While there may be little record of what the Framers

intended by the phrase “to promote the Progress of Science and

useful Arts,”'° they perceived that putting works directly into

9. The Seuss works also fund a foundation which supports a

variety of philanthropic activities and medical and academic

institutions. Participation in royalties provides one of the largest

alumni contributions to Dartmouth College (Ted Geisel’s alma mater).

In 1995, Ted Geisel’s widow provided a multi-million dollar

endowment for the libraries at the University of California, San Diego.

10. Walterscheid, supra, at 766, 774-775.

the public domain would not achieve this end.'' Otherwise,

there would be no need for a Copyright Clause, and works

would go directly into the public domain upon creation."

Thus, the very existence of the Copyright Clause belies

Petitioners’ argument that the Progress of Science is not

promoted until works reach the public domain.

While Petitioners contend that the CTEA denies a

generation of creative work to another generation of creators

(Pet. Br. at 18), this argument is simply a red herring,

as Petitioners themselves are not creators. They do not create

something “new to the world”; rather, they merely seek to

repackage and redistribute, sometimes by electronic means,

the works of others. While in no way seeking to disparage

the intent of Petitioners, others having access to works

through the public domain make use of well-known

characters to glorify drugs or to create pornography. These

uses, especially for children’s works, demean and dilute the

original works and discourage their continued popularity.

In passing the CTEA, Congress, like the Framers, understood

that putting works in the Public Domain does not ipso facto

“promote ... Progress.”

11. Jd. at 770.

12. While, apparently, this would have been Jefferson's

preference, since he believed that government should neither restrain

nor aid its citizens in their individual pursuits, Jefferson was serving

as Minister to France and played no active part in drafting the

Constitution. In contrast, Madison, who was one of the Framers and

a supporter of the clause, advocated the need to protect the few from

the dictates of the many, expressing the view that copyrights and

patents were monopolies that should be tolerated because of the public

good they could produce. Walterscheid, supra, at 769-770.

C. The Incentives of the Copyright Term Extension

Act Promote the Creation of New Works.

Petitioners argue that the extension of existing copyrights

cannot promote the Progress of Science because, no matter

what is offered to Hawthorne, Hemingway or Gershwin, they

will not produce anything more. (Pet. Br. at 22.) The incentives

of the CTEA, they contend, are given for work that has

already been produced. Petitioners’ argument in this regard

is unfounded. As discussed above, this argument is contrary

to the legislative record and the experience of Amici.

The legislative record demonstrates that by extending

existing incentives to create new and derivative works.”

S. Rep. No. 104-315, at 12 (1996). The term extensions of

the CTEA do provide incentives for copyright holders to

further develop creative works that otherwise would not be

created, as well as to distribute existing works in new forms

of media.

IV. NEITHER COPYRIGHT LAW IN GENERAL NOR

THE CTEA IMPINGE ON THE IMPORTANT

RIGHTS ASSOCIATED WITH THE FIRST

AMENDMENT.

A. Petitioners’ First Amendment Position is Fund-

amentally Flawed.

Petitioners’ First Amendment arguments are fundamentally

flawed. Petitioners erroneously argue that the term extensions

of the CTEA are subject to First Amendment challenge because

they restrict the speech of those who anticipate that works would

soon fall into the public domain. (Pet. Br. at 39-41.) Although

Petitioners recognize that this Court has found the incentive to

create new works provided by copyrights justifies such a

restriction, they simply conclude that Congress could not

reasonably have believed that the CTEA advanced copynght

holders’ incentive to create.

Notwithstanding Petitioners’ denial, the legislative record

demonstrates that Congress had a reasonable basis to conclude

that the enactment of the CTEA would increase the existing

incentives to create new and derivative works. S. Rep. No. 104-

315, at 12 (1996). Petitioners’ unfounded contention that

earlier works than those like Petitioners (who only republish or

copy the works of others) is both inaccurate and without support,

as demonstrated by Amici’s various experiences set forth herein.

As noted previously, the motion picture of Charlotte s Web was

released in 1973. The Madeline story first became an animated

short film in 1952 and the feature film Madeline was released

in 1998. Six weeks before the CTEA was enacted in October,

1998, Seuss publicly announced that its 1957 work How the

Grinch Stole Christmas! was being made into a full-length

feature film.'’ Congress had ample evidence from which to

conclude that extending the exclusivity afforded by copyrights

would provide copyright holders with further incentives to create

new works.

The CTEA also meets First Amendment scrutiny under the

authorities cited by Petitioner. Petitioner cites to Harper & Row,

471 U.S. at 558, for the proposition that copyright law may be

upheld against First Amendment challenge only insofar as it

protects an “engine of free expression.” As demonstrated above,

Amici Seuss, White and Bemelmans have all shown that their

existing copyrights have served as just such an “engine of

expression.”

13. The Associated Press, Universal Strikes Deal for Dr. Seuss,

AP Online, September 16, 1998, available on Westlaw.

B. The Constitutional Interests at Stake Under the

First Amendment Challenge to the CTEA are Protected

by the Idea/Expression Dichotomy, Fair Use and Parody

Law.

term — only provides specific and limited rights. Sony Corp.

v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984);

Twentieth Century Music, 422 U.S. at 155. The tensions

between those rights and the First Amendment have long

since been resolved. This Court has held that First

Amendment rights are protected by (1) the “idea/expression

dichotomy, i.e., the fact that copyright only prohibits the

copying of actual “expression” and not “ideas” under 17 U.S.C.

§ 102(b); and (2) the provision for fair use of copyrighted

works under 17 U.S.C. § 107. /nt’l News Service v. Associated

Press, 248 U.S. 215, 234 (1918); New York Times Co. v.

United States, 403 U.S. 713, 726 (1971), Harper & Row,

471 U.S. at 556. Amici submit that these fundamental copyright

principles fully address legitimate First Amendment concerns.

What Petitioners seek is not traditional First Amendment

protection for their own words and expression but, rather,

the right to make commercial use of the protected expression

of others. Petitioners offer no support or authority, nor is

there any, for such a right. Quoting Sony, Petitioners contend

that the idea/ expression dichotomy and fair use limitations

are irrelevant to First Amendment interests “protected by the

limitation on the duration of copyrights.” (Pet. Br. at 36.)

The reason for this argument is simple. Whatever the length

of the copyright term, Petitioners’ proposed uses would not

be protected by traditional notions of fair use.

Petitioners seek to use protected works for commercial

purposes or in ways which would substantially impact the

market for and value of the work. Fair use, however, requires

consideration of the commercial nature of the proposed use

and the effect of the use upon the potential market for or

value of the copyrighted work. 17 U.S.C. § 107(1),(4); Sony,

464 U.S. at 450; Harper & Row, 471 U.S. at 562. Sony, then,

does not support Petitioners’ contention, because the use at

issue in Sony — the time-shifted viewing of broadcast

television shows afforded by video recorders — was found

to have no demonstrable effect on the market for or value of

the copyrighted works. Sony, 464 U.S. at 450. This Court

noted in Sony that if the video recorder were used for a

commercial or profit-making purpose, such use would be

“presumptively unfair.” /d. at 449. The same would be true

here where Petitioners’ proposed uses include republication

of others’ works and making such works freely available on

the Internet. Such uses would unquestionably have a dramatic

effect on the market for and value of the work in question.

Contrary to Petitioners’ argument, their problem is not that

fair use does not adequately protect First Amendment

interests, but rather that Petitioners’ proposed commercial

uses would not qualify as a fair use.

1. The Idea-Expression Dichotomy Addresses

First Amendment Concerns.

protected expression. The “idea/expression dichotomy” of

the context of copyrighted works. Harper & Row, 471 U.S.

at 556. Under the “idea/expression dichotomy,” ideas are free

for all to use but particular expressions of ideas are subject

to copyright protection. 17 U.S.C. § 102(b). Copyright law

would not prevent Petitioners from creating new works about

cats, mice, or redheaded young girls so long as such new

works are not substantially similar to the protected expression

in The Cat in the Hat, Stuart Little or Madeline.

Thus, in the business world, the “idea/expression

dichotomy” allows for First Amendment expression while

preserving protected expression for limited times. In the

marketplace for children’s literature, a reader may choose from

stories about Beatrix Potter’s Peter Rabbit, Warner Brothers’

Bugs Bunny, Anita Jeram’s Big Nutbrown Hare, Donna

Green’s Velveteen Rabbit, and Margaret Wise Brown’s

Runaway Bunny.

Likewise, children interested in stories about mice can

select from White’s Stuart Little, Disney’s Mickey Mouse,

Lucy Cousins’ Maisy, and Katharine Holabird’s Angelina.

Seuss’ The Cat in the Hat co-exists with Richard Scarry’s

extensive works about cats named Huckle, Sally, Daddy Cat

and Mummy Cat. It is at least in part because of the protection

of particular expression under copyright that authors set out to

develop entirely new works. The variety of works on these same

subjects demonstrates the vitality of First Amendment rights.

2. Fair Use and Parody Law Also Protect First

Amendment Interests in Copyrighted Works.

The copyright laws specifically provide that the fair use

of copyrighted works includes uses for purposes of “criticism,

comment, news reporting, teaching (including multiple copies

for classroom use), scholarship, or research.” 17 U.S.C. § 107.

None of these uses constitutes copyright infringement.

Parody is one example of fair use that demonstrates the

protection of speech by the First Amendment, which the

form of social and literary criticism, having a socially

significant value as free speech under the First Amendment.”

Dr. Seuss Enter., L.P. v. Penguin Books USA, Inc., 109 F.3d

1394, 1400 (9th Cir. 1997).

As demonstrated by this case, the current system which

balances the interests of the author against limits on free

speech is clearly working. “Copyright law accommodates the

concerns of the First Amendment through its exclusion of

protection for ideas, and through the fair use doctrine.”

Dr. Seuss Enter., L.P. v. Penguin Books USA, Inc., 924

F. Supp. 1559, 1575 (S.D. Cal. 1996), aff'd, 109 F.3d 1394

(9th Cir. 1997). In Penguin Books, the district court enjoined

publication of The Cat NOT in the Hat, a story of the

O.J. Simpson murder trial set in Seussian-like prose, based on

findings of a strong likelihood of success on Seuss’ claim of a

substantial taking of protected expression. /d. at 1562.

The Ninth Circuit affirmed the district court. Jd. After

evaluating the application of Campbell v. Acuff-Rose Music,

Inc., 510 U.S. 569 (1994), the Ninth Circuit found the work

failed to qualify as a parody of The Cat in the Hat; instead, it

parodied the Simpson trial.

This experience demonstrates the co-existence and

interaction of First Amendment rights with copyright laws.

Some copying falls outside the protections of copyright law

and into the arena of fair use and parody. When this occurs,

the First Amendment prevails. Otherwise, authors’ limited

rights are protected by copyright law as provided by the

United States Constitution, Article 1, Section 8, Clause 8.

Thus, the existing framework in United States copyright

law — which allows the free use of ideas, and which has

exceptions for fair use and parody — sufficiently addresses

legitimate First Amendment concerns. What is plainly not

addressed by this framework is what Petitioners seek here,

the reallocation of the right to speak, favoring Petitioners,

and substituting Petitioners’ judgment for that of Congress.

As Petitioners concede, such a reallocation of rights is not

sanctioned by the First Amendment. (Pet. Br. at 41.)

CONCLUSION

The United States copyright system, as amended by the

CTEA, works in real life under the Constitutional framework

put into place more than two hundred years ago. With the

CTEA, copyrights continue to exist for “limited times.”

and useful arts throughout the limited terms of copyrights.

In enacting the CTEA, Congress considered Petitioners’

arguments and rejected them. Nothing about the copyright

laws — or the CTEA — impinges on any First Amendment

rights. The ruling of the District of Columbia Court of

Appeals should be affirmed.

Respectfully submitted,

Kar ZOBELL

Counsel of Record

Nancy O. Dix

CatHy ANN BENCIVENGO

RANDALL E. Kay

Gray Cary WARE

& FReIDENRICH LLP

4365 Executive Drive

Suite 1100

San Diego, CA 92121

(858) 638-6800

Hersert B. CHEYETTE

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New York, NY 10019

(212) 556-5749

Attorneys for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.