Dylan Hears A Who -- And Gets A Cease And Desist Letter Too

As detailed in this article from Salon, the the Estate of Theodor Geisel (better known as Dr. Seuss) was not amused when somebody decided that Green Eggs And Ham is really best when reinterpreted by Bob Dylan -- or at least a good impersonation of him -- and set to music.

The song itself is brilliant. You can learn more about it and hear it here, at least for now.

The Estate's response was irresponsible, if not simply abusive. Parody and satire, whether obvious or subtle, lie at the heart of Fair Use. So does this song.

I think Jennifer Rothman got the Fair Use analysis wrong, at least as it was presented in Salon. I would be eager to hear what others think, and why.

Comments

Thanks for pointing me to these songs. The Dylan impression is uncanny.

I've written some of my thoughts here (Use of Seuss Can Cook Your Goose), but here's a short version of my thoughts on Rothman's analysis.

I think she's wrong in theory but right in practice. I've seen nothing to convince me that courts get excited by a flexible standard of transformative use, and very little to convince me that the first 107 factor doesn't drive the rest of the analysis. I think the Dylan Hears a Who recordings should be considered transformative, but I don't think they would be.

Even if we assume the use is consumptive, I still think the fair use argument should be strong because of the non-commercial nature and the lack of impact on potential markets. But again, I think most courts would let the first factor run roughshod over the rest of the analysis.

Any argument that the Dylan songs are intended to parody the original work would, I think, be dismissed as having been cooked up after the fact. The songs are just referential, not parodic, and the Supreme Court has not indicated that they would be sympathetic to such a use. I complain about this problem in more detail in my post, because I think it's a silly result, but there it is.

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