The Ninth Circuit recently examined a mashup that infuses themes and characters from the popular television series Star Trek into Dr. Seuss works, namely “Oh, the Places You’ll Go!” The defendants advocated for a novel interpretation of the fair-use doctrine – asserting that fair use is not an affirmative defense, and if it is, a finding that the work is transformative shifts the burden to the plaintiff to demonstrate the fourth fair-use factor: potential market harm. The Circuit court determined that the mashup is not fair use permissible under copyright laws, finding that the district court improperly shifted to the plaintiff the burden of demonstrating that the affirmative defense of fair use did not apply. The opinion, reversing summary judgment in part, opens with a lyric of its own:
