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Lombardo v. Dr. Seuss Enterprises, L.P.

USDC, Southern District of New York, April 7, 2017
In dispute over play based on a character from Dr. Seuss book “How the Grinch Stole Christmas!” district court dismisses playwright’s tort claims related to cease-and-desist letters sent by owners of Dr. Seuss book.

Matthew Lombardo and Who’s Holiday LLC filed a declaratory judgment action against Dr. Seuss Enterprises L.P., seeking a ruling that Lombardo’s play “Who’s Holiday!” — a comedic story about the troubled life of a character from the Dr. Seuss book “How the Grinch Stole Christmas!” — constituted a noninfringing fair use under the Copyright Act. After learning about the play, the defendant sent several cease-and-desist letters to the play’s author, director, production manager and theater owner. The plaintiffs claimed that these cease-and-desist letters constituted “tortious conduct,” which resulted in production of the play being shut down.  

The court granted defendant’s motion to dismiss the tort claims. Although the plaintiffs asserted in opposition to defendants’ motion to dismiss that the asserted three separate claims — tortious interference with prospective business relations, injurious falsehood and defamation — the court noted that the complaint alleged only a single tort claim, which failed to give the defendant fair notice of the claims the plaintiffs were asserting. The court declined to grant plaintiffs the opportunity to amend their complaint, finding that each of the tort claims referenced in defendants’ opposition papers failed on the merits. The tortious interference with prospective business relations claim failed because defendant did not act for a wrongful purpose or use dishonest, unfair or improper means when sending the cease-and-desist letters, and because the defendant properly relied on publicly available information that the play may have infringed its intellectual property. The injurious falsehood claim failed because nothing in the complaint or in defendant’s cease-and-desist letters indicated the defendant knowingly or recklessly made false statements in those letters. Finally, the defamation claim failed because the defendant had a good faith basis for sending the cease-and-desist letters based on the publicly available information about the play, and defendant’s allegedly defamatory statements were privileged because they were pertinent to potential litigation. 

Summary prepared by Tal Dickstein and Sasha Segall