Playwright Matthew Lombardo Wins WHO'S HOLIDAY! Case Against Dr. Seuss Enterprises

U.S. District Court Judge Alvin K. Hellerstein has ruled in favor of playwright Matthew Lombardo, who has been locked in a legal battle with Dr. Seuss Enterprises, L.P. over his controversial play WHO'S HOLIDAY!, which depicts a now 45-year-old "Cindy Lou Who" living in a beat-up trailer in the snowy hills of Mount Crumpit.

In the 24-page ruling, Judge Hellerstein, a United States District Court Judge in the Southern District of New York, wrote that "the Play recontextualizes Grinch's easily-recognizable plot and rhyming style by placing Cindy Lou Who - a symbol of childhood innocence and naivete - in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teenage pregnancy, drug and alcohol abuse, prison culture, and murder. In so doing, the Play subverts the expectations of the Seussian genre, and lampoons the Grinch by making Cindy Lou's naivete, Who-Ville's endlessly-smiling, problem-free citizens, and Dr. Seuss' rhyming innocence, all appear ridiculous."

The dispute began last October when DSE lawyers, displeased with Lombardo's commentary and criticism of their property, sent cease and desist letters in an effort to silence the playwright's free speech with claims of copyright infringement. The play, which was to have had its World Premiere at New World Stages last holiday season, was abruptly forced to postpone.

Lombardo immediately shot back and filed a federal lawsuit against DSE through his attorney Jordan K. Greenberger, petitioning that the court rule on the fair use issue so that his play could continue and would be clear of any future litigation from DSE. Lombardo also had the unyielding support of The Dramatists Guild, the trade association that represents playwrights, composers and lyricists. The DG filed documents of their own with the court (amicus briefs), strongly bolstering Lombardo's position of fair use

The judge, who quoted frequently from the play's profanity-laced moments, cited that "Who-Ville was recast from its original depiction as a place where people can overcome adversity by smiling and singing together, and was depicted as a hard-bitten world where young women are impregnated by green beasts, families struggle to put food on the table, paparazzi run rabid and citizens get high on 'Who Hash' to escape problems of daily life."

He also dismissed counterclaims of copyright infringement, trademark dilution and of unfair competition under the Lanham Act and under New York state law, finding "public interest in free expression clearly outweighs any interest in avoiding consumer confusion," which he again said was unlikely. He noted the use of images of the original characters on promotional materials was "a closer question," but ultimately found that their use was still parodic.

"I am extremely pleased with the ruling," Lombardo said in a statement. "Initially I didn't want to go through with this, given the power and high visibility of the opposing party. But my sense of duty far outweighed my fear. I had an obligation, not only for the people who worked so tirelessly on WHO'S HOLIDAY!, but for creative artists everywhere who can now use this decision to defend their own work if their artistic free expressions are ever challenged."

Lombardo's lawsuit comes on the heels of another well-publicized copyright infringement case. Playwright David Adjmi was up against similar infringement claims with his play 3C, based on the sitcom 'Three's Company." He was also granted a judgement declaring his play did not infringe the copyright.

Lombardo has a history of writing strong leading roles for women, having penned the plays Tea at Five for Kate Mulgrew, Looped for Valerie Harper (which garnered her a Tony Award nomination), and High for Kathleen Turner.

The producers of WHO'S HOLIDAY! are hoping to present the World Premiere of Lombardo's play later this year, pending theatre availability.