The Supreme Court is set to decide next month whether to review Oracle America Corp. and Google LLC's nine-year fight over copyright fair use. In the meantime, a mash-up of Dr. Seuss children's books and "Star Trek" television shows might provide the next big appellate test of the fair use doctrine.

The amicus briefs have been pouring into the Ninth Circuit in Dr. Seuss Enterprises v. ComicMix, in which the licensing arm of the late author is trying to shut down a book project with the title "Oh, the Places You'll Boldly Go." The case has generated a split of authority even among noted University of California, Berkeley, School of Law IP scholars.

Dr. Seuss began after publisher ComicMix LLC launched a Kickstarter campaign for the project. Written by science fiction author David Gerrold and illustrated by Ty Templeton, the book placed Captain James T. Kirk and other "Star Trek" characters in Whoville and other Seussian settings while tracking the themes of Dr. Seuss' best-seller, "Oh, the Places You'll Go."

Dr. Seuss Enterprises L.P., which licenses the late Theodor Geisel's works, including collaborations with third parties such as "Oh, the Pets You Can Get," sued for copyright infringement and forced Kickstarter to freeze the campaign at $29,575. An initial 5,000-copy printing was canceled.

U.S. District Judge Janis Sammartino of the Southern District of California granted summary judgment to ComicMix. The mash-up was "highly transformative" of the content, and Dr. Seuss Enterprises, or DSE, offered only hypothetical evidence that the mash-up would eat into the 3 million copies a year sold by "Oh, the Places You'll Go."

Backed by DLA Piper, DSE argues on appeal that the mash-up is a for-profit venture that adds no new purpose to the original work. Instead, the mash-up "merely aped the purpose of Go!: entertaining the readers (mostly graduates starting out in the world) with an uplifting story."

ComicMix and the individual defendants argue that their work is "a playful mash-up" that "deploys themes from Star Trek to contrast and critique Go!'s starkly egocentric, winner-take-all motif."

The amicus lineups on appeal are mostly familiar. The Motion Picture Association of America and the Copyright Alliance are supporting DSE. The MPAA warns that a finding of fair use would open the door for third parties to infringe on soundtracks, toys, games, clothing and other markets that derive from classic movies and TV shows.

On the other side, the Electronic Frontier Foundation and others argue that transformative mash-ups deserve fair use protection, and that "Boldly Go" in particular "recasts, recontextualizes, and adds new expression or meaning" to the Dr. Seuss works in ways designed to resonate with "Star Trek" fans. A group of IP scholars featuring Berkeley Law's Pamela Samuelson, Stanford's Mark Lemley and Harvard's Rebecca Tushnet say that a copyright owner must show a likelihood of harm to their traditional, reasonable or likely markets. A mere showing that a copyright owner "maintains a robust licensing program or participates in a seasonal market that the second comer would like to enter" isn't enough to carry that burden, they argue.

Berkeley Law's Peter Menell and UCLA's David Nimmer, who've supported Google's fair use defense in the context of software copyrights, came down squarely on the side of Dr. Seuss. "Boldly's slavish use of imaginative graphic images and text from Go! results in a commercial work that would, if marketed, directly compete with Go!'s graduation season book sales and licensing marketplaces," they write, along with University of Pennsylvania's Shyamkrishna Balganesh. "The result does not qualify for the fair use defense."

Dr. Seuss Enterprises is represented by DLA Piper partners Stanley Panikowski, Andrew Deutsch and Tamar Duvdevani and associate Marc Miller. ComicMix and the individual defendants are represented by Dan Booth of Dan Booth Law and Michael Licari of Sprinkle Lloyd & Licari.