Dr. Seuss Enterprises v. ComicMix: The Copyright Infringement Case Continues

 

[And another update: On June 22, 2017, Dr. Seuss Enterprises filed its first amended complaint, which is available here. There’s nothing surprising in it. The case continues.]

Here’s an update to Dr. Seuss Enterprises v. ComicMix, a copyright and trademark infringement case I wrote about in Oh, The People You’ll Sue (When You’re Dr. Seuss Enterprises):

On June 9th, the District Court for the Southern District of California dismissed Dr. Seuss Enterprises’s trademark and state law claims (with leave to amend their complaint), but allowed the copyright infringement claim to continue against ComicMix, albeit with hints that the Court will eventually dismiss the case.

Basically, the company (Enterprise) that owns the rights to Dr. Seuss’s work filed this lawsuit because it does not want ComicMix to publish a work that borrows elements from Dr. Seuss’s children’s books without paying a licensing fee first.

Though the Court did not dismiss Enterprise’s complaint entirely–a typical outcome at this early stage of litigation (merely a 12(b)(6) motion, which assumes all of the facts alleged by the plaintiff are true)–the opinion includes several helpful conclusions for ComicMix.

For example, the Court concludes :

• ComicMix’s derivative work, Oh, The Places You’ll Boldly Go!, is transformative: “Although Boldly fails to qualify as a parody it is no doubt transformative [as a “mash-up”]. In particular, it combines into a completely unique work the two disparate worlds of Dr. Seuss and Star Trek.”
• The nature of the copyrighted work weighs in favor of ComicMix; and
• Boldly does not borrow too much from Seuss: “There is no dispute that Boldly copies many aspects of [Seuss’s] illustrations. However Boldly does not copy them in their entirety; each is infused with new meaning and additional illustrations that reframe the Seuss images from a unique Star Trek viewpoint. Nor does Boldly copy more than is necessary to accomplish its transformative purpose.”

So, ComicMix’s transformative work meets most of the factors of Fair Use–which is a complete defense against copyright infringement claims–without needing any additional evidence. However, what the Court will need more evidence and argument on is the fourth factor of the Fair Use defense: the effect of ComicMix’s transformative work on the potential market for or value of Dr. Seuss’s copyrighted work. The Court writes:

In the current procedural posture [ComicMix is] at a clear disadvantage under this factor’s required analysis… [at this stage] a potential harm to [Enterprises’s] licensing opportunities is presumed. However, this presumed harm is neutralized somewhat by the fact that Boldly does not substitute for the original and serves a different market function than [Suess’s work]… Indeed, Boldly’s market relies on consumers who have already read and greatly appreciated [Suess’s work]…

Well, sure, all copyright cases are based on the fact that the defendant did not pay the licensing fee to borrow elements of a copyrighted work, so all cases would have this presumed harm.

Importantly, though, the Court notes factors that neutralize this harm to Enterprises’s licensing opportunities: (1) Boldy is not a substitute for the original book (Oh, The Places You’ll Go!) and (2) Boldly serves a different market function. In addition to those factors, as I wrote in my previous post on this lawsuit:

[Derivative works] increase the marketability of the original stories because they encourage people to revisit them. In this case, it’s hard to see how Oh, The Places You’ll Boldly Go! harms Dr. Seuss Enterprises. They assert that they’re missing out on a licensing fee opportunity, but a derivative project might not happen at all if the authors have to pay a toll for the privilege of borrowing elements from a previous work for the purpose of parody.

Basically, I see ComicMix’s transformative work as free advertising for Dr. Seuss’s books. You may think Seuss doesn’t need such advertising, but that isn’t necessarily so in a publishing world saturated by new children’s books each year. ComicMix’s work is for adults and could spark nostalgia buying, which is what happens when something reminds us of our childhood and encourages us to share it with our own children (instead of buying them something else from the bookstore).

I hope the Court will finally dispose of Enterprise’s lawsuit at the next stage of this case, which will probably be summary judgement. If this case continues beyond summary judgment and is allowed to go to trial, then the Court risks encouraging literary estate bullies to threaten lawsuits against creators of derivative works, even when those works are transformative and thus quite different from the original. That speech-chilling outcome would not serve the purpose of copyright law, which the Court states is to “promote the progress of science and art by protecting artistic and scientific works while encouraging the development and evolution of new works.” (citing Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 529 (9th Cir. 2008).”

We will see what happens.

____________________________________

*Here’s ComicMix’s Press Release.

**The image above is an excerpt from the Complaint (I added “allegedly”), available here.

***Here’s the District Court’s June 9th order on the Motion to Dismiss: 38 – Order on MTD.

Impeachment: A Complicated Solution to a Dangerous Presidential Problem

The constant flow of information about Donald Trump’s scandalous and dysfunctional administration has intensified the calls to remove him from office.

But what is the impeachment process, and what will it take to use it against Trump effectively? The process stems from provisions in our Constitution that have long baffled scholars, jurists, and lawmakers:

Article I:

Section 2: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section 3: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article II:

Section 4: The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

(emphasis added).

Much of the controversy around impeachment surrounds the meaning of “high crimes and misdemeanors.” What actions qualify? The answer might be as simple as, “whatever Congress thinks qualifies.” Given how the House has “sole Power of Impeachment” and the Senate has “sole Power to try all Impeachments,” it seems likely that, under most theories of Constitutional law and the separation of powers, the Supreme Court would have no say in deciding if a particular “high crime” or “misdemeanor” was sufficient for impeachment and removal.

The House of Representatives has impeached two presidents, but the Senate convicted neither of them. Still, those experiences, plus the impeachment proceedings of a number of other elected officials, give us an idea of what the process entails.

To impeach a president, the process begins in the House of Representatives after a simple majority approves the charges against the President (known as the Articles of Impeachment). Then the Senate holds a trial, over which the Chief Justice of the Supreme Court presides. Two-thirds of the Senate must vote to convict and remove the President from office.

So far, the Senate has never voted to convict an impeached President, but it came close to doing so in 1868, when Andrew Johnson kept his office by one vote. To learn more about what happened, I read Impeached: The Trial of Andrew Johnson and the Fight for Lincoln’s Legacy by David O. Stewart.

Andrew Johnson became President after the assassination of President Abraham Lincoln, a few weeks before the official end of the bloody Civil War. Republicans added Johnson to Lincoln’s presidential ticket as a symbolic gesture, hoping a Tennessean would show that they were not only a party of the North.

However, as Stewart explains:

Elected on the Republican ticket, Johnson longed to cut himself free from that party. He did not share its principles, its goals, or its brief history.

Johnson sounds like Donald Trump, the nominal head of a party he barely belongs to. Trump and Johnson have so much in common that many portions of Stewart’s book felt as though they could have been about Mr. Trump if we changed the dates and replaced names with “the President,” “Department official” and “Congressman.” For example:

• “Quickly, the audience could tell that something was wrong.  [The President’s] face glowed a luminous red. His sentences were incomplete, not connected to each other.”
• “[The President] had misplayed his hand. Rather than acting the statesman who wished to unify the nation, he behaved like a political brawler with a grandiose self-image.”
• “[T]he president’s provocative and racist rhetoric failed to unite Republicans against him.”
• “[The] vindictive spirit blinded [the President] to the damage he was doing to his own cause.”
• And, as Carl Schurz remembered about Johnson in 1907: “There was a widespread feeling among well-meaning and sober people that the country was really in some sort of peril, and that it would be a good thing to get rid of that dangerous man in the presidential chair.”

There are also differences between Johnson and Trump, one being that Johnson was a hard worker (while Trump spends more time playing golf than any President in recent memory) and Congressional Republicans were ultimately more apt to counter the President in Andrew Johnson’s time than the current version of that party is willing to do today.

With Johnson, Republicans like Thaddeus Stevens laid the groundwork for his impeachment for years, failing multiple times to get a majority in the House to approve the Articles of Impeachment. The charges were “high crimes and misdemeanors,” which required something more than simply being “unfit” for the presidency. It helped the impeachment effort when Johnson violated the Tenure of Office Act by replacing the Secretary of War. Republicans in the House then approved, finally, the Articles of Impeachment, but the Senate did not convict, falling short of the required two-thirds by one vote.

It remains to be seen whether Donald Trump will be the first U. S. President to be convicted and removed from office. So far, the GOP’s Paul Ryan and Mitch McConnell have shown nothing but tacit approval of Mr. Trump’s misdeeds that, at best, show him to be unfit for the presidency and, at worse, raise the specter of treason.

We’re still uncovering the facts, but these disturbing actions (among others) could underscore the case for impeachment against Trump (& the list grows daily! This post was written in May 2017):

• Trump allegedly demanded “loyalty” from FBI Director James Comey, and then fired him amid the FBI’s ongoing investigation of Trump’s connections with Russia, a country that interfered in our election to benefit him. The stated reason for Comey’s firing—that it was based on Comey’s mishandling of the investigation into Hillary Clinton’s email server—is laughable coming from a man who gleefully encouraged his supporters to chant “Lock her up” during his campaign. So, it’s pretext, and the question is whether it’s obstruction of justice, an impeachable “high crime and misdemeanor.”
• To make matters even more deplorable, we have just learned that Trump allegedly asked Comey to end the investigation into Michael Flynn’s connections and communications with Russia. (And now, Jason Chaffetz, the Chair of the House Oversight Committee, has sent a letter to the FBI requesting Comey documents).
• Then there’s the allegation that Trump disclosed classified information to Russian officials, which looks treasonous on the surface, but does not meet the Constitution’s narrow definition of “treason.” Nevertheless, the flippant disclosure of highly sensitive and important information could support impeachment, particularly when coupled with other reckless acts.
• And let’s not forget the evidence that Trump and his associates may have violated the emoluments clause of Article I of the Constitution, which prohibits public officials from taking something of value from foreign governments. The question is whether the benefits Trump has allegedly received from foreign governments amount to accepting bribes (a separate impeachable offense) or whether it’s corruption qualifying as a “high crime and misdemeanor.” See The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump.

The American People deserve to know the facts surrounding these serious allegations. We need Paul Ryan, Mitch McConnell, and their colleagues to finally stand up to Donald Trump. Our democracy remains at risk until either our Republican-led Congress prioritizes the good of the country over its loyalty to Trump or the American people vote them out of office.

*Image: Impeachment In A Horn (1868), https://www.loc.gov/item/2007680124/

Milo’s Malicious Press Release: Will It Matter In Court?

Milo Yiannopoulos, a professional troll and proud bigot, has announced that he will self-publish the book Simon & Schuster dropped after his comments condoning child abuse surfaced earlier this year. He plans to publish the book as part of a new media venture, MILO, Inc, which he describes in a Facebook post as “a fully tooled-up talent factory and management company dedicated to the destruction of political correctness and the progressive left.”

In this release, he explains the motivation behind his project, saying:

I will spend every waking moment of the rest of my life making the lives of journalists, professors, politicians, feminists, Black Lives Matter activists and other professional victims a living hell.

Charming.

I doubt it was wise to publicly announce the malicious intent behind his company, which I assume will publish controversial statements about individuals belonging to the groups Milo lists. This announcement could make it easier for members of these groups to establish the legal elements of defamation claims against Milo and his company (assuming the company materializes; apparently, his past ventures have not).

Generally speaking, in the United States, a plaintiff bringing a defamation case in court has to prove the following elements (it varies a little by state):

• 1) the defendant negligently published or communicated to a third party
• 2) a false statement purporting to be true
• 3) that resulted in harm to the plaintiff.

However, public figures and celebrities — the people Milo is likely to target, considering his trolling of actress Leslie Jones — have a higher standard to meet to win a defamation lawsuit against someone who publishes untrue statements about them. They have to prove that the defendant made the alleged defamatory statements with “actual malice.” New York Times v. Sullivan, 376 U.S. 254 (1964).

Thanks to Milo’s press release (and probably other statements he’s made), it might be relatively easy for future plaintiffs to prove that statements published by his venture were made with “reckless disregard of whether or not it was false.” After all, the point of his venture isn’t to publish truthful information but rather to make the lives of anyone who disagrees with him “a living hell.”

Meanwhile, Milo has also announced a lawsuit of his own. He plans to sue Simon & Schuster for dropping his book. If he follows through on this threat, I question whether it will be successful.  I would assume Simon & Schuster’s contracts with authors include a “morals clause,” a provision in many entertainment contracts that generally allows a party to withdraw from the agreement when the other party engages in “bad behavior.” Then again, what kind of morals clause could Simon & Schuster have imposed on Milo when the only reason for the contract in the first place was to capitalize off of Milo’s immorality?

____________________

*Similarly, Donald Trump’s words have also been used against his actions in court. See Trump’s Words Were Again Used Against Him in Sanctuary City Ruling & Trump’s Remarks About Muslims Could Be What Ends The Travel Ban, Testimony Suggests.

Lawmakers Want to Take Away Your Right to a Fair Trial #StopHR985

Many civil rights and mass torts lawsuits, including cases similar to the one at the heart of Amelia Elkins Elkins, could never happen if Congress passes H.R. 985, the so-called “Fairness in Class Action Litigation Act of 2017.”

In Amelia Elkins Elkins, a “courtroom drama” retelling a Jane Austen’s Persuasion, the Elkins family turns to the courts for justice after the matriarch’s untimely death. This fictional lawsuit is similar to real lawsuits happening across the country that stem from unsafe vaginal mesh products made and/or marketed by companies like Johnson & Johnson, Ethicon, and Bard. H.R. 985, if passed into law and signed by Trump, would make it harder to bring these types of cases to court by changing the procedures for multidistrict litigation, including by imposing new requirements on where cases can be filed, forcing trial courts to stop cases mid-way through for endless appeals, hampering the settlements of medical device lawsuits, and forcing plaintiffs into trials in courts unfamiliar with their cases unless “all parties” consent to one.

Horrifyingly, H. R. 985 would also impede civil rights lawsuits by making it harder for plaintiffs to bring class actions (an efficient type of lawsuit in which many plaintiffs with similar injuries bring a single case in court). The proposed law imposes a virtually impossible standard for plaintiffs to meet in order to qualify as a “class” for litigation, requiring the proposed class to show that “each member has suffered the same type and scope of injury.” Plaintiffs in class actions have very similar injuries, but not necessarily the same injury because every person’s situation and experience of discrimination is unique.

These are just a few of the many problems with H. R. 985, which is moving eerily fast through Congress. Earlier this week, the House Judiciary Committee passed the bill out of committee without even holding a public hearing. If H.R. 985 becomes the law, we won’t be able to remedy many civil rights violations or hold corporate wrongdoers accountable for the harm they cause to the public.

If you are in the United States, please call your representative in Congress. Please tell them that H. R. 985 is unfair and should not be passed into law. The bill is named the “Fairness in Class Action Litigation Act of 2017,” but don’t let its title fool you. There is nothing fair about a law that protects corporations that make unsafe products and helps bigots get around our civil rights laws.

Here’s how you find out who your representative is. If your representative is a member of the House Judiciary Committee, you can see how they voted here (PDF). There is still time to stop this bill because the full House hasn’t voted on it yet.

Here’s a copy of the bill: H. R. 985 (PDF).

Here’s the press release in which H. R. 985’s prime sponsor, Rep. Goodlatte (R-Va), crows about passing it out of committee (achieved without a public hearing) and misstates what the bill does.

For more information on how H.R. 985 threatens our access to justice, check out Litigation and Trial.

Please spread the word about this incredibly unfair and dangerous bill. Thank you!

More Than a “Bathroom Battle”: An Update Now That Sessions is in Charge of the DOJ

A Sad, but Unsurprising Update: On Wednesday, February 22, 2017, the Trump Administration withdrew the guidance that made it clear that Title IX protects transgender students.

For more background on the guidance, and why it was important, keep reading (a post from February 13, 2017, before the Trump Administration officially withdrew the guidance):

Donald Trump’s choice of Jeff Sessions as the head of the United States Department of Justice (DOJ), confirms what we knew would be true the minute Trump seized the electoral college: our rights as Americans are threatened.

The DOJ is a federal agency with broad powers, including (but not limited to) the prosecution of federal crimes, the promulgation of regulations, the provision of grants to meet civil, criminal, and juvenile justice needs, oversight of various law enforcement agencies (like the FBI), and investigations (such as “pattern or practice” investigations into police misconduct).

It’s hard to believe a man like Jeff Sessions, someone who was once deemed too racist to be a federal judge, could possibly lead an agency with “Justice” in its title. His nomination to the federal bench in 1986 prompted Coretta Scott King to write a letter to the Senate Judiciary Committee. In this letter (available here), King assailed Sessions’s conduct as a U.S. Attorney, “from his politically-motivated voting fraud prosecutions to his indifference toward criminal violations of civil rights laws,” saying, “he lacks the temperament, fairness and judgment to be a federal judge.”

His nomination to the federal bench failed, but he became a U. S. Senator from Alabama, and now he is the Attorney General of the United States. The Senate confirmed his nomination after Sessions’s colleagues voted to silence Senator Elizabeth Warren for daring to read Coretta Scott King’s letter on the Senate floor.

So, what can we expect from Sessions as the Attorney General of the United States?

As the National Law Journal wrote last November in What to Expect from a Sessions Justice Department, “Immigration, violent crime, and undoing President Obama’s executive actions are expected to be on [Sessions’s] priority list if he’s confirmed.”

This agenda would be a departure from the DOJ’s actions during the Obama Administration, which sued states over race-based voting restrictions, made an effort to reduce racial profiling, investigated police misconduct, and fought for the rights of transgender individuals.

We are only in the early days of the Sessions DOJ, and already the signs suggest that Sessions does not care about equality for all Americans. Last Friday, the day after Sessions took over the DOJ, the Agency withdrew its request asking the 5th Circuit to narrow a temporary injunction that blocked the Obama Administration’s guidance on transgender students’ rights. The joint filing states that “the parties are currently considering how best to proceed in this appeal.”

I wrote about this case over the summer in More than a “Bathroom Battle”: The Rights of Transgender Children at School. At the time, the district court judge in Texas had just imposed a nationwide injunction that (1) allows Texas and other states to force transgender students to use bathrooms that do not match their gender identities and (2) prevents the United States government from investigating this type of discrimination across the country.

This lawsuit came in response to the DOJ and the U.S. Department of Education’s guidance document (May 2016), which clarified that Title IX prohibits schools from discriminating against students on the basis of their gender identity, defined as “an individual’s internal sense of gender” that “may be different from or the same as the person’s sex assigned at birth.”

From the start, this case was challenging for the government to defend because many people seemed to misunderstand the issue, thinking that the Obama Administration’s guidance forced schools to allow boys to use the girls’ bathroom, which seems to offend some people. But here’s the language from the guidance (a guidance I presume will disappear under Trump):

Restrooms and Locker Rooms. A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.

Really, all the guidance did was clarify that schools must permit people who identify as girls to use the girls’ bathroom and those who identify as boys to use the boys’ bathroom. That’s pretty narrow.

I don’t purport to be an expert on trans rights, but I make an effort to understand the issue as best I can as a cisgender person (and I’m always learning). I’ve found that literature is helpful in this regard. For example, George by Alex Gino introduces us to a fictional transgender child who shows us some of the harms of forcing a child to use a bathroom that does not match their gender identity:

[George*] stumbled, sobbing, into the bathroom—the boys’ bathroom. Her lips trembled and salty tears dripped into her mouth. George hated the boys’ bathroom. It was the worst room in the school. She hated the smell of pee and bleach, and she hated the blue tiles on the wall to remind you where you were, as if the urinals didn’t make it obvious enough. The whole room was about being a boy, and when boys were in there, they liked to talk about what was between their legs. George tried never to use it when there were any boys inside. She never drank from the water fountains at school, even if she was thirsty, and some days, she could make it through the school day without having to go once.

In this paragraph, we can clearly see how traumatic it is for this child to use the wrong bathroom. We can also see that it’s a health hazard. No one should go an entire day at school without drinking water or using the restroom.

George–who prefers to be called Melissa–is fictional, but there are children in our schools who face similar challenges in real life. It is a shame that our children have a government that isn’t likely to secure or enforce their rights.

__________________

*I inserted “George” at the beginning of the quote because that is the name that appears throughout the paragraph in the novel. However, Melissa is the name the child prefers to use. For more on the recalcitrance of the name “George,” see George or Melissa? It Matters.

**For more uplifting news, see Authors, Does Donald Trump Care About Your Name Change?

Love, Money, & Marriage: Would Jane Austen Be Astounded?

Should a person’s motive for getting married matter when they get divorced?

Earlier this year, the North Dakota Supreme Court considered this question, among others, in Degnan v. Degnan. In this case, the marriage lasted for five years, the parties were both over 50-years-old when they said “I do,” and, according to witness testimony, financial considerations were among the wife’s motivations for getting married. The trial court used this motivation against the wife in the divorce, saying:

The Court finds that [the wife] entered the marriage for purposes of financial gain and security… Given [the wife’s] intentions in seeking the marriage, she should not suddenly find herself with a better lifestyle than she was associated with at the time of the marriage.

As a result, the trial court awarded only a small amount of spousal support to the wife and limited the percentage of the couple’s property that the wife would receive.

The North Dakota Supreme Court agreed with the trial court’s decision. Two justices, both women, concurred with the result, but wrote separate opinions to state that the lower court should not have considered the wife’s motive for marriage.

One of these concurrences — written by a justice who studied literature — is particularly interesting because it references Jane Austen. The justice writes:

Taken alone, [the language quoted above] suggests the district court is punishing [the wife] for considering future financial security as part of the decision to marry. Jane Austen would be astounded. Perhaps at twenty-five one enters marriage considering only love; one would be foolish to do so at fifty. Because the court also identified other factors to support its decision on property division, spousal support, and attorney fees, I concur in the result. (emphasis added).

Considering the fact that Jane Austen lived more than two centuries ago, there are probably many aspects of modern society that would surprise her. Would the negative inference associated with marrying for money be among them? I’m not so sure.

In Jane Austen’s time–and long before it–marriage was a method of obtaining and conserving wealth within families. Having a financially stable spouse was particularly important for women, who typically did not work outside of the home. Unsurprisingly, then, in Austen’s novels, a person’s financial stability was an important motivation for marriage. Why else would Charlotte accept the insufferable Mr. Collins in Pride and Prejudice?

However, as much as Jane Austen would’ve accepted that people marry for money, she probably wouldn’t have been particularly “astounded” by criticisms of that behavior along the lines of what the trial court said in the Degnan case. After all, in Persuasion (on which Amelia Elkins Elkins is based), Mr. William Elliot’s determination to gain wealth and independence through marriage is among his biggest flaws:

“Mr. Elliot married then completely for money? The circumstances, probably, which first opened your eyes to his character.”

Mrs. Smith hesitated a little here. “Oh! Those things are too common. When one lives in the world, a man or woman’s marrying for money is too common to strike one as it ought.”

Other Austen villains are guilty of similar behavior. For example, Pride and Prejudice’s Mr. Wickham sought Mr. Darcy’s sister for her fortune, and Northanger Abbey’s Isabella finds a way out of her engagement to John Morland when she learns he is not as wealthy as she had assumed. To young and naive Catherine Morland, “To marry for money I think the wickedest thing in existence.”

Today, as in Jane Austen’s time, individuals of all genders and backgrounds weigh practical considerations when deciding whether to marry. For women, despite having far more financial independence today than they had in Austen’s era, financial considerations may be important because they still don’t make as much money as men do for similar work. For some, then, marriage offers the financial stability that gender discrimination denies women in other areas of their lives. Hopefully, money isn’t the sole reason a person decides to marry, but no one should be astounded nor appalled because it’s a reason some say “I do.”

_____________

*If you’re interested in reading Degnan v. Degnan, the opinion is available on the North Dakota Supreme Court’s website.

**For more bookish court opinions of the past year, see Who Speaks for the Opossums?

Bookish Court Opinions: Who Speaks for the Opossums?

As my daughter learned last summer when she mistook a PDF of the U.S. Supreme Court’s decision in Fisher v. University of Texas at Austin as literature on her Kindle,* court opinions are often dull to read no matter how important or interesting the underlying facts of the case may be.

Every now and then, though, I come across a line in an opinion that makes me smile. Some of those moments come courtesy of literary references that judges sprinkle into their treatises on the law for the sake of humor, to illustrate a point, or to show off their intelligence (depending on how pompous or obscure the reference is).

This week, I’m going to highlight a couple of literary references in court opinions over the past year.

Here is the first one, in which a court asks: who speaks for the opossums?

In People for the Ethical Treatment of Animals, Inc. v. Myers, a case decided by the Court of Appeals of North Carolina on April 5, 2016, the opinion begins with a reference to The Lorax by Dr. Seuss:

The Lorax speaks for the trees, but the question presented by this case is whether anyone may speak for the opossums, particularly those Virginia opossums (“opossum(s)”) found in Clay County, North Carolina, during late December through early January each year, who may end up in captivity as the main attraction at the annual New Year’s Eve Possum Drop event.

Despite its name, the Virginia opossum is the state marsupial of North Carolina, and apparently, the New Year’s Eve Possum Drop is an annual tradition in Clay County.

The event involves lowering a possum in a box in front of a large crowd of people on New Year’s Eve. As the Court explains, it’s a “rural replication of the dropping of the crystal-festooned ball in New York City’s famous Times Square New Year’s Eve celebration.” According to news reports, the shaken possum is released afterwards.

Believing this activity is inhumane to the captive possums, the plaintiffs sued the commission responsible for providing the captivity licenses to the person in charge of the event. Surprisingly, the North Carolina General Assembly subsequently passed a law specific to the facts of this case, entitled, “An Act to Exempt Clay County from State Wildlife Laws With Respect to Opossums Between The Dates of December 26 and January 2.” The current version of the law applies to the entire state. N.C. Gen. Stat. § 113-291.13 (2016).

As a result, opossums are no longer protected by state humane laws and regulations during the time Clay County captures them to star in their New Year’s Eve event. No captivity license is required.

So, who speaks for the Virginia opossums in North Carolina? Sadly, the  Court concluded, “General Assembly has passed a law which says, in effect, that no one may speak for Virginia opossums during the relevant time period. For this reason, we must dismiss this appeal as moot.”

_______________________

*I share a Kindle account with my twins. I send opinions to my Kindle to read on my commute to and from work. After the Fisher opinion, my kids have learned to avoid these PDFs.