The Scariest Day of the Year…for Legal Claims Too

by Greenberg Glusker Fields Claman & Machtinger LLP

We here at Law Law Land are big fans of Halloween, the drunkest, sluttiest, most creative and fun-loving holiday of the year.  Law Law Land HQ itself is awash in cat ears and warlock coats today, and your editor is looking forward to a heaven-vs.-hell, angel-vs.-devil ping pong grudge match of epic proportions tonight.  But if you’re looking for a real fright on Halloween night, just consider some of the following truly scary cases and claims.

If the Past Is Never Dead, Does That Mean the Past Is Undead?

William Faulkner famously wrote, “The past is never dead.  It’s not even past.”  Woody Allen-mouthpiece Owen Wilson less-famously said, in 2011’s Midnight in Paris, “The past is not dead!  Actually, it’s not even past.  You know who said that?  Faulkner.  And he was right.  And I met him, too.  I ran into him at a dinner party.”  And Faulkner’s estate is now infamously saying that, if you use Faulkner’s line (ish) in a movie, with attribution, you have broken the law.

Faulkner’s estate is suing Sony Pictures Classics for copyright infringement and trademark infringement, claiming that Midnight in Paris’s misquote of Faulkner’s famous aphorism from 1950’s Requiem for a Nun not only infringes their copyright, but also violates the federal trademark statute by deceiving viewers into believing that the movie was affiliated, endorsed, or authorized by the Faulkner estate.  So are Sony’s lawyers running scared into the night?  Not likely.  But the distant howls you might be hearing are actually the pained wails of frustrated intellectual property law professors everywhere.

(Special kudos to the usually-dry-as-a-skeleton Courthouse News Service for observing, “at risk of offending the shade, or estate, of Charles Dickens:  This is a far, far weirder thing than Sony has ever done.”)

Trick, Treat, or Demand Letter?

Looking to spend 12 hours carving a vegetable into the harrowing likeness of Sleeping Beauty baddie Maleficent?  You may have trouble finding a stencil anywhere other than through the family of official Disney websites and products (24 stencils for only $58.99 on Amazon!  Wait, $58.99?  That can’t be right.  Let me check again.  No, it’s right.  Wow.  At least it’s cheaper than the $161.99 one.)  Why?  According to one purveyor of fine free stencils, “Disney sues people who put their pumpkin patterns online, and I am not really interested in paying for a lawyer.”  In fact, that website offered that explanation for the absence of available Disney stencils, virtually verbatim, in 2008, 2009, and 2010 (what, no 2011?) — making me wonder if this pumpkin carver extraordinaire just has a macro for that phrase on his keyboard.

Of course, we have no information about whether it’s actually true that Disney aggressively polices unauthorized pumpkin stencils on the Internet.  And the short answer to your most obvious question — can they really do that? — is yes, they can.  (The right to license products like pumpkin stencils is very much part of the copyright and trademark family of rights — and one that Disney is certainly exploiting itself.)  But should they be doing it?  That’s a question that can’t be answered so easily.  All I know is that it seems like the kind of thing that is going to get Sleeping Beauty’s castle egged by the neighborhood ne’er-do-wells.

Can You Tell Me How to Get to…the Red Light District?

It’s been a tough month for Big Bird.  First, Mitt Romney decided that the community that would have to suffer most under his economic plan is not Wall Street or Main Street, but Sesame Street.  Then, President Obama conscripted the aviary icon into a political ad, forcing a demand from the staunchly nonpartisan Sesame Workshop to leave Big Bird out of the political fray.  It’s enough to drive almost anyone to freak out and turn to a life of fast living and loose morals…which looks like it might have happened to Big Bird too.

The Sesame Workshop made national headlines this month by sending a cease-and-desist letter to, which had been selling a(n incredibly disturbing) “Sexy Big Bird” costume for Halloween.  (I’m sorry, that was an “Exclusive Yellow Dress and Stockings,” with weird wobbly bird feet, sold in a listing right next to a[n officially licensed] Big Bard headband.  My mistake.)  But here’s a claim that isn’t scary, so much as it’s a claim about something scary.  Because while we can all appreciate the proud Halloween tradition of turning any generic noun into a costume by throwing the word “sexy” in front of it — Sexy nurseSexy nunSexy replacement ref? — does anyone actually want to turn a fluffy, yellow, 6 foot 8 inch symbol of childhood innocence into a seasonal sex symbol?                                                                        

A Special Bonus Feature (Not Actually Done By Us)

Simpsons aficionados will remember the classic Treehouse of Horror IV, an homage to the beloved The Devil and Daniel Webster in which Homer sells his soul to the Devil for a donut, leaving Marge to rescue him from eternal damnation by proving, at trial, that he had already sold his soul to her.  In honor of Halloween, the superlawyers at Law and the Multiverse (a Law Law Land favorite) — writing for Subculture for the Cultured — finally tackle the question of whether Marge’s plan would really work.

Happy Halloween, guys and ghouls!


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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