6 Puppet Law

6 Puppet Law Parker B. Potter, Jr. hile researching an article reporter. Bunny Rabbit and Mr. Moose are on kangaroo courts,1 I learned more difficult to place in a courtroom set- that Hearing Officer West of ting, although Mr. Moose is no stranger to the Wabash Valley (Indiana) Correctional litigation,3 and three hand puppets who once WInstitution Conduct Adjustment Board appeared on Captain Kangaroo’s program, a sometimes “referred to his court as a ‘kanga- mouse, a pig, and a rooster, were once the roo court’ and to himself as ‘Captain Kanga- subjects of a copyright infringement action.4 roo.’”2 In any event, the appearance of Mr. Moose in For those of us of a certain age, it is a judicial opinion got me to wondering about tempting to picture Mr. Green Jeans as Cap- how many other television puppets have end- tain Kangaroo’s bailiff and, perhaps, the ever- ed up in court. As it turns out, Mr. Moose is silent Dancing Bear as the Captain’s court hardly the only television star with a hand up Parker Potter is a law clerk in New Hampshire and an adjunct professor of law at the Franklin Pierce Law Center. 1 Parker B. Potter, Jr., Antipodal Invective: A Field Guide to Kangaroos in American Courtrooms, 39 Akron L. Rev. ___ (2006). 2 Higgason v. Hanks, 134 F.3d 374 (unpublished table decision), Nos. 97–1687 s 97–1688, 1998 WL 4741, at **3 (7th Cir. Jan. 7, 1998). An example of partial self-identification with the iconic television personal- ity comes from United States v. Eisner, 59 Fed. Appx. 379, 381 (2d Cir. 2003), in which the defendant in a tax fraud case conceded that several loan applications he made “were so obviously fake that it must have been the case that the banks would have approved a loan to ‘Captain Kangaroo.’” Eisner, however, provides no basis for concluding that the Captain was not creditworthy. 3 See ITT Continental Baking Co. v. FTC, 532 F.2d 207, 212 n.10 (2d Cir. 1976) (reporting, in false adver- tising case, conversation between Captain Kangaroo and Mr. Moose in which the Captain extolled the virtues of Wonder Bread). 4 See Mura v. Columbia Broad. Sys., Inc. 245 F. Supp. 587, 590 (S.D.N.Y. 1965) (holding that “[t]he eva- nescent reproduction of a hand puppet on a television screen or on the projected kinescope recording of it is so different in nature from the copyrighted hand puppet that … it is not a copy”). Judge Levet also concluded that under the circumstances – the puppets appeared on screen only briefly and in sup- porting roles – the fair use defense applied. Id. Park er B. Pot ter, Jr. his backside (or strings holding him up) to Arthur Takeall, whose dummy Scooter was appear in a published judicial opinion. often heard to say “you got the right one, uh- Howdy Doody, for example, has been huh.”10 Takeall sued Pepsico for airing televi- involved in a custody dispute,5 an insur- sion commercials in which Ray Charles sang ance subrogation action arising out of a fire “you got the right one, baby, uh-huh,” but was in the studio/garage where he/it had been unable to overcome Pepsico’s lack-of-access stored,6 and a conspiracy claim.7 Ollie the defense.11 Jerry Mahoney, Walter Winchell’s dragon came up in Judge Duffy’s opinion in a dummy, got into court in a different way. In copyright infringement case in which he ex- April Enterprises, Inc. v. KTTV,12 the produc- plained: “Clearly there is some similarity be- er of the “Winchell-Mahoney Time” televi- tween the friendly dragon of ‘A Dragon’s Tale’ sion program sued KTTV and Metromedia, and MTVN’s Magellan of ‘Eureeka’s Castle.’ Inc. for erasing tapes of the program, and in They are both dragons and, to my untrained Taub v. First State Insurance Co.,13 Winchell’s eye, the representations of each perhaps has ex-wife sued her divorce attorney for mal- a common source in the humorous old drag- practice based, in part, on his alleged failure on character Ollie, from ‘Kookla, Fran and to properly value, as a marital asset, the syn- Ollie.’”8 On the other hand, Topo Gigio, Tri- dication rights to “Winchell-Mahoney Time.” umph the Insult Comic Dog, the entire cast While Jerry Mahoney has been a real court- of “Crank Yankers,” and Shari Lewis’s Lamb room presence, his somewhat more famous Chop have all managed to avoid appearing in fellow dummy, Edgar Bergen’s Charlie Mc- any judicial opinions I was able to locate.9 Carthy, has been only an indirect presence, Ventriloquists and their dummies have invoked from time to time for metaphorical also ended up in court. In Takeall v. Pep- purposes.14 sico, Inc., the Fourth Circuit affirmed sum- While Scooter, Jerry Mahoney, and mary judgment for Pepsico in a copyright Charlie McCarthy are all famous and ac- infringement action brought by ventriloquist complished dummies, the prize for best per- 5 See Detroit Inst. of Arts Founders Soc’y v. Rose, 127 F. Supp. 2d 117 (D. Conn. 2001) (ordering puppeteer Rufus Rose to surrender Howdy Doody to museum, as third-party beneficiary of contract between puppeteer and television network). 6 See Nat’l Broad. Co. v. Rose, 215 A.2d 123 (Conn. 1965) (affirming trial court’s decision that puppeteer Rose was, at most, gratuitous bailee and, therefore, not liable under the law of bailment for damage to Howdy Doody). 7 See Paris v. Smith, 135 N.Y.S.2d 146 (N.Y. Sup. Ct. 1954) (granting in part and denying in part defendants’ motion to strike certain allegations in complaint charging them with conspiracy to deprive plaintiff of property interest in Howdy Doody). The order inParis does not identify Paris or Smith, nor does it indicate their relationship to Howdy Doody. 8 Cholakian v. MTV Network, Inc., 725 F. Supp. 754, 758 (S.D.N.Y. 1989) (denying plaintiff ’s application for a preliminary injunction after “conclud[ing] that, there are enough dissimilarities between ‘A Drag- on’s Tale’ and ‘Eureeka’s Castle’ to find that these two productions derive from independent efforts”). 9 I am presuming, of course, that Charles “Lamb Chop” San Filippo, a defendant in United States v. Zu- ber, 528 F.2d 981 (9th Cir. 1976), was named for the entrée, not the entertainer. 10 14 F.3d 596 (unpublished table decision), No. 93–1237, 1993 WL 509876, at **1 (4th Cir. Dec. 8, 1993). 11 Id. at **5-**6. 12 195 Cal. Rptr. 421 (Cal. Ct. App. 1993). 13 52 Cal. Rptr. 2d 1 (Cal. Ct. App. 1995). 14 See, e.g., Johnson v. Sullivan, 714 F. Supp. 1476, 1479 (N.D. Ill. 1989) (“With all due respect, the court has no intention of playing Charlie McCarthy to plaintiffs’ Edgar Bergen.”); In re Distrigas Corp., 75 B.R. 770, 773 (Bankr. D. Mass. 1987) (“In fact, except as holder of FERC import license, the debtor 154 9 G REEN B AG 2 D 153 Pup pet Law formance by a dummy in a judicial opinion gants, and, by a large margin, the most liti- must be awarded to San Francisco Police Of- gious puppets, are Jim Henson’s Muppets.18 ficer Robert Geary’s wooden sidekick, Offi- In their first two court appearances, the cer Brendan O’Smarty.15 As his contribution Muppets were plaintiffs.Children’s Television to a community policing initiative, Officer Workshop s Muppets, Inc. v. Royal Mold, Inc. Geary began taking Officer O’Smarty on was a copyright and trademark infringement patrol with him. All was well until Geary’s action arising from the defendants’ “produc- superiors told Geary that his dummy was tion and sale of cookie jar molds fashioned no longer welcome on patrol. In response, in the likenesses of plaintiffs’ puppet figures, Geary formed a “Committee to Save Puppet the muppets – ‘Bigbird,’ ‘Oscar the Grouch,’ Officer Brendan O’Smarty,” and collected ‘Cookie Monster,’ and ‘Ernie.’”19 The record is enough signatures to have a proposition in silent as to why Royal Mold chose to make an support of Officer O’Smarty placed on the infringing Ernie mold but no infringing Bert ballot. The proposition passed, and subse- mold.20 In Children’s Television Workshop s quently, Geary attempted to claim the costs Muppets, Inc. v. Mary Maxim, Inc., another of the ballot initiative as a business expense copyright and trademark case, the allegedly on his federal income tax return.16 Geary infringing mode of expression was a knitting was more successful in the court of public pattern which depicted various Muppets in- opinion than he was in the Tax Court, which cluding Big Bird, Cookie Monster, and Os- disallowed the deduction.17 car the Grouch.21 In a later case that involved Arguably the most famous puppet liti- two Muppets of an earlier vintage, Jim Hen- performs no real business function separate from DOMAC, which provides all the employees and services. Unless the left hand is independent of the right hand, there is no arms-length negotiating. Or, for that matter, any negotiating at all unless Charlie McCarthy is independent of Edgar Bergen.”); Commonwealth v. Williams, 41 Pa. D. s C. 2d 516, 520 (Pa. Ct. Com. Pl. (Wash. Cty.) 1966) (“From all this I draw the conclusion that the relation between the Secretary of Revenue and the common pleas judge need not be that of Edgar Bergen and Charlie McCarthy.”). 15 See Geary v. Commissioner, 235 F.3d 1207 (9th Cir.

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