It's exam time again here at the Bo and Luke Duke Memorial Tequila-Tasting Facility.  As a public service, we offer a sample of the sorts of questions we have been facing, along with some possible answers.  Please note that we have not yet received grades, so our answers may turn out to be, well, Bush-esque.

Intellectual Property

1.  Billy Bob Thornton makes a movie where he portrays a bedraggled, evil Santa.  The movie is properly copyrighted under U.S. law  A few weeks later, the Fourth Infantry Division pulls a bedraggled Saddam Hussein out of a "Spider Hole."  He looks like the most murderous and evil Santa there ever was.

Q:  Does either Billy Bob Thornton or the movie studio have a copyright interest in the character of the Bad Santa?  Can they sue Saddam? 

A:  While Thornton may have a right of publicity in his image in the "Bad Santa" guise under White v. Samsung, the movie's copyright holder - the studio - owns the character (assuming it meets the Sam Spade test).  However, Saddam has not violated the copyright, because his impersonation of the Bad Santa was not for public performance.  You can't get much more private than a spider hole.  Instead, the studio should sue the Forth Infantry Division for producing the Holiday special "Bad Santa: the Dental Exam," which clearly infringes.

Q:  Who else can be sued?

A:  New Line Cinema, makers of Lord of the Rings: Return of the King, can sue CENTCOM and the Fourth Infantry Division for the use of the term "Spider hole," a clear attempt to ride on the publicity coattails of the character Shelob in Return of the King.  New Line has a case for trademark infringement because of the high probability of consumer confusion between their movie and the invasion of Iraq.  Both are tightly-scripted, expensively produced feel-good spectacles with a clear, even didactic delineation of Good and Evil.  Failing that, they can argue dilution, on the grounds that associating the Iraq War with Return of the King brings the latter into disrepute.

Q:  C'mon, who else?  There's Gotta be somebody else to sue!

A:  Enough.  You how hard it is to serve a subpoena on the Fourth Infantry Division?  Besides, they make a sympathetic defendant.  Karl Rove, on the other handů

International Law

GWB is President of a fictional country we'll call A.  SH is president of another fictional Country, I.  GWB suspects I of having a covert WMD program, so he sends A's army to I to poke around.  After eight months of furious poking, no WMD have been found, but there is copious evidence that SH has committed multiple murders and in general behaved like the worst Santa ever.  Neither the UN General Assembly nor the Security Council authorized the invasion, although had previously advocated vigorous consensual poking.

Q:  Under accepted International Law, Was A justified in invading I?

A:  Of course.  The Supreme Court of A just ruled, in US v. Banks, that police officials need wait no more than 15-20 seconds after announcing themselves before being allowed to bust down a door to execute a search warrant.  GWB clearly gave SH and I more than 20 seconds, so there is no problem.

Q:  Hey, that's domestic law and you said this was an international law class!

A:  You have a problem, take it up with the Fourth Infantry Division.  They've been cranky ever since they got subpoena'd. 

Q:  You can't have a search warrant for a country!

A:  I'm serious.  You want a piece of me?!?  Bring it on!!

Q:  Go Poke Yourself.

A:  That's it.  You're on the "Do not contract" list.


The evidence for I's WMD program came mainly from third-party sources, but also included information taken from I's internal records and statements by former officials of I.  However, there remains the annoying fact that no WMD has been found.  Nonetheless, B decides to try SH for Manufacture of WMD, possession of WMD with intent to sell or distribute, Possession of WMD Paraphernalia, and Conspiracy to Commit Evil Doings.

Q:  Can the previous evidence of WMD activities be introduced at trial?

A:  There are two categories of evidence:  reports by persons involved in WMD, and reports by others.  The first category is protected by the Tyrant-Henchman privilege.  Just as spouses may not testify against each other, the courts have held that the normal and healthy development of megalomaniacal tyrants and their regimes of evil requires they be able to discuss their plans with henchmen, stooges, abettors, and sycophants.  Like attorney-client privilege, the tyrant-henchman privilege survives death of the regime, so this material is inadmissible.  See Diversified Industries for which stooges enjoy the privilege.

The other category is clearly second hand information and thus hearsay, which is barred with certain exceptions.  The WMD material could be allowed under exceptions  803(8) (Public Records) or 803(6) (Cool Things We Heard).  Evidence about testing the effects weapons on people probably falls under "Statements Made For Purposes of Medical Diagnosis Or Treatment."  Finally, there is the "residual rule" in 807, which states "Anything else a prosecutor really, really wants to bring in, as long as the defendant is some kind of scumbag or dirtball."

Q:  Can VP Cheney testify at the trial?

A:  No.  Rule 603 states that witnesses must  take an oath "in a form calculated to awaken the witness' conscience."  Dick Cheney has no conscience.

Q:  Assume the judge excludes all pre-war and hearsay evidence of the existence of WMD.  What verdict? 

A:  Guilty.  The judge, that is - he'll be cooling his heels in Guantanamo Bay until he learns better.  The defendants will have been executed prior to trial.

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