The release of the 1995 motion picture, "The Last Stand," has generated widespread public interest in the life of General George Armstrong Custer, and there has been much scholarly reevaluation of his life and military career. Copyrights in the motion picture and in the novel from which it is derived are owned exclusively by Zenith Productions (Z). In addition to the motion picture, (Z) has exploited the Custer theme through a regularly published comic book devoted to Custer's life and exploits. It also published and sold a color map that contains references to important events in Custer's life. (Z) has further plans for a number of other Custer related ventures, including a theme park.
 
 

The book quotes extensively from Custer's personal diary, parts of which were published previously in Custer's 1874 autobiography, My Life on the Plains. Additionally, the book quotes unpublished contemporary letters of surviving members of the Custer clan, which discuss their current feelings about their infamous relative. The Custer survivors, known jointly as (X), have threatened to sue (Z) for copyright infringement of their letters.

(Z) has published its comic book, The Last Stand, monthly since November, 1996; the material in the comic book repeats some of the episodes contained in the movie, but some original fictional episodes also are included. Proper copyright notice has appeared on each monthly issue of the comic book with the exception of February, 1997. Through an oversight on the part of (Z)'s publications staff, that particular issue went to press without a copyright notice. Since January, 1997, Acme Comics (A), a competing publisher, has published and distributed a comic book entitled Last Stand, which depicts the Custer character in exactly the same form (appearance, costume and manner) as in the comic books produced by (Z). The episodes are completely different, however.

The color map produced and distributed by (Z) is a map of the Old West which incorporates artistic drawings and brief references to historic events in Custer's life (e.g., "born here in 1839"). The underlying color outline map used by (Z) shows cities, rivers, mountains and boundaries and was originally published by the U.S. Department of the Interior. The following appears in the lower, right corner of the map in small but legible print: "Copyright, 1996, Zenith Productions." Body Shirts, Inc. (B) produced a tee-shirt with (Z)'s map on the front and sold 500,000 of the tee-shirts to retail outlets around the country.

(Z)) transferred the commercial television rights to the movie to CBS. On the evening of Friday, September 18, 1998, CBS broadcast the movie for home reception throughout the country. Dinwoodie (D), owner of Dinwoodie's Bar, Grill and Theater, operates an establishment dedicated to drinking, dancing, conversation and television movies. The bar has a television corner with 25 theater-style seats and a big screen television which (D) tunes to various movies performed on television. Bar patrons pay a cover charge which entities them to watch the movies in the television corner. (D) provides free popcorn for the television corner, but patrons must purchase their own drinks.

Evans (E), a professor at Fairfield State College (F), is a Custer expert. She has created a database of Custer facts, dates and locations. (E) has notified (Z) that if it takes legal action against her, she will sue (Z) for unauthorized use of her database because the movie uses many of the facts and dates found in her database. Because the book is so expensive, (E) asked the college library to photocopy the novel for her to use in her research on General Custer. She did purchased a copy of the map from (Z) and has posted it on the course website for her American History course. (E) also had the college media center videotape the movie shown on CBS on September 18. She showed the tape to her class on November 10, 1998; it was so well received by the class that she plans to use it in future years.

 You represent Zenith Productions, and the president of the company seeks your advice on various copyright matters. Discuss any problems you see for (Z). Include the rights and remedies, if any, Zenith has against the Custer relatives (X), Ace Comics (A), Body Shirts (B), CBS (C), Dinwoodie (D), Professor Evans (E) and Fairfield State College (F). Include any defenses the other parties may raise.
 
 

Following a nasty surprise back in the 1980s when a supposed corpse proved to be very much alive and made that fact known by knocking loudly on the coffin lid on the drive to the cemetery, Gloomy Gaunt (G), an undertaker, became concerned about avoiding burying a person supposed to be dead but who later turns out to be alive. (G) saw the solution as a coffin with an escape hatch. Whenever the burying business was slow, (G) worked with his trusted employee, Skeletal (S), tinkering to develop escape mechanisms for coffins. Because the coffin business is so competitive, he swore (S) to secrecy until they could complete the invention. In 1992, Gaunt had a working model and he intended to apply for a patent as soon as he knew for sure that the invention worked as intended to prevent premature burial. Fearful that he would never know for sure unless a live person was buried, (G) talked (S)l into being buried in the improved coffin. (S) successfully used the escape ladder and emerged from the grave unharmed. Armed with this evidence (G) applied for a patent on November 15, 1994. His application follows.
 

COFFIN WITH ESCAPE HATCH

The nature of this invention consists in placing on the lid of the coffin, and directly over the face of the body laid therein, a square tube, which extends from the coffin up through and over the surface of the grave, said tube containing a ladder and a cord, one end of said cord being placed in the hand of the person laid in the coffin, and the other end of said cord being attached to a bell on the top of the square tube [see Figs. 1-4]. so that, should a person be interred ere life is extinct, he can, on recovery to consciousness, ascend from the grave and the coffin by the ladder; or, if not able to ascend by said ladder, ring the bell, thereby giving an alarm, and thus save himself from premature burial and death.

The operation of my invention is as follows: The supposed corpse being laid in the body A of the coffin, and cord K placed in the hand or the corpse, the cord is next drawn through the tube C and attached to the bell 1, and the tube C placed in the base D, on the lid of the coffin. The coffin is now lowered into the grave, and the grave filled up to the air-inlets FF. Now, should the person laid in the coffin, on returning to life, desire to ascend from the coffin and the grave to the surface, he can do so by means of the ladder H; but, if too weak to ascend by the ladder, he can pull the cord in his hand, and ring the bell 1, giving the desired alarm for help, and thus save himself from premature death by being buried alive. Should life be extinct, the tube C is removed, the door L closed, and the tube used for a similar purpose.
 

I claim:

1. A device for the internment of human remains comprising:

  a. an enclosed chamber with a lid, and
  b. a tube extending from a hole cut in said lid and extending such length as required to reach the surface level of a grave.

2. The device in claim 1 wherein said tube contains a ladder leading from said lid to the surface of a grave.

3. The device in claim 1 wherein said tube contains air vents at the top surface of said tube.

4. The device in claim 1 wherein a signaling device is placed at the top of said tube with an actuating means placed in said chamber.

5. The device in claim 4 wherein said signaling device consists of a bell and said actuating means is a cord connected to said bell and extending down into said chamber.
 

 The Patent and Trademark Office (PTO) considered three prior art references during prosecution of the application. The first was the practice of the ancient Egyptians tomb builders who frequently constructed tunnels that led outside of the tomb which would have permitted escape. The second was an article by a Belgian doctor, Cadaverous (C), which appeared in the 1970 Funereal Festschriften describing a sarcophagus with a hydraulic lift attached to the lid that would permit a prematurely interred occupant to raise the lid by pulling a lever. The third reference was a Japanese technical paper presented at a mortician's conference in Geneva in 1992. The paper described various types of coffin devices that might be employed to prevent premature burial. Included in the descriptions were alarm devices, escape tubes, rope ladders, and the like. The PTO found that the device was patentable and issued the patent on five claims on July 5, 1996.

In 1995 (G) licensed Amelia Ashen (A) to sell the escape hatch coffins in the Northeast; for the privilege, Ashen agreed to pay Gaunt $10.00 for every coffin sold until the patent issued and $20.00 per coffin thereafter. By October, 1995 the patent still had not issued; (A) continued to sell the coffins but ceased making royalty payments. In early 1996 (A) hired (G)'s former employee, (S), to develop the Ashen line of escape hatch coffins. In less than one month's time, Ashen began to manufacture and sell an identical coffin. (G) sued (A) for patent infringement; (A) challenged the validity of the patent on the grounds of obviousness and lack of novelty.

When the patent issued, a fellow undertaker/inventor, Paula Pallor (P), was stunned to read in the September, 1996 issue of Mortician's Monthly that (G) had received a patent for a coffin with escape hatch. From the article, it appeared that (G)'s invention was identical to the one that (P) had developed. (P) had begun to visualize a new type of coffin that permitted escape two decades ago. She has a notarized mechanical drawing of the invention dated February 10, 1991. (P) used the coffin for several burials without the knowledge of the relatives of the deceased. The first such use was January 15, 1993. Either each of the corpses (P) buried in escape hatch coffins were actually dead or the invention did not work since no bells rang in cemeteries and no escape ladders appeared to have been used to escape from the graves in question. By the mid-1990s (P) became interested in other funereal-related inventions and stopped making and using the escape coffin. Immediately after (P) saw the article about (G)'s patent, however, she challenged the validity of (G)'s patent claiming that he was not the first inventor.

(G) has hired you to advise him on both the validity of his patent and in the infringement action. Discuss these issues and any other legal problems (G) may have with (S) and (A), excluding any unfair competition claims Include rights and remedies available to (G) as well as defenses likely to be raised by other the parties.