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Thursday Round Up: Pretextual Takings, Squatting, Unconstitutional Conditions

Here's what we're reading today:

• Michael Berger, "Is a taking based on pretext constitutional?," Daily Journal (a take on the Second Circuit's recent decision holding that a property owner could not assert a pretext claim where the allegedly pretextual use did not confer a private benefit.
• Christian Britschgi, "Are 'Squatters' Rights' Out of Control?" Reason (the "squatting" issue has roared into the public zeitgeist lately; if you haven't been following it closely, here's a good place to start).
• Remember that case, currently pending the North Carolina Supreme Court, about what remedies are available if a court invalidates a taking, but the condemnor just goes ahead and seizes the property anyway? Here are all the briefs in that case, including our amicus in support of the property owner).
• Levine, Nash & Schapiro, "The Unconstitutional Conditions Vacuum in Criminal Procedure," 133 Yale L.J. 1401 (2024) (in which the authors argue that the unconstitutional conditions analysis (aka Nollan/Dolan) should be applied in situations where criminal defendants are subject to government coercion; it is interesting to see how those outside the Dirt Law bubble view the doctrine).
• Bianchi, Brifkani, Halaby, Huang, "Court rules for PhRMA in challenge to Oregon drug price transaparency law" JDSupra (a breakdown and summary of a recent District Court decision concluding that an Oregon statute that requires the disclosure of trade secrets is a Ruckelshaus v. Monsanto taking; includes a link to the court's opinion).

Check 'em out.

Happy New Year: Say Goodbye To The Right To Exclude, Steamboat Willie

As of today, the copyright protection for the "Steamboat Willie" version of Mickey Mouse has lapsed, meaning it is in the public domain.

What can and can't you do with this, as of January 1, 2024? As Duke lawprof Jennifer Jenkins writes as "Mickey, Disney, and the Public Domain: a 95-year Love Triangle," you have to be a bit careful:

Steamboat Willie and the characters it depicts – which include both Mickey and Minnie Mouse – will be in the public domain. As indicated in the green circle, this means that anyone can share, adapt, or remix that material. You can start your creative engines too—full steam ahead! You could take a page out of the Winnie-the-Pooh: the Deforested Edition playbook and create “Steamboat Willie: the Climate Change Edition,” in which Mickey’s boat is grounded in a dry riverbed. You could create a feminist remake with Minnie Mouse as the central figure. You could reimagine Mickey and Minnie dedicating themselves to animal welfare. (The animals in Steamboat Willie are contorted rather uncomfortably into musical instruments. PETA would not approve.)

You can do all of this and more, so long as you steer clear of the subsisting rights indicated by the orange circles, namely:

• Use the original versions of Mickey and Minnie Mouse from 1928, without copyrightable elements of later iterations (though not every later iteration will be copyrightable, as I explain below) and

• Do not confuse consumers into thinking that your creation is produced or sponsored by Disney as a matter of trademark law. One way to help ensure that your audience is not confused is to make the actual source of the work – you or your company – clear on the title screen or cover, along with a prominent disclaimer indicating that your work was not produced, endorsed, licensed, or approved by Disney.

So, is January 1, 2024 doomsday for Disney? No. Disney still retains copyright over newer iterations of Mickey such as the “Sorcerer’s Apprentice” Mickey from Fantasia (1940) as well as trademarks over Mickey as a brand identifier. People will still go to its theme parks, pay to see its movies, buy its merchandise. Its brand identity will remain intact.

In sum, yes, you can use Mickey in new creative works.

We're thinking Steamboat Willie and the Navigation Servitude, Mickey's Penn Central Adventures, or even The Condemning Agency's Apprentice (if you want to get closer to that line), n'est-ce pas?

Professor Jenkins's entire piece is a worthy read.