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Substantially Similar--A Blog on IP Issues, Writing and Film

Historical Films on Impeachment and Confederate Sympathizers Took Liberties and Duped Us

by John Aquino on 05/28/19

I have written articles and a book on legal issues concerning fictional portrayals in fact-based films. For historical films depicting events from a century or more ago, there are seldom legal concerns related to the portrayals because only the living can sue claiming they have been libeled. The main issue with these historical films is a distortion of the truth that can affect public perception of historical figures. I've recently encountered two such incidents: one concerning the 1942 film Tennessee Johnson, which is focused on the 1868 impeachment trial of President Andrew Johnson, and the other the 1936 film  Prisoner of Shark Island, which tells the story of Dr. Samuel Mudd who was convicted and imprisoned for conspiracy in the assassination of President Abraham Lincoln. Film being such a pervasive medium, it makes me wonder if the national understanding of impeachment and confederacy/slavery would have been different if the films had moved closer to the truth.

Tennessee Johnson was regularly broadcast on television when I was young, and I sorta grew up on it. It stars Van Heflin and portrays Johnson as a Senator from Tennessee who fought against secession and then as a loyal vice president to Lincoln who arrives ill for his swearing-in ceremony and is falsely reported to be drunk. On Lincoln's assassination, Johnson becomes president. He doggedly tries to perpetuate Lincoln's benign approach to Reconstruction but is fought every step of the way by members of Congress led by Rep. Thaddeus Stevens, played in the movie by Lionel Barrymore. During his impeachment trial, Johnson delivers an impassioned speech in his defense. He is acquitted and years later represents his state in Congress. My knowledge of Johnson came primarily from the film and from John F. Kennedy's book Profiles in Courage, which told, among other stories of courage, how Sen. Edmund Ross of Kansas voted not to convict Johnson, which left the prosecution one vote short.  

The film carried an unusual disclaimer that doesn't just repeat the typical Hollywood statement that characters and events depicted are fictitious. Instead, it reads, "The Senate of the United States, in 1868, sat as a High Court in a judgment upon Andrew Johnson, who succeeded Abraham Lincoln as President. In the only great State trial in our history [until 1998], President Johnson was charged with violation of a law which forbade him to dismiss a member of his Cabinet. In 1926, the Supreme Court pronounced this law unconstitutional--as Johnson contended that it was. The form of our medium compels certain dramatic liberties, but the principal facts of Johnson's own life are based on history." 

And so, the filmmakers acknowledge taking "certain dramatic liberties" due to the "form of our medium." It was a while before I learned the extent of the "liberties." When I was writing my book, I wanted to find Johnson's impassioned speech during his trial and learned that he never gave such a speech or even appeared at his trial. In my other readings,  I discovered that he was a slave owner, and, as president, opposed the Fourteenth Amendment, which gave citizenship to former slaves, and fought against some of Lincoln's other plans for Reconstruction. While Johnson put forth a story that he had been ill and not drunk at Lincoln's second inauguration during which Johnson was also sworn in, contemporary accounts and comments from Lincoln himself--"I have known Andy Johnson for many years. He made a bad slip the other day but you'd need not be scared. Andy ain't no drunkard"--suggest it was otherwise. 

I've finished reading Brenda Wineapple's just released and eerily-relevant book, The Impeachers: The Trial of Andrew Johnson and his Dream of a Just Nation, which presents a detailed picture of the circumstances surrounding the impeachment trial and contrasts markedly with the film. As president, Johnson took the position that secession was unconstitutional and therefore hadn't happened. He therefore felt free to pardon and give appointments to former Confederate officers, which tended to reassert white supremacist thinking in the south. This angered Stevens and others who favored racial equality. Some who opposed what Johnson was doing overreached, spreading rumors that he had been complicit in Lincoln's assassination and passing the ultimately unconstitutional Tenure in Office Act, which required the president to obtain Congress' approval before removing cabinet members from office. Johnson was impeached by the House and tried by the Senate after firing the secretary of state. The trial dragged on, consumed with arguments about process--is his being a racist enough to push a president out of office?--and, while Ross was the last to cast a vote, Democrats and Republicans ultimately joined together to  get enough votes to acquit and end the national nightmare. Stained by impeachment, Johnson did little in his remaining year in office and failed in his attempt to secure the nomination for his reelection. He was ultimately elected to the Senate again in 1875 and served five months before his death.

Tennessee Johnson was made during World War II and extolled patriotism and unity at the expense of the more complex and more interesting factual story. Simplifying the story is usually thought to be more dramatic. The movie was directed by William Dieterle, who specialized in historical films such as The Story of Louis Pasteur, The Adventures of Robin Hood, and The Hunchback of Notre Dame, and was co-written by John L. Balderston, a little remembered but extremely skilled and influential playwright and screenwriter, who coaxed a play, Berkeley Square, out of Henry James' unfinished novel The Sense of the Past, and either wrote or co-wrote the film versions of Dracula, Frankenstein, The Invisible Man, The Mummy, The Bride of Frankenstein, Mad Love, Dracula's DaughterThe Mystery of Edwin Drood, The Prisoner of Zenda, and Gaslight. (As an attorney, I admire the fact that the year before his death in 1954 he reached a settlement of his lawsuit with Universal Studios that brought him and his heirs a percentage of revenues for all of the horror films he helped write and their sequels.) And so there was talent behind Tennessee Johnson, although it tended to be in people who had worked on films that didn't require historical accuracy. The film was criticized at the time by the NAACP, which boycotted it, and by Hollywood liberals such as actors Vincent Price and Zero Mostel and playwright and screenwriter Ben Hecht for its glorification of a man who sought to perpetuate a racist south. The movie was a box office flop. But for the longest time, it was almost my sole source of information about Andrew Johnson and his impeachment.

As to the other film, recently, I was discussing with a friend the story of Dr. Samuel Mudd for some work he was doing. Again, I was brought up on John Ford's Prisoner of Shark Island that portrays Mudd as a simple country doctor whom Lincoln's assassin John Wilkes Booth visits for treatment of the injuries he sustained when he leapt from Lincoln's theatre box after shooting him. In the film, Mudd didn't know who Booth was, is unjustly tried and convicted for conspiracy, and is sent to a prison on the Dry Tortugas off the coast of Florida. When the prison's doctor dies during a yellow fever outbreak, Mudd helps stem the tide of the disease. He is pardoned by President Johnson and returns to his wife. Warner Baxter played Mudd and Gloria Stuart, who 62 years later dropped the necklace in the ocean at the end of the film Titanic, his wife. There were other version of the Mudd story that followed the same interpretation. Gary Cooper starred in the radio broadcast of Shark Island in 1938, and there were three television portrayals: Lew Ayres played Mudd in "The Case for Dr. Mudd" on the Westinghouse Desilu Playhouse in 1958 and in "Time of the Traitor," an episode of the series Laramie in 1962, while Dennis Weaver took the role in The Ordeal of Dr. Mudd, a 1980 made-for-tv movie

Years after first seeing Shark Island, I was reading James L. Swanson's 2006 book Manhunt: The 12-Day Chase for Lincoln's Killer. I found it a riveting tale in itself, although not too well written. (It has been made into a television mini-series.) But I was shocked to read that Mudd was a slave owner and Confederate sympathizer whose name had been circulated to those of the same mind-bent who might need assistance, like Booth. I had heard over the years of the Mudd family trying to have their ancestor's conviction overturned and how they had received the verbal support of Presidents Carter and Reagan, to no avail. But that all tied into Shark Island's story. And here was a book that stated bluntly that the story I had believed was wrong. 

I spent some time reading up on it. Historians are not in agreement about everything Swanson described about Mudd. But it is clear that Mudd  owned slaves, that Maryland's 1864 emancipation of slaves harmed his tobacco farm business and embittered him, that Booth stayed overnight at Mudd's farm and that they met in Washington, D.C. in 1864, and that Mudd didn't report treating Booth after news of Lincoln's assassination broke. At least one of the conspirators implicated Mudd. This led the prosecution and some today to argue that Mudd was, at the very least, a conspirator in Booth's plan to kidnap Lincoln before Booth changed the plan to murder and that he willingly assisted Booth in his escape, possibly before Mudd knew of the assassination. And so, this modern reading is pretty close to the prosecution's case of 1868. Others, including Mudd-related groups and his family, contend that he was innocent. At the very least, modern interpretations suggest that Shark Island's version of a country doctor taking care of a stranger is not correct. 

This is why fictionalization in fact-based films is such an important topic. A film can be the only way people learn about historical people. If the films of 70 and 80 years ago had accurately informed audiences about impeachment and Confederate sympathizers rather than simplify and falsify the facts, would our subsequent history have benefited from this better understanding? Can we still benefit today by knowing the truth about yesterday?

Copyright 2019 by John T. Aquino

Game of Thrones and the Series Finale Debate

by John Aquino on 05/24/19

Having read what seems like hundreds of posts and articles from fans of the HBO series Game of Thrones about how unsuccessful the series finale was, I have some comments that come with a caveat

My caveat is that I have not followed the series devotedly for its eight seasons. This might strike some who know me as odd in that I studied medieval drama and literature in college, acted in one of the medieval mystery plays, and, having been a reader of Arthurian literature, wrote Camelot stories that have been published. I haven't read George R. R. Martin's Game of Throne novels and have not seen every episode of the series, most likely because my family dealt with several illnesses over the last decade and my journalism and legal work have been demanding. The episode I remember most, not surprisingly, which I clicked on without knowing about it, was the season five finale, in which Cersei's is made to walk with a shaved head and naked through narrow streets while the crowd throws mud and stones at her. (The event was modeled on the "penance walk" King Edward IV's mistress Jane Shore was made to take after his death, although she was wearing a kirtle or slip.) I later found out that the actress playing Cersei, Lena Headey didn't disrobe and that the effect was achieved by a body double and CGI (computer-generated imagery).

I did watch the last two episodes, "The Bells" and "The Iron Throne." Without being steeped in the characters, I was able to follow it pretty well. The former wasn't very suspenseful--whichever side has the Drogon is going to win, but the special effects were well done, the acting in both episodes was good, and, with all of the bloody fighting in "The Bells," "The Iron Throne" seemed rather tame and anti-climactic. Obviously, if I had invested eight years of viewing every episode and becoming attached to the characters, I would been more prone to find flaws, just as I have of other series finales.

I have written on these pages about my disappointment in the series finales of Seinfeld and How I Met Your Mother. For the former, I complained that, while it was clear throughout the run that the characters were selfish and self-centered, having the series end with their being imprisoned for being selfish and self-centered (they laughed at a man being mugged and so violated a local statute enacted after Princess Diana died while photographers took pictures of her dying without rendering aid) had comical conceits crashing bang-zoom-bang against real life issues. I wrote that by the same measure the classic tv series I Love Lucy should have ended with Lucy in a straitjacket in an institution where she was sent because she did such crazy things. I can imagine the Seinfeld writers feeling quite pleased with themselves for being so clever, even though the end result is that the audience was being told it was foolish to have become invested in these selfish people. As to How I Met Your Mother, Ted in 2030 tells his children the story of the events from 2006 to 2015 leading up to his meeting their mother. We know the mother isn't Robin because he refers to her in talking to the children as "Aunt Robin." In the last season, we finally seen the children's mother-to-be, who is lovable, only to hear in the last episode that she died in 2024. Ted's children tell him that his story wasn't about how he met their mother but how he was in love with Robin, whom he then rushes to find and renew their relationship. And so, the children tell us that the title of the series is wrong, and we watch a character we've become attached to die of cancer.

Part of the explanation for the Mother series finale is that all the scenes with the actors playing Ted's children were filmed in the first season before they aged out of their parts. Over the next half-dozen years, the characters developed in ways not initially imagined, and we got to meet the mother. Why the show' creators felt that killing off the mother would ever be acceptable is beyond me.

Something similar appears to have happened with Game of Thrones. The characters developed over the eight seasons, and audience members became attached to them. The makers of the show had already filmed all of the novels Martin has written so far and were making up the rest of the story, although Martin was listed as an adviser. He told them how the novel series is going to end, but also gave them the authority to develop popular characters more and to kill off whatever characters they wanted. After the finale aired, the show's makers said it has ended the way they always envisioned it. They appear to have zigged when they should have zagged.

Fans have complained that the final season felt rushed, that (SPOILER ALERT) Daenerys Targaryen was suddenly transformed from a heroine to a mass murdered, that Jon Snow determined that the only way to deal with her transformation was to stab her to death, that Cersei and Jamie are killed together but not in battle but rather by falling rocks as a result of the Drogon destroying everything by fire, and that the Night King was killed off half way through season 8..

When a series is based on finished books or dramas, there is usually an acceptance of the ending. Deviating from the published ending will devastate the devoted. But when the series develops from year to year and is contingent on renewal, the ending can be fluid and some people will be disappointed that their favorite character is killed off or doesn't marry the heroine. 

Some series finales have been well received. I liked the endings of M*A*S*H and Star Trek: The Next Generation, which were ingenious and true to the characters..(Conversely, although I was glad the ship returned home, I felt the ending of Starship Voyager was rushed.) Everyone talks about the ending of Newhart being so great, but to me all it shows is that Newhart was the weaker of Bob Newhart's two series and that no one complained that all of the events of Newhart were a dream in the mind of Newhart's character from the earlier series. He was shown in bed with his first series wife played by Suzanne Pleshette. I have always felt sorry for his second series wife played by Mary Frann for the Newhart's eight seasons, being shown by viewers and critics that it was all right that her character didn't exist. From a surprise perspective, the ending of Newhart was clever. As an ending to the series, it was, of course, terrible.

Good series finales are possible. They only ever happen if the makers of the show and not the ratings decide the time has come to say goodbye. If the those who write the ending treat the characters and the audience with respect, the finale works. Otherwise, how can it?

Copyright 2019 by John T. Aquino

Avengers: Endgame: Similar to a Play Cycle

by John Aquino on 05/10/19

Like over 100,000 million people ($2 billion in worldwide box office), my wife and I saw Avengers: Endgame over the weekend, the culmination of 22 films that comprise the "Infinity Saga" of the Marvel film comic book universe. I found myself thinking about my days when I was an English literature scholar writing about play cycles.

Play cycles are basically three or more plays on the same story with the second being a continuation of the firs, the third of the second, etc. They can be meant for performance all on the same day or on different performance days, but each is also self-contained. The English medieval play cycles--the York (48 plays), Wakefield (32), Chester (24), and No-Town (42) mystery plays--span from God's creation of the world through Old Testament stories and then through the New Testament and the story of Christ to the Last Judgment and the end of the World. William Shakespeare wrote two groups of plays that can be considered play cycles--1,2, and 3 Henry VI, which is labeled the first tetralogy and tells the story of the War of the Roses (1455-1485), and 1 and 2 Henry IV and Henry V, the second tetralogy, which is basically about the education and growth of Henry V as the ideal English king. But even centuries before that, in ancient Greece, Aeschylus wrote the Oresteia, three plays that recount the murder of King Agamemnon, his children's revenge, and the trial of the murderer, while Sophocles completed three plays about the tragic family of Oedipus--Oedipus Rex, Oedipus at Colonus, and Antigone.

In modern times, George Bernard Shaw's Back to Methuselah premiered in 1922, composed of five plays that span from the Garden of Eden where humans first discovered death to the future where humanity has learned the secret of eternal life. I wrote my Master's thesis on this play cycle and a related article on Shaw's influence on C.S. Lewis' Perelandra science fiction novels that appeared in the Shaw Review--there is a character named Pshaw who quotes from Back to Methuselah that "It is enough that there is a beyond." (Thus, ended my career as a literary scholar.) ; Methuselah is rarely performed--the Washington (D.C.) Stage Guild performed it in separate productions in 2014 (see ). A brief college excerpt of the serpent tempting Eve is at .In 1931, Eugene O'Neill developed a modern version of the Oresteia that was set just after the Civil War and titled it Morning Becomes Electra. It is also seldom performed, but the long and stagy though well acted film version is at

Marvel's Infinity Saga is composed of 22 films: Iron Man (2008), The Incredible Hulk (2008); Iron Man 2 (2010);' Thor (2011); Captain America: The First Avenger (2011); The Avengers (2012); Iron Man 3; (2013); Thor: The Dark World (2013); Captain America: The Winter Soldier (2014);  Guardians of the Galaxy (2014); Avengers: The Age of Ultron (2015); Ant-Man (2015); Captain America: Civil War (2016); Doctor Strange (2016); Guardians of the Galaxy, Vol. 2 (2017); Spider-Man: Homecoming (2017); Thor: Ragnorak (2018); Black Panther (2018); Avengers: Infinity War (2018); Ant-Man and the Wasp (2018); Captain Marvel (2019); and Avengers: Endgame (2019). As you can see, they were spread out when they started and bunched up at the end to the extent that I haven't seen the last two before Endgame. There have been remarkably few changes in roles for so many films: Edward Norton starred as the Incredible Hulk in 2008 but was replaced for subsequent films by Mark Ruffalo, and Terrence Howard was James Rhodes in Iron Man but was replaced by Don Cheadle in Iron Man 2 and subsequent films when Rhodes also became "War Machine."

I assume that if the first two films had bombed at the box office the film saga would have ended. (I remember Remo Williams: The Adventure Begins (1985), which was intended to launch a series of films about the character, and yet there was only the one.) But their success enabled Marvel to create a film universe, aided by decades of comic books about the Hulk and the others as their bases. The filmmakers were able to plot out the entire saga, dropping  throughout the films story points about the infinity stones that Thanos in Avengers: Infinity Wars would gather together to destroy half the universe. It reminds me of two television series that I am very fond of--How I Met Your Mother and This Is Us--for which the creators plotted the stories far into the future and felt so comfortable with the material that they were able to go back and forth in time with ease.

There have been other film cycles--the Thin Man, Tarzan, James Bond, Star Trek, but the nature of Hollywood studios was such that the filmmakers seldom thought that far ahead. The Thin Man, for example, was based on a Dashiell Hammett novel. There was no guarantee the movie would be a success. When they discovered it was, Hammett had effectively stopped writing due to a writer's block. He managed to sketch out scenarios for the first two sequels but had nothing to do with the next three, and his complete absence showed in the later films. The Tarzan M-G-M series began in 1932 and lasted for six films with,the same stars and, mostly, the same creative team, but then was sold to RKO Studios with cast changes (Tarzan and Jane three times each) and cheaper budgets for 14 films and then to Paramount and M-G-M for two films each before the character was given a TV series. There have been 24 James Bond films--and six actors playing Bond, with accompanying  ups and downs in quality and style. There has not been, consequently, the creation of mostly coherent universes such as those formed in play cycles and, I would argue, Avengers: Endgame.

With the Marvel Infinity Cycle, some films have been better than others. I am not fond of Iron Man 2 or Iron Man 3 and the Thor films are awfully busy for me. I do like Iron Man and all of the Avengers, Guardians of the Galaxy, and Captain America films. As for the Infinity Saga as a whole, I admire its vision and scope, its big moments as well as small--I was bowled over by the meeting of Stark father and son in the last film. The saga reminds me of mystery play cycles and those by Shaw and O'Neill.

Copyright 2019 by John T. Aquino

Reviving (at least) Memories of a Forgotten Musical: The Girl Who Came to Supper

by John Aquino on 05/04/19

I posted an article on this blog some time back about Irving Berlin's last musical Mr. President, which had debuted at the National Theatre in Washington D.C. in 1962 with President and Mrs. Kennedy in attendance but ultimately failed on Broadway. The Washington Post rejected the article saying the event was too long ago, even though the article was submitted to commemorate the 50th anniversary of the D.C. premiere. It was also a chapter of a planned book on unsuccessful musicals by Broadway greats. Another chapter of this unfinished project is on Noel Coward's The Girl Who Came to Supper, which premiered on Broadway on December 9, 1963. I thought of it when I found that someone had placed the entire original cast album on youtube at . I thought I'd share some of the article with you, especially since you can sample the score yourself.

It was a troubled show. There were cast problems, and then when the show was in Philadelphia soon before its Broadway opening President Kennedy was assassinated. The show was set in 1911 London during the coronation of George V, and, because it mentioned the assassinations of monarchs that were occurring throughout Europe in the early 20th century, especially in its opening number titled "Long Live the King (If He Can)", the show' beginning was hastily reworked before Supper opened on Broadway..(The replacement opening number on the original cast album was cobbled together from an old Coward song.) Even with these revisions, this tuneful operetta about a time a half a century before seemed out of place in a nation deep in mourning and closed after 112 performances. The book and lyrics were nominated for a Tony Award but didn't win. I have always thought it was deserving of a revival.

Noel Coward was once a household name epitomizing sophistication and wit. He was a composer, lyricist, playwright, author, actor and a director. His operettas and musicals, which include Bitter Sweet and Operette, are seldom revived today. Some of his plays--Private Lives and Present Laughter--have been performed on Broadway recently and are frequently done on college campuses and by regional and community theatres. Some of his songs might be remembered--perhaps "I'll See You Again" and "Mad Dogs and Englishmen." By the mid-1950s, Coward was himself feeling a little out-of-step, and so he took a one-man cabaret show to Las Vegas, to great acclaim. After his 1961 musical Sail Away had been a modest success (thanks in part to Elaine Stritch), he was approached to write the songs for a musical version of Terrence Rattigan's play The Sleeping Prince. Harry Kurnitz wrote the libretto. 

You might know the plot of The Sleeping Prince if you've seen the 1957 movie version, The Prince and the Showgirl starring Marilyn Monroe and Laurence Olivier (the filming of which was the subject of the 2011 film My Weekend with Marilyn). The plot of the play, the 1957 film, and the musical are the same: While in London for the coronation, the Archduke Charles, Prince Regent of Carpathia, attends a musical titled "The Coconut Girl" and is smitten by Mary Morgan, a member of the chorus. She accepts his invitation for a tryst, but her assertiveness and naivety prolong her visit. They fall in love, but royal duty stands in the way.

In his diary, Coward described a troubled production. Florence Henderson, who had created the title role in the 1954 musical Fanny and starred in some revivals, was looking at the role of Mary as one all her own. She then announced that she was pregnant and would only be with the show for a few months. Jose Ferrer, who played Charles, had won the 1950 best actor Oscar for Cyrano de Bergerac and had sung in the 1954 movie musical biography of the composer Sigmund Romberg, Deep in my Heart. He possessed a pleasant voice but had never performed in a Broadway musical. Coward wrote in his diary about Ferrer that "those evil fairies at his Puerto Rican christening bestowed on him short legs, a too large nose, small eyes, a toneless singing voice and a defective sense of timing." My Mom and I saw Jose Ferrer two years later in the national tour of Man of La Mancha at the National.Theatre, which required even more of him than The Girl Who Came to Supper. He was no Richard Kiley, the incredible baritone who originated the role and immortalized "The Impossible Dream." I remember reading an interview with the great movie baritone Howard Keel who lamented that he had lost the touring company role to Ferrer. "I think Jose conned them with his Spanish 's'," Keel said. Still, Supper had opened to good reviews out of town.

For his part, Coward wrote a glittering score in an incredible variety of styles. There is a Carpathian national anthem; a complete score for "The Coconut Girl," for which Mary sings all the parts for the young prince; and the "Coronation Chorale" where the royals bemoan the boredom of attending coronations ("With stays too tight/We sit bolt upright/In a rigidly unyielding pew./Even British oak/Goes beyond a joke/When you've sat on it from nine til two") while Mary, who has been allowed to attend and, of course, has never seen anything like it, finds it "wonderful" and "entrancing," with the two contrasting viewpoints ultimately sung in counterpoint. For the subplot of the young prince roaming through the outskirts of London, Coward wrote a series of five music-hall-type songs for Tessie O'Shea as Ada, who won the Tony Award for featured actress in a musical, including "Saturday Night at the Rose and Crown," which goes,

Saturday Night at the Rose and Crown
Is just the place to be,
Tinkers and Tailors,
And Soldiers and Sailors,
All out for a bit of a spree,
If you find that you're weary of life
With your trouble and strife,
And the kids have got you down,
It will all turn right
On Saturday night
At the Rose and Crown.

As the punctuation suggests, it's sung, with a little cheating, in one breath.

Ferrer, even with his "toneless" voice, had a show-stopping number, with dizzying shifts of styles, titled, "Middle Age," which begins,

How do you do, middle age?
How do you do, middle, age?
Autumn winds begin to blow
And so 
I'd better unbend my mind to you,
You know,
I'm not quite yet resigned to you.

And the show ends quietly, as does the movie and film, with Mary deciding she can't stay with Charles as he wishes. Charles sings to himself but she can hear him,

I'll remember her
In the evening when I'm lonely
And imagining if only
She were there.
I'll relive, oh so vividly,
A sad and sweet
Incomplete affair.

And it ends, 

I'll remember her,
When we parted
With her eyes so full of tears 
She couldn't see.
And I'll feel inside
A foolish sort of pride
To know that she'll remember me.

It's a beautiful score. Coward gave it his all. It was his last musical, and he spent the remaining 10 years of his life acting in mostly forgettable movies, with the possible exception of the original The Italian Job (1969). I hope you enjoy what you hear. I hope someone revives it some day.

Copyright 2019 by John T. Aquino

Tribal Sovereign Immunity and Patents: No More Debate

by John Aquino on 04/16/19

I have written before on this blog on tribal sovereign immunity and patents in regard to a Patent and Trademark Office ruling confirmed by the U.S. Court of Appeals for the Federal Circuit Substantially-Similar.html?entry=tribal-sovereign-immunity-and-patents . Given my background as a former executive director of a tribal association, I commented on the importance of this immunity for tribes, lamented that the PTO's Patent Tribal and Appeal Board had been somewhat glib in ruling that the immunity was inapplicable for its proceedings, and hoped that higher courts would provide a more detailed discussion. 

But the Federal Circuit affirmed the PTAB's ruling, and on April 15, 2019, the U.S. Supreme Court denied review of the Federal Circuit's decision, letting the Federal Circuit's ruling stand. I regret that the feeling of some patent attorneys that the use of tribal sovereign immunity in this case was a sham will persist and that the broader discussion will not occur.

After the validity of its patents for its dry-eye treatment were challenged in inter partes review (IPR) petitions before the PTAB, which have often been criticized as favoring the petitioners, Allergan assigned its patents to the St. Regis Mohawk Tribe in upstate New York with the plan that the tribe would assert its sovereign immunity before the PTAB. After the PTAB ruled that the immunity didn't apply in its proceedings, on appeal before the Federal Circuit, the court acknowledged the legal existence of tribal sovereign immunity, found that it doesn't apply to actions brought by the federal government, and concluded that an IPR was similar to a federal administrative proceeding, even though, when the IPR was created by the American Invents Act, members of Congress labeled it a substitute for civil litigation where tribal sovereign immunity does apply. Allergan and the tribe petitioned the Supreme Court for review, and some attorneys predicted that the court would grant review, which it ultimately didn't. A denial of review only means that the court, for reasons it usually doesn't discuss, declined to review the lower court's ruling. Some had warned that Congress had been lobbied to decide the matter where it was likely to do so in a manner that would harm tribal immunity. At least in Congress, the matter would have been debated. But that is unlikely to happen given that the court's decisions.

And so the Federal Circuit ruling will stand, and the feeling that the use of tribal immunity was a sham rather than a legitimate business offer that the tribe was allowed to pursue will remain. As if tribes haven't been through enough.

There's a Dakota tribal saying that when you're riding a dead horse you should get off. It's similar to the adage reportedly coined by British member of Parliament Dennis Healy, "When you're in a hole, stop digging." But the end of this, I fear, is that tribes have one less horse to ride when from a business perspective they hadn't been left many to begin with.

Copyright 2019 by John T. Aquino