Good morning.
Unless you are on a workbreak (Ha!) or want to read some legal
trivia about Smokey Bear exit now! Yipes - this could be about a law
librarian's
worst nightmare - publishing an incorrect answer to a legal trivia question
and also finding out later that the cited reference has previously been
ruled unconstitutional. Read on, with trepidation.....
Paul Healey's article "De Minimis Curat Lex: A Compendium of Legal Trivia"
Law Library Journal, Vol. 89, No. 1, Winter 1997 is an entertaining and
excellent article. However, there is an error in question 274 (page 82) and
the answer: "274 QUESTION: It is against federal law to impersonate which
of the following fictitious characters: Minnie Mouse, Smokey the Bear (sic),
or Donald Duck? ANSWER: Smokey the Bear (18 U.S.C. Section 711)"
I have a friend who gets upset when he hears someone refer to "Smokey the
Bear." (Well, I have some sensitive and fragile friends!). He remonstrates
that the name is "Smokey Bear" and "the" is not his middle name. Just as it
is Porky Pig, not Porky the Pig, or Bugs Bunny, not Bugs the Bunny......well
you get the picture. Of course, he had no authority for this, but I, of
course, out of friendship always believed him.
So when I read the legal trivia question with the incorrect name usage in the
question, I looked up the cited reference 16 USC 580p-4(a) which reads:
"Whoever, except as provided by rules and regulations issued by the
Secretary, manufactures, uses, or reproduces the character 'Smokey Bear' or
the name 'Smokey Bear', or a facsimile or simulation of such character or
name in such a manner as suggests 'Smokey Bear' may be enjoined from such
manufacture, use, or reproduction at the suit of the Attorney General upon
complaint by the Secretary."
So as it turns out my friend had a right to be upset about people calling him
"Smokey the Bear"! Not only that, but he could make a federal case about it.
But wait - there's more. One case in the "Notes of Decisions" rules about
“impersonating” Smokey. The statute was held unconstitutional in LightHawk,
the Environmental Air Force v. Robertson, W.D. Wash. 1993, 812 F.Supp.1095,
U.S.P.Q 2d 2014.
The entire West Note: "Statute and regulation relied upon by the United
States Forest Service to prohibit environmental organization's use of
caricature of Smokey Bear in advertisement criticizing Forest Service's
forest management policies violated organization's use of chainsaw-wielding
caricature of Smokey Bear was unlikely to cause confusion to dilute the value
of Smokey Bear to help prevent forest fires.
The "offending" ad had a drawing of Smokey with a chain saw, half hidden
behind his back and the caption "Say it ain't so, Smokey." The district
court (p. 1103) concluded: "By ruling that 16 USC 580-4(a) and 36 CFR 271.3
are unconstitutional as applied to LightHawk, the Court by no means intends
to create an open season on Smokey Bear. While the question is not before
the Court the government can likely regulate commercial uses of Smokey Bear
as allowed by USOC."
So it turns out the incorrectly worded question also has a factually
questionable answer. Another lesson in updating your legal research!
When I share this important research with my wife, her comment is always -
"you law librarians don't have enough to do." She doesn't realize that this
type of legal scholarship could lead to a Ph.D. or at least a M.L.S.
Cordially......Alan Dear (back to my coconut tree).
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Alan E. Dear, Director 011-671-477-7623
Guam Territorial Law Library 011-671-472-1246 - Fax
141 San Ramon Road Aldear@AOL.com
Agana, Guam 96910
Guam ("Where America’s day begins") is a U.S. Territory in the Western
Pacific (above the Equator) just west of the international date line. We are
18 hours ahead of Pacific Standard Time. U.S. postal rates apply (including
4th class library rates). Our library is a federal and Guam tax exempt
non-profit corporation and donations are tax-deductible.
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