Federal Judges, Movies, S.D.N.Y.

A Judicial Opinion With Lots Of Flair

By now you’ve probably heard about Duffey v. Twentieth Century Fox Film Corp (S.D.N.Y.). The plaintiff, actor Todd Duffey, played Brian, aka the “Flair Guy” — the Chotchkie’s waiter adorned with a plethora of “flair,” or colorful, cheesy buttons — in the 1999 cult-classic movie “Office Space.” Duffey sued Twentieth Century Fox and Library Publications, alleging that the defendants improperly used his image to market a spinoff product, the Office Space Box of Flair (affiliate link).

Duffey lost. The fun, stylishly written opinion rejecting his claims has gotten lots of coverage, in outlets ranging from Quartz to Consumerist to Gawker.

But these non-legal outlets didn’t delve into the citations — where it appears that Judge J. Paul Oetken (or his clerks) buried some sly, movie-related jokes….

Here’s the first precedent cited by Judge Oetken (for a rather unexciting proposition about accepting allegations in the complaint as true for purposes of a motion to dismiss): Michael Coppel Promotions Pty. Ltd. v. Michael Bolton, 982 F. Supp. 950, 953 (S.D.N.Y. 1997). As devotees of Office Space may recall, one of the characters in the film was named Michael Bolton (but not that Michael Bolton)

The most famous object from the film is a red Swingline stapler. On page 5 of the opinion, there’s a citation — a “Cf.” citation to an unpublished opinion, so the good judge was really working to get this in there — to Swingline, Inc. v. Staple Ctr. Mfg. Corp., No. 86 Civ. 7878, 1989 WL 24115 (N.D. Ill. Mar. 13, 1989) (finding prominent use of Swingline mark on competitor’s staple packages likely to deceive consumers).

There are some subtler shout-outs to the movie as well. The character of Milton, who was obsessed with the red Swingline stapler, eventually burns down the Initech office building (or so the film implies). On page 17, Judge Oetken cites Nat’l Union Fire Ins. Co. v. CBI Inds., Inc., 907 S.W.2d 517, 521 n.6 (Tex. 1995).

The final scene of “Office Space” features Milton drinking margaritas on a tropical island. On footnote 3 on page 3, the Duffey opinion cites Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005) (holding that district court may take judicial notice of federal copyright registrations published in the Copyright Office’s registry).

These are just a few of the “Office Space” references that I noticed (with the help of a friend who knows the movie backwards and forwards). Can you spot the others? Flip to the next page for the full opinion and see what you can find.

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