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“Undead” in the Federal Courts

June 5, 2012

Recently I summarized the cases in the Federal Court that include the expression “walking dead”. In this post I summarize those cases in the Federal Court that include the word “undead”. There are only nine such cases, and one more uses the adjective “undeadly”. Only two of these case opinions also include the word zombie (and they are both the same underlying case but at District Court and then Appeal).

The first “undead” use in Federal Court opinion is in 1993. Recall the first “walking dead” was in 1962 and the first “zombis” in 1942, “zombi” 1949, “zombies” 1956, “zombie” 1957. First vampire, 1902. First ghoul, 1974 and first ghost 1855. So 1993 for “undead” is rather recent.

In 1993, TSR, Inc. v. Mayfair Games, Inc. Gamers will recognize these companies and, of course, this case is about Dungeons & Dragons. Prior to this case TSR had already sued Mayfair over its Role Aids game supplements and they had settled by contractual agreement. But here a Mayfair game supplement called “Undead” was reviewed in Dragon Magazine and the reviewer “made the decision to describe Undead as an ‘AD&D game campaign supplement'” And then Mayfair quoted the review. So TSR sued for violation of the prior agreement and the Court agreed – summary judgment for TSR.

mayfair undead

Next in, Hogan v. DC Comics, 48 F. Supp. 2d 298, decided January 25, 1999, the Court describes the characters of Nicholas Guant: “This litigation arises out of two works each centered around a half-human, half-vampire character named Nicholas Gaunt.” Hogan sued DC comics for infringement of his unpublished work. Hogan’s work is called Matchsticks and the DC Comic is called Dhampire: Stillborn. The Court says: “‘gaunt’ connotes thinness and pallor, qualities associated with the ‘undead.'” Finding sufficient differences the Court grants DC comics motion for summary judgment.


Third, American Amusement Mach. Ass’n v. Cottey, 115 F. Supp. 2d 943, decided October 11, 2000, the Court upheld Indianapolis General Ordinance 72-2000 which prohibits amusement machines harmful to children. The plaintiffs sought a preliminary injunction to prevent enforcement but the Court denied, finding that they were unlikely to prevail on the argument that the ordinance was unconstitutionally vague. In its analysis, the Court describes some violent video games including “The House of the Dead 2”:

The “plot” in “The House of the Dead 2” is that a town has been over-run by zombie-like characters who have killed many of the town’s inhabitants. The player adopts the persona of “James,” who is responding to the emergency. The zombies are “undead” human figures who are already substantially decayed and disfigured when James encounters them. The zombies attack James. James responds by shooting them. When shot, the undead die again in dramatic fashion. In some cases, the chest cavity explodes in a shower of blood, ribs, and gore, while in other cases the target is decapitated. The court observed at least one character whose entire upper torso appeared to have been severed from the lower half of the figure. 5

5 “The House of the Dead 2” displays a “Parental Advisory Warning” which informs the viewer: “This Game is Classified/Life-Like Violence/Strong.” The rating is the product of a voluntary industry program. See Exs. P-68, P-69 (describing the rating system).

Subsequently, this case was reversed and remanded by the Seventh Circuit, 244 F.3d 572 (2001), rehearing was denied and writ of certiori denied by Supreme Court, 122 S. Ct. 462 (2001). The case can now stand for principle that video games are treated as speech. The Seventh Circuit Court also noted that some of the themes might be considered feminist, and strong women defeating men in “Ulimate Mortal Kombat 3” might be possibly considered of beneficial value. The Court highlights the violence in great literature like “the Odyssey” and the monsters “Frankenstein” and “Dracula” and Grimm’s fairy tales, and says:

Maybe video games are different. They are, after all, interactive. But this point is superficial, in fact erroneous. All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own. Protests from readers caused Dickens to revise Great Expectations to give it a happy ending, and tourists visit sites in Dublin and its environs in which the fictitious events of Ulysses are imagined to have occurred. The cult of Sherlock Holmes is well known. Most of the video games in the record of this case, games that the City believes violate its ordinances, are stories. Take once again “The House of the Dead.” The player is armed with a gun–most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo. The zombies have already knocked down and wounded several people, who are pleading pitiably for help; and one of the player’s duties is to protect those unfortunates from renewed assaults by the zombies. His main task, however, is self-defense. Zombies are supernatural beings, therefore difficult to kill. Repeated shots are necessary to stop them as they rush headlong toward the player. He must not only be alert to the appearance of zombies from any quarter; he must be assiduous about reloading his gun periodically, lest he be overwhelmed by the rush of the zombies when his gun is empty.

Self-defense, protection of others, dread of the “undead,” fighting against overwhelming odds–these are all age-old themes of literature, and ones particularly appealing to the young. “The House of the Dead” is not distinguished literature. Neither, perhaps, is “The Night of the Living Dead,” George A. Romero’s famous zombie movie that was doubtless the inspiration for “The House of the Dead.” Some games, such as “Dungeons and Dragons,” have achieved cult status; although it seems unlikely, some of these games, perhaps including some that are as violent as those in the record, will become cultural icons. We are in the world of kids’ popular culture. But it is not lightly to be suppressed.

In Ruiz v. Cockrell, 2:00-CV-0296 , 2003 U.S. Dist. LEXIS 14978, the Court decided August 29, 2003, to deny petition for Habeas Corpus. Ruiz alleged ineffective assistance of appellate counsel because his attorney failed “to charge undeadly conduct”. Now, “undeadly” is not technically a word, but that’s the beauty of Habeas petitions. I’m not really sure what he meant, or if the Court even knows, but either way the Court found the allegation “without merit”. Ruiz is serving a 50 year sentence for “felony offense of aggravated assault, enhanced with prior felonies” so you can’t really blame him for trying.

In Moore v. Tangipahoa Parish Sch. Bd., CIVIL ACTION NO. 65-15556 SEC. “B”(1), 2008 U.S. Dist. LEXIS 35238, decided April 30, 2008, is a fascinating case that is part of a forty-three year history of Court intervention for desegregation of the Tangipahoa School System to fix the “vestiges of de jure school segregation”. This decision is narrowly focused on one person’s job and the Court orders that the School Board hire “Mr. Alden Foster as head coach of the Amite High School football team”. The case appears in this “undead” set because of citation to a law review article by Brian J. Sutherland entitled “Killing Jim Crow and the Undead Nondelegation Doctrine with Privately Enforceable Federal Regulations” 29 Seattle Univ. L. R. 917 (2006).

Similarly the next few cases are also only mere citation to law review articles with “Undead” in the title. In re Davis, CASE NO. CV409-130, 2010 U.S. Dist. LEXIS 87340, decided August 24, 2010, is the denial of Habeas petition for Troy Davis. He failed to prove his innocence in a way that would make it unconstitutional to execute him. The New York Times strongly disagreed in an editorial before his execution and the execution was highlighted in early #OccupyWallStreet protests. The opinion cites to Harlan Grant Cohen, “Undead” Wartime Cases: Stare Decisis and the Lessons of History, 84 Tul. L. Rev. 957 (2010). In which Grant writes:

World War II cases [like Quirin, Eisentrager, Yamashita, and Hirota] might best be thought of as “undead.” They no longer seem to be live precedents, the passage of time and reflection having sapped them of their vigor, but they are not quite dead either, no later decision inflicting the final fatal blow. Instead, they refuse to be forgotten, lurching back into the frame. The dilemma posed by the rival histories of these cases thus resembles the one faced by the hero of a zombie movie: whether to put these decisions out of their misery once and for all or to try to save them and give them back their former lives.

troy davis

The next two “undead” cases both cite to article by Jeff Todd, Undead Precedent: The Curse of a Holding “Limited To Its Facts”, 40 Tex. Tech L. Rev. 67 (2007). This article uses undead in the same way as the last article, referring to aberrant case precedents. Todd compares cases limited to specific facts to Count Dracula: “defies God’s law and is given eternal existence, not as a blessing but as a curse.”

These cases are United States v. Sturm, 426 Fed. Appx. 582, April 4, 2011, (See subsequent decision) about child pornography and the transport of digital files and Pearson v. Fairlakes Vill. Condo. Assoc., 2012 U.S. Dist. LEXIS 35306, March 13, 2012, about liquidation proceedings in Puerto Rico.

Both of these law review articles are both using the word “undead” to refer to old cases are not technically overruled but practically so. This is similar to Judge Frank’s “impotent zombi” about Federal Baseball.


Finally, the most recent “undead” reference in Federal Court (just last week), May 31, 2012, in Kaufhold v. Caiafa, Civ. No. 2:11-cv-01460 (WJM), 2012 U.S. Dist. LEXIS 75215, involves former band members of the group The Misfit:

Plaintiffs Robert C. Kaufhold and Joseph Aurthur McGuckin were the guitarist and drummer of the iconic punk rock band, the Misfits. Plaintiffs filed this action against the band’s bassist, Gerald Caiafa, and his music label, Cyclopian Music, Inc. (“Cyclopian”) (collectively “Defendants”), alleging that Defendants improperly asserted exclusive ownership rights over the Misfits trademarks.

The Misfits was a punk rock band formed in 1977. The band is known for pioneering and defining the musical genre of “horror punk,” combining the themes, imagery, and narrative of horror fiction with punk rock music.

From 1988 through 1992, Kaufhold sold the Misfits Live ’79 record (which prominently features the Misfits trademark) at shows for his band the Undead. Kaufhold continues to sell the Misfits Live ’79 album to this day from his website.

The Court found continued use and thus ruled against the drummer’s improperly filed trademarks. Though the Misfits had not performed for years, their rights in the intellectual property were not dead yet 🙂

So, what does “undead” mean in the Courts? Similar to “walking dead” it’s not really clear. There does seem to be a racial thread in the Troy Davis and Tangipahoa Schools cases. But most of the 10 “undead” cases are related to intellectual property: Dungeons & Dragons, DC Comics, House of the Dead 2, Kaufhold’s band. Then there’s a habeas for ineffective counsel, the liquidation in Puerto Rico and the interstate transport of digital child pornography. What’s the commonality? Perhaps there isn’t one.


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