The time Jay Bilas subpoenaed Barney the Purple Dinosaur
ESPN's most famous college basketball analyst once forced the beloved and annoying children's show character to appear in federal court in Charlotte. Why? Just to mess with the other lawyers.
Jay Bilas played basketball at Duke and went on to become a well-known college basketball analyst with ESPN. But! He’s also an commercial litigation attorney, and continues to have a listing at Moore & Van Allen, the Charlotte-based firm that he joined in 1992. His bio barely mentions his legal bona fides. It’s just a lot of basketball stuff.
I’ve always wondered: What would it be like to square off against Jay Bilas in court? What’s it like to look across the courtroom and see a 6-foot-8 former Blue Devil rising to speak? Is he intimidating? Does he opine at length or choose his words carefully? Is he the only member of the bar who can dunk?
This week, Bilas apparently read my mind and posted a clip on Instagram where he talked about his time as a lawyer. In it, he brought up his most memorable case: Lyons Partnership v. Morris Costumes, Inc. If that doesn’t mean much to you, maybe this will: JAY BILAS ONCE SUBPOENAED BARNEY THE PURPLE DINOSAUR:
The longer version of the Instagram clip is above, and it’s from an appearance on “The Rich Eisen Show” back in 2019. The short version is this: Charlotte’s legendary Morris Costumes was renting a few different purple dinosaur-like costumes with names like “Hillary the Purple Hippopotamus” and “Duffy the Dragon.” Lyons Partnership, the owner of Barney’s intellectual property, sued!
For those who don’t know: Barney started out as a stuffed animal in 1988. To help with marketing, its creators made a few videos. That caught the attention of PBS, which put Barney on the air in 1992. He was an instant hit. I’m skipping ahead here, but I want to go ahead and start quoting parts of the appeals court ruling in the case, which describes Barney thusly:
“Barney” [is a] well-stuffed Tyrannosaurus Rex with a green chest and stomach, friendly mien, green spots on its back, and yellow “toeballs.” Barney is readily recognizable to young children, who repeatedly parrot his song, “I Love You,” often testing the patience of nearby adults.
Those judges get it. “I Love You” is annoying as hell. Respect.
Barney started showing up on merch. There were t-shirts, books, and toys, all of which were officially licensed. And as you might imagine, a live appearance from Barney would have been a big hit at children’s birthday parties. But! The folks behind the purple dinosaur were very protective of Barney’s image as a wholesome character, which meant they didn’t want any yahoo doing wild stuff while dressed as a plush dead-eyed purple dinosaur:
The live appearance of the Barney character, who is played by adults in costume, is completely controlled by Lyons, and Lyons does not license Barney costumes because of its inability to police the behavior of those who might appear in the costume. It claims that it would be unable to prevent would-be Barneys from behaving in a decidedly un-Barney-like manner and tarnishing his wholesome reputation … Accordingly, every person who wears the costume-there are five-is trained by a single choreographer how to be Barney. Moreover, Barney's live voice is provided by only one person.
Imagine Barney at a furry convention. Actually, maybe don’t.
Lyons’s strategy was just to go after anyone who might make unlicensed Barney stuff, as well as things that very closely resembled Barney. That included Philip and Amy Morris.
The Morrises were were high school sweethearts, and traveled around the country performing in ghost shows and circuses. Philip created a character named Dr. Evil! (Years later, he would settle a lawsuit over the name with the producers of the Austin Powers movies. Philip’s son, as well as the son of the fictional Dr. Evil, are both named Scott.) During a trip to Chicago in 1963, Amy and Philip noticed a costume shop going out of business, bought the inventory, and brought it back to Charlotte to start a costume rental business of their own.
The store grew from the basement of their home on Kistler Avenue to a big store on Monroe Road to a sprawling distribution center that sits on 65 acres up in University City. It would become the largest costume distributor in the world. Along the way, Philip remained a showman and kept appearing on local TV. He would claim, rather theatrically, that the people who captured the most famous Bigfoot film of all time bought one of his custom gorilla suits shortly before the video was released.
Back in 1997, though, Amy and Philip were fighting a lawsuit brought by the Barney folks. Bilas, who was five years out of Duke Law School, represented them. “It was the dumbest case you’ve ever seen in your life,” Bilas told Eisen. He did enjoy Morris, though, who described himself as the “Colonel Sanders of the costume industry.”
“We wanted to settle the case right away, but they wouldn’t settle it because they wanted to make an example out of them,” Bilas said. During the bench trial in Charlotte, the court agreed that Duffy and Hillary did look a lot like Barney. Kids thought it was the real Barney! The court also agreed that Morris (which didn’t make the costume, but rented and sometimes altered it) was infringing on Barney’s copyright. However! The ruling stated that Lyons had waited too long to bring the case. Bilas and the Morrises won.
The case then went to the Fourth Circuit Court of Appeals, which issued a mixed ruling. Bilas ended up settling the case with Lyons. Barney, alas, never reached the Supreme Court.
Obviously, Bilas thought the trial bordered on farce, so he decided to make a farcical move. “I subpoenaed Barney to the trial,” he told Eisen. Lyons was against it, arguing that there were only three Barney costumes in existence, and it would be a huge, disruptful burden to get one to Charlotte. Plus, it was unwieldy. The actual Barney getup was 6’8” tall and weighed 250 pounds, Lyons argued. “Your honor,” Bilas recalled telling the judge, “I’m 6-foot-eight and weigh about 240, and I got in here just fine.” The judge agreed, and some time later, Barney himself popped out of a truck onto a loading dock where the judge, court staff, and others could see it. A lot of other folks from the federal building also came down to get a look at the subpoenaed Barney. So why did Bilas feel it necessary to bring Barney in under court order? “I just subpoenaed it to jerk them around because they were jerking us around,” Bilas said. “I thought, okay, let’s see what happens.”
Bilas himself only has a few other cases to his name, and most of his professional time is spent talking about college basketball. Still though, Bilas considers the Barney case to be the most memorable and dumbest moment of his legal career. Plus, he says, the costume really did look like Barney, which led to a close-call that could have derailed the trial. “I had [the costume as evidence] at home for some reason,” Bilas said. “My wife and her friends used it to have a birthday party for some of our kids.”
Too funny! Guess TV gig pays better than attorney or at least less aggravating.