Why I am thankful for The Legal Geeks

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November 22, 2012

Happy Thanksgiving to my U.S. friends and happy Thursday to all of our international Legal Geeks friends!

Today is one of my favorite holidays (I’m a big fan of Arbor Day too) because I get to eat too much with loved ones, watch too much TV, and think about everything that I’ve been grateful for over the past year.

This past year has made me appreciate, even more than usual, my wonderful children and loved ones, but I’ll save those thoughts for Facebook. Here, I want to say how grateful I am for this very blog and what it’s brought me. I’m thankful I met, via the wonders of Twitter, my partner-in-geekdom, Mr. Bow Tie Law himself. Thanks to our shared love of all things geeky, we started this blog, which provides me with endless enterainment (and hopefully entertains others at least half as much).

And working on this blog has broadened my geek experience. It’s also allowed me to meet some amazing people, including great litigators like Stephanie Sparks and amazing judges like Judge Sciarrino. It also gave me the opportunity to speak at a fantastic conference – Paraban’s Forensic Innovations Conference in beautiful Midway, Utah.

This blog is only a few months old and it’s already given me so much for which to be thankful. I can’t wait to see what the year to come brings. And I hope you all have many things to be thankful for, today and every day!

Battlestar Galactica: Lawyers & Frakking Toasters

By

Josh Gilliland

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November 20, 2012

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Battlestar Galatica, both the first and second series, highlighted an usual theme in military discipline: NOT following orders.

Funny thing, it was great at saving the human race. And no one got a court-martial for saving humanity.

A constant in both series is reflecting values of the late 1970s and 2000s respectively, illuminating political and legal issues like the Eye of Jupiter.

Both also have Starbuck saying frak.

Let’s spin up the FTL and jump into the legal, political and historical issues of Battlestar Galactica.

Battlestar Galactica: 1978

The original Battlestar Galactica appeared on my birthday in 1978. The show had an Anti-Detente theme, evidenced in the Colonial Fleet on its way to a peace summit to end a war, instead resulting in the genocide of the human race. The Colonial President was both ignorant of warning signs and unable to respond when attacked. Humanity survived because of military officers recognizing warning signs and ignoring Presidential orders.

As further evidence of Cold War realities of the time, in the episode Experiment in Terra, Apollo states that there could only be “peace through strength” to a nation of humans in a Cold War about to go nuclear after their Neville Chamberlain-esq president signed a “peace for our time” treaty with the East.

Shortly after the dovish president gave his speech, nuclear missiles were launched by the opposing fascist country.

Full nuclear war follows through an automated response system (highlighting mutually assured destruction only works when both sides do not want war).

Luckily for the planet Terra, the Galactica was in orbit and shot down the ICBMs, perhaps showing a rejection of President Richard Nixon’s ABM Treaty with the Soviet Union.

Despite being written when Jimmy Carter was President of the United States, you cannot help but wonder if there were Ronald Reagan or Senator Henry “Scoop” Jackson supporters on the show.

Saga of a Star World

In the Saga of a Star World, civilian leaders had a plan for extreme appeasement, thinking that if they totally disarmed, they would show the Cylons that humanity was not a threat to the Cylon Empire, thus resulting in peace.

It was a bad plan.

The Fleet survived because the military leaders (Commander Adama and Colonel Tigh), secretly refused to follow orders and kept the pilots on the ready to counter an expected surprise attack. Commander Adama even went so far to comment on discussing “discipline in the ranks” while defending the Fleet that otherwise would have been destroyed if they had followed civilian orders.

Lost Planet of the Gods, Parts 1-3

As the series progressed, the stories addressed recruiting new Viper pilots. While the Galactica had female bridge officers (including Adama’s daughter, who did not exist in the second series), the fighter pilots were all male at the beginning, but quickly became co-ed. This parallels the US military, which did not have a female carrier-based fighter pilot until Kara Spears Hultgreen in 1993.

Apollo married a female pilot named Serina (played by Jane Seymour), who was also a single mother of a boy named Boxey. Pro forma, she is killed within one episode. Apollo adopted the son with no mention of any adoption proceedings, hinting that a second marriage included adoption rights (or Serina was very prompt at filing out a will).

There is also a noticeable legal issue of the Boxey being left in the company of the male fighter pilots while drinking and gambling way past bedtime, raising potential delinquency of a minor issues.

Murder on the Rising Star

The original Battlestar Galactica had one “courtroom” episode where Starbuck was on trial for murder of a rival Triad player. It was interesting to see in BSG that the “defense attorney” was called a “protector.” The story briefly touched on ethical issues of the DA commenting on a case to the press. There was also one tortured witness scene where Boomer made a poorly executed, but correct, “facts not in evidence” objection.

Skinjobs & Toasters: A Battlestar Galactica for the 21st Century

The 21st Century retelling of Battlestar Galactica provided leaders who attempted to see the world black and white as they would have in the Cold War.

However, post-War on Terror, the enemy could look like anyone (something that eventually happened in Battlestar Galactica 1980).

Moreover, think about what would happen in the United States if our population was reduced to enough people to fill a baseball stadium. Society’s values would be put through a meat grinder. People would focus more on loyalty to each other for survival and less on the rule of law. That is effectively what happened in Battlestar Galactica.

There are dozens of potential legal issues in BSG, Caprica, Razor and Blood & Chrome. Caprica went so far as having Adama’s father bribing judges, something never legal. The prequel even included group marriages, which legally would get complicated during a divorce in a community property state.

Focusing on Battlestar Galactica, several issues immediately jump out:

Presidential Succession: Roslin was sworn in by Priest, showing no separation between church and state;

Commander Adama attempted a coup d’état against President Roslin;

Admiral Cain on the Pegasus had her men torture & rape the Cylon Number 6 “Gina Inviere”;

Commander Adama planned to have Starbuck kill Admiral Cain; Admiral Cain had planned for her Executive Officer Jack Fisk to kill Adama;

President Roslin attempted to steal a Presidential Election;

Colonel Tigh used suicide bombers on New Caprica;

Commander Lee Adama violated Admiral Adama’s orders during the rescue of New Caprica (which saved the day);

Coup d’état by the Vice President Tom Zarek, complete with assassinating political leaders and attempted forced confession of Admiral Adama;

Execution of Vice President Tom Zarek and mutineers (most likely without a trial);

Admiral Adama drinking and taking pills while giving orders.

There are many, many, more legal issues in the series. For example, the co-ed bathrooms showed the employment lawyers had probably all been killed early in the war. Alternatively, the ship was built quickly for the Cylon War for an all male crew and later integrated.

Crossroads Parts 1 & 2

The trial of former President Baltar addressed many trial advocacy issues. The charges against Baltar focused on his surrender on New Caprica to the Cylons and the following collaboration with the enemy, including death orders signed under duress.

The defense strategy focused heavily on witness impeachment, which included Colonel Tigh being drunk on the stand, admitting to the use of suicide bombers and murder of his wife for collaboration.

Further witness impeachment included President Roselyn admitting her cancer returned and admitting she was being treated with drugs that caused an altered mental state.

There are also perjury issues with Lt. Felix Gaeta’s testimony, omitting that Baltar had a gun to his head when he signed a death order.

Lee Adama was called as a witness for Baltar to impeach Admiral Adama sitting as a who judge had already determined Baltar was guilty. This legal strategy was problematic, due to Lee Adama also being one of two defense attorneys and the Admiral also being Lee’s father. The ABA Rules of Professional Conduct Rule 3.7, say the following on attorneys serving as witnesses:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9 [both address conflicts of interest].

There is a good argument that disqualifying Lee Adama from testifying about a biased judge would cause “substantial hardship” on Baltar, because it went to the heart of whether the accused could have a fair trial.

Lee Adama’s testimony focused on his opinion that the Fleet was a gang on the run, no longer a society, that had forgiven everyone else of all crimes that had been committed, such as his father’s military coup d’état and numerous other examples.

However, with Baltar, the Fleet wanted blood for his Cylon collaboration when the other option was extermination.

Baltar was correctly acquitted on the collaboration after surrender chargers, but he could have been convicted of treason for giving a nuclear weapon to the Cylon Number 6 Gina Inviere, which she used to blow up the vessel Cloud Nine and several other ships.

Giving Inviere a nuclear weapon that resulted in the loss of hundreds, if not thousands, would have been an impeachable act of treason. Additionally, the radiation allowed the Cylons to find New Caprica, which could have been added to the treason charges.

So Say We All

Science Fiction always reflects the times in which it is written.

Battlestar Galactica is no exception, whether it was made during the Cold War or War on Terror.

Both series demonstrate a frequent lack of following usually civilian orders, which were necessary to save humanity from extinction.

However, the lawsuit that Battlestar Galactica infringed on Star Wars will be discussed another time…

Marvel Comics: A Sad Tale of Copyright Lost

By

Jessica_alegalgeek

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November 15, 2012

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I’ve always loved comic books. I grew up reading my dad’s old superhero comics from the ’60s, Mad Magazine, and Archie (Jughead is awesome), and I still love tough girl comic books like Wonder Woman, Fray, and Buffy Season 8. After all, who doesn’t dream of being a superhero? But I am not a comic book geek. I can’t talk to you about storylines and before a few weeks ago the only comic creators I could name were Stan Lee and Joss Whedon.

Thanks to Marvel Comics: The Untold Story, however, I have learned more about the history of comic books – and have come to appreciate comic books more – in the past few weeks than in all the decades before that.

Real comic book fans will mock me for this, but before I read this book I didn’t realize how different Marvel was from DC in the way Marvel’s superheros lived in real cities (like Spiderman living in New York) and dealt with real enemies (Captain America fighting the Nazis). In addition, they were all part of the same universe, often interacting with and impacting one another. Marvel was also viewed, especially during the late ’60s, as much more hip and relevant to pop culture. Stan Lee became an icon on college campuses and to other artists such as Mario Puzo (who had originally been very dismissive of him) and Federico Fellini.

Stan Lee and Marvel also changed the way the writer (e.g., Stan Lee) and artist (e.g., Jack Kirby) interacted. Instead of providing artists with full scripts, Stan would just give the artists a plot synopsis (or sometimes they’d come up with the plot lines together) and the artists would then go draw the story – determining page-by-page pacing and deciding plot details. The full story would then be returned to Lee, who would then fill in the dialogue. This came to be known as the Marvel Method.

The artwork was amazing too. Jim Steranko, for example, used his role as artist for the Nick Fury comics to explore art – using geometry tricks and eventually quadruple-page spreads that meant you had to buy two copies of the comic and lay them together if you wanted to appreciate exactly what he did. Jack Kirby and Steve Ditko, along with many other Marvel artists, also showed that illustrating comics was a true art form and one that allowed for plenty of social commentary. Unfortunately, I read the book on my Kindle so I wasn’t able to see any actual examples of the artwork described in great detail in the book. I haven’t had a chance to look at a hard copy of the book yet but I hope it actually includes some of this amazing artwork!

Legally, however, the Marvel saga – and that of comic books in general – has a sad side. Under U.S. law, all the brilliant superheros that Stan Lee, Jack Kirby, Steve Ditko and others created never belonged to them because of a cruel exception to the general copyright rule.

In general, copyright protection is established the moment an artistic work is created in fixed form (i.e., the moment a picture is drawn or words are written on paper). Copyright protection means that the work created automatically becomes the property of the author of the work (who is usually the creator). Under Section 106 of the 1976 Copyright Act, the owner of the copyright (usually the author), has the exclusive right to do certain things (or has the right to authorize others to do these things), such as reproduce copies of the work or prepare derivative works based on the original creation.

Unfortunately, there’s an exception to this general rule that the creator is the legal author of a copyrighted work. In the case of “works made for hire,” it’s the employer (in this case, Marvel) that is the author of the work. Section 101 of the copyright law defines a “work made for hire” as, among other things, a work prepared by an employee within the scope of his or her employment. Without authorship, the actual creator – Stan Lee, Jack Kirby, Steve Ditko – has no right to control what happens with the characters and does not profit from their use. (Stan Lee, of course, has profited more than the others because of his close affiliation with Marvel, which has given him a cut of various deals, but that’s apart from the profits he should have received as the creator of so many superheroes).

It is this cruel exception to the general copyright rule in the U.S. that doomed so many comic book artists – and not just at Marvel. For example, Jerry Siegel, who co-created of Superman, was treated horribly by DC Comics, depsite how much they profited from his creation. Stan Lee himself even commented once on how the comic book market is the worst market for creative talent, in part because the creator doesn’t own his own creations.

And Roy Thomas, who became Marvel’s editor-in-chief after Lee was promoted to publisher, said that he tended to reuse old Marvel superheros in his work because he knew Marvel would own anything he created and he hated the thought of them – not him – making money off of TV shows or movies based on characters he created.

Different comic book artists and writers have tried to wrestle back control of their creations over the years but they’ve generally been unsuccessful. After Jack Kirby died his estate sued Marvel to recover the right to the iconic heroes he had created, such as the Hulk and the Fantastic Four. In 2011, however, a federal judge granted summary judgment in favor of Marvel because it found that Kirby’s work for Marvel was “work for hire.” In other words, despite creating what came to be known known as The House that Jack Built, Kirby and his family had no right to profit from his Marvel creations beyond what he had initially been paid (a fraction of the billions made off of his characters by Marvel and Disney).

So reading this book has made me appreciate comic books much more than I ever had before. On the other hand, it also makes me sad for all the brilliant artists who have seen their works taken away from them because of the “work for hire” exception to the general copyright rule. But I appreciate the fact that they did what they did, for so little, so that so many could appreciate their work.

There Will Always Be Heroes: Thoughts on Veterans Day

By

Josh Gilliland

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November 11, 2012

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We have no shortage of heroes to honor on Veterans Day. So on this eleventh day of the eleventh month, I always think of the two greatest men I have known who served our country: My grandfathers.

Grandfathers-ParentsWedding — My grandfathers at my parents wedding.

Both of my grandfathers served their country in very different ways during World War II: My maternal grandfather in the Navy; my paternal grandfather at Lockheed.

Gramps

My material grandfather was a dentist, who married a beauty queen and adopted two daughters. He worked his way through dental school at a candy shop.

The son of an Iowa farmer, he served as a corpsman on the USS Boxer during World War II. She was a brand new aircraft carrier built for the invasion of Japan.

Shortly before my grandfather’s 90th Birthday, he shared with us his life story. Below he discussed his service during World War II.

One day on duty in the sick bay, my grandfather treated the CAG. In their discussion, my grandfather expressed his desire to go for a flight off the USS Boxer. The CAG offered a flight to pick-up mail the next morning and for my grandfather to meet him on the flight deck at 0800.

My grandfather found himself helping in a late night surgery to save a sailor’s life. Since the surgery went past 0200, the medical team was allowed to sleep in. My grandfather missed his flight.

The CAG had a power failure on take off. He crashed in the ocean, body never recovered.

Papa

My paternal grandfather was Harold William Lowe Gilliland. People called him Gill. I called him Papa.

Papa was born in 1912, the son of the Sheriff in Ventura, California.

Papa-FlightSuit-A — My grandfather at Cal Poly in 1932.

When my grandfather was 20 years old at Cal Poly, he served in what was an early version of the California Air National Guard. While working the flight line, he went to set the propeller on the training plane. The last pilot left the ignition engaged. As Papa set the propeller into position, the engine started and struck him.

Papa was cut into two uneven pieces. He described the experience to me when I was a boy: Knocked to the ground in a blur, seeing his left arm flaying around wildly.

The doctors did not expect him to live.

Harold William Lowe Gilliland recovered fully from what should have been a fatal injury. However, his dreams of being a pilot ended in the blur of a propeller blade.

Papa went on to become an aeronautical engineer. He was Amelia Earhart’s mechanic who specialized on the fuel system for her around the world flight. “Gill” was also given the honor of pushing the gangway to the side of the Lockheed Electra for Earhart.

Howard Hughes had a direct line to my grandfather’s house. Hughes’ phone calls in the middle of the night drove my grandmother crazy.

Papa met Orville Wright on Wright’s last flight. The pilots on the flight were Hughes and the president of TWA.

My grandfather was in charge of nighttime B-17 production at Burbank during World War II. Papa befriended the janitor at the Burbank B-17 factory.

I always found it impressive that the man who was on a first name basis with the president of Lockheed was a buddy with the young man who swept the floors.

The young janitor turned 18 and enlisted in the Army. He came back to the Burbank plant to show his pride in wearing his country’s uniform. He wanted to say good-bye to his friend before shipping out.

The guard at the front gate did not let the young soldier in the plant, because of the color of his skin.

The young soldier died liberating Europe.

My grandfather regretted not saying good-bye until the end of his life.

Papa&B17 — My grandfather looking at a B17 he most likely built.

In 1985, Papa and I toured an old B-17 at the Oshkosh Airshow. There was an old pilot in the cockpit that engaged my grandfather in deep conversation about the Flying Fortress. The pilot asked my grandfather how he knew so much about the plane. My grandfather’s answer was very short: “I built them.”

I will never forget the pilot’s response: “Then thank you for getting me home.”

It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced.

President Abraham Lincoln, Gettysburg Address

The United States is a great country because of the Americans who have made it great. My grandfathers were just two men in the long line of people who served their country to help make our nation great.

Many who did the fighting and dying never had the opportunity to go home; they never had a chance to enjoy a long life. We cannot forget those who never got to go home, whether they crashed in the sea or died liberating another country.

The United States will always have those who threaten our freedom and way of life. And we will always have those who take an oath to uphold and defend the Constitution. When you see one has served, or is serving, thank them.

People’s Court: Heavenly Edition

By

Jessica_alegalgeek

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November 9, 2012

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As promised, this is a follow up to my earlier post, picking out a dream team for the next time they decided to introduce a legal show. For my last post, everyone was alive. This time, I’m making up the cast from actors who’ve already had their “In Memoriam” moment. .

Judge: The judge from My Cousin Vinny was a close second, but in the end there’s only one person who can be the judge: Judge Smails of Caddyshack fame. Rodney, Bill, and Chevy are Caddyshack’s top stars, but Ted held his own with them. He has just as many great lines, with my favorite (twisted as it is) being:

Defense attorney: This can’t be anyone but Atticus Finch. The book is brilliant and Gregory Peck is fantastic – both in that role and generally.

Prosecutor: Adam Bonner from Adam’s Rib gets to be the district attorney, but only because Spencer Tracy is playing opposite Katherine Hepburn in this fantastic movie.

Bailiff: Selma Hacker from Night Court is my choice for bailiff. She was tough and dry and she was on Night Court, which is still one of my favorite legal shows.

Investigator: I would pick Kalinda again, but given that she’s still alive and kicking, I’ll have to go with my second favorite investigator – Columbo. I think his bumbling facade has become a role model for investigators everywhere, so he gets big points for that. Plus, he was in the Princess Bride, which automatically makes him super-cool.

As this court is clearly criminal, I’m going to add in a police officer who frequently appears to testify: Detective Fish from Barney Miller. (And yes, I know, he’s still alive. But I had to do this because poor Abe has struggled with that problem for decades – people think he’s dead and yet he’s still alive and acting!)

I love Barney Miller. In fact, this whole post is really just an excuse to do two things: (1) quote one of my favorite lines from my all-time favorite movie and (2) discuss my favorite cop show. The actors in Barney Miller were all lovable and the outfits really grew on me. I wish men today wore fantastic fat ties and fabulous plaid pants. And speaking of fabulous men in plaid, I’m was so excited to see Ron Glass, the sexy detective from Barney Miller, become Shephard Book, the sexy preacher on Firefly. Time to go watch Serenity!

Being a Super Hero Only Looks Good in Comic Books

By

Josh Gilliland

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November 5, 2012

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Many people hear the call of service and want to wear body armor and a cape. However, this is a profoundly bad idea. The law strongly disfavors ordinary citizens becoming vigilantes. Moreover, we have no known aliens with amazing powers, individuals enhanced by government experimentation or human hybrids with other humanoid species flying around major US cities.

With that said, who doesn’t like comic book super heroes? And for all the super lawyers out there, what legal issues are there in fighting crime after being given a magical amulet?

Vigilantism is defined in Black’s Law Dictionary as, “The act of a citizen who takes the law into his or her own hands by apprehending and punishing suspected criminals.”

“Vigilantism” is also defined under case law as “unreasonable self-help action by citizens that tends to disrupt the administration of the criminal justice system.” State v. Johnson, 1998 NMCA 19, P 15, 124 N.M. 647, 954 P.2d 79.

So, what does this mean for all of our comic book super heroes? Let’s review the different types of heroes to see who is a vigilante vs those engaging in law enforcement.

Criminals Are a Cowardly Lot…

Comic characters who take up arms and hunt criminals are with little question vigilantes. Examples on one extreme would be the Punisher and the other Batman. Both lost family members and took up arms to stop criminals.

There are obvious differences between the two, besides Marvel and DC. Punisher kills, where Batman has rules against killing (unless you are Darkside in Final Crisis). However, while the Punisher is not operating under any color of law besides avenging “justice” by killing criminals, Batman at least has tacit consent by Gotham City’s use of the Bat Signal to call for Batman’s help (perhaps showing Batman is deputized by local law enforcement).

Brilliant, Well-Funded & Armed

Tony Stark and Hank Pym are prime examples of the brilliant scientists who engineer super-human powers for themselves.

Some of these characters are defined in role playing games are “high tech wonders” and others “altered humans.” The key is whether they are using technology or has science changed their bodies.

For Stark his power is an advanced body armor that serves as a weapons platform; Pym his “Pym Particles” who he used to shirk or grew, depending on the decade and which identity Pym was using to fight crime (Ant Man, Giant-Man, Goliath, Yellow Jacket, or Wasp).

Granted, Batman could also fall in this category given his utility belt and advanced weapons. However, Batman uses more of his body through training as a weapon, where heroes such as Iron Man have built full blown body armor.

Iron Man falls in an interesting category, because the character was originally his alter ego’s body guard. Additionally, with Tony Stark being a Cold War weapons manufacturer, Marvel had a character arguably who was different than a vigilante. The issue would turn on whether Iron Man was operating as Stark’s body guard or going beyond such services (or a private citizen developing his own foreign policy arguably during the Armor Wars, something else frowned upon under the 1799 Logan Act).

Granted, Tony Stark eventually went public with his secret identity and held such positions as Secretary of Defense and Director of SHIELD. Under these positions, Stark was acting within the “police powers” of the Government.

Government Sponsored Heroes

The [fictional] United States Government has created and sponsored various super heroes. The most notable of course being Captain America.

Pursuant to Article I, Section 8 of the United States Constitution, Congress can “raise and support armies…” In a world where villains (especially if sponsored by a foreign power) can blow up buildings, Congress raising an army of super humans would not be out of the realm of possibility.

These heroes might have Posse Comitatus Act issues without specific legislation, but if authorized by Congress, would be the most “legal” form for a super hero to be operating within the law.

State-sponsored heroes would also need to follow the US Constitution and our laws on search, seizure and arrest. With that said, how many times in the comics has a super hero read a villain their Miranda rights?

A spin on this would be Green Lantern. While not authorized by Congress, Hal Jordan was selected by a Green Power Ring created by the Guardians of the Universe to protect Sector 2814. In essence, Green Lantern is a cosmic police officer. While the Guardians are free to create whatever selection criteria for the Green Lantern Corps, there would still be jurisdictional issues of a “alien” government setting law enforcement terms within the United States (or any country on Earth).

However, if a giant red alien shows up and starts eating buses with school children, elected officials probably will let that detail slide.

You’re Not Just Anyone

Superman is perhaps the most classic super hero of all time.

Superman arguably started out as a vigilante for a brief period of time, but since he at first represented “truth, justice and the American Way,” he was a symbol of working within the system.

This was also evidenced in such classics as Frank Miller’s The Dark Knight Returns (where Superman worked for the American government, which had banned heroes) and New Frontiers (which also banned heroes).

On the flip side, if a “person” can jump tall buildings in a single bound and is faster than a speeding bullet, society would accept his help. I mean, who would stop him?

If There Were Heroes…

If there were super heroes, the world of Powers probably would be the most on point on what that society would look like, complete with fans treating the “powers” like sports figures or movie stars. There would be regulation if not an outright ban on being a hero, because society would not tolerate mega-humans blowing up schools or throwing cars at people.

However, we will discuss Who Killed Retro-Girl another time.

Bam! Kapow! Can Stan Lee (Media) Defeat the Mighty Mouse?

By

Jessica_alegalgeek

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November 2, 2012

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“Disney always wins.” According to my copyright law professor (Hook ‘Em, Horns), that’s the first rule of copyright law. A quick search online shows that there are 188 cases where Disney is a party and copyright issues are mentioned. I haven’t checked all of those cases but I’ll assume that my professor was right and that Disney generally wins.

But now Stan Lee Media, Inc. – the defunct company co-founded by that master of marvels and superheroes – has decided to take on the mighty mouse. I’m currently obsessed with Marvel, thanks to Avengers being released on DVD, the new Iron Man trailer, and the new book on the history of Marvel (which I’ll be discussing next week). So now Stan Lee Media is suing Disney. What’s next?

It looks like a tough case. Stan Lee Media is claiming that, just two weeks before signing a contract with Marvel, Stan Lee himself signed a contract with Stan Lee Media assigning the rights to all of the characters he had created (or would create) to it. So Stan Lee Media is claiming that it – not Marvel – owned the various Stan Lee characters that have made billions for Disney, including Spider-Man, the X-men, and most of the Avengers. It’s claiming that Disney owes it $5.5 billion for copyright infringement as a result of Disney’s use of these characters.

This kind of dispute about who promised what and when is tough enough, but Stan Lee Media faces a bigger hurdle: res judicata. Stan Lee Media has made this claim about Lee assigning his characters to it first before and lost (although that decision is being appealed). The doctrine of res judicata says that parties can’t relitigate issues that were or could have been raised in a previous lawsuit that is final. Because Disney purchased its rights from Marvel, it would stand in Marvel’s shoes and can say that this issue has previously been litigated. As a result, it would argue that Stan Lee Media is barred from pursuing these claims again.

Stan Lee Media is trying to avoid this barrier by claiming that Disney’s own conduct since 2009 is actionable. Stan Lee Media argues that this suit should therefore be able to continue even if Stan Lee Media loses its appeal of the previous case. Disney isn’t scared, though, stating that this lawsuit is without merit. And now, just like in Lee’s own comic books, we’re going to have to wait for the next issue of this comic saga to find out if Disney will prevail once again!