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The rest is mine, or is it? The Estate of Gertrude Vanderworth

With the release of Superman Returns to Netflix, I thought it’d be the perfect opportunity to talk about the opening scene in which Lex Luthor has billionaires Gertrude Vanderworth sign a last will and testament. This raises some questions. Can a will be valid without witnesses? If so, under what conditions, and are there any challenges to a will drafted and executed under these conditions? In the estate of Gertrude Vanderworth there are legal questions which arise casting doubt on the wills authenticity.


In all states, with the sole exception of Pennsylvania for a will to be valid there must be two witnesses. A beneficiary can sign a will as a witness but they will give up their share of the testator’s (the person that the will is for) estate. Witnesses are usually required so they can validate a will. In Pennsylvania witnesses are not required; this is an important fact as in the movie there are no witnesses able to testify that the decedent (testator after they die) had mental capacity at the signing of the will. DC Comics has a history of being vague about the location of things, presumably to create plot points wherever they may be needed. To keep the discussion interesting, we’ll examine the probate of the Vanderworth estate as if it were within the state of Pennsylvania. Otherwise this will is invalid on execution.

Questionable Signature

The audience knows that Lex Luthor forged the end of Ms. Vanderworth’s signature as she died during the signing. A testator may direct someone to sign a will in their stead or to use a mark in place of their signature; in these instances, even in Pennsylvania, the will requires two witnesses. So, if the forgery were discovered this would invalidate the will.

Undue Influence

The will could be challenged on the basis of “undue influence” and the possibility of fraud which is not required but can fall under the same findings. The legal question here is on how the courts define undue influence. In Pennsylvania the court held that:

“…where the evidence shows (1) bodily infirmity and (2) greatly weakened mental capacity of the testator, and (3) a stranger to the blood of testator, (4) standing in a confidential relation, (5) who is benefited by a will (6) which he has been instrumental in having written, a presumption of undue influence arises. See, Boyd v. Boyd, 66 Pa. 283, 293-94 (1870); Wilson v. Mitchell, 101 Pa. 495 (1882); Stewart Will, 354 Pa. 288, 296, 47 A.2d 204 (1946); Quein Will, 361 Pa. 133, 62 A.2d 909 (1949).”

There is a newer rule that deals with limited intellect but I do not believe that fits the facts of the case. Using the above rule we can examine the facts of the case. Ms. Vanderworth is infirm at the signing of the will she is literally dying. The beneficiary is a stranger to her blood in that they are not related. They shared an intimate marital relation which undoubtedly creates the requirement of confidential relation. Lex Luthor is the sole beneficiary of the will. While we do not see who has written the will it is Mr. Luthor that presents the will to be signed. With these conditions met we turn to the only remaining factor: mental capacity.

Mental Capacity

Ms. Vanderworth has implied that “others” have sent her messages. This by itself does not prove anything, but if this is out of her character to respond it may be evidence of a weakened mental capacity. Another factor is that she ignores the pleas of her family outside the door to her room. This can show a lack of awareness which can be an indicator a lack of mental capacity.

Influencing Circumstances

The judge in this case would also look at the actions surrounding the end of Ms. Vanderworth. Shortly after the signing of the will took place, Mr. Luthor did several things in the span of a few minutes which would bring this into question. He removed a wig, demonstrating he did not present himself in a straitforward manner to Ms. Vanderworth. He frightens one of her heirs with that wig which shows that it was an unexpected reveal. He declares he wants everyone to leave “my house” in a loud manner. The final action taken was bringing the maid with him as he leaves the house. Ms. Vanderworth’s body is not yet cold and he moved onto the maid who showed no surprise or remorse demonstrating a plan of action.

All factors being weighed and the criteria having been met for undue influence, the burden of proof would shift to Mr. Luthor to prove he did not unduly influence Ms. Vanderworth.

Under this analysis it appears that the will executed by Ms. Vanderworth would be deemed invalid under the laws of Pennsylvania due to undue influence and furthermore the will would be invalid in any other state due to the lack of witnesses to Ms. Vanderworth’s testamentary capacity.

It looks like Lex should have just taken out a multimillion dollar insurance policy on Ms. Gertrude Vanderworth. It may not have been as much but it would save him the trouble of probate.

Image: Lex Lurther Image Copyright by Warner Bros. and other respective production studios and distributors. Intended for editorial use only.

The New Republic v. Admiral Rae Sloane: The Case Against Star Wars’ Most Wanted War Criminal

For the average Imperial officer, being deemed the “most wanted Imperial war criminal” is pretty low on the list of desirable titles, alongside “Vader Force-choke practice dummy,” “Palpatine dental hygienist,” and “airlock tester.” In the newest Star Wars novel, Aftermath: Empire’s End, the hunt is on for Admiral Sloane, who has just been given that ignominious label by the New Republic (formerly the Rebel Alliance). Sloane’s characterization as a war criminal begs the question: what case does the New Republic have against her?


Rae Sloane, Aftermath, & Life Debt: A Quick Primer

Lend your ear to Papa Palpatine to get yourself up to speed on things.

Before we dive into the case against Admiral Sloane, it’s probably wise to catch everyone up who isn’t familiar with her character or the Aftermath trilogy of books. Author Chuck Wendig’s Aftermath trilogy follows the struggle between the fledgling New Republic (NR) and remaining Imperial forces following Return of the Jedi. The first novel, Aftermath, was released in late 2015 and was followed by Life Debt in July 2016. The trilogy’s final chapter, Empire’s End, will hit bookshelves on February 21st.

Our resident *alleged* war criminal, Rae Sloane is one of the major figures in the trilogy. Sloane was first introduced in the 2014 novel A New Dawn, and has made appearances throughout new canon material, including in Marvel’s Kanan comic series. Sloane, an unwaveringly loyal career Imperial officer, ascended the ranks to eventually command the Star Destroyer Vigilance during the Battle of Endor. Sloane survived the battle, emerging as one of the Empire’s last truly capable officers. In the wake of Endor, Sloane worked to rally the largest contingent of remaining Imperial forces under her command, becoming the new face of the Empire.

While Admiral Sloane is no tyrant or fanatical lunatic, a sequence of events in Life Debt end up painting a target squarely on her back. As the apparent commander of remaining Imperial forces, Sloane requests peace talks with the NR. The NR leaders agree to the meeting, seeing it as an opportunity to finally end the bloody conflict. In reality, the talks are intended as a ruse as the Empire launches an attack on the NR capital world of Chandrila. While Sloane knows that the peace talks are a sham, she does not know the full details of the attack plan, which was devised by a mysterious Imperial named Gallius Rax.

The peace talks coincide with a grand celebration on Chandrila commemorating the recent liberation of dozens of Rebel prisoners from a vile Imperial black site prison. Admiral Sloane travels to Chandrila and watches the celebration with Mon Mothma and other Rebel leaders, expecting the Imperial fleet to appear and unleash hell at any moment.

Instead, the former prisoners suddenly draw blasters and begin firing on civilians and Rebel leaders, including Mon Mothma. Admiral Sloane is caught off-guard by the method of attack, having expected a conventional military assault. As chaos erupts, she flees and battles with Norra Wexley, a NR pilot and central character who tries to capture her. Sloane manages to escape, escaping the planet in a cargo ship. In an ensuing investigation, the NR discovers that the former prisoners each had small biological implants that caused them to attack on command. The investigation revealed that an undercover Imperial agent on Chandrila had supplied concealable blasters to the prisoners and then triggered the prisoners’ implants, sparking the ambush.

The NR concludes that Sloane was involved in the ambush, which quickly earns her the vaunted title of most wanted Imperial war criminal.

Have you been the victim of an Imperial mind control biotech device? You may be entitled to compensation! Call 1-800-WE-SUE-IMPS today!

War Crimes 101

Before we go and put the hovercart before the bantha, lets take a look at what is meant by the term “war crime.” The law of war sets forth a mixture of rules, requirements, and prohibitions that collectively govern how war is waged. Those rules help set the boundary between lawful and unlawful acts on the battlefield. Think of them like the instructions on the inside of a board game box that tell you how to play the game. The U.S. Army’s Field Manual 27-10, which covers the law of warfare, defines war crimes as violations of the law of war by military or civilian persons. In other words, if you break one of the rules, it can be considered a war crime.

However, not every act by the enemy on the battlefield is considered a war crime. Merely fighting as part of the enemy force does not automatically make you a war criminal. Instead, you have to violate the law of war in some fashion to commit a war crime. For example, if Admiral Sloane ordered the Vigilance to unleash its turbolasers and engage the Rebel fleet at Endor, that order would not, by itself, make her a war criminal. She would be lawfully fighting the enemy and defending her ship. On the other hand, as we’ve seen before, Tarkin’s use of the Death Star to obliterate a planet full of civilians on Alderaan would cross the line and be considered a war crime.

With that in mind, the NR isn’t hunting Admiral Sloane as a war criminal simply because she fights for the Empire. Instead, she is pursued for her role in the ambush on Chandrila, which was an attack fraught with potential law of war violations.

Faking the Truce

Who knew that your favorite protocol droid was actually a dastardly war criminal?

If the NR captured NR and put her before a war crimes tribunal, prosecutors would lead off the charges with an accusation that she improperly used a flag of truce. Flags of truce are used as a way to ask to talk to the enemy, usually to negotiate surrender or to arrange some other end to fighting—think of someone waving a white flag and you’re on the right track. Using a flag of surrender or truce to gain some sort of military advantage has long been recognized as a violation of the law of war. The Army’s Field Manual 27-10 lists it as a customary war crime, while Article 8 of the International Criminal Court’s Rome Statute recognizes it as a serious breach of the law of war. Violating this rule is taken so seriously because it is a measure that helps bring an end conflicts. When a flag of truce is abused, especially to spring a sneak attack, opponents rapidly lose trust, which inevitably drags out the conflict.

Admiral Sloane would undoubtedly be accused of using the peace talks on Chandrila as a thinly veiled feint designed to help the Empire’s ambush succeed. Sloane’s communication to the NR about peace talks would be a prime prosecution exhibit. In the communication, Sloane asks to hold peace talks at the NR capital on Chandrila. Although Sloane did not formally wave around any sort of flag, her request made directly to NR leadership has the same effect.

That same communication would also be valuable evidence for other reasons. In it, Sloane claimed to be responsible for leaking the NR many pieces of highly valuable intelligence that led to some of their largest victories after Endor. Sloane explained that the leaks were intended to eliminate competition and shore up her position within the Empire. Sloane also specifically requested minimal security for the peace talks as a measure of good faith. NR witnesses, including Leia, would testify that Sloane’s posturing made them believe that her offer of truce was genuine. Sloane’s posturing as a Grand Admiral and her assertion about the intelligence leaks seemingly confirmed NR suspicions that she was in command of the largest remaining chunk of Imperial forces. This led NR leaders to believe that Sloane both possessed significant power and authority to legitimately offer peace talks.

Everyone knows that Neimoidians make the best space lawyers…and not just because they bring droidekas to court.

While there is clear proof Sloane requested the peace talks, the NR would have a harder time proving that she intended to improperly use the peace talks to set up the ambush. Just as with other crimes, most violations of the law of war require proof of a guilty state of mind, otherwise known as mens rea. Here, it wouldn’t be enough to simply prove that Admiral Sloane requested peace talks prior to the ambush. Prosecutors would have to go further and prove that she intended to falsely request the peace talks.

The NR lacks any sort of powerful direct evidence, such as a confession, to prove that Sloane falsely made the truce request. Instead, they would have to rely on several pieces of circumstantial evidence to make their case. The NR would first point to the tacit link between Sloane and the undercover Imperial agent who triggered the ambush. They would argue that Sloane, as a Grand Admiral and leader of Imperial forces would have logically had knowledge of such a complex and brazen attack.

To support that inference, prosecutors would argue that Sloane used the prospect of a truce to bring NR leadership together. The resulting concentration of high-ranking personnel made for an easier attack. The short time between Sloane’s arrival and the attack would serve as proof that the talks were merely a means to facilitate the attack, as her arrival was arguably the trigger point that brought the intended targets together.

Moreover, Sloane arguably demonstrated her criminal mindset during her escape from Chandrila. Norra Wexley, the NR pilot who chased Sloane, would be a critical witness to this point. Her visible injuries sustained in fierce hand-to-hand combat with Sloane would tell a powerful tale of just how desperate Sloane was to escape the planet. Prosecutors would point out that Sloane would not have run, fought, and stolen a shuttle to escape off world if she had truly come for legitimate peace talks. Using that lattice of circumstantial evidence, prosecutors would contend that Sloane’s sole intent behind organizing the peace talks was to set the conditions for a successful ambush. She therefore should be held criminally liable for improperly using a flag of truce.

Targeting Civilians

Palpatine’s loose adherence to the law of war would eventually get him thrown down the reactor shaft of his own Death Star.

The NR would also likely accuse Admiral Sloane of unlawfully and intentionally targeting civilians, including Mon Mothma. Under the law of war, it is unlawful to target or kill civilians who are not taking part in hostilities. Much like using a false flag of truce, the act of intentionally directing attacks against civilians is a serious breach of the law of war that can be severely punished. Given the overriding international desire to protect innocent noncombatants, this is among the most important restrictions in all of international law.

In Sloane’s case, the NR would introduce eyewitness testimony, holorecordings, and other similar evidence to show that scores of civilians, including Mon Mothma, were intentionally targeted in the attack. Footage of Mon Montha and other Chandrilans being shot at point-blank range would serve as a powerful testament to the innocent blood shed that day. However, since Admiral Sloane did not personally fire on any civilians, the real challenge for the NR would be to establish that she should be held criminally liable for the ambush.

The concept of holding commanders liable for the crimes of their subordinates is not new. In the 15th century, Peter Von Hagenbach was held criminally responsible for the acts of his soldiers, who pillaged villages and murdered civilians in Germany. While commanders can certainly be prosecuted for the crimes of their subordinates, that liability has limits. If a commander was not directly involved in a war crime, he must have been derelict in a way that contributed to or failed to prevent the offense to be held responsible. In other words, there must be some linkage between the commander and the crimes.

Following World War II, Japanese General Tomoyuki Yamashita was convicted for war crimes committed by his Soldiers throughout the Philippines. General Yamashita was not directly involved in the war crimes. Nonetheless, the tribunal concluded that the General knew or should have known about the crimes, given how widespread they were. That connection was enough to hold him responsible for the crimes of his soldiers since he did nothing to stop them. The Geneva Conventions later attempted to establish a firm standard in this area, requiring that a commander “knew, or had information which should have enabled them to conclude” that war crimes were being committed and failed to take measures to stop them.

Since Admiral Sloane did not pull the trigger on any civilian, the NR would be forced to prove that she knew or should have known that innocent civilians would be targeted in the attack. Just like above, the NR faces several gaps in evidence that present a challenge. There is no concrete proof of a direct link between Admiral Sloane and the undercover Imperial agent who triggered the ambush. The NR uncovered no communications between the two and the agent did not confess to taking any orders from Sloane. The NR would be forced to once again rely upon pieces of interlocking circumstantial evidence to prove its case.

Prosecutors would readily use Sloane’s position as Grand Admiral and her self-admitted intelligence leaks to the NR against her. Both serve as evidence of her intimate knowledge of the Empire’s operations and her access to critical information. They would argue that Sloane’s position and access to operational knowledge gave her ample means and opportunity to know about the ambush.

Prosecutors would underscore that argument by hammering upon the timing of Sloane’s visit to Chandrila. Those close timing of Sloane’s “peace talks” and the ambush would be portrayed as a closely coordinated plan, not some mere coincidence. Similarly, Sloane’s role in setting up the talks to draw in NR leadership would also be cast as proof of her intent for the ambush to target civilians such as Mon Mothma. Sloane’s presence on the ground would be attributed to the need to sell the genuineness of the peace talks. Her unwavering loyalty to the Empire and hatred of the Rebellion would be sold as the fuel for her motive a to personally oversee and witness the crippling ambush. Prosecutors would paint the picture that Admiral Sloane intended to carry out a decapitating strike against NR civilian leadership and citizens in the heart of their territory in a desperate attempt to turn the tide of war.

As a result, the NR would have a strong circumstantial case that Admiral Sloane knew that civilians would be intentionally targeted in the ambush and should be held criminally liable.

The moment when you realize hiring Threepio as your defense counsel was a terrible mistake.

For Admiral Sloane, the prospect of having everything she worked to achieve twisted around to prove her guilt is reason enough for to keep running. Since Sloane’s star defense witness also happens to be the same shadowy Imperial who set her up to take the fall on Chandrila, the odds that she’ll turn herself in and trust in the New Republic judicial system are approximately 3,720 to 1. In the end, all this talk of a possible Star Wars war crimes tribunal makes the legal geek in me wish Empire’s End would be one big Star Wars legal thriller, complete with Mr. Bones as the wacky (and slightly maniacal) bailiff:


A fan can dream, right?

Superheroes versus the Ku Klux Klan

“Those who do not learn history are doomed to repeat it.”

-George Santayana (The original version is even more chilling these days: “Those who cannot remember the past are condemned to repeat it.”)

If you’ve been online in the past few days you’ve probably seen the headlines about Captain America battling former KKK leader David Duke on Twitter (like this one, or this one, or this one, which has the best side-by-side photo comparison). I’m Team Evans in this fight, of course, and have enjoyed watching him take on the awfulness that is Duke. But thanks to a blog post on one of my favorite celebrity gossip websites,, I learned that this isn’t the first time a superhero has taken on the KKK.

And (spoiler alert), the superhero always wins…
KKK Ceremony - Free Pictures at Historical Stock

The KKK was formed in 1865 in Tennessee in the wake of the Civil War by former Confederate soldiers. This first effort, while terrorizing formerly enslaved people, also targeted Northern judges, teachers, and politicians. Its violence and internal strife, however, caused the KKK to officially “disband” within just a few years. Its decline was also assisted by a federal law, the Enforcement Act of 1871, which was also known as the Ku Klux Klan Act. This law gave the President the authority to suspend the writ of habeas corpus in an effort to fight the KKK and other white supremacy groups.

Unfortunately, the KKK was down but not out. In 1915, The Birth of a Nation was released (known for both its rampant racism and because it was the first 12-reel movie in America). It depicted the Klan as a heroic force (gag), inspiring a William J. Simmons to resuscitate the KKK.

This version of the Klan was shaped by the xenophobic fears many Americans had as a result of the wave of immigrants coming to America at that time, many of whom were Catholic or Jewish. So the KKK focused its animosity not just on African-Americans, but also Catholic and Jewish people. By some accounts, at its peak in the ’20s, the Klan had over 4 million members. By the end of the decade, however, the national Klan structure collapsed, leaving local KKK units independent (with one of the most powerful, in Indiana, run by a serial rapist).

By the end of the second World War, the KKK was in decline. The last of the universally recognized Imperial Wizards, Dr. Samuel Green, died in 1949. While this period in between the rise of the second wave of the Klan and the Klan’s mobilization in response to the Civil Rights Movement was already in a downswing, there were two men — one fictional, one real — and one radio program who helped the downfall of the KKK in the Forties.

From 1940 to 1951, The Adventures of Superman was a popular radio serial, airing 2,088 original episodes during its decade-plus run. During this same time, Stetson Kennedy, a civil rights activist (distantly related to the hat maker), had infiltrated the KKK in order to take it down from the inside. He was inspired, he said, to fight racial terrorism at home because a medical condition had prevented him from fighting in World War II.

Kennedy fed information about the KKK — their activities, their code names — to the Georgia Bureau of Investigations, the Anti-Defamation League, and reporters. But he wanted to do more and realized that Superman could help him. Approaching the producers of the Superman radio program, he proposed a story line in which Superman battled the Klan. The producers agreed, needing a villain to replace Hitler post-WW II, and the “Clan of the Fiery Cross” arc was born:


In the story line, Jimmy Olsen coaches a baseball team. He replaces his top pitcher with a newcomer. The replaced pitcher is angry and is an easy target for the Clan of the Fiery Cross, who offers to intimidate the new pitcher with burning crosses for not being “American” enough. Over sixteen episodes, Superman takes on and defeats the Klan, whose code words and rituals are mocked and demystified in the process.

How much credit Kennedy and Superman deserve for harming the Klan in the ’40s is still a matter of debate, but there can be no dispute that they were fighting on the side of right and they caused harm to the KKK.

Sadly, even Superman couldn’t eradicate the KKK completely and independent KKK groups continued to actively fight against the Civil Rights Movement. It was former KKK members, for example, who were responsible for the terrorist bombing on the Sixteenth Street Baptist Church that killed four girls in 1963. Even late into the 20th Century, KKK groups continued to be active, focusing their terrorism on a number of groups, including Hispanics and homosexuals.

And the Klan, unfortunately, never fully went away. Instead, they’re back and celebrating and getting loud.

Which brings us back full circle. Superman fought an imaginary Ku Klux Klan back in the 1940s, seriously damaging the KKK in real life. Unfortunately, what’s old is new again and, once again, we have a superhero doing battle with a Klansman. Hopefully for the last time.

SDCF X-Men Mock Hearing Injunction Arguments!

The countdown is on the for X-Men mock hearing at San Diego Comic Fest! Below is the Plaintiffs’ Motion to Enjoin the fictional Executive Order and the Defendant’s Opposition Motion. Join us at San Diego Comic Fest on February 18 at 300pm for oral arguments and the Court’s ruling. 

Plaintiffs’ Motion


Government Opposition   


How the Magic of Contract Law Saved the World in Doctor Strange

It is not often that Contract Law saves the world, but when it does, it is a doctor conducting the negotiations.

Doctor Stephen Strange stopped Dormammu from destroying life as we know it on Earth by bargaining with him. The exact terms are not know, other than Strange would end the time loop that had trapped Dormammu in exchange for the safety of Earth. As an added term, Dormammu would accept Kaecilius and his Zealots into his Dark Dimension. The goal of Kaecilius’s plan was to ultimately bring Dormammu’s timeless Dark Dimension to Earth. Would that make Kaecilius a third-party beneficiary to Doctor Strange’s bargain with Dormammu?

Courts have weighed the issue of what are the rights a third person who benefits from a contract, but is neither the promisor nor promisee. The English view was that a third-party had no enforceable rights. See, John Edward Murray, Jr, Murray on Contracts, Third Edition, Copyright 1990, citing Vandepitte v. Preferred Acc. Ins. Corp., A.C., 70 (1933), Tweedle v. Atkinson, 1. B. & S. 393 [1861]; Bourne v. Mason, 1 Ventirs 6 [1669].

The “American” view of third-party beneficiaries was first definitively explained in Lawrence v. Fox 220 N.Y. 268 (1859). As the legal sorcerer Murray explained, Holly (Party A) loaned $300 to Fox (Party B) and told Fox that Holly owned $300 to Lawrence (Party C), who Fox agreed to pay back. Murray on Contracts, page 754, citing Lawrence v. Fox. Lawrence was not paid back, sued, and ultimately recovered, based on the principle that “where one person makes a promise to another for the benefit of a third person, the third person may maintain an action to enforce that promise.” page 755.

Dr. Strange’s bargain included a term that gave Kaecilius exactly what he wanted: timelessness without death in the Dark Dimension. Legally speaking, Kaecilius was a third-party beneficiary of Strange’s contract with Dormammu. Unfortunately for Kaecilius, he should have read the warning about the spell to go to the Dark Dimension.

Axanar: Boldly Going Where No Fan Film Has Gone Before

By Neel Chatterjee and Cathy Shyong

There is no greater fan base than the fan base for Star Trek. Trekkies love celebrating the original TV show, the follow on series, and the completely awesome movies (let’s leave Star Trek VI out of this…..actually we can’t). They wear costumes inspired by the films and shows, write their own stories, and create tons of cool YouTube videos. This “fan fiction” is so fundamental to Star Trek, it is hard to imagine where someone will go where no man has gone before and cross the line to where the owners of the rights to Star Trek would actually take a phaser set to kill to kill the work celebrating Star Trek.

Alec Peters, a well-known Star Trek blogger, took a major attack to his work. He decided to start an independent company called Axanar. His stated goal was to produce a professional-quality, full-length Star Trek film named “Axanar.” It was fan fiction on steroids, or, as it were, ketracel-white. Axanar would act as a “prequel” to the original series and would tell the story of Garth of Izar, a legendary Starfleet captain who fought in the Battle of Axanar. Garth of Izar, the story goes, inspired Captain Kirk and other Starfleet officers.

This project could not be funded with Tribbles. So to fund the project, Axanar used crowdsourcing websites such as Kickstarter and Indiegogo. It raised over a million dollars from fans around the world. Axanar hired professional actors and crew members, many of whom had worked on the original Star Trek series. Axanar did this independently of Paramount and CBS, who own the intellectual property rights to the Star Trek enterprise, and did not license any rights from Paramount and CBS. A tremendous amount of the work in Axanar was created by Alec Peters and his colleagues.

In 2014, at San Diego Comic Con, Axanar premiered a 20-minute preview film, “Prelude to Axanar,” to showcase the Axanar concept. “Prelude to Axanar” discusses the events that will be covered in the full-length film in a “mockumentary” style. Upon the release of “Prelude to Axanar,” Paramount and CBS sued Axanar for copyright infringement in the Central District of California.

Copyright infringement occurs when there is (1) ownership of a valid copyright, and (2) copying of original elements of a work. Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1076 (9th Cir. 2006). Copying can be shown through substantial similarity of a work. In the Ninth Circuit, substantial similarity requires both an “extrinsic” (objective) and “intrinsic” (subjective) comparison of the original work and the allegedly infringing work. Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1398 (9th Cir. 1997).

The Court found objective similarity by applying a test in “a Vulcan-like manner.” The extrinsic test has three steps: the court must “dissect” the work into elements, then “filter out” and disregard the unprotectable elements, and compare only the protectable elements of the work with those of the allegedly infringing work. It is important to filter out the nonprotectable elements because “scenes à faire,” or elements flowing naturally from generic plot-lines, are not protectable. Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1077 (9th Cir. 2006). For example, “electrified fences, automated tours, dinosaur nurseries, and uniformed workers” flow necessarily or naturally from the concept of a dinosaur zoo. Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002).

The line between scenes à faire and protectable expression is not always clear. On one hand, a “masked magician dressed in standard magician garb whose role is limited to performing and revealing the magic tricks, for example, is not an especially distinct character differing from an ordinary magician in a manner that warrants copyright protection.” Id. at 1019. On the other hand, a Batmobile, or “a fictional, high-tech automobile that Batman employs as his primary mode of transportation,” is distinctive enough to be protectable. DC Comics v. Towle, 802 F.3d 1012, 1015 (9th Cir. 2015).

The Court found the following elements protectable:

Garth of Izar. The court ruled that this legendary starship captain is entitled to copyright protection. Garth of Izar appears as a live action character, so he has “physical as well as conceptual qualities.” He is famous for his exploits in the Battle of Axanar and his exploits are required reading at the Starfleet academy. The court noted that “Garth’s identity as a Federation hero sufficiently delineates him and sets him apart from a stock spaceship officer.”

Klingons and Vulcans. The court noted that these species “may be entitled to copyright protection.”

Klingons are a “militaristic, alien species” from the planet Qo’noS and are long-time enemies of the Federation. Klingons have distinctive physical features including ridged foreheads, dark hair and skin, upward sloping eyebrows, and the men have facial hair, as shown below:

Paramount Pictures Corp. and CBS Studios Inc. v. Axanar Productions, Inc., Case No. 2:15-cv-09938-RGK-E, Dkt. 88-70 at 7.

Vulcans are a species that values logic and reason over emotions. They are advanced technologically and are part of the Federation. They have pointed ears and upswept eyebrows; the men usually have bowl-shaped haircut:

Paramount Pictures Corp. and CBS Studios Inc. v. Axanar Productions, Inc., Case No. 2:15-cv-09938-RGK-E, Dkt. 88-70 at 9.

Costumes. The court viewed several Star Trek costumes as artistic and likely to “contain original expressions protectable under Copyright Act.”

Setting aside the general awfulness of Star Trek VI, the Court found copyrightable expression (even poor quality content can be copyrighted….For example, The Adventures of Pluto Nash has copyright protection). Specifically, the court found that a Klingon officer’s uniform from Star Trek VI – The Undiscovered Country is likely copyrightable. The uniform is a “gray tunic with shoulder covers and a red neckpiece” and is depicted below:

Paramount Pictures Corp. and CBS Studios Inc. v. Axanar Productions, Inc., Case No. 2:15-cv-09938-RGK-E, Dkt. 88-70 at 7.

The court also found that the Vulcan Ambassador Soval’s uniform—an “Asian-style long robe and a drape decorated with Vulcan writing”—is also likely to be copyrightable.

Paramount Pictures Corp. and CBS Studios Inc. v. Axanar Productions, Inc., Case No. 2:15-cv-09938-RGK-E, Dkt. 88-70 at 14.

Other elements: planets, spaceships, plot points, sequence of events, dialogs, mood, and theme. The court noted that elements from Star Trek might be protectable, including the following:

  • Planets (Axanar, Qo’noS, and Vulcan)
    • Military spaceships including Klingon battlecruisers, Vulcan ships with an engine ring, and Federation spaceships
    • Space travel elements such as spacedocks, Vulcan buildings (cathedrals with sword-blade shaped domes, federation logo, stardate, transporters and warp drive
    • Weapons such as phasers and photon torpedoes
    • Plot points, sequence of events, and dialogs from Star Trek
    • Mood and theme of Star Trek as science fiction action adventure

The tension between this holding and the “scenes à faire” doctrine is palpable. Many of these other elements of Star Trek (especially military spaceships, space travel elements, weapons, plot points, and the mood and theme) flow naturally from the fact that Star Trek is a science fiction movie. Other science fictions films like Star Wars have similar elements. The Court nevertheless found that, although these elements might not be individually copyrightable, “they are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” The law establishes, however, that the copyright protection on a combination of unprotectable elements is often “thin” and protects against “only virtually identical copying.” Satava v. Lowry, 323 F.3d 805, 812 (9th Cir. 2003); Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994) (Apple GUI consisting of overlapping windows, folders, icons, etc. is entitled to only “‘thin’ protection, against virtually identical copying”). The Court did not so limit Star Trek’s protection.

Ultimately, the Court found substantial similarity between “Prelude to Axanar” and Star Trek under the extrinsic test. He left the task of applying the intrinsic test (determining whether the total concept and feel are subjectively similar) up to the jury. The Court further determined that Axanar is not entitled to the fair use defense, in part because it is not a “parody”; it is a feature film meant to replace and compete with the original Star Trek films. Additionally, even though Axanar is to be distributed for free on Youtube, it is commercial in nature because its creators stand to gain indirect commercial benefit, such as increased viewership and job opportunities.

Shortly after the opinion issued, on January 20, 2017, Paramount Pictures and CBS settled with Axanar. Under the settlement agreement, “Prelude to Axanar” can live long and prosper. Axanar can also proceed to make its full-length feature film, which will be shown on Youtube, commercial-free, in two fifteen-minute segments.

At around the same time, Paramount Pictures issued official Guidelines for Star Trek fan films. The Guidelines limit the title, length, fundraising, filming, and distribution of fan films. The film also must be “a real ‘fan’ production” in that the creators, actors, and participants must be amateurs and cannot be compensated. In short, Paramount Pictures seems to be fine with fan films, as long as they remain exactly that.

Cathy Shyong
Cathy Shyong

Cathy is an intellectual property lawyer in Orrick, Herrington & Sutcliffe’s Silicon Valley office. Cathy represents high-tech companies in e-commerce, software, and consumer electronics. Cathy also counsels companies and nonprofits on intellectual property licensing and general commercial contracts. Cathy maintains an active pro bono practice litigating cases involving constitutional rights. Cathy previously served as a law clerk to Chief Judge Claudia Wilken and Magistrate Judge Paul S. Grewal in the United States District Court for the Northern District of California. Cathy’s favorite video game is Phoenix Wright: Ace Attorney; surprisingly, her experience as a lawyer shares few similarities with the game.

For more on this case and the settlement, check out the podcast with Neel Chatterjee and Josh Gilliland.

Livewire Could Sue for More Than Copyright Infringement

The Supergirl episode “We Can Be Heroes,” showed Livewire having a very bad week. She was kidnaped from prison, held against her will, and experimented on to create super-villain-soldiers. Livewire complained to her mad scientist tormentor that she could sue him for copyright infringement. Livewire should seek legal counsel, because she has more than one legal claim.

Livewire can sue the state of California for negligence, because she was kidnapped from her own cell due to a massive security breach. The State’s negligence allowed a henchmen to falsely impersonate a prison guard, assault a real guard, free one inmate, assault a prison psychiatrist, and kidnap Livewire.

The prison’s negligence allowed an imposter to enter the prison. Under California law, a “…public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” Cal. Gov’t Code § 815.2(a).

It was the failure of the prison security system that allowed an imposter to enter the compound. If the security lapse was not the fault of any specific individual, a general theory of negligence pursuant to Cal. Civ. Code § 1714 could provide Livewire a means of recovery against the state, because of the lack of ordinary care in maintaining a secure prison allowed her to be harmed. “But for” the prison being breached, Livewire would not have been kidnapped and tortured.

The aptly named “Bad Science Man” by Mon-EL is also subject to civil liability for his intentional torts on Livewire. First, “BSM” had a criminal conspiracy to kidnap Livewire, which is the act of forcibly taking another person to another location under Cal. Penal Code § 207. Second, BSM then violated Livewire’s personal liberty by physically restraining her on a chair in a warehouse, which would be false imprisonment under Cal. Penal Code § 236. Third, BSM’s experiments to drain Livewire of power were done with the intent to cause her pain and great bodily injury, thus meeting the legal definition of torture under Cal. Penal Code § 206. Livewire could sue “Bad Science Man” for these willful acts pursuant to Cal. Civ. Code § 1714.

The State is likely the “deep pocket” for suing, because “Bad Science Man” did not appear to be well-funded. Regardless, an attorney would need to conduct their due diligence before bring any claims on Livewire’s behalf for the best litigation strategy.