Peace for Axanar: Paramount and CBS Pass Their Kobayashi Maru

June 22, 2016

starry deep outer space nebual and galaxy — deep outer space background with stars and nebula

A few weeks ago, director JJ Abrams announced at the Star Trek Beyond Fan Event that Paramount and CBS intend to drop their copyright lawsuit against the creators of the Kickstarter-funded fan-film Axanar. Set 21 years before the first episode of the original Star Trek series, Axanar tells the story of legendary Starfleet captain Garth of Izar, one of James T. Kirk’s heroes.

The lawsuit raised numerous interesting and important issues about fan fiction. According to the lawsuit, Axanar infringed “innumerable copyrighted elements” of the Star Trek movies and television shows protected under copyrights owned by Paramount and CBS. This allegation was made even though no movie had been even made yet, and the accusations were being raised against huge fans who probably spend a lot of money on Star Trek stuff. The lawsuit created a litigation Kobayashi Maru. A loss could create precedent with far-reaching consequences for Paramount and CBS, while a victory would yield insignificant monetary relief that would likely be outweighed by hurting a huge fan base. Pursuing a case under such circumstances would have been…illogical.

Abrams’ public announcement at the Star Trek Beyond Fan Event came shortly after U.S. District Judge R. Gary Klausner denied defendants’ motion to dismiss, as reflected in an awesome minute order that reads: “Although the Court declines to address whether Plaintiffs’ Claims will prosper at this time, the Court does find Plaintiffs’ claims will live long enough to survive Defendants’ Motion to Dismiss.”

What did the complaint really say? It presented a wide selection of Star Trek copyrights from movies and television shows. Because the Defendants had to figuratively identify the one Tribble who ate Kirk’s lunch out of 1,771,561 Tribbles, Defendants’ motion to dismiss argued that plaintiffs’ complaint failed to state a plausible claim for relief . As Spock once commented, “Insufficient facts always invite danger.” Space Seed, Star Trek, Season 1, Episode 24 (1968). The court denied defendants’ motion, reasoning that the complaint provides notice of infringement of at least two protectable elements. Specifically, the court pointed to the complaint’s allegations regarding Axanar’s copying of the U.S.S. Starship Enterprise and everyone’s favorite Vulcan diplomat, Ambassador Soval. But these were just images in a much bigger show/movie. And they weren’t a central part of the storyline in the teaser video for Axanar.

The Judge’s order missed the fundamental point of defendants’ motion: defendants don’t really know what plaintiffs allege has been infringed because plaintiff’s complaint alleges infringement of over 1,000 copyrights and does not identify all of the specific copyrighted elements at issue. Indeed, it made a claim not even knowing what was really being used, if anything. Imagine a trademark or patent plaintiff filing a complaint alleging infringement of “innumerable” trademarks or patents—that wouldn’t fly.

Though unsuccessful, defendants’ motion to dismiss previewed thorny copyright issues that Paramount and CBS would have had to navigate in order to emerge victorious and may have helped plaintiffs decide not to pursue the case. For example, the characters identified in plaintiffs’ complaint present a dubious case for protection. Under the Ninth Circuit’s (that area covers California), there is a three-part test for character copyrightability: (1) the character must generally have “physical as well as conceptual qualities;” (2) the character must be “sufficiently delineated” to be recognizable as the same character whenever it appears; and (3) the character must be “especially distinctive” and must contain “unique elements of expression.” DC Comics v. Towle, 802 F.3d 1012, 1019-1020 (9th Cir. 2015) (citation omitted). According to the complaint, Axanar’s protagonist, Garth of Izar, appeared in one episode during the third season of the original Star Trek television series, entitled Whom the Gods Destroy. In that episode, Garth of Izar was depicted as a deranged, murderous insane asylum prisoner and did not exhibit the characteristics of the model Starfleet captain portrayed in Axanar. Interestingly, although Garth of Iznar is the focus of the Axanar film, the district court avoided any analysis of the copyrightability of this character.

At present, the case remains open on the court’s docket. But JJ Abrams has announced that the suit will be dropped. Stay tuned.

A huge thank you to Robert Uriarte for his help preparing this article.

How Did Ma and Pa Kent Adopt Superman?

Josh Gilliland

June 18, 2016

Superman had amazing parents with Jonathan and Martha Kent. In original Action Comics and the Fleischer Superman cartoons, Clark Kent grew up in an orphanage. The Kents were introduced early in the Superman mythos with different names. In John Byrne’s Man of Steel mini series retelling the origin of Superman, the Kents explained that “Clark’s” birth took place during a long winter (see the Superman Wiki for a detailed history).

Space babies crashing on Earth create an out-of-this-world legal problem: How do people who find the child legally adopt the infant? Alternatively, how does a couple explain a new baby in light of today’s medical care?

Children can be adopted in Kansas by any adult, or husband and wife jointly, but not without the consent of the other spouse. Kan. Stat. Ann. § 59-2113. Those seeking to adopt a child must file an adoption petition. Kan. Stat. Ann. § 59-2128.

Jonathan and Martha Kent would need one heck of a good attorney to help legally adopt Kal-El. The Kents would need to explain the following in their petition:

(1) The name, residence and address of the petitioner;

(2) The suitability of the petitioner to assume the relationship;

(3) The name of the child, the date, time and place of the child’s birth, and the present address or whereabouts of the child;

(4) The places where the child has lived during the last five years;

(5) The names and present addresses of the persons with whom the child has lived during that period;

(6) Whether the party has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child-custody determination, if any;

(7) Whether the party knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;

(8) Whether the party knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons;

(9) Whether one or both parents are living and the name, date of birth, residence and address of those living, so far as known to the petitioner;

(10) The facts relied upon as eliminating the necessity for the consent, if the consent of either or both parents is not obtained;

(11) Whether the interstate compact on placement of children, K.S.A. 38-1201 et seq. and amendments thereto, and the Indian child welfare act, 25 U.S.C. have been or will be complied with prior to the hearing.

Kan. Stat. Ann. § 59-2128(a)

Ma and Pa Kent would have a very difficult time explaining their suitability to assume the parental relationship for a child they witnessed crash to Earth in an alien spacecraft. Kan. Stat. Ann. § 59-2128(a)(2). What experiences do they have that would justify them raising an alien with super powers? What’s their plan for when the child with enhanced strength hits puberty? What about medical care? Or liability insurance?

Let’s not ignore the elephant in the room: Can they help select inspirational theme music along the lines of John Williams?

It is unlikely that Jor-El included Kal-El’s Kryptonian birth certificate on the escape rocket, making it impossible for the Kents to explain Kal-El’s given name, let alone the time and place of his birth. Kan. Stat. Ann. § 59-2128(a)(3). Providing Kal-El’s prior address would also be highly difficult, as a Kansan Judge could not take judicial notice of Krypton, or know the topography of Kryptonopolis. Kan. Stat. Ann. § 59-2128(a)(4) and (5).

The Kents could try the argument that they found the child and leave out the details of a crashing spaceship. Kansas’ Newborn Infant Protection Act sets out procedures for a parent to surrender an infant less than 45 days old to law enforcement, a fire station, or city/county health department. Kan. Stat. Ann. § 38-2282(b). From there, law enforcement is to be informed and take custody of the infant as an “abandoned infant.” Kan. Stat. Ann. § 38-2282(d).

Jonathan and Martha Kent could surrender the infant Kal-El to law enforcement, and seek the child’s adoption. This could also be highly problematic, as a doctor would notice Kal-El’s enhanced strength, and have difficulty giving the infant any immunizations or drawing blood. This strategy could end badly with the infant Kal-El being kept under state care.

Ironically, John Byrne’s Man of Steel series might have the least legally risky plan to explain Kal-El’s birth: Lie. While almost never the best policy, telling the lie “it was a long winter” as a cover story, would eliminate the infinite legal crisis of explaining how Clark Kent arrived on Earth. This cover story does require Martha Kent not having been seen for a number of months, which could make pulling off the story a challenge.

Here is the thing: Human parents don’t fully know what they are getting into when they have a child. Sure, they have a good idea, but theory and reality are two very different things. Despite the challenges, parents do the best they can. In the fictional case of Jonathan and Martha Kent, they are true heroes. It would have been easy to drive away or turn the infant refugee over to the authorities. Instead they made the choice of doing the hard work of raising a child. Thanks to their morality and sense of doing what is right, they raised the standard bearer of super-heroes who would stand for Truth, Justice, and the American Way.

Was Captain Kirk Legally Right to Sentence Khan to Ceti Alpha V?

Josh Gilliland

June 10, 2016

Khan Noonlen Singh attempted to murder Captain James T. Kirk and take over the USS Enterprise in the Star Trek episode “The Space Seed.” Khan was sentence by Captain Kirk to Ceti Alpha V, to follow the Paradise Lost maxim that it is “better to reign in Hell, than serve in Heaven.” Ironically, that came true after Ceti Alpha VI exploded.

Did Captain Kirk have the authority to sentence Khan, his followers, and Lieutenant Marla McGivers, to Ceti Alpha V?

If Starfleet followed similar regulations to the United States Navy, commanding officers have the power for non-judicial punishment to those onboard their vessel for minor offenses, which is known as “Captain’s Mast.” 10 U.S.C. § 815; Cappella v. United States (1980) 224 Ct.Cl. 162, 164. However, mutiny is not minor.

The Uniform Code of Military Justice has the precedent to govern “the conduct of those persons in the military or those directly connected with it, in all places, foreign and domestic.” United States v. Burney (U.S.C.M.A. 1956) 21 CMR 98, 112-113, citing Article 5, Uniform Code of Military Justice, 50 USC § 555. Furthermore, someone subject to court martial who “willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces shall suffer death or such other punishment as a court martial may direct.” 2012 Manual for Courts-Martial Article 110.

The USS Enterprise found the SS Botany Bay adrift in space. The crew of the Enterprise saved Khan’s life while he was he being revived from suspended animation. Khan recovered on the USS Enterprise, taking the opportunity to study the technical manuals of the Enterprise. As such, Khan would have been “embarked” onboard the USS Enterprise, which is defined as “to go on on board (as a boat or airplane),” thus subjecting him to the regulations onboard the vessel. See, Royal Caribbean Cruises v. United States (S.D.Fla. May 31, 1995, Case No. 95-204-CIV-ATKINS) 1995 U.S. Dist. LEXIS 8243, at *4., citing Webster’s Ninth New Collegiate Dictionary.

Khan willfully endangered the USS Enterprise by first taking control of the vessel by cutting off life support from the Engine Room, torturing Captain Kirk in a decompression chamber, and ultimately attempting to destroy the Enterprise with warp core overload. Kirk arguably could have had Khan prosecuted and executed for his crimes. Instead, Kirk dropped all the charges against Khan and his followers. Giving Khan the choice to colonize Ceti Alpha V was a far less severe punishment than death, however, far more severe than placing them in a rehabilitation facility. This sentence could logically be seen as proportional to their crimes.

Lieutenant McGivers willfully participated in a mutiny onboard the Enterprise by helping Khan beam over to the Botany Bay, revive his crew, and then beam them back to the Enterprise. If Starfleet had similar laws to the United States, she could have been fined and/or imprisoned for not more than ten years. 18 U.S.C. § 2193. McGivers took the plea deal to avoid a court martial. This was effectively a life sentence to spend the rest of her life with Khan on a barely habitable planet. McGivers should have talked with a lawyer before accepting the plea deal.

Captain Kirk was arguably within his legal rights to give Khan the option to colonize Ceti Alpha V. It appeared Kirk held what would have been “special court martial at sea,” or in this case, space, in order to adjudicate the charges against Khan. After dropping the charges, Kirk gave Khan an offer for a new life. While the Federation might have wanted to have a war crimes trial for Khan over the Eugenic Wars, this issue was moot with Kirk settling the Augments on a new world to tame.

Can the Klingon Empire Sue Earth for Damages Caused by V’Ger?

Josh Gilliland

June 6, 2016

Star Trek The Motion Picture opened with the excitement of three Klingon K’t’inga battle cruisers attacking an alien cloud. All three Klingon vessels were quickly destroyed by massive energy weapons that enveloped each ship one by one.

Many audiences probably thought, “This will be one EXCITING movie! I hope there are motorcycles too!” A few lawyers by the end of the film in 1979 could have thought, “Could the Klingons seek damages from the Federation for the loss of their vessels?”

V’Ger was originally launched as Voyager 6 from the United States. While the area known as the United States still exists in Star Trek, it is not stated if there is still a government of the United States. For the sake of argument, we will consider the Federation of Planets the successor in interest to the United States government.

V’Ger crossed Klingon space on its journey to learn all that is learnable and return that knowledge to its Creator on Earth. The Klingon’s attacked V’Ger for its intrusion into their space. While it is debatable that V’Ger simply flying through Klingon space was an act of aggression, the Klingon Empire does have a honorable self-defense argument for V’Ger’s intrusion into their territory.

Klingon attorneys could argue that the United States launching Voyager 6 to explore unknown space was the negligent conduct that resulted in the probe falling through a black hole. As a result of falling through the black hole, Voyager 6 encountered a machine planet that reprogramed the probe as V’Ger to complete its mission. The Klingons could further argue V’Ger’s original programing was defective, resulting in the probe destroying vessels it encountered on its return voyage to Earth.

Prior case law involving the loss of vessels at seas states that, “Negligent conduct on the navigable waters that causes loss to another constitutes a maritime tort.” Tidewater Marine v. Sanco Int’l, Inc. (E.D.La. 2000) 113 F.Supp.2d 987, citing United States v. M/V BIG SAM, 681 F.2d 432, 443 (5th Cir. 1982), cert. denied, 462 U.S. 1132, 103 S. Ct. 3112, 77 L. Ed. 2d 1367 (1983).

There must be legal causation under general maritime law for a party’s negligence to be actionable by a plaintiff. Tidewater, at *987, citing Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 648 (5th Cir. 1992). This requires that the defendant’s negligence was a substantial factor in causing the plaintiff’s harm. Id, citations omitted. Case law defines “substantial” as “more than but for the negligence, the harm would not have resulted.” Id, citations omitted.

Comparative negligence applies if there are more than two parties at fault. Tidewater, at *988. As the Klingons did attack V’Ger, comparative negligence will be applied in the analysis of whether the Federation is financially liable to the Klingon Empire.

No one at NASA in the late 1970s could have foreseen Voyager 6 encountering a planet of living machines after falling through a black hole. As such, the “superseding cause” doctrine will also be applied, which states that when a defendant’s negligence substantially contributes to the plaintiff’s injury, “but the injury was actually brought about by a later cause of independent origin that was not foreseeable.” Id. The doctrine can be summarized as, “the subsequent negligence of the third party must be so extraordinary that a reasonably prudent person could not have foreseen its occurrence.” Tidewater, at *999, citing Miss Janel, Inc. v. Elevating Boats, Inc., 725 F. Supp. 1553, 1569 (S.D. Ala. 1989).

The Klingon Empire would have a difficult time establishing liability for the Federation of Planets for the destruction caused by V’Ger. First, the act of launching Voyager 6 to lean all that is learnable and return that knowledge to Earth is not by itself negligent. The probe contained no weapons and was designed to explore space. Second, it was not foreseeable that Voyager 6 would encounter an alien machine planet that would reprogram the NASA probe to the point it gained consciousness on its mission. The encounter with the alien planet would be “so extraordinary that a reasonably prudent person could not have foreseen its occurrence.” Finally, the Klingons fired first on V’Ger. While the Klingons could argue V’Ger was in their sector of space, it was them who threatened V’Ger first, thus resulting in V’Ger defending itself against the attacking K’t’inga battle cruisers.

The Vision on the Policy of Truth

Josh Gilliland

June 2, 2016

The Vision by Tom King and Gabriel Hernandez Walta is the ultimate parable that honesty is the best policy. Especially for a synthezoid family if they want to avail themselves to the legal system.

Vision’s career as an Avenger has run the gambit from fighting Ultron, to taking over the United States ballistic missile system, to the US Government taking him apart for compromising the security of US nuclear weapons, to saving the world at least 37 times. What does a robot do after such complex career? Start a robot family in a Washington, DC suburb. After building his wife Virginia, Vision built their children Vin and Viv.

The Grim Reaper, brother of Wonder Man, attacked the Vision’s wife and children while Vision was away. The daughter Viv was impaled by the Reaper’s scythe. The Reaper cut Vin the son. Virginia did the normal motherly act of bashing in the back of the Grim Reaper’s skull to kill him. Instead of calling the police, she told her son not to tell the Vision.

Assuming the Commonwealth of Virginia recognizes the Vision family as “people,” Virginia Vision could have argued that she acted in defense of both Viv and Vin. The Supreme Court of Virginia has recognized that a person can use force in defense of family members. Foster v. Commonwealth, 13 Va. App. 380, 385 (1991); Hodges v. Commonwealth, 89 Va. 265, 272, (1892)). The test is whether the defender “reasonably apprehend[s] death or serious bodily harm to another before he or she is privileged to use force in defense of that person.” Foster, at 385-386.

The fact Viv had been impaled was more than enough to for Virginia to “reasonably believe” that the lives of her children were in danger.

As multiple Presidents have learned over the decades, it is the cover-up that gets them into trouble. Virginia buried the Grim Reaper’s body in the backyard and kept this fact a secret from the Vision. Life spun out of control with Vin getting into a fight at school, Virginia getting blackmailed with video of her burying the Grim Reaper, and the accidental death of the blackmailer’s son.

Tom King has done a magnificent job telling the tale of a lie spinning out of control, where bad decisions are made on top of bad decision. The irony of living machines that continue to “logically” make poor choices is a unique vision of humanity. As with life, a policy of truth could have avoided a litany of mistakes.

The Character Assassination of Captain America

Josh Gilliland

May 25, 2016

Captain America is a member of HYDRA who murders another super-hero. That will sell comics. I picked up the second to last issue 38 minutes after the local comic store opened. It also should make the walls at Marvel bleed. The ghosts of Joe Simon and Jack Kirby are likely screaming down the halls for the way Steve Rogers has been defiled.

The new Steve Rogers: Captain America truly dishonors the 75-year history of the character in the final pages of the comic. Joe Simon and Jack Kirby created Captain America prior to the United States entering World War II. As the Nazis and Imperial Japan waged war on neighboring countries, the United States dug in its heels on staying out of the war. From Senator Gerald Nye and the Neutrality Acts, to college students taking the Oxford Pledge to never defend the United States, to children being sent to American Nazi summer camps, there were many in the United States willing to let the world burn down.

Joe Simon and Jack Kirby created a character that represented the best of America. Simon and Kirby forged Steve Rogers in the hearts of those who knew right from wrong, who believed in hope, and were not afraid to take a stand against evil. Steve Rogers represented the Americans who risked their citizenship to sneak into Canada in order to travel to England to fight in the Battle of Britain; Steve Rogers represented those who enlisted after the attack at Pearl Harbor; and Steve Rogers represented the sacrifice of those who did not come home. The character of Captain America is the personification of the Greatest Generation.

The new Captain America story throws all the nobility of the character out the window. Seeing Captain America murder someone is grossly offensive. The families of Simon and Kirby are owed apologies for this character assassination. Whatever happens with this story arc, let it end quickly.

Is the Horta an Endangered Species?

Josh Gilliland

May 24, 2016

The Horta is a silicon-based life form from the Star Trek episode “Devil in the Dark.” The Horta lived Janus VI, tunneling through rock for nourishment. The Horta lifecycle included all but one Horta dying off every 50,000 years. The remaining Horta protected thousands of Horta eggs in the Vault of Tomorrow in the Chamber of the Ages.

All was going along according to the 50,000 year lifecycle until the miners of Janus VI discovered the Chamber of the Ages and unknowingly destroyed thousands of eggs. The Horta responded by protecting its nest, killed over 50 miners and one Red Shirt, and stole the nuclear reactor pump for the station. Without the pump to prevent the station from going critical, the invasive species of humans would be forced to abandon the planet.

Would the Endangered Species Act protect the Horta, provided the Federation had a similar law? Would Starfleet have to create a Horta habitat for the species to recover?

The Endangered Species Act was passed to protect species that are “endangered” or “threatened.” A species is “endangered” if it is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S. CODE § 1532(6). A species is “threatened” if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20); Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1202 (D.C. Cir. 2013). A species is considered “endangered” because of “natural or manmade factors affecting its continued existence.” 16 USCS § 1533(a)(1)(E).

Chief Engineer Vanderberg’s miners killed thousands of Horta gestating in eggs. Furthermore, only one adult Horta was left alive to raise the soon-to-hatch Horta. The manmade mining operations placed the entire Horta race “in danger of extinction throughout all” of its range.

Protecting eggs of threatened or endangered species has been done many times under Federal and State law, from fish to sea turtles. See, State v. Davis (Fla. 1990) 556 So.2d 1104) and Beatty v. Fish & Wildlife Comm’n (2015) 185 Wn.App. 426. It is only logical that the law would also protect Horta eggs to prevent the extinction of the species.

The fact only one adult Horta was left alive highlights the danger to the survival of the species. The equivalent Federation agency to Fish and Game could determine that the fact there was only one “Mother” to the species, and that thousands of eggs had already been destroyed, that the Horta was indeed definitely endangered. Granted, the time listed as an endangered species might be for only until the young hatchling Horta mature.

One of the highlights of this episode is the miners go from a pitchfork wielding mob wanting revenge, to the horrified realization of “Oh Dear God, we killed thousands of them.” Neither the Horta nor the humans showed any ill will to each other after communications had been made, thus finding a way to coexist in mutually beneficial cooperation. The episode represents the best qualities of Star Trek where “new life and civilizations” come together in peace after a rough start.

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