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Holiday gift ideas for the legally geeky in your life.

Holiday GiftsIt’s that time of year again, when we all run around, frantically trying to buy gifts for family, friends, and co-workers.  (Well, I run around frantically.  I have friends who always annoy me during the holiday season because all of their presents are purchased by Thanksgiving.)  The interwebs abound, of course, with gift-giving lists, but none of them address those of us who have legally geeky interests.  So here’s my list to fill that hole.

Jewelry is always popular, and you can be both geeky and legal with this pulsating LED open source necklace, programmed with her (or his) favorite case citation.

Lawyers love complicated rules, geeks love Spock, and this tee shirt showing the rules of “Rock Paper Scissors Lizard Spock” is the perfect melding of those two loves.  And if you haven’t seen Sheldon from The Big Bang Theory explain the rules of the game, go watch it now.

For the lawyer who wants to show off her geeky side at the office, these Wonder Woman, Batman, and Superrman bookends will totally jazz up her legal library collection.

If you have a legally geeky child like I do, this lightsaber nightlight is the compromise that may get them to stay in their own room at night, instead of arguing with you as to why they have a right to sleep in your bed…yet again.

President Lincoln is hot this year, with multiple movies about his life (some a bit more out there).  For fans – new or old – of Honest Abe, this bust is a perfect present.

For those looking for a good financial investment, buy some artwork at Goodwill.  Recently, for the fourth time in a year, a shopper at Goodwill bought a piece of art worth thousands of dollars.

And, finally, for the hardcore Legal Geek types, what better bet than some awesome Legal Geek merchandise? (Gotta push the merch!)

Catch You Later: The Serenity of Being a Whistleblower

Stories of “whistleblowers” exposing government corruption have been popular for as long as there have been governments.

However, to what extent are “whistleblowing” movies within the scope of whistleblowing laws?

Moreover, how do these rules apply when the government’s form of retaliation is to kill the whistleblower?

Whistle While You Work

Whistleblowing is defined under the Black’s Law iPad App as “An employee who reports employer wrongdoing to a governmental or law-enforcement agency. Federal and state laws protect whistleblowers from employer retaliation.”

Here are examples of whistleblower statutes for government employees:

(1) (a) An employer may not take adverse action against an employee because the employee, or a person authorized to act on behalf of the employee, communicates in good faith the existence of any waste of public funds, property or manpower, or a violation or suspected violation of a law, rule or regulation adopted under the law of this state, a political subdivision of this state or the United States. Such communication shall be made at a time and in a manner which gives the employer reasonable opportunity to correct the waste or violation.

Idaho Code § 6-2104 (2012)

An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment:

(1) Because the employee, or a person acting on behalf of the employee, reports or is about to report to a public body, verbally or in writing, a violation which the employee knows or reasonably believes has occurred or is about to occur, unless the employee knows or has reason to know that the report is false; or

(2) Because an employee participates or is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action, in connection with a violation as defined in this chapter; or

(3) Because an employee refuses to commit or assist in the commission of a violation, as defined in this chapter;

or

(4) Because the employee reports verbally or in writing to the employer or to the employee’s supervisor a violation, which the employee knows or reasonably believes has occurred or is about to occur, unless the employee knows or has reason to know that the report is false. Provided, however that if the report is verbally made, the employee must establish by clear and convincing evidence that such report was made.

19 Del. C. § 1703 (2012)

Here are the basics of whistleblowing: Employers cannot punish an employee who is lawfully reporting to the government or law enforcement of the employer’s wrongdoing. This usually involves unlawful or wasteful government action, but there are private sector examples (think Karen Silkwood).

Let’s review three movies where the heroes “reported” violations of the law:

LA Confidential: On the Q-T And Always Hush Hush

Murder, drugs, vice, blackmail, and police cover-ups in post-World War 2 Los Angeles dominate the classic LA Confidential.

The multiple crimes are as complex as the LA freeway system. However, the goal of the dirty cops was simple: take over Mickey Cohen’s drug racket.

LA Confidential raises several twists with being a whistleblower. One was the DA was being blackmailed, thus destroying his ability to press any charges and making him a de facto co-conspirator by his silence. Second was the corrupt cops were killed in a gunfight while attempting to murder the remaining heroes. The story of how bad their actions were would have destroyed the reputation of the department for decades, so everyone participates in a cover-up.

The good guys win, but not by following the law. The authorities opt for the noble lie opposed to destroying the legitimacy of law enforcement with the truth. While this legally is abhorrent, the Machiavellian reasoning makes sense for the greater good [of the elected officials].

With that said, no Mayor, District Attorney, Police Chief or other elected or appointed government official should think cover-ups are a good idea. It always ends badly.

Blue Thunder: One civilian dead for every ten terrorists. That’s an acceptable ratio.

….Unless you are one of the civilians.

Blue Thunder was the story of the military developing an armed police helicopter prior to the 1984 Olympics in Los Angeles to combat terrorism. No one wanted a Munich repeat.

The political back story was the for the helicopter to be used to put down “civil disobedience” such as riots and eliminate political enemies. Moreover, there are unexplored 4th Amendment issues of the police having a silent helicopter that could record infrared video and audio of an unsuspecting public. Additionally, in the days long before the Internet and Google, the police had access to computer network of home security systems to know if homeowners were home.

The hero Frank Murphy, played by Roy Scheider, uncovered the secret purpose of Blue Thunder on a test flight, plus a conspiracy by Feds to kill him. Murphy’s whistleblowing actions included stealing the helicopter and having his girlfriend deliver an infrared video and audio recording to a news channel with Feds engaged in conspiracy planning. Along the way, the following property damage takes place:

2 Police Helicopters Crashed
1 Police Car Shot in Two
1 Police Motorcycle Crashes
1 BBQ Restaurant Hit by Heat Seeking Missile
One Downtown LA Building Hit by a Missile
1 F-16 (Which had to crash in downtown LA)
1 Military Helicopter
1 Freight Train Runs over Blue Thunder
Blue Thunder itself is Destroyed

Blue Thunder is problematic, because the amount of property damage and threats to life push whistleblowing, the necessity defense and self-defense to new limits (it is worth noting Murphy does not appear to get a police officer or member of the public killed). However, normal whistleblowing reporting was unavailable, due to political assassination of a city council woman, the murder of Murphy’s partner, and the active plot to kill Murphy, extreme measures appeared to be the only option. Time was also of the essence before the recording would be destroyed, resulting in the loss of evidence.

While no one gets killed on screen during Murphy’s flight besides the villain, this whistleblowing would be an insurance nightmare and have an extreme amount of litigation.

Serenity: They Won’t See This Coming

Malcolm Reynolds and the crew of Serenity were whistleblowers, provided the Alliance had allowed a private right of action to report on government corruption.

In the film Serenity, the Parliament experimented on the population of the planet Miranda in an attempt to weed out aggression. It did not work, resulting in 30 million dead and the creation of the Reavers, insane cannibalistic madman lacking any social structure.

The crew’s attempt of broadcasting a report from Miranda that exposed the government wrongdoing is whistleblowing in the purest sense. However, spaceships, gunfights and cannibal rapists on the other hand are generally not involved whistleblowing stories.

Whistleblower Ballads

Whistleblower movies far exceed the act of simply reporting unlawful activity. With few exceptions, whistleblowing does not have attempted murder of the whistleblower. However, it has someone brave enough to report the violation, which then results in lawyers conducting document review to find out what happened. This is less exciting than spaceships, helicopters and shootouts.

A story slightly closer to the truth on whistleblowing would be Michael Clayton. Granted, this story does involve corporate counsel organizing the murder of trial counsel (which is not the proper response to an attorney violating the duty of loyalty, attorney-client privilege and work product doctrine). However, it does end with the attorney hero getting an incriminating statement from corporate counsel for the police to start arresting corporate counsel and other executives.

Lawyers & Pop Music: Would the Police Open Fire on Ke$ha?

Lawyers and pop music rarely mix.

Jackson Brown’s Lawyers in Love is Exhibit A of the musical challenge in writing legally themed songs.

Moreover, attorneys frequently expect lyrics that include “whereas” and “herein after,” which cause challenges for most vocal artists.

Additionally, attorneys will kick into issue spotting mode while watching music videos.

I befell that curse and endured a serious migraine from the legal issues presented in Ke$ha’s Die Young music video.

I am sure English teachers had similar freak out nosebleeds from the use of the non-word “childs” in the song.

Here are legal issues depicted in the Die Young video:

Trespassing on a church (possibly abandoned or condemned)

Probable cultist activity evidenced by pentagrams

Engaging in conduct that Professor Charles Whitebread said would never be on a bar exam and surely vindicates Tipper Gore’s views on music warning labels

Disturbing the peace

Possible permit issues on holding a public concert/dance/parade/protest

Let’s explore the trespassing in the church and the ultimate police involvement.

Under California Penal Code section 602(m), a person commits a misdemeanor by “Entering and occupying real property or structures of any kind without the consent of the owner, the owner’s agent, or the person in lawful possession.”

Ke$ha’s kicking down the door clearly demonstrates entering an area without the consent of the owner.

Moreover, the property is then occupied by her gang of back-up dancers, meeting the “entering and occupying” requirements of the statute.

What is unclear is whether the pentagrams were added by Ke$ha’s followers or already existed in the church. If added by the “Ke$hans,” there would be additional vandalism charges.

Arguably placing pentagrams in a church could be a hate crime under California Penal Code 422.6, because the pentagrams 1) defaced the church property and 2) the placement of the pentagrams would cause intimation or interference with the church parishioners’ Constitutional right to practice their religion under the First Amendment.

However, if the property was condemned or otherwise deemed unusable, there probably was not a hate crime, due to the lack of individuals using the church, thus no one to intimidate. However, there was still no legal right for the dance trope to enter the property, thus meaning there was still a trespass. Simply put, if the state condemns property for habitation, you have no legal right to enter it.

Disturbing the peace (also known as breach of the peace) is the criminal offense of creating a public disturbance or engaging in disorderly conduct, such as making a distracting noise. (See, Black’s Law Dictionary). California Penal Code section 404(a) states:

Any use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot.

California Penal Code section 405 states:

Every person who participates in any riot is punishable by a fine not exceeding one thousand dollars, or by imprisonment in a county jail not exceeding one year, or by both such fine and imprisonment.

Would the Ke$hans’ actions be considered a riot under California law? This would require the kicking in of a door, followed by dancing, music and criminal congress to be either be 1) through force or violence, or 2) disturbing the peace, to qualify as a riot under California law. The facts do not support “through force or violence,” (besides kicking down one door), so the issue turns on disturbing the peace. The answer may turn on one simple issue: how loud were they?

The biggest oddity was the arrival of the police (who appeared to have been Mexican Federal Police), who opened fire on the Ke$hans.

The crime of trespassing is a misdemeanor (and unlikely a “shoot first” crime in Mexico). Moreover, loud parties normally do not end in police gunfire without a public threat.

While it is highly appropriate for the police to break up a breach of the peace and arrest trespassers, shooting at everyone appeared to have no legal justification.

 

Unless these were the grammar police and the use of the non-word “childs” is all that is required for lethal force.

Poor Howard: Does the Stern Show own its game show ideas?

game show hostI was flipping through channels last week and I stopped on Leno (only by accident, I’m a Letterman fan) and saw him quizzing three hot girls from a model reality show who were unable to answer even really easy questions (e.g., who was the first man to orbit the earth, can you identify a picture of Hillary Clinton).

The second I saw this game show I thought of Howard Stern. I’m a huge fan of Howard’s – have been since I saw Private Parts – and I’ve listened to him obsessively ever since he moved to satellite radio. Howard has many gripes, of course. It’s part of his charm. But one complaint I’ve heard him repeat several times is that people are always stealing his ideas and making money off of them.

When Robin and others ask him why he doesn’t sue, he says his lawyers tell him he won’t win. Are they right? Take the Leno game show as an example. Howard’s been doing a version of that (usually involving porn stars instead of reality-show models) for ages. He calls his show “Dumber than a box of rocks.” And once again it involves asking hot girls very easy questions (e.g., what does the D.C. in Washington, DC stand for) that they can’t answer. The idea is clearly the same (it’s apparently funny to watch hot girls show how dumb they are), but does that mean Howard could sue Jay? Probably not. Copyright law protects “the definite expression of ideas but not the ideas themselves.” See TMTV, Corp. v. Mass Productions, Inc., 645 F.3d 464, 469 (1st Cir. 2011). Other plaintiffs who have tried to sue those who have stolen their game show concept have lost because of that basic copyright principle. For example, in McSmith v. Poker Productions, 2011 WL 1838067, at *1 (D.Nev. 2011), the court dismissed a plaintiff who argued that the defendant had taken his game show concept and idea. But the court held that such ideas and concepts are not protectable under copyright law.

So Howard would have to show that not only did Jay Leno steal the idea of his game show, but that Jay also stole specific unique elements of his show (like the fact that the girls had to say “I’m dumber than a box of rocks” if they couldn’t answer questions correctly). Only then would he have a shot at suing Leno for copyright infringement. Until then, he’ll just have to keep on Leno bashing – and coming up with new games and contests. Baba Booey to y’all!

Why I am thankful for The Legal Geeks

FeastHappy 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.

Gratitude

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

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

Artist at work

Kids dream of being a superheroI’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.

Comic book illustrator

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.

AbbyShot's Eleventh Doctor's Purple Coat