EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, May 3, 2012

Joss Whedon, The Avengers, Buffy The Vampire Slayer, Eli Stone, Reluctant Heroes & The Rule Against Hearsay

Joss Whedon's "The Avengers" will debut at the U.S. box office tonight after cleaning up overseas and with the critics. Although I had previously experienced some version of Whedon's works before 1997 (for instance, he wrote for "Roseanne," was one of the screenwriters on "Toy Story," and did some rewrites on "Waterworld"), I wasn't really aware of who he was until the summer of 1997. I was home for the summer for college and had just come back from a daily 6 mile run to the 7-Eleven and back and was toggling through the channels on the TV. I came upon the WB Network, a network I had never even heard of before. Coming on in a few minutes was the repeat of the premiere of the TV show, "Buffy the Vampire Slayer." 

I remembered having watched the movie version from a few years back, which was an enjoyable enough trifle. The two things that I most remember from the movie were

-(1) a character talking about making a sign for an environmentally themed school dance with the slogan, "Don't tread on me" over a picture of the earth. Buffy's response: "How do you not tread on the earth. I mean, you kind of have to;" and

-(2) Paul Reubens' death scene:


Whedon wrote the screenplay for the movie, but the buzz was that it was bastardized and that the TV show would be more in line with what he intended. A few minutes later, after a Michigan J. Frog intro, I watched the premiere, and I was hooked. Hooked on Buffy. Hooked on Whedon. I've enjoyed everything he's done: BuffyAngelFirefly (my wife's favorite show ever). SerenityDr. HorribleDollhouse. And now, after "The Cabin in the Woods" (which I still need to see), he's prepared to take over the world with "The Avengers."

But Whedon's signature character is and always will be Buffy Summers, who finds contuing life not only in comics but also in the opinions of courts across the country.

Probably my favorite court opinion involving Buffy is Davis v. American Broadcasting Companies, Inc., 2010 WL 2998476 (W.D.Mich. 2010), a case involving the short-lived TV series, "Eli Stone." In the case, David Davis

wrote two action-mystery books about a modern-day warrior and protector named Ely Stone. ABC had a twenty-six-episode, comedy-drama series about an attorney named Eli Stone. Mr. Davis sued ABC for copyright infringement, claiming that the television series infringed his copyrighted works.

But, according to the court,

Any similarities between Mr. Davis's novels and ABC's television series, however, are either unprotectible stock themes andscenes a faire or minimal and incidental. Additionally, the works are completely different in their overall feel and expressive elements like themes, characters, plots, sequences, pace and settings. As a matter of law, ABC's series is not substantially similar to Mr. Davis's works. The Court therefore grants ABC's motion to dismiss Mr. Davis's claims.

One of the similarities claimed by Davis was that both Eli Stone and Ely Stone were reluctant heroes, which the court found could not support a copyright infringemant claim:

Mr. Davis characterizes both Eli and Ely as being reluctant heroes, and he contends that this makes Defendants' work a violation of his copyright. It is true that both protagonists are reluctant heros who do not believe, at least initially, they are chosen or a prophet. They also both, at least initially, do not want their gifts and shrug off or reject their calling to help other people. This, too, is merely an idea, not an original element of the works that is subject to copyright protection....It is a "[c]ommon theme[ ] and idea[ ] throughout literature," particularly heroic genres....Precisely this reluctance drives many hero stories. Spiderman, Batman and Superman are a prime examples of reluctant heros. So are Luke Skywalker, the Hobbits, and Buffy the Vampire Slayer. Mere reluctance to take up the mantle of greatness cannot be grounds for copyright infringement. (emphasis added).

A more recent and more evidence-focused case is Scully v. Retirement Bd. of Beverly, 954 N.E.2d 541 (Mass.App.Ct. 2011). In Beverly, Thomas F. Scully, was convicted of two counts of possession of child pornography, [and] the Beverly retirement board...revoked his retirement allowance on the ground that the convictions involved violations of the laws applicable to Scully's office or position as director of community services at the Beverly Public Library." The basic facts were as follows:

Scully began his employment as director of community services with the library in 1986. He resigned in May, 2005, after Beverly police executed a search warrant at his home and discovered seven images of child pornography on his home computer. The police had been conducting an investigation into allegations of sexual misconduct perpetrated by Scully with a seventeen year old male, whom we shall call Matthew. The police interviewed Matthew on April 22, 2005, at which time Matthew disclosed that he had met Scully at the library when he was fifteen years old. According to Matthew, Scully approached him after discovering that he was viewing questionable material on a library computer. Scully warned Matthew to be careful, and then invited Matthew back to his home where Matthew could "safely" view such material. Matthew went to Scully's house many times. While there, he viewed adult pornography on digital video discs (DVDs) provided by Scully. As set forth in the police report, Matthew "indicated that Scully had printed pictures of naked boys from his home computer and gave them [to Matthew] to keep [and that] one of the pictures was of a child who was definitely under 18." Matthew also told the police that on one occasion Scully had "grabbed" his "butt" with one hand over his clothing while Matthew was walking upstairs.

The questionable material being viewed by Matthew at the library?

Matthew told the police that he was visiting a "Buffy the Vampire" Internet chat room where he was "cybering," an activity which Matthew described as "on-line sex."

The board's decision was contingent on Scully showing Matthew certain images of child pornography, but the only evidence that was presented in support of this allegation was Matthew's hearsay statement to the police. And, according to the Supreme Judicial Court of Massachusetts, this was insufficient to support the board's conclusion:

While the proceedings before the board were not, of course, subject to the rules of evidence, the hearing officer was obligated to rely only on "the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs."... The Supreme Judicial Court has held that hearsay is admissible in pension revocation hearings, but only if it bears the requisite "indicia of reliability."...Matthew's statement to the police, including his disclosure that Scully gave him child pornography (one printed image), was not subjected to cross-examination and, therefore, might well lack the requisite indicia of reliability to constitute "substantial evidence" before the board.



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