EvidenceProf Blog

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

Friday, December 18, 2015

Star Wars, X-Men, Mutant X, and Judicial Notice

Last night was the premiere of "The Force Awakens," Episode VII in the Star Wars saga. Star Wars will always have a special place in my heart. If memory serves, I first watched "Star Wars" and "The Empire Strikes Back" at the Ground Round in Columbus, Ohio. When Halloween 1982 rolled around, the choice of costume for my six year-old self was obvious: I went as Boba Fett, my favorite character. The following year, my parents took me to see "Return of the Jedi;" it's the first movie I can remember watching in a movie theater. I was devastated when Han Solo stumbled into knocking Boba Fett into the Sarlacc toward the beginning of Jedi. I can still recall vivid dreams about Star Wars from my childhood, and I have creative writing projects from elementary school that take place in its universe. I think that somewhere in my parents' house, there's still an old Empire Strikes Back popup book floating around.

Later, upon graduating from college in 1999, I took a job at a summer camp before working days at a law firm and nights as a LSAT instructor. I was in charge of a group of rising fifth graders, and they were all obsessed with "The Phantom Menace" (and Pokemon and Eminem). At the end of the summer, there was a talent show. We created a script in the Star Wars universe and performed our own intergalactic epic.

And now, there's a whole new generation interested in Star Wars. Last year, my niece was Yoda for Halloween. Just this weekend, I was at a friend's house and engaged in a Nerf light saber battle with their kid;* he was Yoda, and I was the dreaded Darth Sidious. It's safe to assume that Star Wars will continue to be part of our culture fabric for generations to come, and the same holds true for our legal fabric.

A few years ago, I did a post about the Best Evidence Rule, George Lucas, and Mike Judge. George Lucas was the defendant in a copyright case, Seiler v. Lucasfilm, Ltd., 808 F.2d 1316 (9th Cir. 1986), that I teach in my Evidence class. Specifically,

Lee Seiler, a graphic artist and creator of science fiction creatures, alleged copyright infringement by George Lucas and others who created and produced the science fiction movie "The Empire Strikes Back." Seiler claimed that creatures known as "Imperial Walkers" which appeared in The Empire Strikes Back infringed Seiler's copyright on his own creatures called "Garthian Striders." The Empire Strikes Back appeared in 1980; Seiler did not obtain his copyright until 1981.

Seiler lost, "The Empire Strikes Back" is remembered as one of the greatest movies of all time, and AT-ATs are an enduring part of the cultural lexicon, even getting name dropped in Episode 2 of the second season of Serial.

Star Wars also got name dropped in a pretty fascinating 2001 case, Twentieth Century Fox Film Corp. v. Marvel Enterprises, Inc., 155 F.Supp.2d 1 (S.D.N.Y. 2001). In the case,

In October 1993, Fox and Marvel entered into an agreement...pursuant to which Marvel licensed to Fox the exclusive right to create, produce, distribute and market theatrical motion pictures based on the "X–Men Property"..., which refers to the "X–Men comic book series."


In or about July 2000, as the X–Men film** was being marketed and distributed, Marvel developed the idea for a live-action television series called Mutant X, which, according to Marvel, was intended to feature "new, never-before-seen, Marvel characters."...Drawing from recent developments in science surrounding the mapping of the human genome and genetic engineering, Marvel decided to tell the story of "various young men and women who were part of genetic 'splicing' experiments conducted many years earlier."..."As a result of errors in the experimentation, these genetically-augmented individuals underwent physical mutations, thereby developing unexpected abilities," and later, unexpected problems....Because of such problems, the directors of the experiments realized a "product recall" was necessary. Adam, the principal character of the series and a scientist on the experiment team, "realized he had to leave the [team] and use his time and resources to try and locate these babies, who were now adults, either to cure them, help them cope, or assist them in understanding what to expect."...On the other hand, Adam's partner, who is named Mason Eckhart, believed that the team had to cover its tracks by destroying or imprisoning the mutants....Thus, each episode would revolve around the search for a new mutant.... 

In response, Fox filed a lawsuit, claiming it had exclusive rights from Marvel to develop the X-Men property, meaning that the Mutant X show was a breach of contract and also copyright and trademark infringement. In response, Marvel countersued, claiming that the two properties were dissimilar.

Eventually, Fox brought a motion for a preliminary injunction, causing the Southern District of New York to address the question of whether the properties were similar. According to the court,

Fox contends that in both works, a super-intelligent and wealthy good mutant seeks out young mutants, trains them to use their powers, and protects them from a potentially hostile world, consisting of bad mutants and humans who seek to control them....In addition to misrepresenting certain aspects of the Mutant X premise (Adam is not a mutant and there is no team of bad mutants), the generalized plot scenario represented by this premise is common to fiction in general and science fictional works in particular. One example is the nurturing of the gifted Luke Skywalker by Obi–Wan ("Ben") Kenobi in Star Wars, of which the Court takes judicial notice.[FN71]. Moreover, the fact that the Mutant X characters, like the X–Men, may "struggle with their status as mutants" and "fight[] against societal prejudice and government persecution” does not indicate a breach of contract, because such struggles are also typical of superheroes....Further, "complicated personal relations" are typical of any drama. 

FN71. Star Wars is one of the most well-known and widely viewed science fiction films. Under the Federal Rules of Evidence, the Court may take judicial notice of any fact which is a matter of common and general knowledge in its jurisdiction. Fed.R.Evid. 201(b).

Ultimately, the court granted some relief to Fox and some relief to Marvel. The two sides eventually settled, and "Mutant X" ran for three years starting in 2001 before being cancelled when one of its production companies went out of business. 

If one of the creators of "Mutant X" were to bring a copyright lawsuit today, that creator would almost certainly have to present evidence concerning the show, including its plot. The same goes for most pieces of entertainment and most anything else that a party seeks to prove at trial.

But, as the "Mutant X" makes clear, Star Wars is at a different level. Because Star Wars is "one the most well-known and widely viewed science fiction films," the court was able to take judicial notice of both the movie and the Like/Obi-Wan relationship without the parties needing to present any evidence. In other words, it was assumed that the parties and anyone reading the court's opinion would know what the judge is talking about without the need for any evidentiary support to back it up.


*Fun fact: I was involved in fencing in college for a while. I did épée. My brother was the state champion in sabre.

**Some camp counselors and I won tickets at the local comic book shop and got to see an advanced screening.



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I look forward to reading your posts every day--thank you for taking the time to prepare them. I love how you pull in current events to teach a concept. I bet your students love your class!

Posted by: Bethe | Dec 19, 2015 2:51:23 AM

Colin, have you watched Making a murderer on netflix?? I think you'd like it and your expertise would be welcome on wrongful convictions. Check it out!

Posted by: Danny M | Dec 20, 2015 11:36:38 PM

Star Wars and the Marvel movies are my favorite movies to watch. While Boba Fett is one of my favorite characters, no one can beat Han. What girl doesn't want a smuggling scoundrel? I was also recently apart of a DC vs Marvel swap (think themed care package) with a knitting group...but that's another story for another time.
Anyway, I was always under the impression that the AT-AT's were inspired by the dock cranes down in Oakland.
Thanks for the background on both cases.
From one nerd to another...

Posted by: Nicole | Dec 23, 2015 7:06:59 PM

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