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THE LAW IS A ASS for 05/09/2000
DOCKET ENTRY
"The Law is a Ass" Installment # 43
Originally written as installment # 33 and published in Comics Buyer's Guide issue # 561, August 17, 1984 issue
We so-called professionals hate to be caught making mistakes when practicing our professions. Not so much because someone else might get hurt by our mistake, but because we have to backtrack and explain how we made the mistake in the first place. It seem so unproductive an endeavor when our time could be so much better served moving onward and making new mistakes.
So, you can imagine my chagrin when former editor-in-chief of Eclipse Comics and one-time fellow CBG columnist Cat Yronwode pointed out a mistake I had made in a recent column. The mistake? I explain it in this column. If you want more information, you can follow the previous columns link to find that old column and read my mistake, if you want, but I'm not going to tell you which column it was. I have no intention of making it easy for you.
******
"The Law is a Ass"
Installment # 43
by
Bob Ingersoll
I stand--or, actually, as I write this, sit--corrected. Cat Yronwode was absolutely correct, when she wrote in her "Fit to Print" column that in my recent "Wolveroach" column, I did inadvertently use the term "copyright infringement," when I should have used "trademark infringement." That was my first mistake. My second was in making the off-hand comment that I didn't know the difference between the two, a comment some people have taken seriously . That was only a joke, I do know the difference between a copyright and a trademark and their respective infringements. Which only makes my mistake in using the wrong term all the more inexcusable. There is no defense for the crime, which I have committed, and I intend to offer none. (I do, however, intend to grovel like hell and throw myself on the mercy of the court. Please, Don and Maggie, don't give my column to someone else. I'll do better, I promise. Remember, I've never mixed-up "slander" and "libel." I once mixed-up Audrey and Sybil, but the less said of that incident, the better.)
Other than that one mistake, I feel my comments on Wolveroach were correct. Sim's extended use of the character did become trademark infringement. A single use of Wolveroach on a Cerebus cover, especially one without Cerebus and aping one of Wolverine's famous poses, might have passed as "fair use" as parody. So, it wouldn't be trademark infringement, but an exception to the infringement laws. Marvel would probably have let one such instance slip by as "fair use." I still believe Sim's biggest mistake was featuring Wolveroach on the cover of Cerebus alone and without the titular Aardvark for company for three consecutive issues. This use became more extended so fell out of "fair use" or parody and more squarely into the area of infringement to which Marvel felt it had to respond. Marvel did not want to lose the trademark on one of its cash cows by not taking steps to protect it from an apparent infringement. Such inactivity on Marvel's part could be construed as being evidence that it had abandoned the Wolverine trademark, something Marvel definitely did not want to do.
As to Cat's comment, that comics and other publications cannot trademark the interior of a comic only its cover, I refer you to the first paragraph of this column.
Copyright/trademark/patent law is not my speciality. I wanted to take a course on it in law school, but, unfortunately, my law school didn't offer such a course. I knew the definition of trademark, but forgot you couldn't trademark the logos and likenesses on the inside of a comic.
Yes, "I forgot" is too an acceptable excuse. Two simple words. Three little paragraphs which explain and excuse so very much. And if my estimable editors told me that it isn't an acceptable excuse, well, I forgot.
#
In the same "Fit to Print" column Cat asked me to explain the difference between first-degree murder, second-degree murder, third-degree murder, voluntary and involuntary manslaughter, and negligent homicide. Since she asked, and since these are terms which frequently pop up in the comics, I'm only too happy to oblige. And, if I stay on her good side, maybe she'll let that whole trademark/copyright thing slide.
I only wish the explanation could be simple. It gets complicated by the fact that there is statutory law and common law. Let's take common law first. After all, like the chicken, it came first. Or was that the egg? I think I knew once, but I forgot.
Common law is that body law, which isn't created by a legislative body, so isn't written down in a statute or ordinance. It is the law created by the courts over the centuries in cases. Common law, also called case law, is found in old case books. Statutory law is found in statutes. But to confuse things tort law isn't found in confectionary desserts.
In common law, first-degree murder was murder committed with "malice aforethought." "Malice aforethought" or what we ordinary people called planning it in advance. Or what Perry Mason called premeditation or "money in the bank." Your most common example of premeditated murder is found in virtually any Agatha Christie novel, where the murderer plans the crime down to the last detail, so as to escape undetected but for the watchful eye of Hercule Poirot or the nosiness of Miss Marple. Common law also recognized a second type of first-degree murder; felony murder. As its name implies, felony murder occurs if someone kills another person, while committing another felony. The classic example is robbing a store at gun point and killing the owner. Basically, the common law determined that murders committed either with premeditation or while committing another felony were so especially heinous as to constitute the most-serious type of murder. They chose to call it murder in the first degree, because murder most foul just sounded too biblical.
Second-degree murder was an intentional killing without malice aforethought or premeditation. An example of this is as follows: I meet Adrian Chase at an American Bar Association convention. Now Chase is so angry at all the things I've written about him that he immediately clubs me to death with the nearest hard object--which just happens to be his own head. That is second-degree murder. Chase killed me intentionally, but, because he didn't plan it ahead of time. It just kind of happened at the spur of the moment. As there was no premeditation, it is not a first-degree murder.
Third-degree murder, I've never heard of. I have no idea what it is, so can't help you there.
Voluntary manslaughter is intentionally killing someone, while under the influence of sudden passion and provocation, but it's provocation brought on by the victim. The classic example of voluntary manslaughter is the cuckold (I assume I can use that word in a nice family news weekly) husband returning home and finding his wife in bed with another man. The husband then grabs his .38 and shoots both wife and lover. The husband's act was intentional. He meant to kill both. However, because it was occasioned by the sudden provocation, the degree of the homicide is lessened; both because the law presumes the husband won't kill again as the provocation won't likely come around again, and because the victim, by provoking, brought the death on him or herself. (Personally I've never been real keen on this second justification. I don't think anyone ever brings being killed on him or herself.)
Let me back up a second. Adrian Chase wasn't guilty of a voluntary manslaughter, because in my scenario, there was no provocation. Sure I may have written some things about Adrian in the past he didn't like, but that isn't the kind of provocation which the law would recognize as diminishing the act or making his crime a voluntary manslaughter. In the first place, the homicide must be a reasonable response to the provocation. The law says the provocation must be sufficient to bring on a sudden fit of rage. The law would not recognize my merely writing bad things about someone as sufficient provocation to bring on a sudden fit of rage so would find the response out of proportion to the supposed provocation. In addition, the law says it has to be a sudden provocation, which caused the homicide. If the killer has had time to calm down or "cool off" between the provocation and the killing, then he was not acting under a sudden fit of passion so as to lessen the degree of his crime. In our case, Chase had months to cool off before he killed me, so his act wouldn't be a voluntary manslaughter.
Oh, and for the record, this is a hypothetical. I am certainly not advocating that one person kill another person. Especially when that other person is me.
Involuntary manslaughter is either killing someone while committing a misdemeanor or killing someone while doing a lawful act in a grossly negligent way. Example of the first: A and B get into a fight. Punches are thrown. That's assault, a misdemeanor. So, A throws a punch at B, let's say a Hi-C. B retaliates by throwing a V-8 at A, still in the can. A is killed. That's involuntary manslaughter, killing while committing a misdemeanor (here assault.)
Example of the second: The Baxter Building has rats. Reed Richards decides to kill them. Now he could develop a portable generator which would send them all into the Negative Zone, but he decides, this time, to use rat poison. So he buys rat poison and lays it out to kill the rats. There is nothing unlawful in Reed's acts. However Reed chooses to lay the poison out on a plate on the coffee table next to the Bon Bons. Franklin comes along, mistakes the poison for pretzel nuggets and eats three. He dies.
Reed would be guilty of involuntary manslaughter. He did a legal act, but he did it so negligently, with such reckless and gross disregard for the possible consequences and Franklin's safety, that the law deems him to have an evil heart. Reeds's gross negligence makes his act involuntary manslaughter.
Negligent homicide, on the other hand, is killing someone, while committing a legal act, because of ordinary negligence. Reed is driving a car, runs a stop sign and kills a little boy. Here there is no gross negligence, just ordinary negligence. So Reed is not deemed to have an evil heart, His homicide is the lesser crime of negligent homicide.
You with me so far? Good. Now understand that the crimes as described are what you are used to seeing. It is the common law definitions and conceptions which most TV, movie, novel, and comic book writers are using, when they write their opera, (According to my dictionary, that is the plural for opus. And here you thought the plural of opus was penguins.)
The trouble is the common law crimes no longer exist. Every state, except Louisiana which still operates under the Napoleonic code, has passed a scheme of statutes which define crime. It is the statutory scheme which controls. What are the crimes under the common statutory scheme? I'm glad you asked. (Fortunately they didn't change too much.)
First-degree murder, which can also be called aggravated murder, is intentionally killing another with prior calculation and design. Prior calculation and design are fancier words which essentially mean premeditation. First-degree murder also recognizes a felony murder prong. Under statutory law, first degree murder exists when someone intentionally kills while committing, or fleeing after committing, kidnap; rape; aggravated arson; arson; aggravated robbery; robbery; aggravated burglary; burglary; or escape. Here the idea is basically the same as the old felony-murder rule, but there are two important differences. The killing must be intentional. If the felon kills accidently, it is not first degree murder. Second, the felon must kill while committing one of a specified number of felonies, not while committing any felony at all. As the concepts didn't really change, except for some refinement, I won't give any new examples. The old ones suffice.
Second-degree murder, or murder, is intentionally killing someone (but without prior calculation and design or another felony to aggravate the degree). This crime, then, is virtually identical to common law second-degree murder. Sometimes the old ideas are still the best and even we lawyers have enough sense to leave well enough alone.
Voluntary manslaughter is killing while under the influence of sudden passion or in a sudden fit of rage occasioned by the victim, brought on by serious provocation reasonably sufficient to incite the killer to use deadly force. (Again this concept is basically the same as common law. No new example will be given.)
Involuntary manslaughter is killing another as a proximate result of committing a felony which is not found on that earlier first-degree felony-murder list) or while committing a misdemeanor. Note here that the concept of killing as a result of gross negligence is gone, which cleans up negligent homicide, as now you no longer have to determine if the negligence was gross or not.
The now cleaner negligent homicide is negligently causing the death of another with. a deadly weapon or dangerous ordinance such as a gun, a knife, a bomb, or a bound set of Prez cause that's real deadly. It is important to note here that negligent homicide is only with a deadly weapon or dangerous ordinance. Killing someone with an object that isn't, ordinarily a weapon, would be a different type of homicide. A traffic death, for example, is covered in laws like vehicular homicide (negligently killing while operating a vehicle) or aggravated vehicular homicide (recklessly causing a death while driving a vehicle, which usually means drunk driving was involved.)
The statutory definitions I gave are those of Ohio. They could differ somewhat in each state. However Ohio's statutes are based on the Model Penal Code, which is the pattern that many states have adopted, in an effort to promote more uniformity. So Ohio's statutes may not be exactly the same as another state's, but they will be close enough for our purposes.
Cat, I hope this adequately explains the differences for you. If not let me know, and I'll try again.
Incidently, you all noticed how I spent the beginning of this column admitting to and correcting some mistakes I made in trademark law. Now you know why last column was all about Dr. Strange and cosmic, interdimensional law. Let's see someone try and tell me I got that wrong!
BOB INGERSOLL
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