Is Luke Skywalker Human?
Yesterday, at a Georgetown CLE event, I participated in a mock oral argument on the classification of Luke Skywalker and Han Solo action figures. You can read my brief here. The issue came down to whether "action figures" are dolls for classification purposes and whether Luke and Han are human beings. Let me know what you think.
Below are my notes for the oral argument. I lost.
May it please the Court.
The parties agree on many key facts in this case.
Galaxy recognizes that its Luke Skywalker and Han Solo action figures might, to the lay person, be viewed as dolls in the ordinary course.
Galaxy contends, however, that the facts of this case and more important, the facts of life "a long time ago, in a galaxy far away" mean that for purposes of tariff classification neither the Luke Skywalker figure nor the Han Solo figure are dolls.
The sole factual reason for this is that, despite appearances to the contrary, neither character is a human being.
The Law
The government maintains that these figures are classifiable in the eo nomine provision for dolls in HTSUS item 9502.10.40, dutiable at 12%.
However, Heading 9502 includes a limitation stating that it covers "dolls representing only human beings." Thus, if the characters are not human beings, their figures cannot be classified in 9502. This limitation must be given consideration. [Clarendon, Nootka (clams)]
Thus, the characters' human characteristics do not preclude classification in 9503.
The remaining possible classification is as other toys in 9503.49.00 (6.8%).
Toy Biz
The court has previously been asked to discern the species of fictional characters of questionable heritage.
The facts here are remarkably similar to those in Toy Biz. That case involved superhero action figures of the X-Men, Spider- Man and Fantastic Four story lines, packed in blister packs with accessories.
There, as here, Customs relied on pre-HTS cases for a broad definition of "doll" to include many variations on dolls including toys, decorative articles, and puppets, some of which included non-human characteristics (e.g., a horse and rider) [American Import] or lacked human characteristics (e.g., a torso) [R. Dakin & Co.]
But, in all of these cases, the doll represented a human being in some form. (e.g., G.I. Joe) [Hasbro]
In the conversion to the HTS, the tariff language changed. The tariff now requires that dolls represent only human beings. According to normal rules of construction, and consistent with Toy Biz, this limitation must be given effect. [Clarendon]
The Explanatory Notes to Heading 9503 state that the heading covers "toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters)."
In Toy Biz, Judge Barzilay held this limitation to mean dolls must represent "human beings as opposed to any other beings."
That means the figure, to be a doll, must be an "example" or "the embodiment" of a human being. The Luke and Han characters, although they resemble humans and have predominantly human physical characteristics, are manifestly not human.
Two arguments support finding both Luke Skywalker and Han Solo are not human and, therefore, their figures are not dolls.
o The ontological proof
o The legal proof
The Ontological Proof
A human being is a member of the human race, a member of the genus Homo, and usually Homo Sapiens. [JVC Co. Court can look to lexographic sources, technical sources, and its own understanding.]
1 U.S.C. § 8:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development.
The genus Homo evolved on this planet starting about 4.3 million years ago.
Modern humans emerged only about 200,000 years ago.
The Star Wars saga is set "a long time ago, in a galaxy far away."
The nearest galaxy to ours is the Sagittarius Dwarf a Elliptical Galaxy, which is 80,000 light years away.
For humans to have populated a galaxy far away, even in ships capable of traveling at near light speeds, they would have had to have left the earth at least 80,000 year ago at a time when our ancestors were just reaching Asia from Africa. At realistic speeds of modern spacecraft, 1.5 me million years would be needed. ml
Because Star Wars is set in the distant past, not the future, it is impossible for any human being to be present in the story line.
Thus, neither Luke Skywalker nor Han Solo can possibly be human.
The Legal Proof
Toy Biz relied upon three observations: to test
whether a figure represents a human
being for purposes of tariff classification.
1. A single non-human characteristic is sufficient to establish that the figure does not represent "only a human being."
Luke Skywalker has a number of non-human characteristics including:
· He can move objects at a distance by use of "the force"
· He can exercise remote mind control through the force
· He has no paternal grandfather. His father, Anakin Skywalker, was born by the will of the force possibly to fulfill a prophecy.
· He has uncanny skills in hand to hand combat and piloting.
· He has a fantastically advanced prosthetic hand.
Han Solo also has non-human characteristics:
· He was born on the planet Corellia, presumably in another galaxy.
· He travels in the company of a large, furry, creature known as a Wookie.
· He has uncanny language skills permitting him to communicate effortlessly with a Wookie, the bounty hunter Greedo, and other non-human creatures.
· He possesses a spaceship, the Millenium Falcon, capable of violating the known laws of physics by traveling faster than light.
2. The characters are known in popular culture to be non- human aliens.
· Both characters are know to live in a distant galaxy.
· Both characters come packaged with a light saber, a fantastical weapon of alien technology.
· Both packages reference adventures on other planets.
In Toy Biz, similar characteristics were found to differentiate the character Long Shot, an otherwise human appearing character, from human beings.
3. The marketing and packaging of the characters establishes that they are not human.
· Star Wars is a world-wide popular culture phenomenon every
· Nearly adult in America can identify these characters by sight
· It is widely understood that these character live and work in another galaxy, travel between planets, battle evil tyrants who have turned to the "dark side of the force," and ultimately triumph through the good side of the force.
· This is a fantastic, unearthly fabled story, and is, following Toy Biz, sufficient to make the action figures classifiable as toys rather than dolls.
Thank You
Below are my notes for the oral argument. I lost.
May it please the Court.
The parties agree on many key facts in this case.
Galaxy recognizes that its Luke Skywalker and Han Solo action figures might, to the lay person, be viewed as dolls in the ordinary course.
Galaxy contends, however, that the facts of this case and more important, the facts of life "a long time ago, in a galaxy far away" mean that for purposes of tariff classification neither the Luke Skywalker figure nor the Han Solo figure are dolls.
The sole factual reason for this is that, despite appearances to the contrary, neither character is a human being.
The Law
The government maintains that these figures are classifiable in the eo nomine provision for dolls in HTSUS item 9502.10.40, dutiable at 12%.
However, Heading 9502 includes a limitation stating that it covers "dolls representing only human beings." Thus, if the characters are not human beings, their figures cannot be classified in 9502. This limitation must be given consideration. [Clarendon, Nootka (clams)]
Thus, the characters' human characteristics do not preclude classification in 9503.
The remaining possible classification is as other toys in 9503.49.00 (6.8%).
Toy Biz
The court has previously been asked to discern the species of fictional characters of questionable heritage.
The facts here are remarkably similar to those in Toy Biz. That case involved superhero action figures of the X-Men, Spider- Man and Fantastic Four story lines, packed in blister packs with accessories.
There, as here, Customs relied on pre-HTS cases for a broad definition of "doll" to include many variations on dolls including toys, decorative articles, and puppets, some of which included non-human characteristics (e.g., a horse and rider) [American Import] or lacked human characteristics (e.g., a torso) [R. Dakin & Co.]
But, in all of these cases, the doll represented a human being in some form. (e.g., G.I. Joe) [Hasbro]
In the conversion to the HTS, the tariff language changed. The tariff now requires that dolls represent only human beings. According to normal rules of construction, and consistent with Toy Biz, this limitation must be given effect. [Clarendon]
The Explanatory Notes to Heading 9503 state that the heading covers "toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters)."
In Toy Biz, Judge Barzilay held this limitation to mean dolls must represent "human beings as opposed to any other beings."
That means the figure, to be a doll, must be an "example" or "the embodiment" of a human being. The Luke and Han characters, although they resemble humans and have predominantly human physical characteristics, are manifestly not human.
Two arguments support finding both Luke Skywalker and Han Solo are not human and, therefore, their figures are not dolls.
o The ontological proof
o The legal proof
The Ontological Proof
A human being is a member of the human race, a member of the genus Homo, and usually Homo Sapiens. [JVC Co. Court can look to lexographic sources, technical sources, and its own understanding.]
1 U.S.C. § 8:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development.
The genus Homo evolved on this planet starting about 4.3 million years ago.
Modern humans emerged only about 200,000 years ago.
The Star Wars saga is set "a long time ago, in a galaxy far away."
The nearest galaxy to ours is the Sagittarius Dwarf a Elliptical Galaxy, which is 80,000 light years away.
For humans to have populated a galaxy far away, even in ships capable of traveling at near light speeds, they would have had to have left the earth at least 80,000 year ago at a time when our ancestors were just reaching Asia from Africa. At realistic speeds of modern spacecraft, 1.5 me million years would be needed. ml
Because Star Wars is set in the distant past, not the future, it is impossible for any human being to be present in the story line.
Thus, neither Luke Skywalker nor Han Solo can possibly be human.
The Legal Proof
Toy Biz relied upon three observations: to test
whether a figure represents a human
being for purposes of tariff classification.
1. A single non-human characteristic is sufficient to establish that the figure does not represent "only a human being."
Luke Skywalker has a number of non-human characteristics including:
· He can move objects at a distance by use of "the force"
· He can exercise remote mind control through the force
· He has no paternal grandfather. His father, Anakin Skywalker, was born by the will of the force possibly to fulfill a prophecy.
· He has uncanny skills in hand to hand combat and piloting.
· He has a fantastically advanced prosthetic hand.
Han Solo also has non-human characteristics:
· He was born on the planet Corellia, presumably in another galaxy.
· He travels in the company of a large, furry, creature known as a Wookie.
· He has uncanny language skills permitting him to communicate effortlessly with a Wookie, the bounty hunter Greedo, and other non-human creatures.
· He possesses a spaceship, the Millenium Falcon, capable of violating the known laws of physics by traveling faster than light.
2. The characters are known in popular culture to be non- human aliens.
· Both characters are know to live in a distant galaxy.
· Both characters come packaged with a light saber, a fantastical weapon of alien technology.
· Both packages reference adventures on other planets.
In Toy Biz, similar characteristics were found to differentiate the character Long Shot, an otherwise human appearing character, from human beings.
3. The marketing and packaging of the characters establishes that they are not human.
· Star Wars is a world-wide popular culture phenomenon every
· Nearly adult in America can identify these characters by sight
· It is widely understood that these character live and work in another galaxy, travel between planets, battle evil tyrants who have turned to the "dark side of the force," and ultimately triumph through the good side of the force.
· This is a fantastic, unearthly fabled story, and is, following Toy Biz, sufficient to make the action figures classifiable as toys rather than dolls.
Thank You
Comments
1. The figures have no physical characteristics that distinguish them from human beings. This is the argument based on two arms, two legs, two eyes, a mouth and a nose. He also argued that the characters were dressed in a relatively human manner.
2. This was a big problem for me: The official Star Wars web encyclopedia lists the species of both characters as human. If plaintiff (that was me) wants to accept and use every other fact from the story line, we have to accept this as well. If the Star Wars universe includes fictional aliens, it can also include fictional human beings from another galaxy.
The judge (who was a real-life federal judge) told me that if I want to live by the light saber, I will die by the light saber. Meaning, I can't pick and choose my facts.
As far as the story goes, there is no special connotation as to Hans' origins, be it human or other. So it would be up to the plaintiff to demonstrate that the original customs' filing was incorrect.
But Luke... he's the son of Anakin, who according to his mother- was concevied without the participation of another human, and therefore can very well be considered not-human!
http://en.wikipedia.org/wiki/Skywalker_family
I'm sorry you lost. It would have been very interesting to see the consequences of you winning!
Rgds
Anabel Pérez
Customs broker
Argentina
The judge could also have pointed out that the figures are likenesses of Mark Hamill and Harrison Ford. Nobody would dispute that they are not human.