Superpowers as Personal Property

The superpowers of many comic book heroes and villains are often in a state of flux.  Powers can be gained, lost, used up, given away, abandoned, shared, and stolen, which sounds a lot like the attributes of property.  Comic book characters even speak of powers as though they were possessions.  Here we consider whether superpowers should be treated as personal property and the legal consequences of that view.

I. Why Property?

At first it may seem strange to view superpowers as property.  After all, we can imagine an alternative view, which is that superpowers are just extreme versions of intrinsic human abilities like a sprinter’s speed or a chess grandmaster’s intellect.  If someone intentionally cripples a sprinter, that person is liable in tort and criminal law for battery.  If someone takes away the Flash’s superspeed, why should that be treated differently?

I think the answer is that superpowers seem much more fluid and interchangeable than ordinary human abilities, and lost superpowers have a habit of returning, one way or the other.  A crippled sprinter may never run competitively again even if he or she is not permanently disabled, but powers drained by Rogue, for example, will fully return on their own after the effects of her power-draining ability wear off.

It should also be noted that viewing superpowers as property is not incompatible with also punishing the theft or involuntary loss of a superpower as a crime and tort against the person as well.  The mundane analogy might be to a person who uses a prosthesis.  Someone who forcibly took that prosthesis while the person was wearing it would be guilty of both theft and battery and liable for both conversion and battery.

II. Legal Consequences

One immediate consequence of viewing superpowers as property is that power-drainers like Rogue, Scrambler, or Leech may be liable for the tort of conversion and the crime of theft (or common law robbery, if you prefer) in addition to the tort and crime of battery for which they were likely already liable.  This would only apply to unjustified uses of the ability, of course.  Use of such powers against a willing subject or out of self-defense, defense of others, or necessity would still be justified.

But the consequences don’t stop there.  If Superman uses the power of a blue sun to bestow superpowers on another person, is that a taxable asset transfer?  Who would want to try to collect?

If two superheroes marry, share a power, then later divorce, could one be forced to give up the power during the division of assets?  Does it matter who had the power originally?  Even though the shared power may be a non-rival good, one of the two superheroes may still have a claim to exclusivity.  Perhaps the power is a trademark ability of one character, or maybe they signed a superhero pre-nuptial agreement that determined the disposition of any shared abilities.

If one superhero lends a power to another (or to a normal person), does that superhero have an implied right to its return?  In other words, is a bailment created?  I think the answer here is yes.

What about characters like Mimic that only copy the abilities of others rather than stealing or draining them?  Should there be an intellectual property-like exclusive right in superpowers?  For intrinsic abilities the answer would seem to be no, since providing such an exclusive right would not lead to the development of more or better superpowers.  But for superpowers that are the product of experimentation, subjecting oneself to dangerous radiation, etc, then perhaps there should be.  If a power-mimic can effortlessly copy a power that the original owner nearly died to gain, maybe there would be fewer superpowers produced in the first place since people would no longer think the risk worth the reward of a unique power.  On the other hand, there does not seem to be a shortage of powers in most comic book universes, so maybe the incentive is not needed.

The property rights view may also give rise to new business models.  Consider a superpowered individual who had an amazing power but who did not personally feel like becoming a superhero.  With a property right in his or her power (and the assistance of someone like Mr. M or Sage), he or she could rent it out or lease it to others who were willing to take on the responsibilities of superherodom.

III. Conclusion

There is a good argument for treating superpowers as property or at least a kind of quasi-property in many circumstances.  This treatment might lead to occasional complications, but it would also bring a lot of advantages and protections to superpowered individuals.

14 responses to “Superpowers as Personal Property

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  2. You explain that a superpower drained by Rogue may eventually return–but this is true for some mundane injuries. We don’t consider injuring a sprinter to be “taking property” just because the particular injury he got is one that he can recover from.

    As for powers like Mimic’s, I’d point out that intellectual property normally can be copied by lots of folks while the Mimic’s power is one that very few characters have. Allowing the copying of powers would not lead to fewer superpowers being produced–exactly why would someone not experiment on himself just because the Mimic might copy it? The Mimic can’t distribute the power to the public and given the need for superheroes there’s no way that the Mimic having the power makes it less useful to the original bearer. About the only thing I can think of is that if the Mimic copies the power he can’t then sell the power to the Mimic, but that loss alone cannot justify it being an intellectual property right.

    Anyway, I have some questions, unrelated to this: Superboy is a clone made from combining the genes of Superman and Luthor. Would he be legally considered their child? (Could he sue Superman for child support and does it matter that he was not conceived voluntarily?) Does the fact that he is mentally a teenager reduce the duration of support until he is mentally 18? If he’s not specifically disinherited and Luthor dies, does he get a share of the estate? For that matter, how does mental age affect his legal rights–can he sign contracts? Drive a car? Consent to sex? Can insurance companies arbitrarily decide what age he is considered to be for the purposes of paying insurance premiums?

  3. Powers are typically treated in equivocal fashions. Standard superpowers are heightened abilities that are properly considered qualities of the one who has said abilities. X-ray vision, superhearing, superbreath, and invulnerability are aspects of one’s own identity, not reified, much less exchangable, possessions. Will power, such as owned by Green Lanterns, is properly understood as a personal quality, similar to endurance or fortitude or strength, though less obvious to observers. Being able to bench press twice one’s weight, and being able to get a customer to buy your product are mundane examples of superstrength and will-power. As such, these qualities are inalienable.
    Perhaps, though, in some fictional universes, personal qualities are bestowed on the bearer, as having an ontology of their own. A child becoming bar mitzvahed might have a ceremony when “Adult Strength” and “Procreative Virtue” is bestowed upon the boy, after which he could work at an assembly line and get a girl pregnant. In such a world, superhuman personal qualities could be bestowed, as alien real goods, which may be alienated or bartered or sold.

  4. Interestingly enough, Evil Inc, a webcomic, is dealing with just such a situation in this strip and the two after it. The superhero in question can tap into the “collective unconsciousness” to gain the powers of a superhero dreamed up by another and he gets served by the lawyer of one of the dreamers.

  5. In property law, merely having an idea which is then appropriated by another person and then manifested in reality (like bringing a product to market)–such an idea is not a protected entity. One must take steps to protect one’s idea.

    However in Evil, Inc., universe, mere ideas might take on protectable status, because they have value beyond what they do in our world.

  6. I think that the new business models would be fraught with peril because of the liability that you’d assume in letting other use your super power. If I give the keys of my car to someone who is drunk, there are legal consequences. Why would it be any different if Superman gives his powers to Lex Luther? If someone ends up using his super strength to rob a bank wouldn’t Superman, Sage and the person who did the crime all be responsible?

    • Transferable tools–the Iron Man suit, the Green Lantern ring–would incur the same liabilities as armaments. Or ought to. So criminal acts with the transferable tools would be treated like those with deadly weapons, and the suppliers thereof. Superpowers have to have deadly force, after all. I suppose we would see any market in tool-based superpowers as being treated like the market of guns. There would be an extreme public reaction to putting everyone in danger by the sale of these dangerous things.
      I suppose we could have traveling “Superpowers Fairs” where you could buy Batarangs (c), IronManBoots(c), and simulated AuthenticGreenLanternRings (c) (Korean knock offs) without background checks.

  7. I recently started following the (often slightly mediocre) She-Hulk series, because I’m a woman and a 3L and unable to resist a lady lawyer superhero…Anyhow, just thought I’d note here that she actually tries to assert a claim against Tony Stark for infecting her with nanobots which robbed her of her powers. The language the issue uses is some hazy “inalienable right to powers” stuff, which casts this in a kind of substantive due process light – but there isn’t really any state action here. Your property model fits far better…

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  9. Could defining a super empowered person’s super powers as property violate the 13th Amedment, which abolished slavery, or “involuntary servitude”? The hypothetical case cited above was admittedly about VOLUNTARY transference of the power for a fee, not ” involuntary servitude.” Even so, it would surely be a violation of the 13th Amendemnent and other civil rights provisions of the Constitution to sell oneself as a slave — even if the contract stated explicitly that you were ceding all rights and converting oneself from person to property. By definition, an essential feature of a super-empowered person’s personhood would be those superpowers. If the courts allowed such a person to lease his powers for some considerable period of time, would they not be striking at the heart of an Amendment that was won at the cost of 120,000 American lives and years of agony under the lash?

  10. Being forced to give up a power if you divorce seems extreme, don’t you think? If two models marry and divorce, one of them doesn’t have to give up their good looks. If a famous person marries someone who isn’t famous, the one who isn’t famous doesn’t have to give up the fame (and benefits of it) if they divorce.

  11. I direct everyone to the recent “Quarantine” storyline in Uncanny X-Men (528-534). In it, a character called the Lobe has been able to obtain the genetic coding for specific mutant powers and come up with a pill/process that would allow people to purchase the powers. He infects the mutant population of Utopia with a super-flu in order to force Cyclops (as defacto leader/CEO of the mutant population) to sign a waiver to their rights to the intellectual property of their powers (protecting the Lobe’s company from lawsuit for distributing the powers).
    In this regard, superpowers can be viewed as property, akin to Monsanto’s patents on the genetic sequence of certain seeds. Providing you can understand the coding that gives an individual their power, I do not see the problem in viewing any superpower as property.

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