In the real world comic book characters and their likenesses have been made into toys, video games, movies, television shows, lunchboxes, bed sheets, and innumerable other things. All of these secondary uses are mediated through intellectual property rights, particularly copyright and trademark rights. But if Superman were a real person, how might the situation be different? Could just anyone slap his image or iconic S shield on a lunchbox? What about uses that suggest that Superman endorses a product or service? (“Try Metropolis Brewery Beer, the choice of the Man of Steel!”) Or worse, what about revealing a superhero’s secret identity?
I. The Rights of Publicity and Privacy
Future posts will address copyright and trademark, but first we must address something that real people have that fictional characters do not: the rights of publicity and privacy. Unlike copyright and trademark, these rights are not intellectual property rights per se but rather rights derived from common law torts. In the United States the rights of publicity and privacy are primarily matters of state law. As you might imagine, much of the law is driven by the interplay between celebrities and the media, and the two states with the most well-developed case law are California and New York, although those are not the only states with right of publicity statutes. Nineteen states have general right of publicity or privacy statutes (CA, FL, IL, IN, KY, MA, NB, NV, NY, OH, OK, PA, RI, TN, TX, UT, VA, WA, WI). J. Thomas McCarthy, 1 Rights of Publicity & Privacy § 6:8 (2d ed.). Arizona has a specialized statute that applies to active and former members of the US armed forces, which may be useful for the many superheroes that are or were part of the military. Ariz. Rev. Stat. § 12-761.
The states that lack privacy or publicity statutes at least recognize the common law torts related to the right of privacy. McCarthy § 6:2. Usually this takes the form of Prosser’s four privacy torts of intrusion, disclosure, false light, and appropriation. See William Prosser, Privacy, 48 Calif. L. Rev. 383 (1960). This post will consider intrusion, and the others will be addressed in future posts.
For this series we will primarily consider the common law of privacy. Only a minority of states have statutes, and they vary widely in their nature and scope. Even the six states that modeled their statute after New York’s refer to it only loosely. See, e.g., Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 747 (1980) (noting that “The statutory scheme of Massachusetts differs from that of New York.”). Since fully addressing the patchwork of privacy laws around the country could fill a book (and has), the common law approach lets us speak in general terms.
Prosser described intrusion as “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.” Prosser at 389. This has been described as “the right to be left alone.” Humphers v. First Interstate Bank, 298 Or. 706, 714 (1985) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 117, at 851 (5th ed 1984)). For a more precise definition we can turn to the Restatement (Second) of Torts, which gives three elements: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff’s solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person. See Mauri v. Smith, 324 Or. 476, 483 (1996) (applying the Restatement definition). Note that “intrusion into solitude appears to be based on the manner in which a defendant obtains information, and not what a defendant later does with the information, which is covered by the public-disclosure-of-private-facts branch.” Fernandez-Wells v. Beauvais, 127 N.M. 487, 491 (Ct. App. N.M. 1999).
From a superhero’s point of view, the main issues here are intrusion into his or her secret identity and secret headquarters, if applicable. The latter case is squarely within the scope of the tort (physical intrusion into a home or office is a classic example of the tort), so let’s focus on the issue of secret identity. In particular, does a superhero’s secret identity fall under the scope of the second element? And when we say “reasonable person” do we mean a reasonable regular person or a reasonable superhero, or does it matter?
The answer to the first question is probably yes. Courts have held that the right to privacy includes psychological & emotional solitude and the intrusion can occur in a public place. See, e.g., Phillips v. Smalley Maintenance Svcs, Inc., 435 So.2d 705, 711 (Ala. 1983) (holding “one’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” and “the ‘wrongful intrusion’ privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature”). As the definition states, the intrusion need not be directly physical and can include demands and threats. Phillips, 435 So.2d at 711.
The answer to the second question is that the offensiveness of the intrusion is judged by the standard of an ordinary, reasonable person, not a superhero. Prosser at 397. Further, “the intrusion must be of such a character as would shock the ordinary person to the point of emotional distress.” Roe ex rel. Roe v. Heap, 2004-Ohio-2504, 2004 WL 1109849 (Ohio Ct. App. 10th Dist. Franklin County 2004).
Taking all of that together, I think we can see that the intrusion would have to be pretty severe. Merely asking about or even forcifully demanding to know a superhero’s identity would probably not “shock the ordinary person to the point of emotional distress.” However, things like ripping off a superhero’s mask or demanding the answer at gunpoint likely would qualify, even if the superhero was impervious to bullets (remember the ordinary person standard). One way to consider it is: would an ordinary, reasonable person feel coerced into giving up his or her secret identity? Given the danger posed to a superhero and his or her family by exposure, such coercion would cause severe emotional distress.
Or consider the situation in The Dark Knight, where the Joker puts pressure on Batman to reveal his true identity by threatening not only Rachel Dawes, but random civilians. It is not hard to argue that a public figure of the sort that Batman had become in the film would reasonably feel coerced–Wayne would have revealed himself if Dent had not stepped in–by a threat like that one. So if anything, the unusual situation most superheros find themselves in, particularly those who are more-or-less explicitly dedicated to public service, the range of potential coercion adequate to ground such a tort would appear to be quite broad.
Even more, the scope of this tort is not limited to supervillains. A sub-plot of the movie involved a consultant threatening to go public with Batman’s real identity. While the Joker probably wouldn’t care all that much about being served with a civil lawsuit (Any volunteers for that job? No?), trying to blackmail someone like Bruce Wayne by threatening to go public is a spectacularly bad idea even aside from the “do-you-really-want-to-blackmail-Batman?” bit.
However, even if the assailant did not learn the secret identity or, if it were learned, did not disclose it, the elements of the tort would still be met because intrusion is distinct from disclosure. And even if the acts occurred in public, they would still be tortious because intrusion is not limited to particular physical places.
The intrusion form of invasion of privacy likely protects superheroes from highly offensive intrusion into their secret identities and headquarters, but not from more casual inquiries. Villains should think twice before demanding that Batman take off that mask.