Superhero Privacy Rights, Part One

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.

II. Intrusion

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.

III. Conclusion

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.

35 Responses to Superhero Privacy Rights, Part One

  1. Entertaining post!

    However, objection: I don’t have on hand McCarthy’s treatise to check, so I don’t know what’s meant by “general right of publicity or privacy statutes.” I can, though, assure the author that the right to privacy (in addition to the usual restrictions on search and seizure) is enshrined in the Louisiana constitution at Article I, Section 5.

    Since superpeople presumably need lots of protein, they can safely eat fresh Louisiana crawfish without fear of leaving their privacy protections at the state line.

    • Thank you for the correction. By general statute I meant in contrast to Arizona’s specialized statute for members of the military. McCarthy’s treatise contains very few references to Louisiana and none to the constitutional privacy provision at all. A significant omission, it would seem.

  2. I wonder if super heroes would have to bear all for the TSA scanners like us mortals: http://lawblog.legalmatch.com/2010/12/07/the-constitutionality-of-tsa-body-scanners/

    Except the flying heroes I guess, they don’t need air planes…

  3. Found your blog via the NY Times. Just a quick note to say that I think its fantastic. I look forward to your future posts. You’d make Daredevil proud.

    A fellow comic book nerd at the Nutmeg Lawyer Legal Blog.

    -Adrian

  4. I’m a comic nerd who works as an editor on Criminal Justice books for a large textbook publisher, so this blog is perfect for me. I just found this blog and love it, as do the rest of my team. I’ve wondered about the insurance thing for years, so it was amazing to read that article.

    One of the chapters I’ve been working on recently is on hearsay, and your Professor X example made the textbook so much easier to understand. It’s now my goal to have one of our authors use your blog in some way.

    The other thing I’ve wondered about is how would mutations effect custody laws. If the mutation made it difficult to prove paternity, what would happen? Let alone the question of how do you make deadbeat dads with superpowers pay child support or decide what to do for kids whose parents who live in a different universes?

    Keep up the good work!

    • Paternity is no problem even with mutations. The mutations are a relatively small part of the DNA coding and there is so much more which would be related to the biological parents that paternity would still be obvious. Unless the mutations were huge this would be easy to resolve.

  5. Superheros are used as profiles and usernames often by commentators who are enacting their personalities in blog dueling.
    This is where they are not being co-oped, but their mythology is being used in theatrical, written online performances.

  6. Pingback: Superhero Privacy Rights, Part One | Reasonable Expectation

  7. Pingback: Superhero Privacy Rights, Part One | M. Scott Koller

  8. Pingback: DYSPEPSIA GENERATION » Blog Archive » Superhero Privacy Rights, Part One

  9. I wonder about the reverse. Could a superhero be compelled by legal authorities to reveal their secret identity if the public good demanded it?

    Let’s say Lex Luthor demands Superman reveal his identity or he will destroy Metropolis with a small nuke. He’s already destroyed, say, Gotham after Superman refused, and Supes hasn’t been able to locate the second bomb or Luthor. And let’s say Superman is still not quite willing to give himself up. Does Superman retain his right to privacy in a situation where millions of lives are at stake? It would be difficult to force him to reveal his identity, of course, though I wonder if he could be legally jailed under some contempt charge if he refused, much like a journalist that refused to divulge his or her sources for a proceeding. Luthor would still be in the realm of coercion, of course.

    • It’s an interesting question. I will address the issue of the constitutional right to privacy and how the government interacts with all of this in an upcoming post in this series.

    • I think the more likely scenario where a Secret Identity would be forced to be compromised would be in court. I am no lawyer but if a super hero were forced into court, or into a congressional hearing for that matter, it is likely a defendant, judge or congressman would demand to “Face their accuser” and not talk to someone in a mask.

  10. You might consider addressing the standard of care to which we would hold Superman (and other heroes) and whether Superman owes to the world a duty at large. If he listens to someone in need, but doesn’t help them, is he liable for negligence. Or does he enjoy some sort of immunity? (similar to the Cuffy factors?)

  11. Of course, all this only applies to *offensive* intrusions into privacy, and then only when it affects the expectations of privacy a normal individual would have, right? Therefore, if a modicum of detective work (that doesn’t involve B&E or illegal wiretapping or threats, etc.) and comparison of photos of the masked hero and unmasked secret identity suffice to show that the hero and the civilian are one and the same, that’s not an offensive intrusion; and a defendant in one of these torts might well be able to argue that there *is* no reasonable expectation of being able to maintain two separate public identities, or of being allowed to have a secret bunker with customized weaponry and gadgets and vehicles (probably in violation of zoning and other laws) without anybody knowing about it.

    And then there’s the question of whether you can even bring action under one of these torts without revealing your true identity in the filing…

    • In such a case the intrusion might not be highly offensive, but there are still three more privacy torts to go in Prosser’s classification, plus a few other things to consider. The actual disclosure of the identity may well fall under one of the other causes of action.

  12. A law school buddy forwarded your blog to me. Love it. As an entertainment and intellectual property lawyer, I also think about these issues as I read my weekly stash of comics. Great to see them seriously addressed.

    One issue you do not address with regards to right of privacy is whether it applies to superheroes at all. A compelling argument can be made that the superheroes have injected themselves into the public debate to a very high degree. This will, under many circumstances, serve to nullify, or at least reduce, their privacy rights. They are more likely to have their publicity rights intact.

  13. The blog is good fun. Did you see the article about the real superheroes in Seattle?

  14. Pingback: Superhero Law Debated on New Blog « Indiana Intellectual Property & Technology Blog

  15. The 300 lb gorilla in this room is the Superhero Registration Act, the centerpiece of Marvel’s Civil War, which required Superheroes to not only register with the government but to reveal their identities and go on the government payroll.

    • Steve Rogers made the repeal of those mandatory provisions part of the price tag for accepting that federal appointment to…whatever the title of the position he currently holds in Washington is.

  16. Recovering Lawyer

    So if Daredevil lies to his law partner or girlfriend about whether he is Matt Murdock and they believe they are harmed by the lie can they sue for misrepresentation? “I wouldn’t have cosigned an office lease if I’d known that Electra would blow it up?” Or can DD assert necessity?
    Isn’t everything superheroes do subject to asserting the necessity defense? Saving the world makes that pretty compelling.

  17. Didn’t the Superhero Registration Act violate the US Constitution’s provisions against slavery and discrimination. It should have been dismissed immediately as unconstitutional. Why was this never argued in the comics?

  18. The real issue at hand here would be enforcement.

    Only someone who would be harmed would be able to file suit, and that would require them to sue under their legal name right?

    Now with the Batman Inc case it may be different, in that Bruce may be able to file, at least an IP suit, all by himself as their backer.

    But for most supers, wouldn’t suing to keep the identity secret necessarily reveal their identities?

  19. At least once recently in TV/Movies and in the comics, Superman made a business deal with Lex Luthor’s Lexcorp to license the Superman name and insignia.
    Superman, as a non-masked hero, has a plausible argument that he does not have any other identity than his Kryptonian origin. He has a place of residence (the fortress) and a means of income (occasional creations of wealth as needed, possible retainers and gifts); plus it seems implausible that the mightiest man on earth should pretend to be a normal mortal. Or so Lex Luthor is persuaded, and which Batman saw right through. He need make no assertions.
    Re: Superman hearing of those in need but not responding to them. He would be no more liable than the average television viewer of the news who refuses to send money to help starving children in Biafra or flood victims in the next state over. Or for that matter, most state laws don’t require bystanders to help those in trouble, so I understand.

  20. Pingback: Can Superman sue if Lex Luther reveals his alter-ego? « Young on Torts: A Cincinnati Lawyer's blog on torts in law and life

  21. “However, things like ripping off a superhero’s mask or demanding the answer at gunpoint likely would qualify…”

    So, if I understand you correctly, it would be OK to tug on Superman’s cape, but it would still be a mistake to pull the mask off the ol’ Lone Ranger?

    This blog is outstanding! I envision it being used as a source of entertaining examples in law school classrooms.

    • “So, if I understand you correctly, it would be OK to tug on Superman’s cape, but it would still be a mistake to pull the mask off the ol’ Lone Ranger?”

      Ha! Indeed! And spitting into the wind, while inadvisable, remains legal.

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