Monthly Archives: January 2011

Superpowered Merchandising, Part One

This is a follow-on from our series on superhero privacy rights.  In this series we’ll be looking at how superheroes (and maybe supervillains) could control the use of their image through copyright and trademarks.  We’ll begin with copyright.

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Law and the Multiverse Mailbag V

In today’s mailbag we have questions about superhero product endorsements and the Green Lantern Corps.  As always, if you have questions or post suggestions, please send them to and or leave them in the comments.

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Superhero Spouses

This post was inspired by an email from Andy, who wanted to know how the law affects the spouses of superheroes, who may or may not be superheroes themselves.  We’ve previously touched on how the surviving spouse of a deceased superhero could collect life insurance or inheritance without giving away the superhero’s secret identity (short version: wait the prescribed number of years, have the spouse declared dead, and then collect).  But there are other issues affecting married superheroes.  For example, maybe a superhero can’t be compelled to testify as to his or her secret identity, but could the superhero’s spouse?

You may have heard of something called the spousal privilege, spousal immunity, or the marital privilege. Here we’re talking about the marital privilege, which protects confidential communications between spouses.  This is separate from spousal immunity, which allows a person to refuse to testify against his or her spouse in a criminal case.  We’re not quite so interested in spousal immunity because generally superheroes testify against villains; superheroes are rarely criminal defendants themselves (though there are exceptions).

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Supervillains and Competency

Last week we addressed the issue of whether or not supervillains could successfully employ the insanity defense in their criminal prosecutions. The answer we came up with was “It depends, but frequently not.”

This week we’re going to look at the issue of competence, which is a related but different matter. In short, while the insanity defense can turn a verdict from guilty into not, an incompetent defendant can’t go to trial at all, usually resulting in their commitment to a mental facility until such time as they are able to do so.

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Superhero Privacy Rights, Part Four

In the first three installments of this series, we discussed the invasion of privacy torts of intrusion, disclosure, and appropriation, as well as the closely related right of publicity.  Here we’ll round out our discussion of privacy with the tort of false light invasion of privacy and the related defamation torts of libel and slander.  In an upcoming related series, we’ll talk about how superheroes can use copyright and trademark law to manage the use of their name and likeness.

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Superheroes, the Duty to Rescue, and Negligence

A reader (hi Dad!) has asked about whether a superhero can be sued for not coming to the rescue. This is actually a good opportunity to talk about a few points of tort law that we haven’t covered yet. These include the concept of a duty to rescue and the standard of care in rescue situations. We’ll also talk a bit about the way the law tends to view issues of causation.

Note that we’re talking in the abstract here; specific states will interpret and apply these doctrines differently.

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Law and the Multiverse Mailbag IV

This week we look at sovereign immunity related to escapees from Arkham Asylum, liability for crimes against shapeshifters, and the possibility of non-consensual cloning. As always, if you have questions or post suggestions, please send them to and or leave them in the comments.

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Non-Human Intelligences II: Existing Law

Last week we started the conversation about non-human intelligences, mostly by examining the historical reasons why humans have been treated differently by the legal system for pretty much as long as it’s existed. We also looked at some of the philosophical problems involved in coming up with some kind of bright-line rule for deciding what gets counted as a person and what doesn’t.

This time we’re going to look at some of the law that would probably get a workout if a non-human ever sued for the violation of its alleged civil rights (or someone brought suit on its behalf).

Before we start, we’ll again set the parameters of the problem we’re examining. A fictional legislature could, in its wisdom, simply pass a law granting various rights to, e.g, Kryptonians, at least as far as the Constitution would allow. Or a constitutional amendment could be ratified that says Kryptonians count as people for all legal purposes. Thing is, it’s all well and good to pass a law giving a certain species (e.g. Kryptonians) status as persons, but what if the legislature or the constitutional convention wanted to draft a more all-encompassing rule so they wouldn’t have to do it every time we ran across a new intelligent species? Then we’re back to square one. So that’s not the issue here. The issue here is whether there is a judicially workable way to include non-human intelligences in our concept of a person without invoking the political branches, i.e. the executive and the legislature.

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Interview at The Beat

James and Ryan were interviewed for The Beat, the News Blog of Comics Culture.  Our interviewer, Jen Vaughn, also created our superhero portraits, which are featured in the interview and on our About page.

The Trial (And Appeal) of Marvel Boy

This post was inspired by an email from Rebecca, who writes: “In The New Warriors comic [Vol1. No. 20-26], Vance Astrovik [aka Marvel Boy] accidentally killed his abusive father using his telekinetic powers.  He was tried for first degree murder and negligent homicide; he was acquitted of the former and convicted of the latter. Vance did not appeal the conviction, but do you think he would have been successful if he did?”

This is a great question.  Not only can we look at some important issues in criminal law and procedure, but this also gives us a chance to look at how appeals work.  The most important thing to understand about an appeal is that it is not a do-over before a higher court; there are important and often severe limitations on what issues and evidence can be presented on appeal, and the appeals court is itself limited in what it can do and on what basis it can do it.  Since the case occurred in New York in 1992 we will try to analyze it from that point of view.  But let’s start with the facts of the case.

I. The Facts

In case you don’t remember the details of this 18-year-old storyline, the facts are basically these: Vance Astrovik had been physically abused by his father, Arnold, for four years.  Arnold was evidently motivated by hatred of Vance’s mutant status and his tendency to hang out with other mutants.  The one time his mother, Norma, attempted to intervene, Arnold struck her as well.  On at least one occasion, Vance used his telekinetic powers to resist an attack from Arnold without harming him.

After being severely injured in fights with Terrax and Gideon, Vance is attacked by his father, who punches him to the floor and approaches him menacingly, saying “You are a freak!  It’s going to stop–if I have to pound it out of you…”  At that point, Vance unleashes a telekinetic blast, pushing his father through two walls, severely injuring him.  Vance flees the scene.

Later, Vance comes to the hospital where his father is being reated.  There he is arrested for “assault with a deadly weapon–your telekinetic powers, to be exact!” (Note that this suggests that, in the Marvel universe, innate offensive powers are considered weapons, which may have significant legal consequences).  After Vance’s arrest, Arnold dies from his injuries, and the charges are upgraded to murder.

So far everything is legally sound.  There is a reasonable theory for treating innate offensive powers as weapons, and while the prosecutor had a wide range of possible charges she could bring, she has discretion to choose among them.  It would also be appropriate to upgrade the charge to murder after the victim died, so long as the defendant’s attack was still the proximate cause of death (and in this case it was).  This brings us to the trial.

II. The Trial

Most of the New Warriors leave town during the trial for a mission.  Firestar stays behind to testify on the theory that testimony from any of the others would be excludable as cumulative.  See People v. Ventimiglia, 52 N.Y.2d 350 (Ct. App. N.Y. 1981).  That’s a reasonable theory, though it depends on the testimony they had to offer being, in fact, cumulative.  While the testimony the state might want from them could be cumulative (e.g. it’s may be sufficient that only one say that Vance could have stopped his father without resorting to deadly force), the defense would likely want to pile as many positive character witnesses on as it could.  So Vance’s teammates weren’t doing him any favors by taking off.

Vance is represented by Foggy Nelson, a partner in Matt Murdock’s law firm.  Right off the bat, Foggy dismisses two potential jurors who had prior interactions with superheroes.  Presumably their interactions were negative.

The first witness called is an expert on superhuman genetics, Walter Rosen, who was familiar with Vance’s powers.  Rosen testified that Vance had excellent control over his powers and had grown in his abilities over time.  The defense then addressed the witness, who testified that Vance was averse to injuring others, had not injured anyone to the witness’s knowledge, and had tried to save lives and prevent injuries often at risk to himself.  Classic character witness stuff.

The next witness is Firestar, who testifies as Firestar and in her identity-concealing costume, which poses legal issues of its own.  This suggests that either the Marvel universe gives superheroes leeway to testify in costume or that the prosecutor didn’t want to push the issue, lest she lose her witness.  In this case, the defense was also unlikely to object to the witness’s costume and use of an alias.

In any event, Firestar reluctantly testifies that Vance could have stopped his father without resorting to deadly force.  This is curious, since she had no personal knowledge of Vance’s altercation with his father, but the question is not objected to (although Foggy does object to other questions on occasion).  This ends the prosecution’s case in chief.  It’s very strange that the prosecution did not itself call Vance’s mother, the only witness to the actual events that the prosecution could call, since Vance is protected by the Fifth Amendment and the victim is deceased.  But moving on…

The next witness is Ben Grimm, who testifies to Vance’s good character but also his ability to use his powers to prevent people from getting hurt.  After that, the defense calls Vance’s mother, who testifies about Arnold’s history of abuse.  On cross-examination she testifies that Vance had stopped his father once with his powers and that he could’ve stopped his father without killing him.  This ends the defense’s case.

During closing arguments, the defense emphasizes Vance’s good and caring nature and argues that Vance acted in self-defense.  The prosecution argues that Vance had the ability to stop his father without harming him.  To prove the point, the prosecutor pulls out a pistol, aims it at Vance, and fires it.  Vance uses his powers to capture not only the pistol (revealed to be a cap gun) but even the very smoke from the cap gun.  The defense demands a mistrial, and the judge denies the motion but hints that grounds for an appeal exist.  This is not completely unreasonable; despite the prosecution’s antics, judges are loathe to declare a mistrial, especially so close to the end of the trial, since it means an enormous waste of resources.

Curiously, the judge does not give the jury any instructions, which is odd because those are ordinarily an essential part of the trial, but we’re willing to give the comic book authors a pass on this, since jury instructions are usually very, very boring and technical. We’ll assume appropriate jury instructions were given.

In the end, the jury finds Vance not guilty of first degree murder but guilty of negligent homicide.  He is sentenced to fourteen months to three years in The Vault.  Curiously, Foggy suggests an appeal but not post-trial motions such as a motion to vacate the judgment or to set aside the sentence.  Vance declines to appeal and resigns himself to his sentence, but what if he had followed Foggy’s advice and appealed his conviction?

III.  A Little Appellate Procedure

Now some background on how appeals work. (Note: this is a little dry, so if you want to gloss over the legal details and get to the good part, skip to Section IV, or just check Wikipedia on the subject).

There are a lot of issues we’re going to gloss over (e.g., appellate jurisdiction, waiver, harmless vs. reversible error), but we’re going to go into a little detail about the idea of standard of review.  That is, even if an appeals court will consider an alleged error, how bad does it have to be in order for the court to reverse it?  In general, appeals courts are reluctant to address issues that were waived or forfeited, and they are also reluctant to disturb jury verdicts.  In New York, where this case took place, there is a two part test for overturning a jury verdict: legal sufficiency and weight of the evidence.

Legal sufficiency is defined in New York thus: “For a court to conclude…that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. If that is satisfied, then the verdict will be upheld by the intermediate appellate court on that review basis.” People v. Bleakley, 69 N.Y.2d 490, 495 (Ct. App. N.Y. 1987).

And weight of the evidence is defined thus: “the appellate court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict. Empowered with this unique factual review, intermediate appellate courts have been careful not to substitute themselves for the jury. Great deference is accorded to the factfinder’s opportunity to view the witnesses, hear the testimony and observe demeanor.” Id.

IV. The (Hypothetical) Appeal

With all of this background in mind, how might the appeal have gone?  Well, assuming the issues were property preserved, here’s what Foggy might have argued.

First, there was insufficient evidence to convict Vance of negligent homicide.  New York defines criminally negligent homicide thus: “A  person  is  guilty  of  criminally  negligent  homicide  when, with criminal negligence, he causes the death of another person.”  N.Y. Penal Law § 125.10. Not very helpful on its own; we need the definition of criminal negligence:

A person acts with criminal negligence  with respect to a result or to a circumstance described by a statute defining an  offense  when  he  fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance  exists.  The  risk  must  be of such nature and degree that the failure to perceive it constitutes  a  gross  deviation  from  the  standard  of  care  that  a reasonable person would observe in the situation.

N.Y. Penal Law § 15.05.  The key here is the second sentence.  The prosecution offered essentially no evidence that Vance’s telekinetic blast was a “gross deviation from the standard of care that a reasonable person would observe in the situation,” given that the situation was one of a heavily injured young adult being beaten by a grown man with no help in sight.  Vance’s blast may have been more than strictly necessary to end the confrontation, but there was no evidence that it was a gross deviation from what a reasonable person would have done in the heat of the moment.

But failing that, there is the issue of self-defense.  The prosecution focused heavily on whether Vance could have used less force to stop his father.  This makes a certain amount of sense because New York defines self-defense thus:

A  person  may,  subject to the provisions of subdivision two, use physical force upon another person when and to the  extent he or she
reasonably believes such to be necessary to defend himself, herself or a third  person  from  what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person

N.Y. Penal Law § 35.15(1).  Here the issue is whether Vance reasonably believed his violent telekinetic blast was necessary, which basically means whether the jury thought it was reasonable.  And the prosecution argued that no, it was not, since he could have used less force.  But there are special rules for the use of deadly force in self-defense:

A  person  may  not  use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is  using  or about  to use  deadly  physical  force. Even in such case, however, the actor may not use deadly physical force if he or she  knows  that  with complete  personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is  under  no duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor

N.Y. Penal Law § 35.15(2).  In this case, Vance was in his house and he was not the initial aggressor, so he had no duty to retreat.  Thus, he could use deadly force if he reasonably believed that his father was about to use deadly physical force, even if he could also have used less force.  There is a good argument to be made that such a belief would have been reasonable: Vance was already severely injured, his father had struck him quite forcefully already, his father had him pinned, his father had announced his extremely violent intentions, and there was no help in sight.  That’s pretty compelling stuff.

The problem here, however, is that Foggy didn’t really develop these issues at trial, apart from an oblique mention of self-defense in his closing argument.  The jury would likely have been given instructions related to self-defense, but without solid testimony or other evidence to support it, the jury could reasonably conclude that the weight of the evidence favored the prosecution beyond a reasonable doubt.  The appellate court is under no obligation to make up for the defense’s mistakes.

V. Conclusion

It’s hard to say for sure what an appellate court would make of this case.  The prosecution’s case was a little weak, and there were strong arguments for self-defense.  Unfortunately, Foggy didn’t do such a hot job as Vance’s defense attorney, so the case wasn’t set up for appeal very well.  However, it’s a comic book, and we could just as easily assume that Foggy actually filled in all the gaps but the writers omitted the minutiae for the sake of storytelling.  Still, the Marvel universe is somewhat hostile to mutants, and appellate court judges are not immune to bias.  Ultimately, Vance likely had decent chances on appeal, probably better than most criminal defendants.

(And in case we sound a bit down on the writers, we should add that the legal elements are on par with a typical episode of Law & Order.  They didn’t do a perfect job, but it could have been much worse.)