We’ve got some great issues for the mailbag this week, including immortality and copyright and Bizarro, court translators, and competency. As always, if you have questions or post suggestions, please send them to email@example.com and firstname.lastname@example.org or leave them in the comments.
I. Immortality and Copyright
Tony asks about the potential effect of immortal beings on copyright. We talked about some related issues here, and specifically addressed this issue in brief.
In comic books the issue is not just long-lived or immortal characters like Wolverine, but in fact most characters seem not to age much, and in the rare event they do die they usually don’t stay dead. So the ‘life of the creator plus 70 years’ term is effectively eternal for most superheroes.
As to the bit about the Constitution, well, the Supreme Court considered what ‘limited Times’ means in Eldred v. Ashcroft, 537 U.S. 186 (2003). In a 7-2 decision the Court pretty firmly held that, so long as the copyright term is finite (i.e. literally not infinite), then Congress may set the term as it pleases, including extending the term of existing works retroactively.
I don’t think even an apparently immortal character like Wolverine would upset the Court’s analysis because immortality isn’t really provable. Once someone dies you can say “yep, they were mortal alright,” but as long as someone is alive they are potentially immortal. As the joke goes: “I plan to live forever. So far, so good.” So while Wolverine is expected to live effectively forever, no one can actually say for sure if he will (well, maybe The Watcher could, but he probably won’t).”
Even in the face of people who had demonstrably lived for hundreds or even thousands of years, the Court might still hold that there are adequate measures available to ensure that works are not locked up in the hands of immortal artists. For example, the government can take a compulsory license to any copyrighted work for itself and pay only a reasonable royalty. Or it could simply invoke the Takings Clause and put the work in the public domain, though again it would have to pay fair value. These might be considered sufficient “safety valves” in the rare case that an immortal artist tries to maintain copyright for an unconstitutionally long time.
One might be tempted to have different terms depending on the apparent immortal status of the creator using their age as a proxy. So, for example, if someone has lived to an extreme old age that suggests some kind of unnatural longevity (e.g. 150 years or so), then their copyright term might be different, perhaps the corporate authorship term of 95 years from publication or 120 years from creation could be used. And indeed ordinarily discrimination on the basis of age is permissible. “States may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest.” Kimel v. Florida Bd. of Regents, 528 US 62, 83 (2000). However, part of the rationale for that classification is that “old age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it.” Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314-14 (1976) (per curiam). That reliance on the normal life span breaks down when talking about immortal beings, since the “normal life span” definitely does not reach into the hundreds or thousands of years.
Frankly, though, it’s likely the Court would refuse to address the issue on ripeness grounds until an immortal-owned work had been under copyright for a longer period than any non-immortal-owned work, which might take a while. Until that point there isn’t a real case or controversy.
II. Bizarro, Court Translators, and Competency
Keith asks whether or not Bizarro would be afforded a translator in court. To the extent that a translator, i.e. one who understands and can communicate in two languages, is necessary, an effort would be made to find one and a Due Process issue would exist if one could not be found. But it’s debatable as to whether or not one would actually be necessary. Bizarro speaks some version of English and to the extent that he has difficulty understanding and communicating with other characters, this has less to do with not being fluent in English than with his overall low intelligence. This isn’t necessarily something courts go out of their way to accommodate, but even so what would be needed is less translation than explanation.
It is possible, though, that a court would decide that because of Bizarro’s low intelligence he can’t adequately participate in his own defense if he is required to translate for himself. Translating from Bizarro Speak to English is a little hard for normal people, and it may be a bit too much to expect Bizarro to go the other direction, given his low intelligence. A court may also decide that it’s sufficient for Bizarro’s (quite possibly court-appointed) attorney to handle the translation / explanation rather than appointing a dedicated translator. After all, it’s not like there are a lot of professional Bizarro translators out there, so the attorney would likely do as good a job as anybody.
There’s a related issue of competency, i.e. would Bizarro be judged fit to stand trial at all? The answer here is probably “yes.” Dumb as Bizarro and his fellow Bizzaro-World dwellers may be, they do demonstrate some understanding of how Earthly society works and maintain some level of organized civilization on their own world. When courts find that defendants are unfit to stand trial they are normally looking for evidence that the defendant does not actually understand that they are in court and have been charged with a crime. Bizarro might not have a detailed understanding of how Earth courts work (and the whole proceeding may seem manifestly unjust to him), but there doesn’t seem to be any indication that he’d have trouble understanding what they do.
In short: Bizarro might need a translator but would probably be adjudicated fit to stand trial whether he needed a translator or not.
That’s all for this week. Stay tuned for more on Monday!