Monthly Archives: April 2011

Mailbag for April 29, 2011

[Be sure to read the update to this post in Law and the Multiverse Retcon #1!]

We have another intellectual property question this week, this time about gene patents and Spider-Man.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

@MrCrumley on Twitter asks: “Have you dealt w/ Spider-Man’s genetically modified dna & the similarities to Monsanto’s suits regarding GM corn?”  Here, MrCrumley is asking about Spider-Man’s origin in the 2002 film, in which he gains his powers from a genetically engineered spider’s bite rather than the traditional radioactive one.  There are a few different issues to consider here, including the patentability of genetically engineered organisms and the nature of gene patents.  First, a brief bit of factual background.

I. Monsanto and GM Crops

For those who don’t know, Monsanto is a large agricultural biotechnology company.  (As it happens the company’s headquarters is about two miles from James’s house).  In particular, it manufactures a wide variety of genetically engineered crops, herbicides, and especially crops that are resistant to those herbicides, thus allowing farmers to spray the herbicides on the crops, killing only the undesirable weeds.

Monsanto requires farmers who buy its seeds to sign an agreement that the farmers will not save and replant seeds from the patented crops, and Monsanto is not afraid to sue farmers who violate that agreement.  The company has sued 145 farmers in the United States, and 11 of those suits went to trial, each time ending in Monsanto’s favor.  This is somewhat unusual because patent infringement cases are generally filed against businesses rather than individual end users.

Perhaps the most controversial Monsanto case occurred in Canada: Monsanto Canada, Inc. v. Schmeiser1 S.C.R. 902 (2004).  In that case, the defendant farmer alleged that genetically engineered canola seeds had simply blown onto his fields, and so his subsequent saving and replanting of seeds should not be considered patent infringement.  Specifically, he argued that planting the seeds did not amount to an infringing use of the patented cells and genes.  The Supreme Court of Canada held otherwise.  However, we will focus on US law here.

The question, then, is this: assuming that the genetically engineered spiders were covered by one or more patents, could Spider-Man infringe those patents?

II. The Patentability of Genes and Genetically Modified Organisms

A threshold question is what, exactly, do we mean when we say that the spiders are covered by one or more patents.  People often talk about “gene patents,” but what exactly are they?  In the United States there are two main kinds of claims in gene patents: claims to genetically modified organisms and claims to DNA or proteins produced by DNA.

We should first note that the patentability of DNA sequences is currently the subject of a federal lawsuit, Ass’n for Molecular Pathology v. USPTO702 F.Supp.2d 181 (S.D.N.Y 2010) (presently on appeal to the Federal Circuit).  The suit could potentially invalidate all patents claiming an unaltered genetic sequence (i.e. a sequence as it appears in nature, even if the patent claims isolated, purified DNA).

The validity of claims to genetically modified organisms was first recognized in the landmark case Diamond v. Chakrabarty, 447 U.S. 303 (1980).  Although the Chakrabarty case involved a genetically modified bacterium, the Patent Office and the courts have subsequently recognized the validity of patents claiming multi-cellular organisms, including animals.  So presumably a genetically modified spider could be patented.  However, a human couldn’t infringe claims to a genetically modified spider, since, well, a human is not a spider.

So what about claims to the DNA itself?  Claims to DNA generally take the form of “Purified and isolated DNA, wherein the DNA molecule has a nucleotide sequence as set forth in Fig. 1″ or “A purified and isolated protein, as an expression product of a transformed host cell containing a DNA molecule coding for the protein, the DNA molecule having a nucleotide sequence as set forth in Fig. 1.”  As you can see, these kinds of claims require a purified, isolated form of DNA, which is not the natural state for DNA in the body, and so Spider-Man wouldn’t infringe such a claim.

Even the second example, a purified and isolated protein (such as the proteins that make up spider silk), wouldn’t apply because spider silk is made up of several proteins.  But one could imagine a patent claiming spider silk produced by a genetically modified organism having a particular DNA sequence.  In fact, a patent application claiming a genetically modified silkworm that produces spider silk was filed in 2010.  So could a patent like that spell trouble for Spider-Man?

We think not.  The patent would likely have to claim a genetically modified spider or another specific organism (e.g. a silkworm or, believe it or not, a goat), which of course would not apply to a human.  A patent that tried to claim a broad class of organisms (e.g. mammals) modified to produce spider silk would be invalid for lack of enablement unless the patent “contain[ed] a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.”  35 USC 112.  Since genetic engineering is a fairly complex and difficult process, it is unlikely that a patent could describe a general process for modifying organisms to produce spider silk.

The only way Spider-Man could infringe the patent, then, is if it specifically claimed and described a genetically modified human that produced spider silk.  There is no evidence, however, that the scientists in the movie had developed a way to modify a human in that way, and furthermore it is likely that the Fifth and Fourteenth amendments would forbid claims that covered genetically modified humans.  Just for starters, a patent could not grant someone the right to exclude another human from reproducing because the Constitution protects “personal decisions relating to … procreation.”  Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992).  There would be other problems with, e.g, the unavoidability of infringement, since it would be difficult or impossible to cease infringing.

III. Conclusion

Spider-Man is almost certainly safe from a patent infringement suit.  Either the patents simply wouldn’t cover him or, if they did, they would be invalid for doing so.  This same analysis applies to pretty much any superpowered character whose abilities come from genetic mutations or modifications.  While gene patents may be controversial for many reasons, the threat of lawsuits against superheroes isn’t one of them.

That’s it for this week.  Keep your questions coming in!

Superman’s Citizenship

So it’s come out that Superman will apparently be renouncing his United States citizenship in an upcoming Action Comics. This has generated a certain amount of buzz and sent people to this post from back in December.

But renunciation is a slightly different question, and one worth talking about. Turns out that you can, in fact, renounce your citizenship. 8 U.S.C. § 1481 governs the voluntary renunciation of citizenship through a variety of ways, e.g. taking up arms with a foreign government or committing treason, but also by simply making a statement to that effect to an appropriate diplomatic officer. It’s not nearly as hard as it might be. The State Department actually has a page on it.

But Superman renouncing his citizenship is a little more complicated than you or I doing so. At one point, he was an honorary citizen of every country in the world–which would seem to alleviate a lot of his justification for doing so now–but that may have been pre-Crisis, so its current canonicity is open to question. More than that though, what effect, if any, does Superman’s renunciation have on Clark Kent’s citizenship? Now we start to run into some of the problems of maintaining a dual and/or secret identity. We’ve talked about this at some length here and here. Kent is just a regular guy as far as anybody can tell. Not only does it seem a bit hypocritical to renounce citizenship with the persona that isn’t actually tied to a permanent address while maintaining one’s mundane existence, but flipping back and forth between the two could be problematic, not only logistically, but in a kind of “now you see it, now you don’t” kind of thing with legal rights, duties, and privileges.

All in all, it should be fun to see where DC intends to go with this in and of itself, but it’ll be even more fun to see if they get the legal aspects right.

Time to hit up your local comic book store…

Marvel Civil War I: Meta-Post

The Marvel Civil War event of 2006-2007 is a story which is perhaps the most sustained look at the legal environment of a comic book world to date. For those who aren’t familiar with it, let’s just say the event was… controversial. As such, it is a natural topic for Law and the Multiverse. We’re going to start out by looking at some of the more “meta” issues of the event, i.e. the difficulties that can arise when dealing with real law in more than a passing way in fictional worlds.

I. Common law systems and precedent

The issue here is that legal systems, particularly common law systems based on case law and precedent, develop naturally with events. Legislation is usually slow and sporadic, so frequently the courts are where new factual scenarios are tested out. The courts apply existing law to new factual scenarios all the time, and in a common law system the result is often new law.

The problem here is that even allowing for retcons and comic book time, by the time Civil War hit the Marvel Universe had existed for decades. The legal system doesn’t move quickly, and it’s plausible that Congress might not have taken any action to regulate superheroes until then, but it’s significantly less plausible for the courts not to have taken notice. Someone was going to try to sue Iron Man, the X-Men, the Fantastic Four, or any number of wealthy supervillains at some point, quite possibly subrogating insurance companies. These cases would create a body of superhuman/metahuman law.

But no such body of law is in evidence. Part of what makes the She-Hulk comics so much fun is that they operate under the assumption that the issues raised in the stories are issues of first impression. But they aren’t, or at least can’t realistically be. Maybe they would have been in 1966, but not in 2006. Heck, many lawyers don’t really like citing cases more than about twenty years old, simply because the law develops quickly enough to make most cases older than that of suspect value. So the idea that the Superhero Registration Act is somehow breaking new ground and introducing ideas which have never been handled before is problematic, particularly because the legal system would have had a chance to deal with many of these issues individually over time rather than trying to deal with it all at once via legislation. There’s messiness there that hurts the internal coherence of the story.

II. Legal drafting and continuity

But perhaps the biggest problem is that the Marvel bullpen never really seems to have decided 1) whether or not the Act was a good thing (Millar seems to have thought so, but a lot of the other writers seem to have other opinions. See Amazing Spider-Man # 530 for a truly lovely meta-textual spat), but more importantly 2) what the Act actually says.

Because believe it or not, what a given law actually says makes a big difference.  Most judges are pretty big on deferring to the legislature, and they do that by paying very close attention to exactly how a law is worded.  Similarly, the executive branch has to follow wording of the laws: if a bill says that it will be enforced by Agency X, then the President can’t decide to have Agency Y do it instead.  This is one reason lobbyists spend their money getting single paragraphs inserted into bills and why it’s so scary that our elected officials on both sides of the aisle tend to vote on bills they have absolutely no intention of reading.

In this particular case, it makes a huge difference both for the motivation of the characters and for the ultimate moral of the story as to whether the Act requires superhumans to go public or not, whether they are required to be federal employees or not, whether a super-powered individual who promises not to use their powers is required to register, etc. All of these make a huge difference and are hotly debated among the characters, which makes the whole thing feel more like the health care debate before the law was passed rather than any two sides discussing something which is already law, i.e. the disagreements often read like they’re about what ought to be, not about what is. This is kind of hard to avoid in fiction, particularly speculative fiction written by over half a dozen authors, but a little editorial discipline could have made the whole thing a lot more compelling.

For example: in What If? Civil War, the writers examine what would have happened if Tony Stark had been honest with Captain America at the beginning of the conflict instead of using treachery. The suggestion is that Cap would have agreed to become the head of the executive agency in charge of superhuman registration instead of Stark, and the difference in personal leadership would have made a big difference in the outcome. This is plausible enough; cabinet-level officials can and do have huge effects on the activities of executive agencies. But there isn’t that much indication in the canon Civil War stories that this is how the law was supposed to be implemented. The main Civil War stories basically make it look like it’s largely a S.H.I.E.L.D. operation with support from law enforcement and the military, not the creation of an entirely new agency.

More generally speaking, this is probably why most speculative fiction doesn’t spend a lot of time working out fictional worlds’ legal systems to any great level of detail, i.e. the devil is in the details, and if readers want extended discussion of the niceties of statutory interpretation and administrative law they can go to law school. Any sufficiently detailed legal system is going to take so much time and space to explain that the authors would never get around to telling an actual story. So while it’s disappointing that the Marvel authors didn’t make some effort at coming up with at least the basics of what the SHRA was supposed to do, one can see why they might have chosen not to. And one can also see why tangential interaction with the law, particularly for comic effect, can be a lot more effective than an attempt to deeply integrate the law as a plot device in speculative fiction. It’s hard enough to do in realistic fiction.

III. Conclusion

Hopefully, that lays out something of the groundwork and fundamental meta-type issues with the Marvel Civil War event. We’ll take a closer look at the actual stories in future posts.

Law and the Multiverse Holiday Special – Easter Edition

Many of our readers might remember the first Law and the Multiverse Holiday Special, which analyzed the legal issues surrounding Santa Claus.  This time around we’re going to take a brief look at the Easter Bunny (who, along with Santa Claus, is technically a DC comics character).

I. Intelligent Bunnies

As with Santa Claus, a big issue for the Easter Bunny is trespass.  Entering other people’s property and leaving eggs definitely fits the bill for the tort of trespass to land.  Now, with Santa Claus there was an easy answer to this problem: the home owners clearly invited Santa Claus to enter their property, as demonstrated by the stockings, milk and cookies, and so forth.  But there’s no consistent signal that the Easter Bunny is allowed to enter a person’s property.  This is a problem for any version of the Easter Bunny that might be considered a legal person (e.g. the versions that are intelligent and can talk).

Another problem for these Bunnies: where do they get the eggs?  Do they own and raise the chickens themselves?  If so, do they follow all the regulations for chicken farming?  If they buy the eggs, where do they get the money?  There are a lot of holes in the Easter Bunny’s story, to say the least.  At least Santa has a ‘volunteer’ labor force to make the toys.

Of course, unlike Santa, nobody seems to know where the Easter Bunny actually lives these days.  Service of process and jurisdiction might be significant problems for any would-be plaintiffs.

II. Non-Intelligent Bunnies

Some versions of the Easter Bunny are more-or-less actual rabbits, and animals can’t be liable for torts.  However, the animal’s owner can be.  If an animal’s owner lets an animal loose (either intentionally or negligently), and the animal enters another person’s property, that can be a trespass.  But the Easter Bunny doesn’t seem to have an owner (with the possible exception of Cadbury), so this suggests those Bunnies are actually wild animals.

This is unfortunate for the Bunny.  On the one hand it means that neither the Bunny nor any person is liable for its trespasses, but on the other hand it means that in many places the Bunny could be legally captured or even shot.  This concern seems pretty theoretical, however, since the Bunny is apparently very stealthy.

III. Conclusion

As a practical matter, both intelligent and non-intelligent Easter Bunnies seem to be safe from both lawsuits and rabbit traps.  We would still advise intelligent Easter Bunnies to adopt a standard signal that they are allowed on a person’s property, though.  Better safe than sorry!

She-Hulk #3

Slight change of plans from Friday’s usual Mailbag—today we’re looking at She-Hulk #3.

This issue raises one main legal question, plus a sort of “meta” issue which is interesting in its own right. The main story is that Jen Walters’ firm has been hired to defend a man accused of murder. The reason this is a superhuman case is that the alleged victim happens to be the main witness. Which is a little bit weird, we think you’ll agree.

I. Testimony From Beyond the Grave

We’re going to just ignore the fact that the evidentiary issues are being tried in open court instead of being fought out via motions in limine, the way they would in a real court case. That aside, the prosecutor objects to the admission of the victim’s testimony arguing that “as a dead man he has no rights in a court of law.”  This is more or less true: legal claims survive the death of the claimants and become the property of the estate (this is how a claim for wrongful death works, for example). Similarly, in New York the next of kin of the deceased have several rights with regard to the autopsy and disposition of the body.  So what we might intuitively think of as the rights of dead people are actually held by the living, usually the next of kin or heirs.

But this is beside the point.  The ghost of the deceased victim doesn’t need any rights to testify as a witness, rather the living defendant has a right to call any competent witness to give relevant testimony.  The testimony the ghost offers is plainly relevant (he’s the victim, after all), and “[a]ll adults are presumed competent to testify” under New York law.  Brown v. Ristich, 36 N.Y.2d 183, 188 (Ct. App. 1975).  It takes a lot to show that a witness is so incompetent that they shouldn’t be allowed on the stand:

A witness is said to be capable when he has the ability to observe, recall and narrate, i.e., events that he sees must be impressed in his mind; they must be retained in his memory; and he must be able to recount them with sufficient ability such that the presiding official is satisfied that the witness understands the nature of the questions put to him and can respond accordingly, and that he understands his moral responsibility to speak the truth.

Brown, 36 N.Y.2d at 189.  The victim meets this standard just fine, so the prosecutor is left with trying to attack the witness’s identity (i.e. is he really the victim’s ghost?) and impeach his credibility (more on that in a moment).

The witness’s identity is a problem of authentication, i.e. exactly who and/or what is this thing that is attempting to testify? We’ve got Dr. Strange kind of doing his thing and then… I mean, if you tried that in a court of law today the judge would probably sanction the attorney, the person standing next to the attorney, and everyone in a ten foot radius. Judges don’t like being played for fools.

But that’s just the thing: the defense’s argument goes not only to the authenticity of the witness specifically, but the idea that people cease to exist when they are dead. To this effect, they call The Thing to the stand as an expert witness. What is his expertise? The fact that he’d recently come back from the dead. So, as it turns out, had about half of the people in the room, including the deputy prosecutor (much to the lead prosecutor’s annoyance). So the judge was forced to take note of the fact that in the Marvel Universe, coming back from the dead is something that happens, and happens relatively frequently. So frequently, in fact, that the legal system is forced to come up with some way of dealing with it.

At this point, putting a ghost on the stand becomes like any other witness. Every single time testimony is offered the jury needs to decide, and the attorneys need to establish (or attack!) the credibility of the witness. In a world where ghosts are a verifiable fact of life, having a ghost as a witness simply adds another layer to that story, and the opposing side will have its chance to discredit the testimony just like they would attempt to discredit any other witness. More time might be spent on the identity and mental integrity of a ghost than would for a living witness, but ultimately, that’s something the jury is going to have to decide for themselves. Remember, just because you get testimony admitted does not put the jury under any obligation to believe a word of it. Sure, it’s always good to try to keep out testimony which could be bad for your side, and many cases turn on motions in limine, but just because one side can get something admitted does not guarantee anything.

II. The Normalization of the Supernatural

Which brings us to the second issue: this is actually a pretty decent look at how the law might actually develop if faced with an issue like this—allowing for the acceptable departures from reality to which all depictions of the legal system are prone. A lot at what we do on this blog is look at how existing law, without modification, might handle supernatural issues. But really, the way it would handle these things is by establishing precedent and ultimately probably legislation intended to cover these issues. This issue looks at how one might go about trying to establish that precedent. Essentially, one would need to convince the court that the fantastic claim one is advancing, whether it be that one’s client can walk through walls or that the defendant can control people’s minds, is, in fact, true. And one could plausibly do this by bringing in a bunch of people to testify, unrelated to the factual issues at hand, about similar experiences they’ve had, as such would be relevant to establishing a key element of one side’s case. So when the defense in this issue asks for a show of hands about how many people in the room have been brought back from the dead, well, they’d all probably have to be sworn in, meaning this would take all damn week, but that’s not all that far off. Besides, defense counsel get paid by the hour anyway.

III. Conclusion

This issue shows a rather interesting possibility, one which criminal attorneys on both sides might salivate over, as well as getting at some of the issues about how one might get such testimony admitted into evidence. Basically, the question is whether one can convince the judge that what is being proffered is sufficiently part of everyday experience—or supported by adequate expert testimony. In the case of ghosts, the question really becomes one of verification. In our world… yeah, good luck with that. But in the Marvel Universe? Or in ours, should ghosts suddenly become common? If counsel can come up with something plausible enough to convince the judge, there’s no law that says such testimony could not be admitted.

The Legal Side-Effects of Amnesia

Characters in comics frequently come down with amnesia, whether induced by superheroes, supervillains, or more pedestrian causes.  This post considers one legal side-effect of amnesia: loss of competency to stand trial.

We’ve talked about supervillains and competency before in the context of the mental illnesses that many supervillains (and even some superheroes) arguably suffer from.  But what about amnesia?  If a telepathic superhero (e.g. Professor X, Psylocke) erases a supervillain’s memories in order to stop an attack or prevent future crimes, could that interfere with the government’s ability to try the supervillain for the crimes he or she already committed?  Or if a superhero’s memories are erased by a supervillain, leading the superhero to commit crimes, could the superhero argue incompetency to stand trial for those crimes?  In some jurisdictions, the answer may be yes.

I. Competency and Due Process

In the US, competency is part of the constitutional right to due process.  ”It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”  Drope v. Missouri, 420 U.S. 162, 171 (1975).  The Court noted that “the prohibition is fundamental to an adversary system of justice.”  Drope, 420 U.S. at 172.  In other words, in an adversarial system it’s simply not fair to pit the entire weight of the state against an incompetent defendant.

II. Amnesia and Competency

So then, does amnesia—specifically, amnesia regarding the alleged crime—render a defendant incompetent to stand trial?  The general rule is that it does not.  ”[T]here is no record of any court holding a defendant incompetent to stand trial solely on the basis of amnesia.”  Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109 (1961) (emphasis added).  Courts are reluctant to allow a defense of amnesia because it can be faked and because it is often de-coupled from an ongoing mental illness or defect, which means the amnesiac may be clearly competent in many ways.

However, while no courts have adopted a bright line rule that amnesia necessarily implies incompetence, several courts have allowed amnesia to be considered in the usual competency analysis.  See, e.g., Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968); United States ex rel. Parson v. Anderson, 481 F.2d 94 (3d Cir. 1973); Morris v. State, 301 S.W.2d 381 (Tex. Crim. App. 2009).  Severe amnesia—to the point of interfering with a defendant’s ability to consult with and assist his or her lawyer—may lead to a finding of incompetency.

The Wilson court went one step further and gave a list of six factors a trial court should use at the post-trial stage in considering whether a defendant’s amnesia has affected the fairness of the trial:

(1) The extent to which the amnesia affected the defendant’s ability to consult with and assist his lawyer.

(2) The extent to which the amnesia affected the defendant’s ability to testify in his own behalf.

(3) The extent to which the evidence in suit could be extrinsically reconstructed in view of the defendant’s amnesia. Such evidence would include evidence relating to the crime itself as well as any reasonably possible alibi.

(4) The extent to which the Government assisted the defendant and his counsel in that reconstruction.

(5) The strength of the prosecution’s case. Most important here will be whether the Government’s case is such as to negate all reasonable hypotheses of innocence. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so.

(6) Any other facts and circumstances which would indicate whether or not the defendant had a fair trial.

In general, the worse the amnesia and the weaker the external evidence—including the government’s case—the more likely that the trial will be found to violate due process.  However, the D.C. Circuit is essentially alone among jurisdictions in taking this approach, which has been explicitly rejected by many other courts.  See, e.g., State v. Peabody, 611 A.2d 826 (R.I. 1992).

III. The Wilson Test In Practice

So let’s apply this to a few examples. For starters, in X-Men #3 from 1963, Professor X winds up erasing the Blob‘s memory of the X-Men and his attack on them. But the Blob only winds up losing a few hours of memory, maybe a day at the worst. So while he wouldn’t be able to testify about what he did, if the state decided to press charges for something he did during his rampage, he’d probably wind up passing a competency hearing.  His amnesia is not so severe that he has forgotten who he is or why he might have been motivated to do what he did.  Further, there’s enough extrinsic evidence that it’s unlikely that any of his defenses would require him to testify from memory.  Courts routinely reject this kind of short-term amnesia as an impediment to competence in cases where defendants have forgotten the crime itself because of substance abuse (e.g. blacking out after a bar fight) or trauma.

But what about Magneto in Defenders # 15-16? Magneto is regressed to infancy by Alpha. That right there raises significant competency questions, not only to do with memory, but rationality and maturity. Again, proving Magneto’s mental state could be tricky, but the fact that he does not remember anything about what happened before his encounter with Alpha should not be hard to establish. Here, the fact that Magneto possessed essentially no record of his prior life should produce a very different outcome from the Blob’s case above, as the “old” Magneto could have presumably raised affirmative defenses—such as necessity—for his actions, while the new one cannot even understand why he would have done the things of which he is accused, something the Blob probably would be able to do.

IV. Conclusion

Superheroes should think twice about erasing a villain’s memories.  While it may be an effective way to stop a villain in his or her tracks, it may also render them incompetent to stand trial.  In general, the worse the amnesia, the more likely the defendant is to be found incompetent, so go easy on the mind wipes, guys.

Accidental Superpowers and Assumption of Risk

This post was inspired by Tim, who asked about liability for the transformations of Ben Grimm (The Thing) and Bruce Banner (The Hulk). We answer a lot of reader questions in our Mailbag posts, but this one was a big enough issue to need a post of its own.

The story of the two characters is similar in many respects. Both were involved in a scientific experiment that went awry, leaving the two changed in fundamental ways. Grimm’s skin was changed into a rock-like mass, rendering his appearance unusual, to say the least, and he struggled with this for years. Banner, on the other hand, found himself transformed into the Incredible Hulk, prone to almost incomprehensible savagery at the slightest provocation, leading to his exile from Earth and subsequent disastrous return. If any superhuman character might have a cause of action for bodily injury related to their powers, it would seem to be these two.

But there are key facts in their origin stories that change the liability situation significantly.

I. Ben Grimm, aka “The Thing”

The origin of the Fantastic Four‘s powers is told in Fantastic Four #1, November 1961. Dr. Reed Richards was planning a space mission and felt a sense of urgency because the Communists were apparently on the verge of launching their own. The story was published at the height of the Cold war, and this issue came out mere months after Cosmonaut Yuri Gagarin became the first human being to leave the earth’s atmosphere, so the story makes sense in that context.  Richards was discussing the flight with his team when the following exchange occurred:

Grimm: If you want to fly to the stars then you pilot the ship! Count me out! You know we haven’t done enough research into the effect of cosmic rays! They might kill us all out in space!

Susan Storm: Ben, we’ve got to take that chance… unless we want the Commies to beat us to it! I– I never thought that you would be a coward!

Grimm: A coward!! Nobody calls me a coward! Get the ship! I’ll fly her no matter what happens!!

If Grimm were then to act as a plaintiff—presumably against Reed Richards for organizing the flight without adequately researching it first—this little conversation would come back to haunt him. Why? Because assumption of risk is a viable defense in tort law. The basic idea is that if a plaintiff is aware of a specific risk related to a particular activity and engages in that activity anyway, a defendant would be absolved of any duty to protect the plaintiff from that particular risk. This is not any kind of blanket protection, and the specific nature of the risk generally needs to be contemplated by the plaintiff, but in Grimm’s case, there’s a good argument to be made that he had assumed the risk of flying Richards’ ship.

First, the comic indicates that in addition to being a test pilot and thus familiar with the risks associated with piloting experimental craft, he specifically knew about the risk of cosmic rays. Granted, he did not know that they would turn him into The Thing, but not only did no one else know this either, but everyone involved was consciously aware that they had no idea what the effects of these rays would be but that death was a distinct possibility. Besides, “I’ll fly her no matter what happens,” is a pretty broad statement.

Second, both Grimm and Richards seem to possess the same mens rea with respect to the accident. Assumption of risk will not protect a reckless defendant against a negligent plaintiff, but it may well protect a reckless defendant against a similarly reckless plaintiff. The idea here is that the law does not want to protect a party that acted with a lower degree of care over one who acted with a higher degree, and when the playing field is equal, the argument that everyone involved knew the risks of the activity and voluntarily engaged in it is a lot stronger.

Third, Grimm was not a mere passenger. He was a pilot. As such, he had a significant role in the planning and execution of the test flight, and was in fact the only person even potentially capable of steering the craft out of danger. So unlike a passive participant or even someone participating in an event organized by others, Grimm had ample opportunity to mitigate the risks involved both before and during the incident. It’s even theoretically possible that the Storm siblings might have a cause of action against Richards and Grimm as the joint organizers of the project! However, neither of them seems to have been affected negatively, so their “damages” may be nominal,

Ben Grimm knew as well as anyone what he was getting into. He knew that the trip involved the risk of cosmic rays, and he knew that exposure to those rays posed a risk of serious bodily injury or death. No one seems to have known more about the risks than he did, even Richards, though that’s more a matter of shared ignorance than anything else. What Richards did was arguably incredibly foolish, but another famous Ben had some choice words about following fools.

II. Bruce Manner, aka The Incredible Hulk

Bruce Banner’s story contains a significant difference. Banner is characterized as one of the world’s most brilliant scientists, rivaling if not surpassing Reed Richards and Tony Stark. Banner was involved with a Defense Department project to develop a gamma ray bomb or “G-bomb” when he was accidentally exposed to gamma rays, which due to a fluke in his genetic structure transforms him—periodically—into the rampaging Hulk.

Sounds pretty similar to Ben Grimm, right? So far, yes. But there’s a wrinkle which makes all the difference. In the case of the Fantastic Four, just about everyone involved was acting recklessly, and no one intended for anyone to get hurt. But Banner was actually a victim of attempted murder. The way the story is told, just before the test of the G-bomb, Banner noticed that a teenager had breached security and was inside the blast zone. He ordered the test to be delayed and ran to get the kid out of the way. Banner was able to get the kid to a protective trench when the bomb went off, exposing him to gamma rays. But the reason the bomb went off is because Igor Drenkov, a Russian agent, ordered the test to continue, hoping that Banner would die in the resulting explosion. Assumption of risk will protect a defendant against a reckless plaintiff, but it will not protect a defendant that intended for harm to befall the plaintiff. Indeed, Drenkov could be subject to civil and criminal liability, as attempted murder is a serious felony.

But Banner would probably not be able to sue the government, as he was the organizer of the project and the government is likely not liable for the actions of enemy infiltrators. Furthermore, depending on the nature of Banner’s employment, either the Federal Employee Compensation Act, the federal equivalent of workers’ compensation, or the Veterans Affairs Administration would provide compensation for his injuries, as he sustained them while executing his duties as a government employee. So he would theoretically be entitled to some money, though only in proportion to his medical bills (non-existent) and expenses related to mitigating his disability (good luck). In practice, he’s going to have trouble proving his damages, and as the FECA and/or VA would be an exclusive remedy, no other recovery would be available with respect to the government. He’s still free to sue Drenkov though.

III. Conclusion

We’ve seen here that, as in all cases, the facts are really important, and a single conversation, document, or other changed fact can result in a wildly different outcome, potentially saving—or costing—a party enormous amounts of money. Finding these facts and putting them in their proper context is a lot of what litigation attorneys do for a living, and the amount of money at risk is one reason many charge as much as they do.

Mailbag for April 15, 2011

This week’s reader questions are about intellectual property issues, including trademarked superhero slogans and copyright across alternate universes.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Copyright and Alternate Universes

John asks, ”In an issue of New Excalibur, Nocturne (Talia Wagner; the daughter of Nightcrawler from an alternate universe), is listening to her iPod.  Dazzler asks what she has on it, and Nocturne tells her it is the Beatles 40th anniversary album.  Apparently in her universe the Beatles never broke up, and John Lennon was never killed.  …

What if somehow either by file sharing or a hacker, the contents of Nocturne’s iPod becomes available to the larger 616 universe.  Who can lay claim to the rights of intellectual property and royalties (if anyone)?  [Assume that the alternate universe copyright holders cannot lay a claim themselves.]”

The answer is a bit complicated. For conciseness and readability we’ll use the phrase “Earth 616 Beatles” to refer to the Beatles and their heirs, successors, and assigns (i.e. whoever it is that owns the relevant intellectual property).

First we must decide if there is an Earth 616 copyright in the recordings at all.  Since the alternate universe United States is not a signatory to the Earth 616 Berne Convention, it’s quite possible that the courts would take the view that there is no copyright in the work at all, or at least not one that the Earth 616 United States recognizes.  NB: Talia can’t claim copyright in the recordings herself because she didn’t create them.  But what if the copyright were recognized?

We still don’t think the Earth 616 Beatles have a copyright claim.  Clearly they didn’t create the tracks outright, and even if the album incorporated music that was substantially similar—or even identical—to Earth 616 Beatles music, the defense of independent creation absolves the alternate universe Beatles (and thus Talia) of any liability for infringement because the alternate universe Beatles created their music without ever knowing about the Earth 616 Beatles.  Indeed, coming up with the same music in an alternate universe is about as independent as independent creation can get.  Notably, independent creation is something the Earth 616 Beatles—George Harrison at least—should be very familiar with.  See ABKCO Music, Inc. v. Harrisongs Music Ltd., 722 F.2d 988 (2d Cir. 1983).

The first complication comes from trademark and the right of publicity.  Theoretically the Earth 616 Beatles could sue to prevent Talia and others from misrepresenting the music as ‘Beatles music.’  They could seek an injunction requiring them to describe it as coming from an alternate universe with no connection to the Earth 616 Beatles.  This would create a contrast to their own “genuine Earth 616 Beatles creations.”

The second complication comes from the possibility of criminal copyright infringement.  While we may assume that Talia properly purchased her copy in the alternate universe, anyone else making copies might run afoul of the criminal copyright infringement statute.  17 USC 506.  If the US government recognized a copyright in the works, it could prosecute distributors of the work even though the copyright holders couldn’t possibly benefit, since they’re in an alternate universe.

Of course, if the Earth 616 US passed an orphan works law, this would be a perfect case for it, since the copyright holders can’t be located.

II. Superhero Slogans and Trademarks

Walter asks, “[Y]ou’ve covered copyrights and trademarks but what about slogans or words of power?  Take, for example, Captain Marvel and the word “shazam.” In the real world, that word is being used by several companies, including a music app recently prominently featured in a television campaign. If the word “shazam” is a legal trademark of the company [it is —James], is Captain Marvel in violation of a law for using it for his transformation? Should he have copyrighted his secret word to protect if from this sort of situation?

The answer to the first question is: probably not.  First, trademark infringement generally requires “the sale, offering for sale, distribution, or advertising of … goods or services” 15 USC 1114(1)(a) & (b).  We suppose Captain Marvel could be accused of advertising his services as a crimefighter, but that’s a slender reed upon which to build a case.

Second, most trademarks only protect particular areas of use (e.g. in this case, “software for music recognition,” among other things).  I think it would be pretty unlikely for a company to register a trademark in the area of “superheroic crimefighting,” which is the essential area of use for Captain Marvel.

Third, trademark infringement depends on a likelihood of mistake, deception, or confusion between the mark and the allegedly infringing use.  Id.  I don’t think it’s very likely that a bystander will hear Captain Marvel transform and think “ah! I’ll bet he could tell me the name of the song I’ve been humming” or “ah! I’ll bet he’s sponsored by the music app people.”

Now, there’s a higher standard for what are called famous marks (e.g. the really ubiquitous names like Kodak and McDonald’s).  Some marks are so famous that they apply to all areas of use.  What’s more, the standard is not likelihood of confusion but rather likelihood of dilution.  15 USC 1125(c).  That is, is it likely that the value of the mark will be diluted by unauthorized use, even if no one would be confused?  However, I don’t think there are any superheroes with a slogan or word of power that happens to be a famous mark, and they could still argue no likelihood of dilution and noncommercial use, especially if they didn’t make a big show out of yelling their words of power or slogans.

Note, though, that using a mark, especially a famous mark, might make it difficult for the superhero to sell merchandise, particularly depending on the nature of the merchandise and the areas the mark is used in.

Now for the second question: “Should he have copyrighted his secret word to protect if from this sort of situation?”  This one is much simpler.  Generally speaking individual words and short slogans can’t be copyrighted.  Captain Marvel could have trademarked it before the other folks did, but he’d need to use it in commerce in order to do so (e.g., sell comics, talking action figures, etc featuring the trademarked word).  And unless his slogan became a famous mark, he’d only be protected in those particular areas of use.  But since he’d probably be safe anyway, such defensive measures probably aren’t necessary in his case.

That’s it for this week.  Keep your questions coming in!

Animal Sidekicks, Part Three

In this latest installment of our series on animal sidekicks we’re going to discuss the many regulations that affect animals, including leash laws and import restrictions (see here for part one and part two).

I. Leash Laws and the Like

Leash laws vary widely from jurisdiction to jurisdiction.  Many cities and counties (and some states) require animals to be kept on leashes or otherwise controlled when in public, or at least in certain public areas.  Sometimes these ordinances are specifically aimed at dogs, but sometimes they are written to apply to all pets or kept animals.  See, e.g., St. Louis County Revised Ordinance 611.200.  It’s not common in the US, but some cities even require dogs to be muzzled in public.

So what does this mean for a superhero with an animal sidekick?  First, it means doing a bit of research before traveling with the sidekick.  This is an area where the law can vary substantially from one city or county to the next, and ignorance of the local laws is not a defense.  It would be pretty embarrassing for a superhero get busted for not having his or her faithful companion on a leash while out fighting crime.

Second, it means brushing up on the defense of necessity.  If violating a leash law allows a superhero and his or her animal sidekick to stop a much worse crime about to be committed by a supervillain, then the defense of necessity may excuse the lesser harm of letting the animal run loose.  Necessity is usually based on some kind of reasonableness standard, so the superhero can’t just let the animal run loose all the time on the theory that a crime is bound to be attempted sooner or later.  Instead, we recommend investing in some kind of quick-release harness.

Note that many leash laws have exceptions for service animals, but we don’t think many animal sidekicks would meet the criteria for being a service animal.  Daredevil briefly had a seeing-eye dog named Deuce, but that’s about it as far as we can recall.

II. Health Regulations

Many animals are also subject to a host of health regulations, particularly vaccination requirements.  There are also laws regarding the quarantine and even destruction of diseased animals, but let’s assume that superheroes keep their sidekicks healthy.

The most important requirement is rabies vaccination, although the rules vary from state to state and even within states (e.g., Missouri doesn’t have a state-wide standard but instead directs individual counties to adopt appropriate rules and regulations.  Mo. Rev. Stat. 322.090).  However, most vaccine laws specify particular types of animals, so they are less of a concern for superheroes with unusual sidekicks.  But really this shouldn’t be much of an issue.  Making sure Krypto gets his rabies shots might be pointless (assuming a superpowered Krypto), but it’s not a significant burden, either.

III. Restrictions on Importation and Ownership

Now we come to the big one: can these animals be lawfully imported (or moved across state lines) or even privately kept at all?  Many states prohibit or restrict private ownership of wild or exotic animals, which are defined differently from state to state: another headache for the superhero on the go.

At the federal level, the Endangered Species Act generally prohibits, among other things, the possession, importation, sale, and taking of endangered species.  16 USC 1538(a)(1).  By the way, “‘[t]ake’ is defined … in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” S.Rep. No. 93-307, at 7 (1973).  There are a lot of endangered animal species, and although most of them would probably make pretty bad sidekicks—clams are not known for striking fear into the hearts of evildoers—there are some popular choices on the list, such as the gray & red wolves and several eagles.

So there’s a trade-off here.  Having a wild or exotic sidekick avoids some animal regulations, but it subjects the superhero to a new set at the same time.  Also remember from part two of this series that wild animal owners are subject to a higher standard when it comes to injuries caused by their animals.  On balance, our conclusion is pretty simple: “get a dog.”

She-Hulk # 2

We looked at She-Hulk # 1 last week. Moving on to issue # 2, She-Hulk is plaintiff’s counsel for Dan “Danger-Man” Jermain, given atomic powers as part of an industrial accident. Mr. Jermain wants to sue his former employer for “bodily injury,” despite the fact that the only effects seem to be that he is “larger, stronger, and more powerful.” Okay, he’s also capable of causing small nuclear explosions, but hey, it’s not like it’s going to hurt him any. Defense counsel points out the fact that one needs to stretch the definition of bodily injury way past the bounds of credulity to include imbuing someone with superpowers. She-Hulk thinks she can get around it by arguing that “Danger-Man” and “Dan Jermain” are actually two separate entities, and that the latter ceased to exist when the former came into being. When asked “Do you really think this will work?” she responds “I think I can sell it to a jury.”

There are a number of problems here, so let’s take a look.

I. Workers Compensation

First, whatever happened to workers’ compensation? The rise of the Industrial Era was accompanied by the rise of workplace injuries, as people started working around machines more often, sometimes incredibly dangerous ones. In the nineteenth and early twentieth centuries, it was commonplace for factory workers to lose fingers, even limbs, to exposed machinery. Legal reforms favoring labor began in the late nineteenth century, and by 1949, every state and the federal government had instituted a workers’ compensation regime.

Workers’ compensation operates by creating a system for compensating workers for workplace injuries regardless of fault. What this means is that if you are injured while serving your employer, you get paid the vast majority of the time, even if your employer was completely without fault. This may seem very favorable to the workers, so to even things out, i.e. to make sure that employers weren’t bankrupted every time someone broke an arm, compensation was limited in three ways.

First, compensation for injuries is computed based on actuarial tables created by state agencies rather than by juries. This rationalizes and limits compensation. Whereas a jury can award a basically arbitrary amount of money, workers’ compensation payouts are known ahead of time and are thus a lot easier to plan for and insure. Second, compensation is limited to purely economic damages, i.e. medical bills, lost wages, lost future earnings, etc. There is very little provision for non-economic damages like “pain and suffering,” which really drive up verdicts in liability cases. Third, workers’ compensation is an exclusive remedy, i.e. employees cannot choose to forgo participation in the workers’ compensation program and sue their employers. Workers’ compensation is their only way to recover. So employees benefit because they almost always get paid, even if the accident was their fault, and they usually get paid in a fraction of the amount of time they’d have to wait if they sued. But employers benefit because their costs are controlled and employees can’t turn around and sue them. Workers’ compensation coverage is mandatory in just about every state for just about every employee. There are, of course, certain exceptions, but a worker in an industrial plant working with radioactive materials, e.g. Dan Jermain, would definitely be covered.

So what happened to Roxxon’s workers’ compensation carrier? How is Jermain able to sue at all? Sure, GLK&H might act as plaintiff’s counsel in the workers’ compensation case (coverage can be disputed, leading to litigation, but this is much simpler than suing in open court), but workers’ compensation is largely limited to economic damages. Danger-Man is basically uninjured, and even if we want to go with She-Hulk’s argument and say that Dan Jermain is “dead,” (more on that in a minute), workers’ compensation only pays out a couple of hundred grand—at best—for wrongful death. Not $85 million, which is the settlement reached at the end of the issue.

Of course, the whole issue goes away if Jermain wasn’t an employee. If the writers had him be some random schmo who happened to get in a wreck with a Roxxon tanker truck, covering him in radioactive goo, he would not be covered by the workers’ compensation regime and thus would be free to sue like he does in the comic. Oh well.

II. Questions of Law v. Questions of Fact

Now we’re going to get really nit-picky. She-Hulk says that she thinks she can “sell” Dan Jermain’s death to a jury. Unfortunately, whether or not “Dan Jermain” legally died during the accident is probably not a question of fact. Nor is whether giving someone superpowers counts as “bodily injury”. These would be questions of law. The difference is, in part, who gets to answer such questions and the basis for answering them.

Questions of fact are answered by the finder of fact, generally the jury, though judges are the finders of fact in bench trials. Questions of fact are answered on the basis of the evidence. The questions of fact here would be things like “What are the nature and extent of Dan Jermain’s injuries?” “What caused those injuries?” “Did Roxxon’s negligence lead to Jermain’s injuries?” “Did Jermain’s?” She-Hulk would try to get these questions answered in her favor by investigating the scene of the accident, having experts evaluate Jermain’s condition, deposing witnesses, etc.

Questions of law are answered by the judge on the basis of the law alone. The questions of law here include “Do Jermain’s symptoms constitute ‘bodily injury’ under the law?” “Is ‘Danger-Man’ legally the same entity as Dan Jermain?” “Is Dan Jermain legally dead?” These questions would be answered by looking at existing legal precedent to see what it says about the definitions of “bodily injury” and “death,” and seeing if the facts, when interpreted in the light most favorable to Roxxon, can be made to fit the legal definitions she needs.

Here we’ve got some problems. “Bodily injury” is generally understood to be a bad thing. Federal law defines it as

(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain;
(C) illness;
(D) impairment of the function of a bodily member, organ, or mental faculty; or
(E) any other injury to the body, no matter how temporary.

18 U.S.C. § 1365(h)(4)

Whether or not Danger-Man’s condition counts as any of those is going to be a question of law for the court. And it’s not entirely clear that it does. He hasn’t been cut, abraded, bruised, burned, or disfigured, at least not in any way shown in the comics. He doesn’t appear to be in any pain, nor to have experienced any as part of the process. Superpowers probably don’t constitute an “illness,” though there may be something there, especially if the powers can’t be controlled. He does not appear to be suffering any impairment of his bodily functions or mental faculties. And calling superpowers “injuries,” when they don’t fit into any of the other definitions, is a stretch, to say the least. Given that Jermain can do just about everything he could before the accident, and can do a lot more now, this is going to be a tough sell.

Though there is another claim that the authors seem to have forgotten: loss of consortium. This is a claim for loss of the affection and companionship of a family member, typically a spouse, and typically a particular kind of companionship, if you catch our meaning. Jermain seems to have been affected in a substantial way, here. Even sharing a bed with his wife is physically dangerous for her. That’s the kind of change in a relationship that a jury might well be willing to award damages for.

III: Conclusion

There was more legal meat in this one. Missing the difference between questions of law and questions of fact is understandable, though. That one even trips up experienced attorneys from time to time, as the two can blend into each other pretty easily (so-called ‘mixed questions of law and fact’). So we’ll give them a pass on that one. But missing the workers’ compensation angle was a pretty big mistake. Even most laymen are at least aware of workers’ compensation, even if they aren’t entirely aware of how it works.  Maybe we can chalk this one up to most comic book authors and illustrators rarely making use of workers’ compensation; comic book publishers are not exactly hotbeds of industrial accidents. Still, all they’d need to do is change a single panel, making the plaintiff a bystander instead of an employee, and the rest of the story is more-or-less okay.