A Tale of Two Superhero Journalists

Today we have a quick post about copyright, works for hire, and the difference between independent contractors and employees.

Peter Parker (aka Spider-Man) and Clark Kent (aka Superman) are both journalists: Parker is a freelance photographer who primarily sells his work to The Daily Bugle and Kent is a reporter for The Daily Planet.  In order to publish their photographs and stories, the newspapers must have either own the copyright to the photo or story or have a license.  As it turns out, the law treats Parker and Kent differently because of the different relationship each journalist has with their respective newspapers.

In general, copyright belongs to the author of a new work by default.[1]  This means that when Peter Parker snaps a picture of Spider-Man, Parker owns the copyright in the work.  When Parker sells a photo to the Bugle he either also sells the copyright or at least grants the Bugle a license to use the photo.  This gives Parker leverage to potentially sell the same photo to multiple newspapers or to charge the Bugle a premium for an exclusive, at least if he can talk J. Jonah Jameson into it.

The situation is different for Clark Kent.  As an employee of The Daily Planet, works that Kent prepares within the scope of his employment (i.e. stories he writes as part of his job as a reporter) are “works made for hire.”[2]  The employer owns the copyright in a work for hire unless explicitly agreed otherwise.[3]  This means that Kent has no rights in the stories he writes: he can’t sell them to another paper or reprint them on a blog, for example.

So how do the courts decide if someone is an employee for copyright purposes?  The Supreme Court has held that the courts should use a long list of factors derived from the common law of agency, including who provides the tools for the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; and the extent of the hired party’s discretion over when and how long to work.[4]  Unsurprisingly, these factors show that Parker is an independent contractor while Kent is clearly an employee.


[1] “Copyright in a work protected under this title vests initially in the author or authors of the work.”  17 U.S.C. § 201(a).

[2] 17 U.S.C. § 101.

[3] 17 U.S.C. § 201(b).

[4] Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989) (the Court listed several additional factors).

20 Responses to A Tale of Two Superhero Journalists

  1. While not necessarily illegal, a superhero writing news stories or taking news photographs of himself without disclosing the conflict of interest would be a serious breech of journalistic ethics. Just saying.

    • That’s probably why Lois Lane writes most of the Supper Man stories. Of course, once Lois married the man of steel, she had similar conflict of interest issues.

      • Nah, writing news stories about another reporter at your newspaper would also be a conflict of interest. This is why NBC News, for example, always mentions they’re owned by General Electric whenever they do a story about their parent company. Same goes for ABC News with Disney.

        To be fair, it wasn’t really Lois’ fault when she didn’t know Superman was her co-worker. But Clark was putting the entire paper in an ethically comprising position. Imagine if the whole world found out that Clark was Superman. Every story the Daily Planet had ever written about Superman while Clark was working there would be called into question. Any awards his colleagues may have won for stories that involved Superman could potentially be revoked. It would have been a mess.

    • Considering that they’re already acting in a deceptive manner by doing this I’d say that they aren’t terribly worried about journalism and ethics.

  2. Do you intend to look at JJJ’s lawsuit against Parker after Parker identified himself*?

    *Although I think that (along with everything else Quesada didn’t want to bother with) was thrown out after One More Day.

  3. What about if Clark start blogging; how would the law separate his work as a blogger from his work as an employee of the DP? It’s not like he clocks in, does he?

    • The court would use the general principles of agency, similar to how it uses those principles to distinguish contractors from employees. From the Restatement (Third) of Agency: “An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.”

      It’s pretty easy to see how a personal blog would not be within the scope of Clark’s employment as a reporter, especially if it was unrelated to news reporting.

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  5. Nothing to do with this post, just a question.

    In a world with verifiable and known to be malicious entities with small “g” godlike power (such as Mephisto, Darkseid, Necron or Dommoru), how would their worship interact with the constitutional right to freedom of Religion? Even if they avoided criminal acts like human sacrifice, would it be illegal to “pray” to them for power? Would the danger that the worshipers be granted power by their patron have a bearing on this?

    • That is an interesting concept. I’d love to see a comic were the government passes a law to stop the worship of gods (with a small ‘g’).

      Here is my non-lawyer guess to your question:
      In the real world USA, I suspect it would be legal to pray to any god for anything that wasn’t already illegal. I can ask a friend for $1000. Why couldn’t I pray for it? On the other hand, if I pray to a god to smite my enemies and he actually kills them, I may be arrested for conspiracy to commit murder.

      • If we want to get technical, there are people who have committed attempted assassinations by means of intercessory prayer in real life.

        In a world where this could actually work, you might see charges even if the ‘being of power’ told the supplicant to shove off.

    • Since Satanism is perfectly legal* I imagine there’s nothing the government can do to stop you from worshiping Darkseid. However if it’s shown that through that worship you are committing a crime (i.e. helping Darkseid blow up Earth) it’s probably not going to be protected by the U.S constitution.

      *Albeit largely misunderstood and to my understanding nothing like the typical depiction in Hollywood. Of course that might not be the best example since the Bible depicts Satan as God’s prosecutor sometimes.

  6. I believe Peter Parker grants the Bugle a license to print the photos, rather than sells the copyrights outright. If I recall correctly, Parker collected some of his more famous Spider-Man photos into a relatively-successful coffee-table book, and a storyline had him (and Spider-Man) going across the country on a book tour.

  7. Walloping Websnappers!

  8. Okay, so what if Clark Kent were to use his super hearing to eavesdrop on people for a story. If the people talking have an expectation of privacy is this a breach of journalism ethics and can would he be in trouble if anybody found out he was doing it?

    • Wouldn’t that fall under the same concerns as mundane eavesdropping? On the other hand regular humans don’t have the same hearing so it might be better to consider it to be similar to wiretapping.

      • I’m pretty sure that wiretapping only applies to actually intercepting electronic communications. If you can hear somebody, regardless of how good your hearing is, its not wiretapping. Best bet might be some manner of eavesdropping, if that’s even illegal.

        I’d be willing to guess that its not illegal to overhear, and then pay attention to, a conversation. Regardless of whether anybody else can hear the same conversation.

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