Monthly Archives: November 2011

Law and the Multiverse: Year One

It’s hard to believe, but today marks the first anniversary of Law and the Multiverse, as measured by its public debut on MetaFilter Projects.  Since then we’ve been featured all over the web and been interviewed in print and on the radio in multiple countries (look for an interview with us on the German legal news website Legal Tribune Online coming soon).  We’ve already mentioned it in interviews, but we’re also happy to announce here on the blog that we have a book coming out next summer from Gotham Books, a division of Penguin.  (The names are a coincidence, but we think it’s hilarious anyway.)  We’re very excited about the book and hope to meet many of you at comic book conventions next year.

And speaking of our readers, we’d like to take this opportunity to thank you.  Your support has been fantastic, and your questions, comments, and post ideas are a big part of what makes this blog special.  To celebrate, we’re giving away five copies of the critically acclaimed series Batman: Year One!  To enter, simply send an email with “Law and the Multiverse Anniversary Giveaway” in the subject to  International entries are welcome.  Please note that you must be 13 or older to enter.  One entry per person.  Void where prohibited.  We’ll choose the winners at random from among all of the entries we receive and announce them on Friday, December 9th, 2011.  Don’t worry about including your address in the entry; we’ll contact the winners for shipping information.  And of course, your contact information will only be used for conducting the giveaway.

Gotham Central: In the Line of Duty

Gotham Central is the critically-acclaimed, 2003-2006 book focusing on officers in the Gotham City Police Department, i.e. the cops who live and work “in the shadow of the Bat.” It’s basically a police procedural, which makes it a little unusual for a DC or Marvel book in that while supervillains are still in play, superheroes are largely fringe characters. It’s definitely worth the read, and it’s uniquely suitable for our purposes here at Law and the Multiverse because it has so much to do with normal, everyday life in a world populated by larger than life figures. We’re not going to do much in the way of plot summary here, so as to avoid spoilers, and we’re only partway through the series* but we are going to take a look at the legal issues raised as we go. This post is about “In the Line of Duty,” the story which takes place in issues # 1-2. Continue reading

Guest Post: Superheroes and the Right of Publicity 2

Today we have the second half of Brad Desnoyer’s guest post on superheroes and the right of publicity.  If you missed it, check out the first post here.  Thanks again to Brad for this great series!

Missouri’s Predominant Purpose Test

Comic book creator Todd McFarlane introduced the popular comic series Spawn in 1992.1 In 1993, McFarlane introduced the fictional, mafia boss into the Spawn mythos known as “Antonio Twistelli,” a/k/a “Antonio Twist,” a/k/a “Tony Twist.” Id. McFarlane acknowledged in the comic’s September 1994 issue that he named “Tony Twist” after Quebec Nordiques hockey player Tony Twist. Id.

In 1997, hockey player Tony Twist, now playing for the St. Louis Blues, learned of the infamous comic book character after numerous young hockey fans approached Twist’s mother with Spawn trading cards featuring the fictional mob villain. Id. at 367. Twist subsequently filed suit against McFarlane and various companies associated with the Spawn comic book. Id.  A St. Louis based-jury returned a $24,500,000 verdict in favor of Twist. Id. 368-69.

On appeal, the Missouri Supreme Court declared that Twist’s “right-of-publicity tort,” should balance against McFarlane’s freedom of expression under a new, Missouri standard. Looking at standards implemented across the country, such as the transformative use test, the Missouri Supreme Court stated the current tests afforded a defendant too much protection when her speech is only somewhat “expressive.” Id. at 372-74. Therefore, the court created its own standard – the predominant purpose test:

If a product is being sold that predominantly exploits the commercial value of an individual’s identity, that product should be held to violate the right of publicity and not be protected by the First Amendment, even if there is some “expressive” content in it that might qualify as “speech” in other circumstances. If, on the other hand, the predominant purpose of the product is to make an expressive comment on or about a celebrity, the expressive values could be given greater weight.

Id. at 374. The Court then held that “the use and identity of Twist’s name has become predominantly a ploy to sell comic books and related products rather than an artistic or literary expression, and under these circumstances, free speech must give way to the right of publicity.” Id.

Ironically, after barraging the transformative use test for failing to effectively balance speech and property rights, Missouri’s Supreme Court conducted little balancing itself, simply finding commercial value based on Twist’s ability to make a prima facie case. By the court’s logic, almost any fictional character referencing a famous individual is likely to be a commercial exploitation lacking credible expression.2

In creating the predominant purpose test, the Court forgot that commercial and expressive value will inextricably blend together. Most artists intend to express themselves while also supporting themselves financially.3 It is virtually impossible to view the two principles independently because both are the intention of a professional. Moreover, neither predominates; the two “cannot be separated out ‘from the fully protected whole.’” See Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1185 (citing Gaudiya Vaishnava Soc’y v. City & County of San Francisco, 952 F.2d 1059, 1064 (9th Cir.1990)  And as courts have stated repeatedly, the First Amendment protects artistic works regardless of the creator’s desire to profit.4

Further the predominant purpose test protects shrewd defendants appearing to convey expressive speech, but who are in reality masking their attempt to gain commercial value. This placement on intent renders the predominant purpose test overly simplistic.

Take for example the possibility of McFarlane littering his internal documents with self-serving statements pushing his creation of “Tony Twist” as predominantly, or entirely, based in expressive speech. Therefore, under this test, artists foreseeing the possibility of litigation with a wronged celebrity could simply wrap themselves in the First Amendment from the onset of their “creative” endeavor, guaranteeing themselves victory in Missouri. Similarly, an artist could truly be predominantly motivated by expressive comment, but in reality be promoting commercial exploitation. They too would be shielded from losing in a right of publicity suit. By looking at an artist’s intent, or supposed intent, the court misses its own underlying question – was the work predominantly commercial or expressive?5

For these reasons, Missouri’s Predominant Purpose Test is lacking at best. It promotes the chilling of free speech while allowing shrewd creators to bypass the test’s underlying purpose with its overly narrow focus on intent.

Superheroes Should Sue in Missouri

So what about Spider-Man and my suction cup action figure mentioned in the first post? Chances are Spidey would have a pretty good right of publicity claim against Hasbro under either test. Even under the looser transformative use test the figure is little more than a miniaturized depiction of Spider-Man. Although the toy company could argue that adding suction cups to Spider-Man’s figure shows a significant creative component, that the company transformed Spider-Man’s likeness into its own expression, such a literal depiction of Spider-Man is little more than mere imitation.

Now, as we all know too well, toy companies can only produce so many versions of a superhero’s likeness before their toys become unquestionably gimmicky and strangely ridiculous. A prime example: all of those “specialized” Teenage Mutant Ninja Turtle and Batman action figures that dorky kids like me never wanted; they just weren’t “real” enough. “Piranha Blade Batman,” and TMNT’s “Bandito-Bashin’ Mike” are two classic examples of toy companies simply giving up.

But in addition to worthless accessories, these gimmicky action figures come with the greatest chance of being legally transformative. Disregarding a toy company’s use of a superhero’s name – these gimmicky figures are not mere imitations of a superhero’s likeness. In fact, a company could, and likely would, argue that these figures are meant to comment on a superhero – to convey a message of action or danger or “piranha-ness.” Further, arguing that an action figure conveys a significant artistic message would be even easier with a figure like “Crimson Mist Batman,” which depicts the Dark Knight as a feral (not sparkly) vampire. The key: the further an action figure – or indeed any product – deviates from being simply a replica of a superhero, the slimmer a chance a hero has in wining his or right of publicity action. That is, of course, if the court utilizes the transformative use test.

If the superhero sued in Missouri, however, he or she would likely win millions of dollars based on the plaintiff-deferential predominant purpose test. Of course, it would also help if the superhero was a St. Louis celebrity.

1. Doe v. TCI Cablevision, 110 S.W.3d 363, 366 (Mo banc 2006).

2. See Brief for Todd McFarlane, et al. as Amici Curiae Supporting Petitioners, Doe v. McFarlane, 110 S.W.3d 363 (Mo. 2003) (No. 03-615)

3. Id.

4. Time, Inc. v. Hill, 385 U.S. 374, 396-97 (1967); see Comedy III, 21 P.3d at 802 (stating “[an expressive activity] does not lose its constitutional protection because it is undertaken for profit

5. Doe, 207 S.W.3d at 57 (stating the test’s purpose is to determine if a product, not the creator’s intent, is predominantly expressive or commercial).

Guest Post: Superheroes and the Right of Publicity

Although we don’t normally feature guest authors here, this week we’re making an exception for an exceptional guest: Brad Desnoyer is a law professor at the University of Missouri who has also written stories for DC Comics and worked as an assistant to Brad Meltzer.  He has written a two part guest post for us on superheroes and the right of publicity, which we’ll be featuring today and Friday.

Superheroes and the Right of Publicity

My Wolverine action figure’s claws really “popped” from his plastic forearms. My suction cup Spider-Man could stick to walls – as long as those walls were glass. And although some knock-offs were better than the originals, like most kids, my favorite action figures always were “officially licensed.”

These official action figures were, and still are, huge profit grabbers for licensors such as Marvel and DC. Posters, bedspreads, toothpastes – slap a picture of Superman on them and a product’s price skyrockets along with customer demand.

If real, “superhero celebrities” would possess a right to capitalize on their fame, their commercial value – just as real celebrities capitalize on their fame by endorsing products. And just as with real celebrities, superheroes would likely demand monetary compensation for the unpermitted use, or “appropriation,” of their image. They consequently could look to the courts for redress by filing a “right of publicity” claim.

Unlike invasion of privacy or copyright claims, a right of publicity is not meant to protect one’s “right to be left alone” or one’s ability to benefit from his or her creation, but rather it protects an individual’s ability “to control the commercial use of his or her identity.” 31 Causes of Action 2d 121. As stated by McCarthy in 1 Rights of Publicity and Privacy § 3:2, and as noted in a previous post, the elements of a right of privacy action are as follows:

  1. Validity – Plaintiff owns an enforceable right in the identity or persona of a human being; and
  2. Infringement
    (A) Defendant, without permission, has used some aspect of identity or persona in such a way that plaintiff is identifiable from defendant’s use; and
    (B) Defendant’s use is likely to cause damage to the commercial value of that persona.

The legal quandary comes when courts attempt to strike a balance between a celebrity’s (or superhero’s) exhaustible fame and an artist’s First Amendment right to create.

Interestingly, some of the most seminal cases struggling to achieve this balance between the seeming absolutes of property rights and freedom of expression deal with comic books.

The Transformative Use Test

The “transformative use” test, the most implemented test for right of publicity cases, comes from the state with the most celebrities: California.

In Comedy III Productions, Inc. v. Gary Saderup, Inc., Comedy III – the registered owner of the Three Stooges’ property rights – sued artist Gary Saderup, arguing Saderup infringed on the Three Stooges’ rights of publicity by producing and selling merchandise bearing Saderup’s charcoal drawings of the Three Stooges. 21 P.3d 797, 800 (Cal. 2001).

Working to formulate a general standard, the California Supreme Court reasoned that the government’s interest in protecting a celebrity’s property interest outweighed an artist’s First Amendment protection when that artist simply drew mere literal depictions of the celebrity. Id. at 808. “On the other hand,” the court observed, “when a work contains significant transformative elements,” as found in works of parody, the creative endeavor is entitled to complete First Amendment protection. Id. (emphasis added).

Therefore, the court held that the underlying inquiry needed for balancing right of publicity claims against First Amendment defenses is whether the work-at-issue is “transformative” – that is “whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” Id. at 809.

Applying the transformative use test to Saderup’s drawings, the court found no “significant transformative or creative contribution.” Id. Rather, Saderup’s literal charcoal depictions of the Three Stooges appropriated the trio’s economic value while expressing little more than imitation. Id.

In 2003, California distinguished Comedy III, in Winter v. DC Comics, finding DC Comic’s creative works transformative. 69 P.3d 473, 478 (Cal. 2003). In Winter, musicians Edgar and Johnny Winter sued DC Comics after DC released a five-issue Jonah Hex miniseries featuring “Edgar and Johnny Autumn” – “villainous half-worm, half-human offspring born from the rape of their mother by a supernatural worm creature.” Id. at 476. These pale, white haired monstrosities bore a distorted likeness to the real-life musicians in both physicality and modes of dress. Id. Additionally, the Winter brothers probably were not too pleased that the end of the miniseries Jonah Hex and his cohorts shot down and killed their fictional counter-parts during an “underground gun battle.” Id.

In applying the transformative use test to DC’s Jonah Hex miniseries, the court stated, “An artist depicting a celebrity must contribute something more than a ‘merely trivial’ variation, but must create something recognizably ‘his own.’” Id. at 478 (citing Comedy III, Productions, Inc. 21 P.3d at 810). Therefore, the court held that “[a]lthough the fictional characters Johnny and Edgar Autumn [were] less-than-subtle evocations…” of the Winters, DC’s creation was expressive enough outside its resemblance to the Winters to be transformative. Id. at 479.

Finally, in what might be the most difficult balancing between the seeming absolutes of property rights and the First Amendment, in ETW Corp. v. Jireh Publ’g, Inc, the Sixth Circuit looked at whether reprinted serigraphs and lithographs titled “The Masters of Augusta” infringed on golfer Tiger Woods’ right of publicity. 332 F.3d 915, 918 (6th Cir. 2003). Looking to the transformative use test for guidance, the court held that prints featuring three literal depictions of Tiger Woods to be distinguishable from the “unadorned, nearly photographic reproduction” in Comedy III because the prints did “not capitalize solely on the literal depiction of Woods.” Id. (emphasis added). Rather, the court reasoned, the work consisted of a collage of images – including other golfers in the background – conveying a message of sporting and historical accomplishment. Id. at 936-38. Therefore, the prints possessed “a significant creative component” Id. at 938.

In the next post, we will look at Missouri’s “predominant purpose” test and the Missouri Supreme Court’s use of the test in finding that Todd McFarlane’s Spawn comic infringed on a St. Louis hockey player’s right of publicity.

All-Star Superman II: The Trial of Lex Luthor

As we previously discussed, Lex Luthor is arrested and put on trial for his actions which result in the death of Superman. In the first issue of All-Star Superman, the arresting officer says that the warrant is for “attempted murder and crimes against humanity.” In issue 5, we see the conclusion of the actual trial, and it seems that at some point the attempted murder charge was seemingly dropped, as when the judge hands down the verdict, he says “Guilty on all counts, of crimes against humanity.”

This is interesting, because there isn’t actually indication of what court we’re in, and “crimes against humanity” aren’t actually crimes in most jurisdictions, in part because the term is at least as much a political term as it is an actual offense. Be that as it may, you will not find “crimes against humanity” listed in any criminal code in the US, state or federal (Well, technically it’s a crime in Puerto Rico (a first degree felony!), so maybe Luthor got busted while returning to his vacation home in San Juan, but we doubt it.). So right off the bat, there’s something we need to talk about. More than that, there’s also the question of what court, if any, would have jurisdiction over such charges. Lastly, we’ll look more generally at the issue of prosecuting supervillains, which as we’ll see is far from simple. Continue reading

Daredevil #5

We last wrote about Daredevil back in September, when we discussed the story of Austin Cao, a blind translator who overheard some Latverians talking at the investment firm where he worked—and got fired for his trouble.  In Daredevil #5 we learn just what it was the Latverians were up to.

Continue reading

Once Upon a Time

Like GrimmOnce Upon a Time is a show that blends fairy tales with the modern world—and brings up some interesting legal issues along the way.  Although Emma, the main character in Once Upon a Time, is a bounty hunter, there are indications that she will become a sheriff’s deputy, bringing the show closer to a police procedural.  We’ll be checking out all of the episodes over time, but Law and the Multiverse reader Marize wrote in with some specific questions about episode 4, which is the subject of this post.  There are a ton of spoilers here, so check out the episode on Hulu if you haven’t seen it already (with apologies to our non-US readers).

For those unfamiliar with the show, the premise is that various fairy tale characters have been whisked away to Storybrooke, Maine, where they play out a modern-day version of themselves (e.g. the evil queen is the mayor, Rumpelstiltskin is a pawn-shop owner).  The episodes focus on Emma’s efforts to solve the fairy tale characters’ problems, bringing closure to their stories.

Continue reading

The Intergalactic Nemesis, Reminder

This post is a reminder that Law and the Multiverse co-author James Daily will be participating in a panel discussion preceding performances of The Intergalactic Nemesis at the Edison Theatre at Washington University in St. Louis on November 18th and 19th.  The Intergalactic Nemesis is a live action graphic novel, sort of a radio-play-meets-motion-comic, and it has received rave reviews around the country.  If you’re a fan of pulp action and sci-fi, you’ll love it.  Tickets are available online.  We hope to see some Law and the Multiverse readers there!

Batman’s Medical Records

Russel Saunders over at The League of Ordinary Gentlemen has mocked up a hospital record for Bruce Wayne. It reads remarkably like an actual medical history, which shouldn’t be surprising given that Saunders is a physician. But it winds up getting at a few legal issues about which some comment is merited.

First of all, reading this document should demonstrate, in part, just how hard it would be for a superhero or supervillain to maintain a secret identity. We talked about the difficulties inherent in alter egos about a year ago, but actually looking at what a medical record for a superhero might actually look like just drives the point home. If you go to the hospital, people do ask questions, and health care professionals are trained to ask uncomfortable questions about unexplained injuries. This is partly for the safety of the patient, as a lot of domestic abuse goes unreported until someone shows up at the hospital, and even then it can take some real prodding before the truth comes out. But it’s also partly for public safety reasons, as many people who wind up with unexplained injuries, especially things like gunshots or knife wounds, are involved in something slightly less than legal a lot of the time. While the doctors and nurses who actually provide medical care don’t usually care about whether someone was injured while breaking the law, police departments routinely call emergency departments and hospitals to see if suspects likely to have been injured have turned up.

Second, even though medical records are protected by privacy laws like HIPAA, once this information is out there it doesn’t just go away. If an enterprising Gotham City DA ever suspects that Wayne is up to something untoward, he can get a warrant for Wayne’s health records. All of this information—including the little speculative note at the end of the record—will come out, all of which will put a DA that much closer to putting the pieces together. Wayne may be able to account for his whereabouts in some cases where Batman is known to have been involved, but if he shows up at the hospital every time Batman does his thing, that gets harder to explain. Similarly, a person who sues Wayne for unrelated reasons may well be able to get access to Wayne’s medical history, assuming it’s within the realm of permissible discovery. This could, in turn, lead to other connections being made and investigations started.  Hacking and other unintentional leaks are another way the information could become public. And like with WikiLeaks, once information is out there it’s hard to make it go away.

Third, there’s the issue of payment. Wayne is listed as self-pay, which is entirely plausible given his particular position. But what about Dick Grayson and Jason Todd? Or Selina Kyle? Or Frank Castle? Or basically any other more-or-less normal guy with a dangerous sideline, no healing factor, and a masked identity? How are they paying for their medical care? Insurance? Certainly not from their employers, and even if they were, that means that some claims adjuster out there is getting regular reports of outrageous physical trauma. Phone calls are going to be made. Self pay? Do these people even have jobs? If not, where are they getting the money for all of this? If they’re paying, someone is going to start asking how, and if they’re not, the hospital is going to start getting pissed. Again, attention, which is bad news for anyone trying to maintain a successful, secret alter ego. Field-medic-style first aid isn’t really a solution here, as even if our heroes never go to the hospital for the traumas they suffer, they’ll still probably wind up stopping in for something eventually, at which point even a minimal probing of their medical history or a cursory imaging study is going to reveal unexplained past injuries. Questions will be asked.

So good on Saunders for a plausible take on what a document like this would look like. It’s a valuable bit of added realism that comic book writers would do well to consider.

All-Star Superman I: Criminal Liability for Lex Luthor

All-Star Superman is the non-canonical, bi-monthly limited Superman series written by Grant Morrison and drawn by Frank Quitely which ran from January 2006 to October 2008. It’s the second title published by DC’s All-Star imprint, designed to let authors take a new run at old heroes by freeing them from the constrictions of continuity, both retrospective and prospective, similar to the Marvel Ultimate series. While All-Star Batman and Robin the Boy Wonder was rather poorly received, All-Star Superman is generally regarded as a successful and interesting take on Superman. One can say without offering much of a spoiler that the whole premise of the series is that Superman learns he is terminally ill and sets about setting his affairs in order before his impending death, setting the scene for a rather more poignant and thoughtful set of stories than one would normally expect from the Man of Steel. It also presents a pair of related legal issues which we’ll consider here: is Lex Luthor criminally liable for Superman’s death, and even if he were, how would one go about prosecuting something like that? This time we’re going to look at the first issue, saving the second for another post. Continue reading