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.

28 Responses to Guest Post: Superheroes and the Right of Publicity

  1. Does it make it more difficult, or even impossible, to file these kinds of cases if there is a desire to remain anonymous?

    Would a supernatural being like a God or an Angel be able to take advantage of this right (Thor, perhaps?) or are they too old and their likenesses too common that they’ve passed into the public domain?

    • I don’t believe that there has ever been an agreed upon depiction of God*, nor angels (mostly because if they do exist then they stopped appearing after humans were able to accurately record their images). From what the Bible suggests on angels I suspect it wouldn’t be a problem, most of them don’t seem to fit into the winged humanoid category. Of course if God and angels started making regular appearances and everyone knew what they look like it might be a different matter.

      *And the Muslims would say that nothing humans do could possibly be an accurate depiction of God.

    • While a plaintiff may “file” anonymously, during trial it would be near impossible to keep such anonymity. The plaintiff will want to offer evidence not only that the produced work uses the plaintiff’s identity but that that defendant’s use of that identity harmed the plaintiff. To do that, the plaintiff will need to offer evidence of his or her “celebrity.”

  2. I am curious as to why this blog does not seem to have more guest posts. It seems like it would be beneficial to all involved to occassionally involve other skilled contributors.

    But more to the point of this post, is there a clear definition for “Plaintiff owns an enforceable right in the identity or persona of a human being” Is this something which all humans inherently have in themselves until such time as they sell/license the right to another entity? Or is it only achieved on becoming a celebrity? And if the later, what of people are famous within a domain? I would expect for instance most mathematicians and computer scientists to know of Donald Knuth, but outside the technical fields most people have never heard of him, and I expect virtually all lawyers to know of Learned Hand, but my friends who aren’t in law school just give me a funny look if I reference him.

    • I’ll let Brad answer your substantive question, but regarding guest authors there were two reasons why we waited so long. First, we didn’t want the additional complication of getting releases from guest authors while we were negotiating various contracts related to the blog. Second, we wanted the first guest post to be special, and it’s hard to get much better than a law professor who is also a published comic book author. We will probably be more open to guest posts in the future, though.

    • Timothy,

      What a great question. My suspicion is that if a person has some sort of quasi-celebrity, such as a mathematician, that would factor into the amount of damages he or she could receive. The point of this tort is to allow a plaintiff to recover from the creation of a produced work that infringes upon that celebrity’s ability to capitalize on his or her celebrity – something he or she owns. If that “celebrity” is worth very little, damages will likely be little as well.

  3. I think “Ultimate Spiderman” had an interesting twist. To excessively synopsize: When Parker first attempted to capitalize his powers in pro-wrestling, the wrestling syndicate gave him the super-suit. Later, criminal mastermind Wilton Fisk (“Kingpin”) found that his various enterprises owned that wrestling syndicate, which, in turned, owned commercial rights to the “Spiderman” name and supersuit image. So, Kingpin decided to cash in BIG, saturating the market, exposing Spiderman to ridicule (the Spider-Mobile toy) and generally running the value of the property into the ground.
    Seemed more plausible to me than some of the OTHER plots to hurt a superhero…

  4. I am excited about the possibility of guest blogs. In particular, I would love to see some guest posts by an expert on family law. What are the duties and responsibilities of Bruce Wayne as Dick Grayson’s guardian? How is being Bruce’s ward different from being Bruce adopted son? How easy would it be for child protective services to have taken Dick away from Bruce if they learned that Bruce was Batman and Dick was Robin? Was there nobody visiting their home to see that Bruce was taking care of him or was Dick abandoned into Bruce’s care? And what about education? Children in the U.S. are expected to go to school until they are 16 but there was no time for Dick to go to school. Could Dick receive home schooling from Alfred and, if so, what standards did they have to satisfy?

    What duties and responsibilities does Wolverine have to care for X-23 seeing as how she is a clone of Wolverine with his Y chromosome substituted for a second X chromosome? Can Superman sue Lex Luthor for child support seeing as how Conner Kent (who choose to live with Clark over his other dad) was their offspring? How much could Superman get, given that he has no known income and Luthor is rich? Would a paternity test be enough to convince a jury that Lex is the other father or would Superman have to provide evidence that Lex mixed their DNA to create a clone?

    For that matter, I have a question for Mr. Desnoyer: can Spiderman sue for the use of his “likeness” when somebody clones him? Can Wolverine and Superman sue or are X-23 and Conner Kent “transformative” and by the first amendment?

    Martin

    • I suspect that this will be substantually affected by the children not being considered property base of the law as described in the post about Rumplestiltskin.

      • I think the child support/responsibility questions still arise, though. Legal precedent is that it doesn’t matter if your sperm is taken against your will, a father is still responsible for support. Wouldn’t that extend to children created using genetic material other than sperm?

        This also brings up a point I brought up before. There’s a gradual shading from clones-like-offspring to clones-like-duplicates as far as sci-fi cloning goes. Connor/X-23 were created as children (X-23 came from a womb and IIRC her birth mother’s relatives are considered her relatives even though there’s no genetic link), do not have memories of the original, are different ages, and in Connor’s case he even has two parents. This puts them at the other end of the spectrum from Ben Reilly, who could have easily been formed from Spiderman by a transporter accident rather than by cloning. So could Connor or X-23 be considered children of the cell donors?

        Also, a related question: is Gwen Stacy’s clone (who falls on the Ben Reilly end of the scale) considered related to Gwen Stacy’s children and would she get custody of them, either as a duplicate-of-their-mother or as another kind of relative such as an aunt? Would it matter if she was cloned before the birth? (This mixes, of course, storylines from two different writers, but they still both take place in the Marvel Universe and the only reason they haven’t met is that nobody wrote the meeting.)

      • There is precedent in Marvel for good superheroes to recognize offspring that weren’t actually their own. For example, Jean Grey (when she isn’t dead) thinks of Cable as her son even though he was born to her Madeline Pryor clone and Rachel as her daughter even though she was born from her Phoenix clone in an alternative time line.

      • TimothyAWiseman

        @Ken Arromdee I am not a laywer, but I believe that questions about parentage would generally fall under state law. Most states follow some version of the model “Uniform Parentage Act”, which is summarized very briefly at http://family-law.lawyers.com/paternity/The-Uniform-Parentage-Act-of-2002.html If you prefer cases, one case that discusses this is Elisa B. v. Superior Court, 117 P. 3d 660 (Cal. 2005)

        If you have any citations about sperm taken against a man’s will making him the parent (especially if they are after 2002 when the recent version of the UPA was published), I would be interested. If I understand, generally if a couple consents to using either donated sperm or egg that couple is deemed the parents and the genetic donor has neither rights nor responsibilities regarding the child. If sperm or egg were taken from an unwilling provider, but the recepients were willing then the court would likely find the recepients to be the legal parents in terms of both duties and rights, though in that case the unwilling donor might have a valid challenge in equity for an exception to the law if they wanted to assert their rights.

        Cloning is not dealt with specifically (possibly because human cloning is currently illegal in America for when it becomes possible, and has not yet been achieved even in a laboratory), but I suspect the court would find the person or people who ordered the cloning done to be the responsible “parents” rather than the one who provided material, especially if the provider of the material was unwilling and possibly even unaware. Since you bring up X-23 though, it is likely wolverine would be found to be her legal father, not because of genetics at all, but rather because he has held himself out as such after discovering her existence.

        Of course, in custody cases the best intersts of the child are the paramount concern and courts would likely keep that strongly in mind when dealing with any novel or unusual parentage cases, even when and where custody itself was not the main issue in the case.

  5. Jean Grey and Scott Summers raised Cable in the future for 20 years (in other bodies, so they didn’t age). I don’t know if this is still continuity, but it’s a more logical reason for Jean to consider herself his mother. Anyway my questions were more about the legal issues.

    Madelyne Pryor, being a clone, herself falls into that sliding scale, more towards the “not offspring” side. Would it be possible to recognize the sliding scale legally and say “this clone is more like an offspring, this clone is more like a sibling” and decide which one the clone is by saying “the preponderance of this clone’s traits are offspring-like/sibling-like” without making any single trait the deciding factor? So they could rule, for instance, that X-23 is Wolverine’s daughter without being forced to also rule that Madelyne is Jean’s daughter.

    • I touched on this in my other comment, but yes.

      For one thing, there is adoption and the “holding out” clause in the UPA. If Wolverine either adopted X-23 or held himself out as her father (which he does), then unless there was another party with a valid claim of parentage that was activitly disputing his paternity, the court would inquire no further and find Wolverine to be her father. Even in an actual paternity dispute, holding yourself out and acting in place of a parent goes a long way to establishing it unless the other persons claim is substantially stronger. You can adopt someone of any age (it is relatively rare but not unheard of to adopt an adult in the US, it is fairly common for cultural reasons in Japan). So when the “parent” is willing and there is no other party disputing their parentage, they will likely find it to be that persons leal child.

      On the other hand, when the “genetic donor” is the one trying to escape being declared the parent they can probably say that the creation of the clone was analogous to reproductive assistance consented to by the people who made the clone. In that case, a court would likely find that the clone’s creators and not the “genetic donor” was the parent.

      I do not think the “sibling-like” question would come up often in family law, it would mostly be a matter of who was the “parent”. Of coures one area the “sibling-like” question might arise is probate for an intestate deceased person, but even there I think the question would only arise in the narrow circumstance where the deceased had no will, the clone had not been adjudicated to be a legal child, the deceaseds parents were dead, and the deceased had other siblings.

      • Melanie Koleini

        Do you know of any cases where an identical twin is given preference in getting custody of nieces or nephews over non-twin aunts and uncles?

    • @Melani Koleini I did not find anything right away (though my search was extremely cursory and again I am not a lawyer), but I do not think a court would prefer an identical twin to a non-twin sibling of the parent, and would certainly not have a strong preference for the twin if they did.

      When dealing with custody or guardianship of a minor, the primary concern of the court is the best interest of the child. I will look at Nevada, since that is where I am. Here in a divorce case, NRS 125.480 specifically states “In determining custody of a minor child in an action brought under this chapter, the sole consideration of the court is the best interest of the child.” There is a fair bit of legislative guidance after that in how the court should determine the best interest of the child and presumptions that must be dealt with, but the focus is on the best interest of the child. Since we are talking about siblings of the parents, I assume you are contemplating situations where either both parents are dead or clearly unfit for some reason.
      In that case, we turn to guardianship which is under NRS 159. NRS 159.061 deals with preferences for guardianships and puts a strong preference for a qualified and suitable parent when dealing with a minor. Since we have already assumed the parents are out of the question, we move to step 2 which says the court will find the person “…who is most suitable and is willing to serve.” NRS 159.061 (3) states that a court may consider the blood relationship between the potential guardian and the minor, but that is only one factor to be considered and not necessarily decisive. It also gives an order of preference for the blood relationships and lists uncles, aunts, adult nieces, and adult nephews as all equal. This is discussed somewhat in Matter of Gaurdianship & Estate of DRG, 62 P. 3d 1127 (available in google scholar) where, under unusual circumstances, the court found that a child’s aunt would make a better parent, at least initially, then the father when the mother died and granted guardianship to the aunt.
      So, if a court is faced with a case where a twin sibling of a parent and a non-twin sibling are both absolutely equally “suitable and willing” to serve as a guardian for a minor, then it just might use the “twin” status as the tie breaker, but a situation like that is probably exceedingly rare. And even if the judge is mentally using the “twin” status as tie breaker in a close call, he may very well couch it in terms of just deciding that the twin happened to be more suitable or willing when he writes his opinion.
      Of course, in reality there is a good chance that the “twin” would be more suitable and willing simply because twins tend to be close (I know I am generalizing broadly here, but based on the twins I know including two of my aunts, I think it is a fair generalization) so it is likely the twin is close to the child in question. But in that case, it is really that the twin happens to be more suitable rather than any preference for the twin per se.

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  7. I think for the question “would Gwen Stacy’s clone get custody of Gwen Stacy’s children” (given that the father is an insane villain and the actual Gwen is dead) it may make a difference exactly what kind of relative the clone is considered.

    As for sperm taken against a man’s will making him liable for child support, there are cases involving used condoms and such, and if you do a Google search for “statutory rape” “child support”, you can find some egregiously bad cases.

    • “I think for the question “would Gwen Stacy’s clone get custody of Gwen Stacy’s children” … it may make a difference exactly what kind of relative the clone is considered.”

      Maybe, this does fall into dealing with a deceased person, which as I said is an area that it might come up.

      But even then, it is probably a small factor. First, for there even to be a discussion it has to be established that there is not someone that would have an absolute claim on the child. The father, unless either stripped of his parental rights or plainly unavailable due to being in jail or missing, has an enormously strong claim for custody. The fact he is an insane super villain might certainly factor in if the state (perhaps at the clone’s urging) decided to try to strip him of parental rights, but that would need to happen first.

      Next, if there is a will that names a guardian, that is given great deference. That is certainly easier to challenge than the parental rights of the father, but it would probably trump any claim of merely being a relative without something much more.

      Now, if we assume that the father is out of the picture for some reason and no one suitable is named in the will, then in Nevada we would look to NRS 159. There blood relationship is taken into account in determining “…who is most suitable and is willing to serve.” But it is hardly the only criteria. So, if there are multiple people who are all roughly equal in being suitable and willing to serve including the clone, then what the relationship was determined to be would affect the judgment. But even then it would only be one factor amoungst several and a court would be likely to avoid tackling an esoteric and novel question like that unless it had no choice.

      So, maybe it would matter, but there is still a good chance it wouldn’t matter at all and would only be one factor when it did matter.

      “As for sperm taken against a man’s will making him liable for child support….”

      Is there a case in particular you are looking at?

      Since you mention it, there is a major difference between a young, but otherwise willing, provider of sperm and sperm taken against your will. The most realistic scenario for sperm taken against your will is if it is provided for the intentional insemination of one woman and through hospital error inseminates another. In that case, it has most definitely been taken and used against his will, though not necessarily through anyone’s deliberate malice. I do not know that that case has ever occurred, but in that scenario I think any jurisdiction that adopted the UPA would easily find that that man was not the legal father (and also that the hospital that made the mistake owed massively to everyone involved, but that would be a separate lawsuit).

      Off in comic book land, we could easily see many other scenarios (someone trying to copy a specific genetic power might use fair means or foul to get viable material to create an offspring), but in the vast majority of those I think a reasonable court would find no parentage for the father.

      • Okay, to clarify, in Sins Past:
        Norman Osborn (Green Goblin)
        — was the father of Gwen’s children
        — had been the one who killed Gwen
        — was in jail at the time of Sins Past (though I don’t know if he is right now)
        — raised the children after killing Gwen, against the wishes of Gwen, who wanted to keep them away from him. I have no idea if he had legal custody or just kidnapped them. He lied and said he was not the father, so I doubt it was legal custody.

        The children are 7 or so in calendar years but were rapidly aged by standard comic book pseudoscience, so I don’t actually know if they need to be in anyone’s custody, but I’ll assume they do. I would also guess they’re not mentioned in Gwen’s will (otherwise Peter would have found out).

        Gwen’s clone is from a completely different story and is the exact duplicate kind of clone.

        I think the question of whether the clone can claim custody as a relative has been answered, but can the clone claim custody on the grounds of actually being their mother (since she’s an exact duplicate)?

        Bonus question as to whether they need to be in anyone’s custody. They clearly don’t look or act like 7 year olds, but they’re more naive than normal people of their physical age, and I don’t think the law allows 7 year olds to be considered adults on the grounds of mental maturity. Could they become emancipated? Likewise, they’ve committed crimes–would they go to juvenile court?

      • Melanie Koleini

        I have no idea if this story is real. But the link below leads to a news stroy claming a man is sueing a fertility clinic because they used his spem with out his permission and he is now obbligated to pay child support for twins.

        http://www.dailymail.co.uk/news/article-2065293/New-father-Joe-Pressil-sues-fertility-clinic-girlfriend-stole-sperm-got-pregnant-gave-birth-twins-IVF.html

      • TimothyAWiseman

        @Ken

        I do not think she could manage a claim of actually being the mother. It is known she did not conceive, bear, or raise this child (even if she has implanted memories from the original Gwen who did). Since the cloning event she has led a different life and become a different person from the original Gwen.

        I think most courts would avoid the question of her claiming to be the mother by deciding the case on other grounds. If Norman is trying to claim he is not the father, and she presents herself as someone suitable and willing, the court would probably just grant guardianship and be done with it. If a court was truly forced to confront the question of “Can she be regarded as the mother?” head on in some way, then I think they would be forced to conclude that she is not the mother.

        @Melanie

        Thank you for pointing that out, that is interesting and I will be interested to see what if any precedent comes out of the case. The article was from just last month, so I’m fairly confident there is no ruling yet on his suit against the clinic, but it will be interesting when there is. I did a quick search on Google Scholar and Westlaw for the child support case, but it did not come up. That isn’t really surprising though since it is possible even that case is still going through the court system, and a lot of trial level cases do not have their opinions published in the reporters even when finished. Generally it is possible to look up the filings and decisions directly from the Court’s website, but I am not immediately clear on what court these cases happened in.

        Basing it only the news story, I think there is a good chance he will be found to be the father, but this is not a clear cut case of “stolen” sperm. First, many of the facts are in dispute (the clinic claims they have his consent form and the mother also seems to be disputing his version of the story). Even taking his allegations at face value, it is still not a clear case of stolen sperm. He did have intercourse with the mother willingly and did permit her to keep the condoms willingly even if he did not expect this use of them. A court could find this analogous to failed birth control, in which case the father is clearly responsible. Even where there is deception in the use of birth control, the father would be virtually certain to be liable.

        I think this type of case is could be distinguished from one in which sperm is taken and used on a mother –to-be without the father actually having a relationship with the mother or in which the father was in some way forced to provide the sperm in a fashion clearly against his will, as opposed to just for a different purpose.

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