Batman: The Musical and the Right of Publicity

Today’s post was inspired by Steven, who writes: “In one episode of Batman Beyond, New Batman Terry McGinnis takes Bruce to see a performance of Batman: The Musical, which portrays the original Batman. Bruce is not enthused by the idea. What are his rights here vis-a-vis right of publicity and/or privacy?”

We’ve discussed the issues of privacy rights and the right of publicity in general before, and we even had a couple of guest posts on the subject, but this is an interesting concrete example.  We’ll ignore the practical difficulties of Bruce bringing a suit without revealing his secret identity, however.  Let’s run down the list of possible privacy torts:

• Intrusion: This one is pretty easy to dismiss.  Unless the musical writers researched it by spying on Bruce or something like that, it doesn’t represent an “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.”
• Disclosure: This also doesn’t seem to fit.  Everything in the musical seems to be based on Batman’s public activities (e.g. he wears a costume, fights crime, and sometimes works with the police commissioner).  The musical isn’t giving publicity to a private matter that would be highly offensive to a reasonable person and is of no legitimate concern to the public.
• Appropriation: Now we’re getting somewhere, but it’s still not a great basis for a lawsuit.  Someone is liable for appropriation if he “appropriates to his own use or benefit the name or likeness of another.”  This fits, but the problem is the measure of damages.  Appropriation is based on the mental anguish of the person whose privacy was invaded.  The biggest problem is that the aspects of Bruce’s life that make him so upset (i.e. his reasons for fighting crime and the personal toll his double identity has taken on him), are not public knowledge and so are presumably not featured in the musical.  So while he might be able to sue for appropriation, his damages would probably be minimal.
• The Right of Publicity:  This is an interesting one.  Liability for infringement of the right of publicity is based on the likelihood of causing “damage to the commercial value of [the] persona,” and unlike some superheroes, Bruce does not seem to derive any commercial value from the Batman persona, so it’s hard to say that any damage could be done to it.  This suggests that, if he can sue on this theory, the value of his damages would be low.
• False Light: False light requires, among other things, “giving publicity to a matter concerning another that places the other before the public in a false light.”  Arguably the musical does that, since it makes Batman out to be a little silly, but it probably does not rise to level of “highly offensive to a reasonable person.”
• Libel/Slander: Nothing in the musical seems to be false, and to the extent the details are wrong, defamation of a public figure like Batman requires “knowledge of falsity or reckless disregard of the truth or falsity of the statement,” which is pretty hard to prove.

So, there are at least a couple of bases for a suit, but neither of them would be particularly valuable.  The main purpose of the suit, then, would have to be getting an injunction against the performance of the musical.  Unfortunately for Bruce, the musical seems to be very popular (it took McGinnis weeks to get tickets), and quashing it would likely not endear him to the public.  On the other hand, Bruce is basically retired at this point, so maybe he doesn’t care.

The real problem is whether Bruce Wayne has standing to sue, since he’s no longer active as Batman.  By passing the mantle to McGinnis, has Bruce given up ownership of the Batman persona?  I think that’s a pretty good argument that the defense could make, but it depends on the jurisdiction.  In some cases, the right of publicity has been held to be personal and non-transferable.  See, e.g., Bi-Rite Enterprises, Inc. v. Button Master, 555 F. Supp. 1188, 1198-1199 (S.D. N.Y. 1983), opinion supplemented, 578 F. Supp. 59 (S.D. N.Y. 1983); Lombardo v. Doyle, Dane & Bernbach, Inc., 58 A.D.2d 620, 396 N.Y.S.2d 661, 664 (2d Dep’t 1977).  The majority view, however, is that the right of publicity is transferable and applies even to public figures and public information.  See, e.g., Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868-69 (2d Cir. 1953); Haith v. Model Cities Health Corp. of Kansas City, 704 S.W.2d 684, 688 (Mo. Ct. App. W.D. 1986); Palmer v. Schonhorn Enterprises, Inc., 96 N.J. Super. 72 (Ch. Div. 1967).

Since the show is set in the future, it’s very likely that Gotham takes the modern, majority view.  In that case, it’s arguable that Bruce has passed the right of publicity to McGinnis and thus has no standing to sue.

Oddly enough, to the extent any of the villains portrayed in the musical are still alive, however, they might have a better case.  They definitely haven’t transferred their rights of publicity to anyone, and most of them don’t have a secret identity to worry about.