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.

18 responses to “Batman: The Musical and the Right of Publicity

  1. How would Dick Grayson or Tim Drake fare in a suit? We know that they are still alive in that era (and Tim plays an important part in the BB movie). The Opera is showing a Robin (although played by a female) would that affect any of the various Robin’s? Also, does the fact that Bruce is still operating as “Bat-Control” change him from having passed on the Bat-Persona to Bat-Sub Contracting?

    I’m not surprised its popular though, if that existed in Real life I’d be buying tickets, damn catchy tunes in that.

  2. I wonder if Barbara Gordon would have a good case as well; her father’s in the musical singing along with Batman in the “Superstitious, Cowardly Lot” song….

  3. Melanie Koleini

    Assuming the musical didn’t portray villains inaccurately (other than singing and dancing), would they really have better grounds to sue than Batman?

    I vaguely recall watching made for TV movies ‘based on a true story’. While the move makers probably played the heroes for their stories, I drought they played the villains.

    • If they impute to a villain a crime said villain didn’t commit. If it is one of the villain’s own crimes, then truth could be used as a defense by the production team for the show. But if the villain can show that a specific crime in the musical that was he did not commit, he has an argument for slander.

  4. Even better, consult the episode of “Batman: The Brave and the Bold” featuring his team-up with Black Canary against the Music Maestro (yes, the whole episode is a musical.)

    Does Batman have any common-law trademark protections in the name, logos, or trade dress of the various bat-suits and bat-vehicles? (I’m sure if he does, it’s limited since he doesn’t seem to distribute any goods (although he does seem to leave batarangs scattered around) he might have some protection as a service mark… and they’re certainly trading on Batman’s good name (although, you’d think that a Batman stage show might draw supervillains, and not in the buying-a-ticket-for-the-matinee way.) (side note: maybe THAT’S why all those Spiderman stuntmen kept getting hurt…)

    could Bruce, as the SPONSOR of Batman, claim agency and file a suit in his name (and demand a cut of the profits?) I would think Wayne Enterprises, which I understand has been openly funding Batman activities, would have a strong unjust enrichment case… they spend the money to make Batman possible, and the show’s producers swoop in and appropriate the stories and characters.

    • TimothyAWiseman

      I do not think unjust enrichment could fit. Though it is certainly not its only application, the more common application of unjust enrichment is in the breakdown of a contract. While it is an extremely flexible doctrine, it usually requires that the plaintiff is being deprived of something from which the defendant is benefitting. Here it is hard to see how Wayne Enterprises is being deprived of anything at all.

      Though I suppose if Wayne Enterprises were openly sponsoring Batman (I’m not certain they are in the Batman Beyond continuity), they might have trademarked the Batman name, which could give them something to work with.

      • Wayne Enterprises never openly sponsored or funded Batman in the DC Animated Universe continuity; that’s unique to Grant Morrison’s current run in the comics. Indeed, for most of the run of Batman Beyond, Bruce is no longer in charge of his company, which has been renamed Wayne-Powers; Bruce is an influential shareholder but doesn’t have the kind of direct control that would allow him to use company resources to support Batman’s activities. Bruce becomes CEO again in the movie Return of the Joker, but it’s unclear whether this is before or after the episode featuring the musical. For what it’s worth, the episode aired a couple of months before the movie’s DVD release.

  5. Since Terry wears a different suit and demonstrates a different power set – most notably flight – is it the same Batman “persona”? In the real world the characters are different Trademarks, but if they are real, are they close enough to be the same franchise?

    • TimothyAWiseman

      Neither the original nor new Batman had a power set in the way the term is normally used in the comics. They were both gadget/skill based superheroes.

      Also, in the pilot episode they showed Bruce (immediately before retiring) wearing a suit very similar (posssibly the same one) as Terry. Essentially, Batman just upgraded as time passed.

      • Yes, it was the same suit, the one Bruce used in his final years as Batman. Its high-tech functions were meant to compensate for his increasing age (he was around 60 at the time of his retirement). And it was advanced enough to alter its size to fit Terry.

  6. I’d be curious about the producers liability under James Pollock’s idea that a Batman musical would almost assuredly draw out some kind of response from supervillains. That was basically the plot of the Batman: The Animated Series episode “Joker’s Wild” where a casino owner redesigned his casino to steal the Joker’s schtick in an attempt to bait the Joker into destroying it so he could collect the insurance money.

    Could the Joker have sued over the use of his likeness? And if Batman hadn’t gotten him to confess, legally could he have been found guilty of insurance fraud?

    As a final sidenote, sentences like: “Since the show is set in the future, it’s very likely that Gotham takes the modern, majority view.” are the reason I love your site.

  7. I remember the episode you mention, and if I recall correctly, the guy’s plan was to go for “plausible deniability” and claim that the character depicted in the casino’s theme wasn’t “that” Joker, but rather a generic, deck-of-cards Joker… but Batman obtained documents that spelled out the plan.

    Thus, the insurance company won’t pay off on the claim, leaving the developer bankrupt and unable to pay any claims from casino patrons injured by the Joker.

    If it had been inadvertent, and the Joker (being insane) targeted a casino that did not, in fact, intend to draw the Joker’s attention, presumably the Joker’s intervening criminal acts would cut off the third-party claims for negligence in accidentally picking a theme that drew in the Joker.

    • My only real concern with “accidentally” picking something in the world of the Joker seems to be that picking such a name and schtick seems to be well withing the realm of such (in)famous phrases as “Known, or ought to have known” in lawsuits. The name and atmosphere seem to enrage the Joker, and its one of those things a reasonable business owner should know might occur. I’d liken it to naming a pharmacy “We Have Crack Here” and assuming that they never expected to robbed on a more frequent basis.

      Even if one assumes that the name in and of itself isn’t negligent in a world with Joker than I would say its fair game for the guy’s investors to sue him since they lost them money doing something manifestly stupid.

      Also, how does this guy expect an insurance scheme to work? Its not like building a fully functioning casino is exactly the cheapest thing in the world, and its not like millionaire’s “investing” in an already existing business like the the mobsters in Good Fellas do and then burn it down to collect the money.

      • It’s been some time since I watched the episode in question, but my memories of it were that the change to mocking the Joker was made late in the process. Specifically, I remember there being a scene where Batman tore down Joker-themed wallpaper to show the original themed wallpaper beneath. In other words, the businessman already had sunk costs before he realized that he was going to lose money on the casino, so he decided to capitalize on it as best he could. It would still be a loss of money, but he’s hoping to recoup some portion of it, particularly since doing the destruction himself would cost money in permits and practices whereas if the Joker blows it up, well, he can’t control if a supervillain uses enviornmentally dangerous explosives which cause the building to fall on the neighboring property…

      • If it took place in Terry Pratchett’s Discworld then it would be called a blatant breach of the Being Bloody Stupid Act and ruled as suicide (it’s harder to imagine a clearer case of suicide than pissing off the Joker). Discworld always has my favourite fictional laws.

  8. “…(it’s harder to imagine a clearer case of suicide than pissing off the Joker).”

    Let’s be realistic — you’re just as likely to get killed if the Joker likes you. Best to stay off his radar altogether.

    • So change the line to “…(it’s harder to imagine a clearer case of suicide that intentionally drawing the attention of the Joker).”

Leave a Reply

Your email address will not be published. Required fields are marked *