Peter Parker, Con Artist?

The inspiration for today’s post comes from Greg, who asks:

During the Civil War storyline, for a brief time Peter Parker “outed” himself as Spider-Man. … J. Jonah Jameson wanted to sue Peter for fraud because he sold pictures of Spider-Man to the Daily Bugle under  what [Jameson] claimed were false pretenses. My question is, would that hold any water?

The facts for this question come from Amazing Spider-Man #533 (which you can buy reprinted in The Amazing Spider-Man: Civil War).  Specifically, a lawyer for the Bugle tells Parker that the Bugle is suing him for “misrepresentation, fraud, breach of contract and several other related charges” and they are seeking both compensatory and punitive damages of at least five million dollars.  So, how worried should Parker be about this?  Pretty worried, in our estimation.  Let’s take a look at each charge in turn.

(Before we get started, we’ll mention that there would have to have been a contract between Parker and the Bugle for the photographs because, as an independent contractor, Parker owned the copyright in his photos and would need to license or sell the copyright to the Bugle via a contract before they could be printed.  See this post for more on that.)

I. Misrepresentation

Because both breach of contract and fraud are also listed, we think that misrepresentation is being used in the contract law sense rather than the tort law sense.  In the contract law sense, misrepresentation is also known as fraud in the inducement (i.e. a misrepresentation made in order to induce the other party to enter into a contract).  This should not be confused with the tort of fraud, which we’ll get to shortly.

In New York, “To recover under a theory of fraudulent inducement, the plaintiff must prove: (1) misrepresentation of a material fact; (2) falsity of the representation; (3) scienter; (4) reasonable reliance; and (5) damages.” Creative Waste Mgmt., Inc. v. Capitol Env. Servs., Inc., 429 F.Supp.2d 582, 607 (S.D.N.Y. 2006).  ”Scienter” is a fancy legal word for “knowledge,” and in this case means the defendant has to make the misrepresentation knowingly.

So, has the Bugle likely got a case for fraud in the inducement here?  Let’s go through the elements.

(1) Misrepresentation of a material fact.

Right off the bat we run into a small snag: did Parker ever explicitly claim that the photos were unstaged photos of a different person?  Maybe, maybe not.  But even if he didn’t, his silence may be enough.

“[W]hen dealing with a claim of fraud based on material omissions, it is settled that a duty to disclose arises only when one party has information that the other party is entitled to know because of a fiduciary or other similar relation of trust and confidence between them.” Creative, 429 F.Supp.2d at 607.  Such a relation can be imputed by the “special facts doctrine,” under which “the courts impose a duty on a party with superior knowledge of essential facts to disclose those facts where nondisclosure would make the transaction inherently unfair. For this doctrine to be applicable, the plaintiff must prove that (1) one party has superior knowledge of certain information; (2) that information is not readily available to the other party; and (3) the first party knows that the second party is acting on the basis of mistaken knowledge.” Id.

Clearly, Parker had superior knowledge of Spider-Man’s identity.  Jameson had no clue who Spider-Man was and certainly didn’t suspect Parker.  The information was not readily available, as demonstrated by the fact that quite a few people, Jameson included, had tried and failed to determine Spider-Man’s identity.  And it can reasonably be assumed that Parker knew that Jameson wouldn’t have bought the photos if he knew they were staged and being sold to him by Spider-Man.

So Parker’s misrepresentation by omission will suffice.  It’s also definitely a material misrepresentation (i.e. it would have made a difference in whether a contract was agreed to) because Jameson would not have bought the photos if he knew the truth.

(2) falsity of the representation

This one is pretty easy.  At the very least the photos were falsely presented as genuine news photographs and not a semi-staged photo-op for Spider-Man.

(3) scienter

No question here; Parker definitely knew he wasn’t being honest about the photographs.

(4) reasonable reliance

Another easy one.  It was entirely reasonable for Jameson to believe that Parker was not Spider-Man and that the photos were genuine.  Unlike some superheroes (*cough* Superman *cough*), Spider-Man does a believable job of keeping his identity secret, and there was nothing incredible about the photos.

(5) damages

This one is also straightforward.  The Bugle paid Parker money for the photos, per the contract, and so there are damages.

So that’s misrepresentation established.  What does it get the Bugle?  The likely result is rescission of the contract and restitution of any money paid to Parker for the photographs.  So the Bugle gets its money back and no longer owes Parker anything under the contract.

II. Breach of Contract

This one is a little harder to write about, since we don’t know what the terms of the contract were.  It’s extremely likely, however, that the contract included a representations and warranties section in which Parker affirmatively represented that the photos were genuine, unmodified, unstaged, etc.  By trying to pass off the (effectively) staged photos, Parker would have breached the contract.

The practical upshot of the breach of contract claim is the remedy.  Breach of contract remedies are a little complicated, but the main damages here will be the loss of value due to lost reputation.  What it definitely doesn’t get the Bugle is punitive damages, as damages in contract cases are almost always compensatory. Even in cases of a fraudulent breach of contract, punitive damages are not available unless the fraud was “malicious, vindictive or morally reprehensible [demonstrating the] intent of wanton and reckless behavior.” Reinah Development Corp. v. Kaaterskill Hotel Corp., 59 N.Y.2d 482, 487 (1983).  Parker was not trying to scam the Bugle, so we don’t think his conduct rises to that level.

Because the damage due to lost reputation is so hard to measure, it’s possible that Parker’s contract with the Bugle included a liquidated damages clause.  A liquidated damages clause lets the parties agree to a particular amount of damages in advance.  Parker could thus be on the hook for whatever that amount is times the number of photos the Bugle printed (or, less likely, the number it purchased).

III. Fraud

“Generally, in a claim for fraudulent misrepresentation, a plaintiff must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 178 (2011).  As you can see, that’s remarkably similar to the elements of fraud in the inducement.  The difference in this case is in the remedy.  Whereas the remedy for fraud in the inducement is to undo the contract, the remedy for tortious fraud covers all of the damages stemming from the Bugle‘s reliance on Parker’s misrepresentations and omissions.

But wait a minute, that sounds a lot like the breach of contract damages.  And that’s right: the damages for fraud would be essentially identical to the damages for breaching the representations clause of the contract.  But you don’t get to recover twice for the same injury, so even if the Bugle proved both claims it wouldn’t get twice as much money.  So why bother suing for both?  First, because it might not be able to prove both claims and second, because the contract might not include a representations section (though this is unlikely)

IV. Conclusion

All told, Parker is looking at a pretty serious lawsuit.  As well he should, since passing off staged or manipulated photographs is a serious journalistic no-no, even if it’s done for the best of reasons.

125 Responses to Peter Parker, Con Artist?

  1. But not all the photos were staged. Most were taken from a camera positioned to cover the fight. Unless they want to claim that SpiderMan staged the fights (…which JJJ probably would…) or similar, would there only be the case for the photos which were staged? (I think some of the first photos he sold were, and helped the Bugle sell papers, so possibly they would be the ones to go for in a case?)

    • I used ‘staged’ in the broad sense of “contrived for a desired impression.” Parker wasn’t objectively covering the news but rather participating in it, apparently with enough foresight to set up cameras in advance.

  2. “And it can reasonably be assumed that Parker knew that Jameson wouldn’t have bought the photos if he knew they were staged and being sold to him by Spider-Man”
    Untrue. Did Jameson suddenly stop purchasing and publishing photos of Spider-Man after his identity was known? No. This demonstrates that, regardless of Spider-Man’s identity, photos of him were still valuable to Jameson. Also, keep in mind that Peter Parker was often the only source of Spider-Man photos, so not buying from Peter would potentially mean not getting any photos of Spider-Man , and possibly seeing a competitor purchase them instead. So, I don’t concede that knowing Spider-Man’s identity would necessarily keep Jameson from purchasing the photos.
    But even it would, how is Peter obligated to inform a purchaser that he (Peter) and Spider-Man are one in the same? Anonymous transactions are made all the time without fear of being overturned in court. For example, assume a condo developer buys up farm land anonymously through a sales agent. Can the farmer expect a court to void the sale on the argument that had he know the buyer was a condo developer, he’d have refused to sell?
    How is this not a simple case of “buyer beware?” Jameson knew that Spider-Man and Peter Parker COULD have been the same person, even if he didn’t believe they were. He also had reason to believe that if Peter was Spider-Man, he certainly would not tell him. Yet he willingly took the risk Peter might be Spider-Man and bought the photos anyway.

    • Did Jameson suddenly stop purchasing and publishing photos of Spider-Man after his identity was known? No. This demonstrates that, regardless of Spider-Man’s identity, photos of him were still valuable to Jameson.

      It demonstrates that photos of Spider-Man were still valuable, but it doesn’t demonstrate that staged photos taken by Parker were still valuable.

      Also, keep in mind that Peter Parker was often the only source of Spider-Man photos, so not buying from Peter would potentially mean not getting any photos of Spider-Man , and possibly seeing a competitor purchase them instead.

      Given how much Jameson hates Spider-Man and how wounded he was by Parker’s deception, I could see him forgoing photos entirely rather than giving money to Parker.

      But even it would, how is Peter obligated to inform a purchaser that he (Peter) and Spider-Man are one in the same?

      As explained in the post, the special facts doctrine arguably requires the disclosure.

      Anonymous transactions are made all the time without fear of being overturned in court.

      This wasn’t an anonymous transaction.

      How is this not a simple case of “buyer beware?”

      Buyer beware is not an all-encompassing legal doctrine. There are all kinds of implied warranties, duties to disclose information, etc.

      • “Given how much Jameson hates Spider-Man and how wounded he was by Parker’s deception, I could see him forgoing photos entirely rather than giving money to Parker.”

        That still doesn’t constitute monetary “injury” or “damage” done to the Bugle or JJJ based on the deception. I’m not sure that “I wouldn’t have made an investment in GoodGuy Co. if I’d known they were a wholly owned subsidiary of BadGuy Inc., so despite the fact that I made money off of these investments and no legal troubles reflect back on me now that it’s known BadGuy Inc. owns GoodGuy Co., I am financially harmed because I invested money in GoodGuy Co.” holds any water as an argument for “financial damages.”

        I mean, the investor GAINED money, and it cannot be shown that any of it was illegally earned, and it cannot be taken away from him. He just really hates BadGuy Inc. for personal ethical and moral reasons that are not related to matters of law.

        I think, at best, JJJ could try to make a PERSONAL case for some sort of emotional hardship…and I think that trying to sue punitively for that is worthy only of dismissal with prejudice. (I’m no lawyer, though, so I could be wrong.)

        But despite my lack of legal degree, I am still hard-pressed to be convinced that any DAMAGE was done in a legal sense to the Bugle.

      • That still doesn’t constitute monetary “injury” or “damage” done to the Bugle or JJJ based on the deception.

        I didn’t claim it did. Don’t confuse the damages element with the materiality element. Materiality just means that it’s a distinction with a difference or, in other words, that the misrepresentation changed the outcome. The other poster was arguing that it didn’t change the outcome because Jameson would still have purchased the photos. I don’t think there’s support for that in the comics. Quite the opposite, in fact.

  3. I have to say that the case the Bugle would need to prove seems, to me, to be that they a) would not have bought the photos if they’d known Spider-Man was in on them, b) were financially harmed by the revelation that he WAS in them or are somehow financially harmed by having bought them and used them, and c) that Parker actively misrepresented the nature of the photos.

    “I would not have done business with him if I had known who he was” seems an awfully spurious reason to negate a contract. Unless the terms of the contract specified that Parker would have to give all information he knew about Spidey to the Bugle or something, he’s not withheld knowledge that would affect the contract’s worth.

    I know you mentioned “loss of reputation,” but what reputation have they really lost? “One of our photographers IS Spider-Man” seems more yet-another-story than a hit to their rep (despite JJJ’s personal vendetta). It’s really hard to claim the photos make Spidey look artificially-good when the articles inherently bias towards making him out as a bad apple (JJJ always insists on it; it’s only a secret so he can claim to be unbiased).

    But the Bugle made profit – and can be almost demonstrably shown to have benefitted competitively over other papers – from the pictures Parker sold them. There really can’t be shown any financial damage done to the Bugle by this, unless there is some way to prove that there really, REALLY was a heavy hit to their readership NOW over the scandal. And THEN Parker would seem to have reasonable means of making a case that any hit to their profits post-revelation might be related to a REFUSAL to continue buying them or to this unpopular law suit.

    So I am not sure actual damages can be shown. “Inducement” is there to convince somebody to do business, but I think the illegality of it is linked to it somehow helping scam somebody into a bad contract. As far as I can tell, Parker sold pictures of Spider-Man to the Bugle. That’s all he purported to be doing. I mean, could the Muppets have sued Richman after he’d bought the Muppet theater on the grounds that he intended to turn it into a museum after he changed his mind and made an oil well out of it (assuming that’s how the movie had actually ended)? Could somebody sue a Catholic Priest for selling them his car if he did so anonymously, but they NEVER would have bought a car from a CATHOLIC (due to personal biases)?

    • “I would not have done business with him if I had known who he was” seems an awfully spurious reason to negate a contract.

      It’s not just who he was, it’s that the pictures were taken by a biased source who represented himself as unbiased and, further, the pictures were arguably staged. Knowing that the pictures were actually taken by Spider-Man seriously undercuts their credibility and thus the credibility of the Bugle. People will wonder what other photos or stories were actually written by people involved in them rather than neutral reporters.

      But the Bugle made profit – and can be almost demonstrably shown to have benefitted competitively over other papers – from the pictures Parker sold them.

      Those profits will be counted against the damages resulting from the loss in reputation, the cost of printing the retraction, etc. And remember, too, the possibility of liquidated damages and, of course, restitution in the form of the return of any money paid to Parker for the photos in the first place.

      As far as I can tell, Parker sold pictures of Spider-Man to the Bugle.

      No, he sold pictures of Spider-Man to the Bugle with either an express or implied representation that they were the products of objective photojournalism rather than staged self-portraits.

      • I’m not sure Parker ever presented himself as “unbiased.” I mean, would JJJ have a case if it were shown Spidey knew Parker was taking the photos, but not that Parker WAS Spidey?

        If JJJ could show that Spidey deliberately staged fights with villains – that is, that there would have been no fights were Spidey not seeking to create news – he might have a case for genuine misrepresentation that causes real harm and changes the value of the photos. But while he might want to make that claim (he does think Spidey nothing but a glory-hound AT BEST), it’d be hard to convince a jury in New York that Spidey is not genuinely trying to help protect people from villains who would do greater harm if he didn’t get involved.

        Why does the Bugle have any right to reclaim money paid to Parker for the photos in the first place? Going back to my “investor in GoodGuy Co.” example, does he have a right to demand all his invested capital back from GoodGuy Co. in addition to the money he gets for selling off the GoodGuy Co. stock? It seems to me that the Bugle’s already been “recompensed” for the money given to Parker for the photos: they made more selling the papers with the photos than they spent on said photos.

      • I mean, would JJJ have a case if it were shown Spidey knew Parker was taking the photos, but not that Parker WAS Spidey?

        Maybe not, but those aren’t the facts. There’s a huge difference between a journalist lying about a photo being candid and lying about being in the photo.

        Why does the Bugle have any right to reclaim money paid to Parker for the photos in the first place? It seems to me that the Bugle’s already been “recompensed” for the money given to Parker for the photos: they made more selling the papers with the photos than they spent on said photos.

        Restitution (the return of the money paid to Parker) is different from compensatory damages (Parker’s liability for breach of contract and fraud). Compensatory damages are generally limited to the plaintiff’s actual damages, whereas restitution is more concerned with preventing the wrongful gain or unjust enrichment of the defendant. Restitution allows a claimant to “potentially recover more than a provable loss so that the defendant may be stripped of a wrongful gain.” Restatement (Third) of Restitution and Unjust Enrichment § 3.

        If it turned out that the Bugle had a net profit from the use of the photos, letting Parker keep the money would present a moral hazard. “No harm, no foul” is not always a good rule.

      • This sounds like a really bad policy. “I am offended that GoodGuy Co. let me make this profit. I demand not only to keep all the money I made off my stocks, which is greater than what I invested, but that GoodGuy Co. now give me back my money I spent. That way, I get twice my investment PLUS the interest!”

        It sounds like a great way for somebody to get something for literally nothing just because they don’t like the person from whom they got it.

      • I suppose my point is, Parker’s misrepresentation – such that it is – is as much a case of “no harm, no foul” as somebody finding out that GoodGuy Co. is owned by BadGuy Inc. No harm has been done.

        If somebody is morally opposed to Wal*Mart and finds out that the food their best friend just gave them to eat was bought there (and that their best friend is actually a member of the Walton family), after the food’s been eaten, do they have a right to sue their friend? What if their friend sold them the food at Wal*Mart prices while deliberately hiding that it was Wal*Mart food and he’s a Walton?

        I’m not sure you have a right to demand that somebody you would rather not have gotten money give you back what you spent with them after you’ve already used and benefitted from the product you bought from them.

      • It sounds like a great way for somebody to get something for literally nothing just because they don’t like the person from whom they got it.

        You’re really oversimplifying the facts in this case (and your GoodCo example is not analogous at all). It’s not just about Jameson’s dislike for Spider-Man. Parker committed a serious, intentional breach of journalistic ethics and made the Bugle complicit in it by concealing his identity. Whether you find it believable or not, this is presented in the comics as a serious problem with significant reputational and financial consequences for the Bugle. In my opinion Jameson’s reaction to the news shows that he would not have bought the photos had he known the truth, it’s highly likely that Parker knew it, and he had no reasonable way of discovering the truth apart from Parker telling him.

      • Well, if they CAN show financial and/or reputational damages that stemmed from Parker’s willful concealment of his identity, that’s one thing. I confess that my objections here largely stem from an inability to believe that there are real, and certainly not provable, damages done to the Bugle’s reputation or finances, and that the financial situation is quite the reverse: the deception wound up benefitting the Bugle because it made more money than it would have otherwise.

        Now, as to whether this is a breach of journalistic ethics, that I can’t argue. I don’t see quite how; I mean, is it unethical if, instead of what we’ve got, Parker had Mary Jane (obviously in on Parker’s secret in this hypothetical) take the pictures and sell them? “Staged” questions can be asked, but I’m not…quite sure how, if they were NOT staged in a way that manufactured news where none would otherwise exist, it breaches ethics.

        (I know he stages some of the simple “swing through the city” shots. But those don’t seem to manufacture news so much as just provide a graphic. JJJ may want to claim he stages the villain fights, but Spidey wouldn’t do that in any of the incarnations of him with which I’m familiar, so there’s no technical ethics violation even if JJJ would like to believe there was one and would do all in his power to make it look like there was.)

      • To be clear: the GoodCo example fails the special facts doctrine test because the investor could easily discover GoodCo’s subsidiary relationship with BadGuy Inc and whoever the investor is buying the stock from (his broker? GoodCo?) has no particular reason to think that the investor is mistaken. Further, GoodCo would have to know that the investor cared about not investing in BadGuy Inc (i.e. that it was a knowing material misrepresentation).

      • Now, as to whether this is a breach of journalistic ethics, that I can’t argue. I don’t see quite how;

        Because the photographer is the subject of the photograph, which makes the photographer obviously biased, even if the paper runs the photograph with a very different editorial slant. And because there’s an implicit representation to the reader that the photographer is not the subject of the photograph, which makes it inherently deceptive.

        I mean, is it unethical if, instead of what we’ve got, Parker had Mary Jane (obviously in on Parker’s secret in this hypothetical) take the pictures and sell them?

        Much less unethical, since the two objections given above would no longer be the case.

        “Staged” questions can be asked, but I’m not…quite sure how, if they were NOT staged in a way that manufactured news where none would otherwise exist, it breaches ethics.

        They’re staged in the sense that Spider-Man knew the fight was coming and set up cameras to capture it. He quite literally “set the stage” and then lied about it.

      • Hm. So it would be different if Parker had, instead, set up the cameras all over the city in “likely fighting spots” and then made no effort to ensure fights passed before them, simply relying on chance?

        I’m still unsure how it’s different if Mary Jane is the photographer and comes to the fights to photograph Spidey when she only knows where to go because Spidey tells her and then Spidey helps her pick which ones to sell.

        I only add the “choose which ones to sell” because there’s some pruning Parker doubtless does that could contribute to the “bias” argument. Would it be any less unethical if Parker offered ALL photos his cameras took?

        What if Mary Jane set up the cameras according to Parker’s instructions, left the scene, returned to collect them, and then sold them as her own?

        I’m just baffled, here, that complicity with the subject and being the subject are really that brightly distinguished.

        If Parker said, “Yeah, I’m good friends with Spidey; that’s why he lets me get such good shots,” or some equivalently “I’m on good terms” statement that was less of a lie but still obfuscated his identity AS Spidey, would that make it any more or less ethical?

      • “No, he sold pictures of Spider-Man to the Bugle with either an express or implied representation that they were the products of objective photojournalism rather than staged self-portraits.”

        I’m pretty sure it was widely known that Spiderman “lets himself” be photographed by Peter Parker far more than any other photographer, and perhaps even gives him some inside information on where he’s going to be. In fact I recall a story where someone kidnapped Peter to try to draw out Spiderman, referring to him as Spiderman’s “personal photographer” or something along those lines. So I don’t think Jameson can make a case that he was blindsided about Peter not being perfectly objective.

        I am not sure how fitting the idea of “staged” is either, anyway. In terms of when they just want any picture of Spiderman to illustrate a general article about Spiderman: it’s a picture of the real and genuine Spiderman. It’s really no more “staged” than when a celebrity turns and smiles for a camera they’re passing. And for pictures of him at crime scenes, it’s really pictures of him at the crime scene, at the time of the crime; not reenacted later or anything like that. The pictures themselves are what he’s representing them as being. Moreover, he (clearly!) does not have any editorial say over the written articles, or even captions, that accompany them, where he would have an obvious conflict of interest. Given that he sets the camera on a timer and leaves it as he goes into an unpredictable situation, he can’t even take shots at the most opportune times to capture favorable views of himself. Not saying what he did was black-and-white 100% ethical, but “staged” certainly seems like a stretch.

      • It’s really no more “staged” than when a celebrity turns and smiles for a camera they’re passing.

        There’s a huge difference: the celebrity didn’t set up the camera in the first place and then sell the photograph to a newspaper under a false identity. If a celebrity were caught doing that there would be questions about the newspaper’s objectivity and its credibility (e.g. what other incorrect stories and photos did they print? were they in on it?)

      • James Pollock

        “I’m pretty sure it was widely known that Spiderman “lets himself” be photographed by Peter Parker far more than any other photographer, and perhaps even gives him some inside information on where he’s going to be.”

        This is, in fact, what was represented to Jameson and the Bugle… Parker had inside knowledge of where and when it would be possible to photograph Spider-Man because Spider-Man provided that information to Parker. Had I gotten here earlier in the thread, I would have looked it up (I have the DVD-ROM of 40 years of Spider-Man. Alas, it has only Amazing and not any of the other titles, but the Parker/Spidey connection was developed early, in the first 100 issues of Amazing before PPTSS or Web launched.).

      • TimothyAWiseman

        ““I would not have done business with him if I had known who he was” seems an awfully spurious reason to negate a contract”

        I have to respectfully disagree with this. As long as the “who he was” would have affected a reasonable person in the contracting parties position, and “who he was” was genuinely concealed in some way, and there is no overriding public policy at play, then it is not at all spurious.

        For example, say PETA is contracting for some services and they receive a bid J. Doe. J. Doe is also a well known as a Taxidermist who makes creative art from Animals, but he uses a psuedonym in his creations. He is also a hunter and an advocate for hunting. Knowing he is trying to make a contract with PETA, he does not reveal his psuedonym or work with animal bodies, and takes down his trophies when the PETA representatives are coming.

        In that case, PETA would not do business with him knowingly, and he knowingly omitted and perhaps even concealed facts about himself that PETA would find significant in deciding who to do business with. A court could easily find this to be misrepresentation of a material fact and order recission even if it was not directly relevant to the contract.

        Though as James Daily points out, the spiderman case actually goes a fair distance beyond this.

      • James Pollock

        “As long as the “who he was” would have affected a reasonable person in the contracting parties position, and “who he was” was genuinely concealed in some way, and there is no overriding public policy at play, then it is not at all spurious.”
        And that’s the problem… JJJ has to get past a “reasonable man” standard, and where Spider-Man is concerned, Jonah is NOT AT ALL reasonable. The reasonable man in this case is Robbie Robertson, who remained on good terms with Peter throughout, despite the fact that he is portrayed as knowing, or strongly suspecting, and Peter and Spider-Man are in fact the same person.

  4. I think a question would be here whether the Bugle having made money, perhaps even more than they would have without the Spidey photos, would in point of fact affect a possible judgement against Parker. I mean did the Bugle attempt to mitigate their damages in anyway, and wouldn’t a possible increased circulation of the paper by having exclusive photos (staged or not) be mitigating here.

    Also, doesn’t Parker have a massive defamation law suit against JJ and The Bugle either way, the paper clearly has a history of maliciously attacking Spider-Man for its own benefit.

    • I think a question would be here whether the Bugle having made money, perhaps even more than they would have without the Spidey photos, would in point of fact affect a possible judgement against Parker.

      Yes, the Bugle would have to show actual damage (or else be able to enforce a liquidated damages clause), but the comics give every indication that it would be able to do so.

      Also, doesn’t Parker have a massive defamation law suit against JJ and The Bugle either way, the paper clearly has a history of maliciously attacking Spider-Man for its own benefit.

      The reader who inspired this post asked the same question, but I omitted it because the post was already getting pretty long. The executive summary is: yes, probably, but it’s tricky because Spider-Man is a public figure, which means the First Amendment requires a showing of “actual malice.” That is, “with knowledge that it was false or with reckless disregard of whether it was false or not.” Bose Corp v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984) (extending NY Times v. Sullivan actual malice standard to public figures).

      So Spider-Man would basically have to either prove that Jameson either knew the allegations made in the stories were false or that he printed them with reckless disregard for their potential falsity. If you think about the kind of thing tabloids get away with on a regular basis, you can see how difficult that is.

      • I dunno… with the kind of prejudice JJJ shows just in claiming “I would never have bought from that reprobate had I known it was him!” I think Parker has a great start on demonstrating malicious disregard for whether the things the Bugle said about him were true or not.

        Add in how often the Bugle’s been shown to have egg on its face after making defamatory assumptions about the worst possible interpretations of anything Spidey’s done or been involved in, and then had Spider-Man (publicly) vindicated on all counts when the adventure was over, and Parker’s case gets even stronger. Demonstrate how grudging, weak, and probably sometimes ABSENT any retractions or stories of positive things he’s done are in the Bugle, and the case becomes all but iron-clad.

        (I think, again, that Parker/Spidey has an even easier time because, despite the Bugle’s best efforts, Spider-Man seems to have overwhelmingly positive feelings from the populace of New York, and these cases all definitely rise to the level of “enough money on the line to warrant a jury trial.”)

      • James Pollock

        After Peter’s lawyer deposes Robbie Robertson, various of JJJ’s secretaries, and various reporters, and issues a document production request for JJJ’s dealings with the nutjob who built all the “Spider-Slayers”, the Bugle’s going to make a seven-figure settlement offer on the defamation suit. Parker lost a valuable public performance career to the defamation of the Bugle (this was in the first couple of issues of ASM)

      • Yes, the reader who inspired the post asked about defamation and other counter-claims, but the post was getting pretty long as it was. Defamation suits by public figures are hard, but the Bugle’s fairly outrageous stories may have been sufficient. Not to mention, as you say, the other stuff like Spider-Slayers.

      • Let’s just all admit at this point that Peter’s lawyer in this suit would be Matt Murdoch. Thank you.

  5. I disagree with the analysis almost from the fact, in that I don’t think Parker misrepresented a material fact. The Bugle wanted pictures of Spider-Man. Parker supplied pictures of Spider-Man.

    IF JJJ and the Bugle have any kind of a case at all, it’s not from the time when Peter was freelance, selling photos to the Bugle at the Bugle’s rates… rather, it’s from the time when the Bugle put him on payroll as a regular employee, and he spent company time as Spider-Man.

    • The Bugle wanted pictures of Spider-Man. Parker supplied pictures of Spider-Man.

      The Bugle wanted legitimate news photographs of Spider-Man, not just any pictures at all. Jamesons’ reaction in #533 makes it abundantly clear that he thought he was buying legitimate photographs and would not have purchased them had he known the truth. In later discussion of the case the suggestion is that Spider-Man would likely ultimately lose, the only issues were whether he was too broke to pay the judgment and how long the case could be tied up in court. The comics often get the law wrong, but I think this is a case where it’s pretty well spot on.

      • James Pollock

        “The Bugle wanted legitimate news photographs of Spider-Man, not just any pictures at all.”

        How are the photos not “legitimate”? (Not to mention the fact that, apparently, the photos Parker offered them were EXACTLY what the Bugle wanted, as evidenced by the fact that they paid money for them, and JJJ was notoriously tight-fisted. There was a period where Parker sold photos only to the Globe, and the Bugle suffered during this time. If you look at JJJ’s dialogue when he was berating his staff photographers over the fact that they could not get any photos of Spider-Man of any kind, it seems during that time he was willing to accept Parker’s photos, despite their unprofessional nature, because he wanted photos of Spider-Man… ANY photos of Spider-Man. He got full value for what he paid for.

        “Jamesons’ reaction in #533 makes it abundantly clear that he thought he was buying legitimate photographs and would not have purchased them had he known the truth.”
        No, what JJJ’s reaction shows is that his immediate emotional reaction is that he wouldn’t have bought photos from Spider-Man. But that emotional response doesn’t necessarily reflect objective reality. He knew tthat Parker was able to get photos of Spider-Man because Spider-Man was tipping him (Parker) off on where and when to be in order to get the photos, and Parker admitted that he did, in fact get information from Spider-Man (true!) and shared some of the money he made from selling the photos to the Bugle with Spider-Man, and JJJ continued to buy the photos, knowing that some of the money was going to Spider-Man. Why? Because he knew that, depsite his personal antipathy towards masked vigilante superheroes in general, and Spider-Man in particular, the Bugle benefitted from being the only paper with Spider-Man photos.

        Parker sold (and the Bugle bought) photos which were alleged to be taken by Peter Parker, of Spider-Man. They were, in fact, of Spider-Man. They were, in fact, taken by Parker. Now, Jameson, personally, might not have wanted to buy the photos had he known that Parker was Spider-Man, but the Bugle, as the corporate entity that actually bought the photos, certainly did want the photos regardless of this fact.

      • How are the photos not “legitimate”?

        Because they were taken by the subject of the photograph, who then failed to disclose that fact despite being under an obligation to do so.

        Now, Jameson, personally, might not have wanted to buy the photos had he known that Parker was Spider-Man, but the Bugle, as the corporate entity that actually bought the photos, certainly did want the photos regardless of this fact.

        A corporation acts through its employees. Jameson, as the editor-in-chief, was ultimately in charge of deciding whether or not to accept a given photograph. Jameson’s view is the same as the Bugle’s in this case.

        Furthermore, the Bugle (as a corporation, not Jameson personally) sued Parker. Such a suit could only be initiated by the management of the Bugle, not by Jameson acting unilaterally. That’s strong evidence that the Bugle’s management agreed with Jameson and would not have approved the purchase of the photos had they known the truth.

      • James Pollock

        “they were taken by the subject of the photograph”
        So what? The photos are actually what they purport to be… photos of Spider-Man doing newsworthy acts. The Bugle wanted photos of Spider-Man; there’s no sign that the Bugle’s solicitation said “we want pictures of Spider-Man, unless they were taken by Spider-Man himself”.

        “who then failed to disclose that fact despite being under an obligation to do so.”
        I don’t see an obligation to disclose this fact. It’s not material to the question of whether Parker’s amateur photos were newsworthy. When the relationship was established, Parker had the only Spider-Man photos extant; their value came from scarcity. Later, the Bugle’s exclusive access to Parker’s photo library was of value to the Bugle. Spider-Man’s identity as Spider-Man affects neither the scarcity of Spider-Man photos nor the exclusive nature of the Bugle’s access. Thus, Spider-Man’s identity is not material. And if it’s not material, it need not be disclosed. If it need not be disclosed, then nondisclosure doesn’t create a cause of action.

      • The Bugle wanted legitimate news photographs of Spider-Man, not just any pictures at all.

        Are we assuming that was made explicit and insisted upon by JJJ? Because, if not, wouldn’t contra proferentum help Parker and hurt JJJ/Bugle?

        Further, how is “news” not a pretty vague term? Even if Parker was suited up and swinging around, and that’s all that’s shown in the photo, isn’t the photographing of an elusive, masked vigilante “legitimate news” per se? And if it’s not “legitimate” news, isn’t the legitimacy of the photos as news a decision that JJJ/Bugle makes, and over which Parker has little to no control?

      • One might try to make a claim that dressing up as a vigilante and trying to make yourself a news item just for being around is fraudulent, but it’s worth noting that Spidey/Parker did not start his own publicity. He was in the news already, and photos were requested. So there’s no real case for “he created the news just to sell photos, therefore it’s fake news.” People were interested before the photos ever were even solicited.

  6. Let’s take a different example. I believe that (at least at some points in the story) that Lois Lane had a reputation as Superman’s personal reporter. The one who got the interviews and was fairly clearly on good terms with him. Would it have been a violation of journalistic ethics (on either part) for Perry White to publish her stories while presenting her as an objective reporter? Would it be a violation or breech of contract for her to publish stories about Superman, while concealing that she was married to him?

    • Maybe, but there’s a key difference there: Lois and Superman are different people. If Parker takes a picture of Spider-Man and the image credit says “Peter Parker,” there’s an inherent (and false) representation that Spider-Man and Parker are different people. So I don’t know if failing to mention that you’re married to the subject of the story is as bad as failing to mention that you are the subject of the story, but the latter is definitely a problem.

      Also, Lois wasn’t hired by the Planet specifically to cover Superman, so there’s no fraud in the inducement claim with regard to her employment contract. This is unlike Parker, whose photographs are purchased in part because they are presented as legitimate photojournalism.

      • And in fact, the Superman legend *does* have a parallel case — in one incarnation of the title, Clark Kent actually gets hired by the Daily Bugle on the strength of an in-depth interview with Metropolis’s newest hero, Superman. He even submits it knowing that Lois Lane is working on a story of her own (and has even interviewed him!). That violates journalistic ethics on so many levels, I don’t even know where to start.

        Speaking as a reporter myself, I think almost any journalist would see what Parker did as ethically dodgy. You’re not supposed to cover stories that you have a personal stake in. And a photographer who shoots pictures of himself making news can’t have a *more* personal stake than that.

        By that standard, Jameson had a reasonable expectation that Parker was *not* involved in the story … well, no more than any other photojournalist who has a source willing to give him good leads. So I think the fraud analysis stands up. Unfortunate, since I always liked Petey.

  7. I agree with Pat and James Pollock — Peter knowing in advance where to place his cameras to document a Spidey fight is little different from, say, a paparazzo showing up at a movie opening where he knows his target celebrity will be, or a reporter responding to a tip from an informant about an upcoming newsworthy incident. So accusations of staging (or of collusion, if one didn’t know Peter was Spidey) wouldn’t really stand up. Superheroes (and supervillains!) in the Marvel Universe are as much celebrities as law enforcers, and it’s not unheard of for flamboyant supervillains to seek public attention or media coverage, or to use the media to call out their heroic opponents. (And not just in Marvel; cf. the very first Joker story from 1940.) So superhero journalism would be an odd hybrid of crime journalism and celebrity journalism, and thus might routinely involve practices from the latter that our world would find bizarre or inappropriate when applied to the former.

    Also, Jameson often did believe (or claim to believe) that Spider-Man was in collusion with the villains he fought — that he was actually a criminal himself and was only pretending to fight the bad guys to make himself look good. But he still bought the photos, even believing that Spider-Man a) was in cahoots with the “other” criminals and b) tipped Peter off to be at the scene. So in that sense, we have evidence that Jameson would buy news photos that he believed to be “staged” by Spider-Man himself.

    And as for the damage it would do to the Bugle‘s reputation for integrity and objectivity to discover that the photographer was himself the subject… the Bugle already lacks integrity and objectivity when it comes to Spider-Man. In most respects, J. Jonah Jameson’s journalistic integrity is above reproach, but (to paraphrase a noted Vulcan ambassador) his integrity is uncertain where Spider-Man is concerned.

    That said, early on when Jameson learned that Peter had faked a photo supporting Jameson’s belief that Electro was really Spider-Man, Jameson was outraged, demonstrating that he did have some lines he wouldn’t cross.

    • Peter knowing in advance where to place his cameras to document a Spidey fight is little different from, say, a paparazzo showing up at a movie opening where he knows his target celebrity will be, or a reporter responding to a tip from an informant about an upcoming newsworthy incident.

      There’s a big difference: the paparazzo isn’t the same person as the celebrity, who then goes on to sell the photo to a newspaper under a false identity. The reporter isn’t the subject of the newsworthy incident, nor does he or she then lie about being involved.

      And as for the damage it would do to the Bugle‘s reputation for integrity and objectivity to discover that the photographer was himself the subject… the Bugle already lacks integrity and objectivity when it comes to Spider-Man.

      I agree with you, but the comics (perhaps in a contradictory way) tell a different story. There is lots of evidence that the Bugle’s reputation and finances were seriously harmed, and no evidence that this was just an over-blown personal reaction from Jameson. If you want to argue the facts, take it up with Marvel. :)

      • What if, say, principal Lindsay Lohan had a paprazzo agent snap the photos for her and sell them to US Weekly? The arrangement is information on where to get the best photos of Lohan and that make Lohan look best in whatever schenanigans in which she decides to play herself despite the scandalous rumours US Weekly will print any way, regardless of whatever context surrounding the photos the agent provides?

        If the acts of the agent are attributable to the principal when acting on the principal’s behalf, is Lohan liable for misrepresentation?

  8. “There is lots of evidence that the Bugle’s reputation and finances were seriously harmed”
    If the Bugle was harmed by a lack of journalistic integrity, it was harmed by Jameson’s lack of objectivity and willingness to spin the news to suit his personal narrative where masked vigilantes are concerned. There are dozens, if not hundreds, of examples of JJJ being warned on this very topic by Robbie Robertson.
    Plus, of course, the revelation that Peter Parker, photojournalist, is in fact Spider-Man, masked superhero, enhances the authenticity of the photos published in the Bugle. The public now knows for sure that the photos in the Bugle are, in fact, of Spider-Man and not faked photos of someone who is not Spider-Man.

    • If the Bugle was harmed by a lack of journalistic integrity, it was harmed by Jameson’s lack of objectivity and willingness to spin the news to suit his personal narrative where masked vigilantes are concerned. There are dozens, if not hundreds, of examples of JJJ being warned on this very topic by Robbie Robertson.

      Tu quoque is generally not a defense, except in the context of unclean hands.

      Plus, of course, the revelation that Peter Parker, photojournalist, is in fact Spider-Man, masked superhero, enhances the authenticity of the photos published in the Bugle. The public now knows for sure that the photos in the Bugle are, in fact, of Spider-Man and not faked photos of someone who is not Spider-Man.

      That’s an issue of damages, and it’s speculative. The evidence we have in the comics is that there was a significant net harm to the Bugle. In any case, it wouldn’t affect the claim for restitution, as I’ve discussed elsewhere.

      • I can’t help but think that the “evidence in the comics” is just plain bad writing to force a situation. With just being TOLD that it’s hurt them, I’m not sure that it makes much sense in any provable sense.

        Do you have a specific set of well-known or codified “journalistic ethics” that back up the “the subject of the photo MUST disclose that he took it personally” assertion? Because I’m having a very hard time seeing the distinction between “Mary Jane, set up the cameras at these spots on XYZ timers, then collect them and sell the photos to JJJ,” and “I’m going to go do this myself.” There is literally no more or less control over what pictures are taken, and we can work under the assumption that MJ isn’t going to double-cross her boyfriend in some way that makes it “more ethical” for purposes of this discussion.

        Since whether punitive “the Bugle can have the pictures for free, retroactively” damages seem to be hinging solely on whether or not Parker committed an unacceptable breach of journalistic ethics, it seems to me that this has to be shown to have true harm to journalistic integrity beyond what has been stated to be “acceptable” would despite there being no net difference in the quality of the photos.

      • Do you have a specific set of well-known or codified “journalistic ethics” that back up the “the subject of the photo MUST disclose that he took it personally” assertion?

        The Society of Professional Journalists Code of Ethics is more a set of general guidelines than specific rules, but it has multiple applicable entries:

        “Journalists should identify sources whenever feasible. The public is entitled to as much information as possible on sources’ reliability.” If Parker claims that Spider-Man told him where to be in order to get shots of a fight, that’s not really identifying his source (or giving the public as much information as possible), since the source is actually Parker himself.

        “Journalists should make certain that … photos … do not misrepresent. They should not oversimplify or highlight incidents out of context.” It’s a misrepresentation to present Spider-Man as a different person than the photographer himself. The public may not known Spider-Man’s identity, but they can reasonably assume that isn’t Parker. This assumption is only reasonable because a journalist would ordinarily disclose that he or she was writing or photographing himself or herself.

        “Journalists should avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public. Use of such methods should be explained as part of the story.” Participating in a news story by putting on an identity-concealing costume is a kind of undercover or surreptitious method of gathering information. Even if it’s justifiable, Parker should explain that he did so. Since this would blow his cover, the alternative is for him to provide the photos to the Bugle as Spider-Man rather than as Parker. If he had done that there would be no problem, except maybe tax issues. That and the fact that the Bugle probably wouldn’t buy the pictures, hence the reason he resorted to deception.

      • “Journalists should identify sources whenever feasible. The public is entitled to as much information as possible on sources’ reliability.”

        Parker states openly that Spider-Man is the source for everything except the actual shuttering of the camera. Would it be somehow more ethical if Parker had claimed Spider-Man set up the cameras himself and has Parker acting as middle-man? What if he claimed Spidey merely told him where to set up the cameras and he admitted he used timed shutters to actually snap them?

        I think “whenever feasible” is a big key here: to protect his identity, it is NOT feasible that he would say “I am Spider-Man.” He does not conceal Spidey’s involvement in the photos being taken. JJJ’s personal dislike for Parker may well stem from the knowledge that Parker’s on good terms with the Spider.

        “Journalists should make certain that … photos … do not misrepresent. They should not oversimplify or highlight incidents out of context.”

        I don’t think they oversimplify or take it out of context. While “Peter Parker is Spider-Man” would be a huge breaking news story, that’s not the story he’s photographing for and he definitely isn’t doctoring the photos or taking them to distort the situations BEING DEPICTED. That is, they’re photos of Spider-man in action, taken with Spidey’s collusion.

        “”Journalists should avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public. Use of such methods should be explained as part of the story.” Participating in a news story by putting on an identity-concealing costume is a kind of undercover or surreptitious method of gathering information. Even if it’s justifiable, Parker should explain that he did so.”

        That’s an interesting one. There is misleading, a bit, here. But again, I don’t think it conceals vital information about the stories in question. If Parker were outed as Spidey in one of those heists he’s stopping, I think that would be a SEPARATE story from the heist, even if it was the bigger of the two.

        Since Spidey isn’t outed, his identity isn’t the story, and thus isn’t really relevant here.

        But of all of the quotes, this one might be the strongest case for Parker being a little “in the wrong.”

      • I think “whenever feasible” is a big key here: to protect his identity, it is NOT feasible that he would say “I am Spider-Man.”

        What he could do, then is sell the photos as Spider-Man. His secret identity is protected and all of the ethical issues vanish. If the counter to that is “but then Jameson wouldn’t buy the photos,” then it only proves my point that Parker omitted a material a fact.

        I don’t think they oversimplify or take it out of context.

        You don’t think the fact that the photographer is himself the subject of the photograph is an important piece of context? Or that omitting that fact is an oversimplification or misrepresentation?

      • Honestly…no. I don’t think the fact that Spider-Man himself took those pictures changes their content nor anything meaningful about the story being told. There is no context that requires “Spider-Man took these pictures” involved.

        As for confidence schemes, Parker hasn’t engaged in one. Nothing save “I am Spider-Man” was withheld. I still don’t see the material or ethical difference between “Spider-Man cooperated in the taking of these photos and approves of them and is receiving a cut of the proceeds” and “Spider-Man is the person who took and is selling these photos.”

        In short, I disagree that there was ethically-required-disclosure that was denied.

        As for “it’s fraud ’cause JJJ wouldn’t buy the photos from Spider-Man himself,” does this mean that learning that your wholesaler is a front company for the Kingpin, and you’d NEVER have bought your products from the Kingpin, gives you a right to retroactively have bought all those products for $0 as he is forced to give you back all the money you spent but you don’t have to return the product nor recover what you spread around?

        A “confidence scheme” is illegal because there is a victim defrauded of money. Damages occur. There’s no “stroke of luck” that the Bugle made profit on these photos. These photos made profit that they would have made equally well with that one piece of information disclosed. If Spider-Man had chosen to sell them as Spidey, he would have sold to the Globe or somebody else who didn’t have JJJ’s personal animosity to Spidey, and ultimately the Bugle would have been the poorer for JJJ’s poor business decision. I’m not saying “he helped them against their will” justifies his actions. I’m saying “he didn’t do anything that caused them, nor anybody else, harm.”

        I don’t see how you can have a “confidence scheme” that lacks a victim.

        Am I right in saying that this whole thing hinges on whether ethics were violated? The damages we’re told happened are solely due to the perception that they did something to violate journalistic integrity?

      • In short, I disagree that there was ethically-required-disclosure that was denied.

        You’re free to do so, but the comics still indicate that the Bugle would not have purchased the photos had Parker been forthcoming.

        These photos made profit that they would have made equally well with that one piece of information disclosed.

        With respect, the comics disagree. There’s no evidence that the damages claim by the Bugle is exaggerated or incorrect, and we can only assume that Jameson is telling the truth when he says the incident will hurt the Bugle.

        I’m saying “he didn’t do anything that caused them, nor anybody else, harm.”

        The purpose of an unjust enrichment claim is not to undo harm done to the plaintiff but rather to prevent the unjust enrichment of the defendant. It’s a different thing than regular compensatory damages.

        Am I right in saying that this whole thing hinges on whether ethics were violated? The damages we’re told happened are solely due to the perception that they did something to violate journalistic integrity?

        No, the ethics violations are evidence that the omission was material and that Parker knew Jameson wouldn’t print the photos if Jameson knew the truth. They also explain the loss of reputation that, apparently, caused significant financial harm to the Bugle.

      • Ms. Strickland makes the case that I’ve been trying to far more eloquently: it seems that this would be an unjust enrichment of the Bugle, all else being equal.

        You keep saying that the damages are immaterial to whether the contract should be revoked and Parker forced to reimburse the Bugle for the pictures it bought, but the Bugle has BEEN ENRICHED by the use of those photos.

        You’re also hinging a lot on “Parker withheld the information because he knew JJJ wouldn’t buy the photos if he knew Spider-Man was selling them to him.” Given that JJJ continued to buy photos despite knowing Parker was in cahoots with Spidey and was even sharing some of the pay with him, that seems a spurious claim on JJJ’s part. Add in that Parker HAS sold photos to rival papers in the past – which presumably wouldn’t have CARED if Spidey was the seller – and I don’t think you can make a case that would hold up before a jury that Parker withheld the information in order to make a sale he couldn’t otherwise have done. Certainly not that JJJ nor the Bugle were injured because of it (save for the fact that the comics inform us “harm happened” without telling us how or why).

        You can’t have it both ways: either the harm matters, in which case Parker should be on the hook for the damages, or it doesn’t, in which case it is not “unjust enrichment” for Parker to have made money on the photos. He could have sold them to people who don’t hate Spidey if that was his concern. His concern was, materially, not exposing his secret ID and, probably, tax/life issues (since he lives under his “Peter Parker” ID and pays taxes under it, etc.).

        If the harm doesn’t matter, why is it just to enrich the Bugle off of the use of the photos and then let them “have them for free” retroactively, but not just for Parker to benefit from having taken and sold them?

        Fraud requires that material information be withheld for the purpose of defrauding the victim of property that would otherwise not have been lost. No part of Parker’s representation changes the actual value of the photos, as far as I can tell. And, if it does, then there are REAL DAMAGES. If not, then there’s no fraud in the photos themselves. “Unjust enrichment” of Parker can’t have happened outside of the damages done to the Bugle, since if there is no damage, then Parker was enriched in the process of enriching the Bugle, which bought exactly what it thought it was buying and used it exactly as expected by its business model. That it wouldn’t have knowingly done business with the seller is less material and spurious given past behaviors and the knowledge they DID have.

      • but the Bugle has BEEN ENRICHED by the use of those photos.

        Has it? Again, the comics indicate that the Bugle suffered a net loss. But even so, the Bugle wasn’t the wrongdoer in this case, Parker was. And it’s a key tenet of restitution that it does not matter that it would exceed the compensatory damages.

        You’re also hinging a lot on “Parker withheld the information because he knew JJJ wouldn’t buy the photos if he knew Spider-Man was selling them to him.” Given that JJJ continued to buy photos despite knowing Parker was in cahoots with Spidey and was even sharing some of the pay with him, that seems a spurious claim on JJJ’s part.

        There’s a key difference between “JJJ wouldn’t buy the photos if he knew the money would go to Spider-Man” (which I am not claiming) and “JJJ wouldn’t buy the photos if he knew that printing them (i.e. printing them as photos of Spider-Man while crediting Peter Parker) would be a breach of journalistic ethics” (which is what I am claiming).

        If the harm doesn’t matter, why is it just to enrich the Bugle off of the use of the photos and then let them “have them for free” retroactively, but not just for Parker to benefit from having taken and sold them?

        The contract would be undone and Parker would get the copyright to the photos back. It’s not like the Bugle could continue to print them.

        No part of Parker’s representation changes the actual value of the photos, as far as I can tell.

        Then why did the Bugle print a retraction (I think that’s implied by Jameson saying the Bugle would have “to make some kind of statement”)? Why did Jameson say that the Times would have a field day with it? You don’t think people would question what else the Bugle editors didn’t know about the photos? What else Parker might have lied about?

      • I just can’t help but think that the “damages” being quoted are as spurious as some of the legal claims made elsewhere in comics, but I will concede that that is beyond the scope of this blog, so we can take some of that, at least, as given by the comics.

        I’m still not convinced there really is a breach of journalistic ethics that is materially different than the situation as presented by Parker.

        I think Parker has a strong case to make about his deception not being one of inducement but one of protecting his source – in this case, himself – from retribution by “bad guys.” That he could sell to people who did not share JJJ’s distaste for Spidey is sufficient proof that he wasn’t thinking in terms of inducement when hiding it from JJJ. He MIGHT be caught by a question asking, “do you think JJJ would have bought them if he’d known?” but I think Parker can believably say, “Well, not that I think about it, he might not have, but that honestly never occurred to me. It wasn’t part of my motive. I never hid from him that Spider-Man was involved in their taking and that he got some portion of the proceeds.”

        Would it be any different if Parker had claimed Spider-Man set up the cameras and that Parker was acting as an agent to sell them for Spider-Man? He is, technically, telling the truth; Parker is acting as Spider-Man’s (i.e. his own) agent.

        Again I ask: would the Watergate story be journalistically unethical if it had turned out that Woodward and/or Bernstein were Deep Throat, rather than the anonymous source being a third party? (Assume that, somehow, all other claims about Deep Throat and his position and access are true; they’re only concealing that he is one of them rather than a third party.)

      • I think Parker has a strong case to make about his deception not being one of inducement but one of protecting his source

        That’s a fair claim that Parker could make but it’s a little tricky. There’s still the implication that he is not the same person as the source. And although it’s not listed in the code of ethics, I suspect there’s an implicit ethical obligation not to report on your own story (perhaps it comes under “avoid conflicts of interest, real or perceived”). An alternative approach would have been for Spider-Man to sell the photos directly, not Parker. That would have solved a lot of problems.

        Again I ask: would the Watergate story be journalistically unethical if it had turned out that Woodward and/or Bernstein were Deep Throat, rather than the anonymous source being a third party?

        I am not an expert on journalistic ethics, but I think it would be. I think the correct thing to do in such a case would be to approach another reporter who could provide an objective filter on the story (e.g. just like what happened in real life). Note that this approach wouldn’t really work in this case. Parker’s pictures probably ran with a story written by a different reporter, but the paper has little choice but to run Parker’s photos unedited. This is different from reporting the story of someone like Deep Throat; the reporter in that case is free to pull quotes selectively and rearrange them to tell a balanced and accurate story.

      • James Pollock

        “What he could do, then is sell the photos as Spider-Man.”

        The reason Peter turned to selling photos of Spider-Man in the first place is that, when he appeared in public as Spider-Man, without disclosing his identity, he couldn’t get paid. (“who do I make the check out to?”) I believe this was actually in Amazing Fantasy #15… if not, it was in the first half-dozen issues of Amazing.

      • James Pollock

        “Tu quoque is generally not a defense, except in the context of unclean hands. ”
        That’s not the argument I made. I don’t argue that Jameson is additionally responsible for damage done to the Bugle’s reputation for integrity with regard to Spider-Man, I argue that Jameson is SOLELY responsible for the damage done to the Bugle’s reputation for integrity with regard to Spider-Man. Evidence, you say? Parker ALSO sold photos of Spider-Man to the Globe, presumably without disclosing that he IS, in fact, Spider-Man. How many mentions are there that the Globe has damages, that the Globe is suing Parker? What’s the difference between the two? Jameson’s editorial bias in the Bugle.

  9. Trying to get a better understanding of this misrepresentation thing: If I buy a car from a car dealership, and I reasonably believe that it is a morally upstanding car dealership when it in fact engages in some generally shady (but not illegal) practices, and I would not have bought a car from a car dealership that I knew to use such shady practices out of righteous moral indignation (which I make known to the car salesman, in an offhand manner while discussing their stock, who says nothing), would I be able to sue for my money back? Even if I got a perfectly good deal on a perfectly good car? Even if it was a couple years ago, I never had any problems with it, and I’ve since traded it in toward a newer car?

    If so, I think that just doesn’t make a lot of sense to most of us. If not, then it would seem the entire case hinges around whether Peter’s photos are a “perfectly good car,” which I believe they are, but you (Mr. Daily) obviously disagree. I think at the very least, if as Segev suggests this would end up before a jury, it’s going to be a hard sell that the photos were in some way unsuitable.

    • The issue (for fraudulent mispresentation) is whether Parker made a knowing misrepresentation of a material fact by failing to disclose information he was under an obligation to disclose, resulting in the Bugle’s reasonable reliance on the misrepresentation, which in turn caused damage to the Bugle. Parker was under an obligation to disclose the information if he had superior knowledge of the information, the information was not readily available to the Bugle, and Parker knew that the Bugle acted on the basis of its mistaken knowledge.

      Rather than discuss a hypothetical, let’s stick to applying the law to the facts at hand. Which of these elements is not present in the facts? I tried to make it pretty clear in the post how I think it all lines up, but I’m open to disagreement.

      • Okay, where your lines of reasoning break down in the original post, as far as I can trace them, are here:

        “The issue (for fraudulent mispresentation) is whether Parker made a knowing misrepresentation of a material fact by failing to disclose information he was under an obligation to disclose, resulting in the Bugle’s reasonable reliance on the misrepresentation, which in turn caused damage to the Bugle.”

        Specifically, “under obligation to disclose” and “which…caused damage.”

        Why is he under obligation to disclose that he IS Spiderman? “I am given full privileged access to take these photos by Spiderman” would seem to disclose exactly as much RELEVANT information. Especially if he admits that Spiderman “shares in” the proceeds. Clearly, Spidey is intimately involved in the photos being taken and sold.

        If there were more than one Spider-Man, or Parker were NOT Spidey and it was shown that Parker was the subject of the photos, then it would be misrepresentation of what the photos were. I do not think selling under a different identity than you’re photographed is sufficiently false to change the material and factual properties of the photos: they are, in fact, photos of Spiderman doing exactly what they purport to be. The ones that are “staged” are never represented as anything else (Spidey posed for Parker for some action shots) and the ones of fights are no more “staged” than if Mary Jane had done it under Parker’s instruction.

        Secondly, you keep saying that “no harm, no foul” is not a valid defense, here, but the final clause of the statement you made is that it “caused…damages” when Parker failed to disclose this information. If the damages cannot be shown to be real – if the Bugle has made back what it spent on buying the photos and THEN some – then it’s no different than allowing the guy who bought the used car that was a perfectly good product from somebody he wouldn’t have purchased from if he’d “known the kind of man he was” being able to get back what he paid for the car after having already gotten use out of it to no detrimental effect and trading it in for a new car from somebody else entirely.

        Since the whole thing hinges on this misrepresentation having caused damage, I think lack of damage does in fact mean lack of “foul.” I’m not trying to claim superior legal knowledge – I don’t have it – but just from a layman’s analysis of the situation as laid out from the premises, I’m failing to see how “no harm, no foul” doesn’t apply here.

        “I’ve done nothing but make profit selling these cars, but now I find out the wholesaler is a front for the Kingpin, whom I loathe! No damage has been done to me, but he SHOULD have disclosed that information to me, so I demand all the money I spent on the cars back, even though all of them have been sold for a profit by now!” seems analogous, to me.

        Again: I’m not seeing how what Parker claimed to be the case is more ethical than what IS the case regarding the nature of the photos (he even ACTS different as the two identities; they may as well “just be in collusion”), so I’m not seeing how he failed to disclose meaningfully relevant information that he had a duty to disclose. JJJ knew Spidey was “in” on the photos and may have even known Spidey got at least some of the proceeds. That seems all that’s relevant for making a decision as to whether to buy them.

        I’m also not seeing the damages, though I will accept that the comics told rather than showed and just magically conjured some up. That still doesn’t mean Spidey/Parker should be on the hook for the pay he’d received; he should merely be on the hook for compensatory damages that are in excess of what the Bugle made BECAUSE it aired the photos. SHouldn’t he? If not, why not?

      • Why is he under obligation to disclose that he IS Spiderman? “I am given full privileged access to take these photos by Spiderman” would seem to disclose exactly as much RELEVANT information. Especially if he admits that Spiderman “shares in” the proceeds. Clearly, Spidey is intimately involved in the photos being taken and sold.

        I don’t think it’s the same relevant information. The key difference is that he’s still concealing the fact that he is the subject of the photograph.

        I do not think selling under a different identity than you’re photographed is sufficiently false to change the material and factual properties of the photos: they are, in fact, photos of Spiderman doing exactly what they purport to be.

        It’s not just a matter of selling the photos under a different identity. It’s the fact that the photographer and the photographed are the same person.

        Secondly, you keep saying that “no harm, no foul” is not a valid defense, here, but the final clause of the statement you made is that it “caused…damages” when Parker failed to disclose this information.

        I only brought up “no harm, no foul” in the context of restitution, which is part of the remedy for fraud in the inducement. The damages in restitution can be unjust enrichment (i.e. it’s unjust for Parker to keep the money he gained through fraud, even if the Bugle ultimately profited from the transaction).

        I’m also not seeing the damages, though I will accept that the comics told rather than showed and just magically conjured some up. That still doesn’t mean Spidey/Parker should be on the hook for the pay he’d received; he should merely be on the hook for compensatory damages that are in excess of what the Bugle made BECAUSE it aired the photos. SHouldn’t he? If not, why not?

        See above about unjust enrichment. In some cases defendants can be made to disgorge the profits of their wrongdoing even if it leads to a recovery in excess of what is necessary to compensate the plaintiff.

      • Why does the subject being the photographer differ in any meaningful way from the subject and the photographer being in cahoots? How does this amount to more “fraud” than the used car dealer example, or the “Kingpin was using that as a front organization” example?

        How is the enrichment “unjust?”

        The Bugle got exactly what it paid for. Parker sold photos to make a living, and the Bugle sold sufficiently more papers with said photos than without to justify spending the money on them.

        The content of the pictures does not change. The truth or falsity of their subject matter does not change. Parker fully disclosed that he and Spider-Man have a relationship that makes him have exclusive access for photographs. Why is the subject BEING the photographer substantially different than the subject and the phototgrapher working together to make sure the pictures are there to sell?

      • Why does the subject being the photographer differ in any meaningful way from the subject and the photographer being in cahoots?

        If Mary Jane sold pictures to the Bugle that she took, then there are still ethical problems. For example, if she identifies Spider-Man as the source instead of Peter Parker, then that’s a failure to give the public as much information as possible about a source. But there are fewer ethical issues in that case. For example, it doesn’t misrepresent Spider-Man’s identity, nor does it run into the undercover information gathering problem. So those are, potentially, meaningful differences.

        How is the enrichment “unjust?”

        Because it was the product of wrongdoing. If someone tricks you into a confidence scheme but, through some stroke of luck, you end up coming out ahead, would it be just to allow the con man to walk away with whatever money you gave him? Or would you say “no, even though I had a net game, it’s still wrong for him to profit by his wrongdoing”?

        The Bugle got exactly what it paid for.

        Several people have made this argument, but I don’t think it’s accurate. What the Bugle paid for was not just “pictures of Spider-Man.” The Bugle paid for “pictures of Spider-Man that the Bugle can print without violating journalistic ethics.” Parker did not deliver that, and he did so in an intentionally fraudulent way.

        The truth or falsity of their subject matter does not change.

        Yes it does. Before the revelation, the subject matter was “Spider-Man (who is not Peter Parker because it would be unethical not to say so).” Now the subject matter is “Spider-Man, who is Peter Parker.” That’s why the Bugle had to print a retraction.

      • James Pollock

        “It’s the fact that the photographer and the photographed are the same person.”
        You’ve repeated this statement quite a few times, but still haven’t convinced me that it is a material fact. Now, I’m going to go out on a limb, and guess that there is very little litigation in circumstances where the photographee and the photographer are one and the same (although that will change in the near future, as girls under the age of 18 who photograph themselves in a state of undress are prosecuted for creation and distribution of child pornography).
        There ARE however, plenty of cases where the person selling photographs of a famous person is, in fact, that famous person. (For example, it is rumored that the discovery of the infamous “calendar poses” of Marilyn Monroe was arranged by… Marily Monroe.) There are such sales that are above-board and publicly disclosed, but there are others where the asking price is higher if the photos appear unauthorized.
        It would be a violation of journalistic ethics if Parker tried to present someone else’s photos as his own. It would be a violation of the content of the photos were other than what Parker claimed they were (if, for example, Spider-Man staged a fight with a villain, or another hero, solely for the purposes of being photographed doing so, or if Parker hired a Couple guys to put on facsimile costumes to pretend to be, say, Spider-Man and Electro.)

  10. “Had I gotten here earlier in the thread, I would have looked it up (I have the DVD-ROM of 40 years of Spider-Man. Alas, it has only Amazing and not any of the other titles, but the Parker/Spidey connection was developed early, in the first 100 issues of Amazing before PPTSS or Web launched.).”

    This is accurate — I specifically remember that Peter told Brian Braddock in the issue of Marvel Team-Up that he and Spider-man had an “arrangement.” Spidey would give Peter a head’s up on fights, and he and Peter would split the proceeds from the sale of Peter’s photographs (the phrase was “split the bread” — ah, dated slang).

    Now that’s obviously untrue. But suppose it was, and Peter and Spider-man were separate entities. Would that cause a conflict in journalistic ethics? I presume yes, but on the other hand, don’t reporters occasionally pay for “tips”? Would Jonah, or Robbie Robertson’s, knowledge of that arrangement create a problem? (I’m reasonably certain Robbie was explicitly stated as knowing about Peter splitting his funds with Spider-man, but I’m also pretty certain that we were supposed to surmise that Robbie knew Peter’s secret, too.)

  11. Considering how consistently the Daily Bugle under Jameson published false or horribly incorrect stories concerning Spiderman would Parker have a good libel suit?

    • Probably (it appears so in the comics). As I mention above (if you want to wade through the comments), the standard for defamation of a public figure like Spider-Man is pretty high, but it’s not impossible, especially given the consistent and extreme distortions (or even outright lies) printed by the Bugle.

  12. Carolyn D. Strickland

    “What the Bugle paid for was not just ‘pictures of Spider-Man.’ The Bugle paid for ‘pictures of Spider-Man that the Bugle can print without violating journalistic ethics.’ Parker did not deliver that, and he did so in an intentionally fraudulent way.”

    That argument is more tenuous than you acknowledge. You hang an awful lot on Peter’s violation of the ethical rules of journalism as rendering these photos valueless. It seems many commenters disagree. The focus is on damages. You seem to argue that the proper measure of damages is rescission of the contract – the Bugle would never have bought these photos, so it should be reimbursed. I and many others see this as more akin to the classic hornbook case of Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239 (1921), in which there was a breach of contract—using the wrong kind of pipe—but the damages were nominal. True, Kent did not commit fraud and Parker did, but the issue is not the type of harm but the measure of damages.

    Even though Peter lied, the actual damages here were nominal, as they were in Kent. Jameson claims he would not have bought the photos, just as Kent argued that he would not have bought the house. But Jameson profited from copying the photos, and Kent’s land became more valuable from construction of the house. Both Kent and Jameson enjoyed the monetary benefits of their bargains. It would be inequitable to allow Jameson to keep the money from copying Parker’s copyrighted works, yet not have to pay Parker. In the same way, it would not have been right to let Kent keep the house the defendants built without paying them for it (the issue in Kent was really about paying to replace the pipe, but you’ll allow me some license to illustrate my point). The Bugle can’t simply give back to Parker the millions of copies it made of his photos (as required for a true rescission) so it needs to offset its claimed damages by the profits it reaped from them. That nets to zero.

    You seem to think Parker’s violation of journalistic ethics makes this case different. I don’t. Journalistic ethics are famously squishy, shifting from one news outlet to another. They have, at most, nominal monetary value. If Jameson were sued by his readers, a la James Frey and Random House, he could have a more substantial damages claim. But as of now, refunding Jameson’s fees would unjustly enrich him.

    • You seem to argue that the proper measure of damages is rescission of the contract

      Rescission (and restitution) is the remedy for the fraud in the inducement claim (i.e. the misrepresentation claim). The remedies for breach of contract and fraud are different.

      True, Kent did not commit fraud and Parker did, but the issue is not the type of harm but the measure of damages.

      The fraud is absolutely key to the availability of rescission and restitution. “In the case of fraud with respect to contracts, relief by way of restitution, or recovery back of what has been parted with on account of the fraud, is almost universally granted, either in an action at law based on rescission or, where the legal remedy is inadequate, in an action in equity for rescission.” 22A N.Y. Jur. 2d Contracts § 553 (emphasis added).

      Even though Peter lied, the actual damages here were nominal … Jameson profited from copying the photos

      “[I]f it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.” The comics, difficult as it may be to believe, indicate that the Bugle suffered significant financial harm, apparently even accounting for the money made in the first place.

      You seem to think Parker’s violation of journalistic ethics makes this case different.

      Yes, it’s evidence that the omission was material and that Jameson wouldn’t have printed the photos if he knew the truth, key elements of the fraud claims. It also explains the loss in reputation that, apparently, caused financial harm to the Bugle.

  13. I suppose my problem with the “ethics violation” argument is that there’s plenty of precedent for journalists withholding information about sources for various reasons. “Anonymous sources” are, if not common, at least are famous. Take “Deep Throat” and Woodward & Bernstein.

    Anonymous sources’ identities are protected to keep them from being harmed but still enabling the information to be out there. What’s the difference between Woodward and Bernstein saying “Deep Throat told us…” and Parker saying “Spider-Man (an anonymous source going by a code name here) told me…?”

    If Woodward -was- Deep Throat, would their major Watergate story become significantly less ethical and less news-worthy?

    • “If Woodward was Deep Throat, would their major Watergate story become significantly less ethical and less news-worthy?”

      Speaking as a reporter — yes, because it would have damaged Woodward’s credibility as a journalist and credibility is all that a news organization has to sell. Ben Bradlee would have had every reason to say “If Bob is lying to me about this, what else is he lying to me about?”, a question that would have been repeated by a number of competitiors and the Nixon administration.

      Having the right story doesn’t matter if the way you go about getting it makes people less likely to take you seriously.

      • That’s just it, though. What part of “Parker is Spidey” will make people less likely to take his photos as anything but what they’re presented to be?

        I mean, JJJ ALREADY insinuates that Spidey sets up the fights for publicity; it isn’t like the photos prove or deny that claim when it’s being made in the paper in which the photos run. So nothing “new” is introduced there to cast doubt, considering people know Parker has an arrangement with Spidey over it, at a minimum.

  14. Your argument has two dubious assumptions – that Parker was under contract, and that Parker was an employee or professional bound to a code of ethics or conduct. You’re treating him in this article like Clark Kent, when in your own previous post you claim he is not .

    Peter Parker was neither a contract employee or a staff photographer, in fact he was portrayed repeatedly and specifically as an amateur freelancer.* As such, it’s very unlikely he signed a formal contract with regards to the production of the photographs, or was subject to a professional code. (Yes, there are professional organizations with their own codes, but Parker is never portrayed as being a member of any such, nor is it likely he’d be accepted as a member.) It’s much more likely he went into the Bugle’s offices, someone (usually portrayed as JJ himself) decided to buy the photographs – and then he walked down to accounting, signed a release, and was paid his cash.

    Such releases pretty much amount to “yeah, these are my photographs, the paper bears no responsibility for them and I absolve the paper of any such, I have the right to assign them exclusively [or exclusively for some period] to the [publication], and by my signature and in return for [whatever compensation] I agree to do so”. They’re a simple single page form, without complex clauses, representations, stipulations, etc… It’s a one-time isolated transaction, and does not create a professional, employee, or contractor relationship with Parker. (All of which have legal repurcussions and create legal and tax problems – for the Bugle. They’re going to avoid those for obvious reasons.)

    Thus, it’s the Bugle that bears the onus for behaving in accordance with professional ethics and codes – not Parker.

    Now, none of this will stop the Bugle from threatening to sue Parker of course, but their legal leg is going to be potentially much more shaky than you portray. *Unless*, and this is an interesting question itself, such an ongoing relationship (even though each is theoretically an isolated transaction) can be argued as moving Parker along the spectrum and much closer to being Kent.

    * Private photographers are in a weird legal position anyways – shielded from some things, legally liable for others… they are neither fish (professional journalists) nor fowl (private citizens). This is a subject of much concern and debate in the photographic community… especially nowadays between ever increasing assaults on intellectual property and the TSA and other law enforcement agencies attempting to go beyond the boundaries of the law in dictating where and when photographs may be taken and what constitutes acceptable subjects.

    • Your argument has two dubious assumptions – that Parker was under contract,

      As I stated in the post, Parker had to have a contract with the Bugle for either the sale of the copyright in the photos or a license to use the photos. He was not a contract employee, but he had a contract with the Bugle. That’s the contract at issue here. Unfortunately, we don’t know the specifics of it, but we can make some reasonable assumptions based on standard practices in the field.

      With regard to the code of journalistic ethics: that ethical code is not legally binding, obviously. It is, however, evidence of journalistic norms, and Parker is a professional journalist, whether he’s a member of the SPJ or not. JJJ is also a professional journalist. JJJ is going to expect Parker to behave according to the ethical norms for the profession, and Parker knows it. Thus, Parker knows that JJJ likely wouldn’t print the photos if he knew the truth (i.e. if he knew there was an ethical breach involved). That’s why the ethical breach is relevant, not because a breach of journalistic ethics automatically means fraud or somesuch.

      • “Unfortunately, we don’t know the specifics of it, but we can make some reasonable assumptions based on standard practices in the field.”

        That’s just the problem – your assumptions aren’t reasonable. Releases for spot news photography don’t contain the language you think they do. Publishers and editors do know the difference between a private citizen and a professional journalist.

      • Parker is a professional journalist. He supports himself almost exclusively via the sale of photographs of Spider-Man, and he’s been doing so for years (in this continuity). He’s not some schmoe who just happened to snap a picture of a newsworthy event.

        Anyway, here’s a typical freelance photographer contract from around the time of the Civil War storyline. Knight Ridder was, until it was bought by McClatchy in 2006, the second largest newspaper company in the US. Of particular interest is the representations and warranties section: “The Photographer represents and warrants that … the Photographer will use his or her best efforts to ensure that the Work is true and accurate.” Implicitly lying about the subject of the photograph is a pretty far cry from ensuring that the work is true and accurate.

        Another contemporary example: In 2004 the New York Times rolled out a new freelance photography agreement that goes a step further and requires that freelancers comply with the Times’s ethical journalism policy. There are all kinds of things in there that Parker is running afoul of (e.g. the section on detachment from sources, the section on collaboration with sources).

        So there are some examples of standard practice at major newspapers.

      • I’m sorry, I’m just not seeing “This is Spider-Man (and I’m not telling you that *I* am also Spider-Man)” as violating that requirement that the contents of the photo be “true and accurate.”

        Did anybody actually ask Parker if the photos were self-photos?

        Obviously, people assumed that he was not Spider-Man, but I’m not sure if he ever said, in the process of selling them, that he wasn’t.

        They ARE pictures of exactly what Peter Parker said they were. So that doesn’t breech your example contract.

      • James Pollock

        JJJ and Robertson both knew that there was a connection between Parker and Spider-Man (and it was suggested that Robertson at least suspected the truth. This did not stop either of them from buying photos of Spider-Man from Peter (largely, it is suggested, because nobody else, staffer or freelancer, and get photos even as good as Parker’s, which are not great. Surely, if there WAS another consistent source of Spider-Man photos, the Bugle would have taken advantage; Peter would not have been in such demand that the Globe would hire him away from the Bugle.)

      • James Pollock

        “Parker is a professional journalist.”
        He isn’t when he begins selling photos to the Bugle. He’s a high-school student. In fact, Parker consistently identifies his primary career path as scientific in nature rather than journalistic.
        Now, along the way, he gets used as a photojournalist on non-Spidey assignments when none of the staff photographers are available… but of course, there’s no question about his ethics on those assignments, either. Eventually, the Bugle puts him on the payroll, and they probably have some valid complaints related to that… but while he’s a freelancer, the Bugle expressly does not have the authority to specify how he does his work.

      • Martin Phipps

        Yes, here is where it gets interesting. Parker was put on a payroll (in some continuities at least) based on his ability to get Spider-Man pictures but in reality he was taking pictures with a timer and they did not know that and then -when they learned that Parker was Spider-Man- they had to have suspected that he hadn’t taken the pictures at all!

  15. I would like to look at this from the other side.

    What lines of defense would Peter Parker’s lawyer in this case be likely to follow? Has the Bugle every used staged photos from other events or superhero action? What inside knowledge would Parker be able to enter into the record (directly or through other witnesses at the Bugle) that would act in his defense on the misrepresentation or the damages the Bugle is claiming?

    Has JJJ every directed Parker to get photos of Spiderman by “any means possible”?

    • Melanie Koleini

      All Peter needs is a good lawyer to counter-sue for libel. Even if he didn’t win, the depositions of all the Bugle employees would give him enough material to vilify JJJ and the Bugle to the point the paper’s owners would drop the fraud case in return for Perter signing a non-disclosure statement.

    • If the Bugle is like every other newspaper in the world, it has undoubtedly published staged photos all the time. All those shots of two people shaking hands at an event, captioned with things like “Mr. Jones congratulated Mr. Smith on receiving the award”? Every single one is staged…with reporters and photographers saying, “OK, one more of Jones and Smith shaking hands, please.”

    • Well, there IS the fact that Jameson tried to kill him, a couple of times, with Spider-Slayers. In the encounter with the last of the Spider-Slayers, Spider-Man actually had to save Jameson’s life because the inventor who built them came to want Jameson dead, too.

  16. I think that there’s a fundamental problem in the “Jameson would never have bought the photos if he had known” argument.

    Everyone else takes this to mean. “Jameson would never have bought them if he had known, because he hates Spider-Man, so he wouldn’t want to buy anything from Spider-Man”.

    But you’re arguing “Jameson would never have bought the photos if he had known, because he couldn’t print them without breaching journalistic ethics”.

    And the first one is far more plausible than the second. Just about all the evidence that Jameson wouldn’t want to buy such photos points to him refusing to buy them because of his personal dislike for Spider-Man. In this respect, it’s very much like the scenario of “I didn’t know the wholesaler was a front for the Kingpin”. He hates Spider-Man and doesn’t want to do business with him; I hate the Kingpin and don’t want to do business with him. I’d readily believe that Jameson would refuse to buy the photos because he hates the guy, but I won’t readily believe that he’d refuse to buy them because of journalistic ethics, and I think it would be quite hard to find evidence for that. Given the nature of Jameson, his refusal to buy them *is* analogous to the Kingpin example, or the “I wouldn’t have sold if I knew it was a condo developer” example.

    • Strictly speaking, Jameson didn’t buy any Spider-Man photos, rather, the Daily Bugle, a publicly-held corporation, did. Jameson periodically handled negotiations with Parker, but Parker nominally reported to Robbie Robertson, who did NOT share Mr. Jameson’s mania on masked vigilantes.

      • Where does that leave the Bugle’s claim that it would not have bought the photos had Parker disclosed his identity as Spider-Man when he sold them?

      • James Pollock

        Naturally enough, the answer is “it depends”. Jameson’s role as publisher and control of the board gives him considerable authority to set policy for the Bugle. However, you cannot ascribe Jameson’s monomania against masked vigilantes to the corporation. It will be assumed to be a purely rational business decision… did the financial benefit of buying the only available Spider-Man photos outweigh the potential backlash if the identity of Spider-Man were discovered? It seems likely that the answer would be “buy the photos”… what might have been different is that they would have printed some kind of disclosure that the photos of Spider-Man were provided by Spider-Man, in little type in a little box buried somewhere in the paper.

      • Ken Arromdee

        I don’t think it depends at all. It’s very clear that Jameson exercises direct control over the content of the Bugle and that he routinely makes editorial decisions based on his personal preferences (that’s why the paper has headlines proclaiming Spider-Man to be a menace in the first place).

        It’s no more a rational business decision than the fact that Chick-Fil-A doesn’t open on Sundays because of the religious beliefs of the founder is a rational business decision. If the Bugle wouldn’t have printed the pictures if they had known who Peter was, it’s going to be Jameson making that decision, and he’s going to base it on his personal dislike for Spider-Man, not on journalistic ethics.

      • James Pollock

        Actually, for quite a while, Jameson made no decision at all regarding the purchase of Spider-Man photos… that task was delegated to Robertson. And both Jameson and Robertson made purchases knowing that Spider-Man was a beneficiary of those purchases. And if Robertson knew that Peter was Spider-Man, which is hinted but neither confirmed nor denied, then the whole jig is up. (Captain Stacy knew Peter was Spider-Man, and so did Mary-Jane Watson… Peter had more difficulty keeping his identity secret than he thought.)
        Given that Jameson tried to kill him (more than once) keeping his identity from Jameson looks less like fraud and more like prudence.

  17. The argument that JJJ wouldn’t have bought the pictures because it would be a violation of journalistic ethics simply doesn’t hold water…JJJ has been shown to throw such ethics to the wind when it suits him–such as using the Bugle to promote (and pay for?) schemes to harm Spider-Man. Such actions are against the ethics of the profession as are JJJ’s constant skewing of news reporting to put the web-slinger (or other superheroes, for that matter) in a bad light. He can do all the spewing he likes in an editorial or an opinion column, but he can’t use the news columns that way and still make any claim that journalistic ethics have any meaning to him. If it is also true that he used the Bugle’s funds to pay for things like the Spider-slayer or to hire Kraven the Hunter, then he is guilty not only of ethics violations, but of misappropriation of corporate funds (not to mention pre-meditated assault or conspiracy to commit murder, right?)

  18. I dispute that Peter concealed his identity. He WAS Peter Parker, and those WERE photos of Spider-Man. There’s no deception in that transaction. If the Bugle tried to claim there was an agreement that Peter Parker was not Spider-Man, they’d have to show a contract that expresses this (is Madam Web their lawyer, because that’s a lot of foresight in writing their freelance contracts).
    You’ve got to keep in mind, Spider-Man’s identity was unknown, but had the potential to be almost anyone, including Peter. Now if Peter had shot & sold photos of himself dressed up as the Human Torch (known to be Johnny Storm), the Bugle would have a case for misrepresentation.

    • The basis for the deception is in the inticement to buy, not in the facts about the contents of the photos. Here the misrepresentation is that these photos are candid, not set-up, and that they were taken within the guidelines of journalistic integrity, which they were not.

  19. The point of the misrepresentation is that Parker concealed that he was Spiderman taking self-portraits and set-up photos. He had a duty to reveal this.

  20. One more point and I’ll shut up. Here’s the closest real-world situation I can come up with: suppose a man robs a bank and a local TV station offers a reward for info leading to the robber’s capture. And let’s suppose the robber has a change of heart, calls up the TV station, discloses his identity, and effectively turns himself in. Is he entitled to the reward? Unless there’s a law expressly prohibiting this type of thing, I’d say, “Yes.”

    • Sadly, there is usually a condition in the reward terms (when there just plain aren’t laws against it!) that prohibit being directly involved in the crime in order to get the reward.

  21. If the Bugle succeeds in rescinding all the contracts for Parker’s Spider-Man photos, they have used a LOT of photos without either permission of the copyright owner OR obtaining publicity rights for the person(s) pictured. Minimum statutory damages on the copyright counts are $250 per work infringed. (No, they’re NOT covered by fair use, as a necessary element of the Bugle’s claims are that the photos are not newsworthy, and issue preclusion prevents them from arguing that, from a copyright position, that they are news.)

  22. One more interesting sidenote… Peter Parker was, in fact, an employee of the Daily Bugle for a while. Which means that, for people whose claims have not expired due to statute of limitations, there is a deep-pocket defendant potentially available for damage due to Peter’s activities as Spider-Man. I would expect that dozens if not hundreds of NYC attorneys are examining their files to see if they have any cases where a potential client came in, claiming their property was damaged by Spider-Man, only to get the legal advice that suing Spider-Man is not likely to be successful, as his identity is unknown and he probably doesn’t have any assets to attach, anyway. But now, the Bugle can be named under a respondeat superior theory. It isn’t a slamdunk winner (the Bugle’s lawyers are sure to claim that Peter’s activities constitute a “frolic”… but arguably, being Spider-Man was part of his duties in obtaining news photos of Spider-Man.

  23. Adrian Seltzer

    Does it make any difference that when Peter started selling Jameson the photos he did so on the condition that Jameson would never ask how he got them and Jameson agreed to those terms?

  24. I find it tremendously amusing that for fraud you cite a case with Mandarin Trading. I thought The Mandarin was mainly an Avengers/Iron Man villain, but I guess he did get around.

  25. Related question. What would be Parker’s defense?

    1) “Jameson had no idea that I was Spider-Man. Therefore the Bugle did not knowingly commit any breech of ethics. Having said that, the Bugle’s reputation is secure. In addition, I have now disclosed my identity so if they wish to reprint the pictures in the future they can do so knowing the true nature of the photos. There are no damages.”

    OR

    2) “There’s no way Jameson could not have known I was Spiderman! He wanted pictures of Spiderman and I showed up with pictures of Spiderman including pictures of Spiderman looking directly into the camera and waving. I was clearly taking pictures of myself! How could Jameson not have known this? There are no damages.”

    The problem is that the truth is somewhere in between: Jameson had to have known that Spiderman was involved in the process of taking the pictures and therefore the pictures were “staged”. The question becomes to what extent the general public realized this and how much the Bugle’s reputation was damages by the revelation that Spiderman himself was on the Bugle’s payroll.

  26. I just wanted to thank you for the time and effort you put into answering my question, and would look forward to any more in-depth insight answering about counter-claims.

    Since the breach of contract seems to be a civil nature, and of a HUGE sum of money Peter definitely could never afford to pay back, this could have destroyed Peter’s mundane life. (Even worse since he was a school teacher when this came about, he was fired as a result, imagine him trying to get a mortgage or credit card after this? Hopefully being an Avenger gives a good salary.)

    It still seems to me like there are other issues at hand that would stop JJJ from going through with the lawsuit. Couldn’t JJJ be potentially jailed for conspiracy to commit murder given his history with sending villains to go get Spidey? I mean, there is a LOT Peter could do to expose JJJ that he never did, like the fact that he funded the Scorpion in the first place. (Making him liable partially for many of his actions possibly, as well as maybe even the Scorpion suing JJJ himself for… something.)

    There are so many legal ramifications implicit in the scenario that just sort of went away that I wondered about. I perhaps am taking little colored bits of paper far too serious, but hey, isnt that what an imagination is for?

  27. I haven’t read all the comments yet so I don’t know if this has been delt with yet.

    As Clark Kent, Superman is on the Daily Planet’s payroll. If the world knew that Clark Kent was Superman, wouldn’t the Daily Planet’s journalistic integrity be at stake? I mean, if the Daily Planet runs a headline “Superman Saves Mankind!” and then the next week a rival newspaper runs the story “Daily Planet Reporter Is Superman!” doesn’t it look really bad for the Daily Planet?

    Or to put it another way, JJJ thinks the Daily Bugle has to run a statement clarifying the fact that they did not know that Peter Parker was Spiderman but given the fact that the Daily Bugle under JJJ has ran nothing but stories criticizing Spiderman won’t the general public say “Well, duh”? If the Daily Bugle had been running stories praising Spiderman then that would be different: their credibility would be shot. Doesn’t the fact that Spiderman has been committing fraud all this time by taking his own pictures and selling them to be Bugle actually help to justify what JJJ has been saying all along? The Daily Bugle is in a much better position in terms of reputation than the Daily Planet would be in the same situation.

    One more thing. If a reporter like Clark Kent writes a story about Superman for the Daily Planet is he ethically required to say he’s Superman? Is he committing fraud if he submits a story about Superman to the Planet and doesn’t tell him he’s Superman?

  28. The Daily Bugle tried to sue Parker for “misrepresentation, fraud, breach of contract” etc. Are we absolutely sure that the fraud was a direct result of the fact that he did not disclose his identity? Several people have pointed out that the Daily Bugle had to have known that Parker and Spider-Man were “in cohoots” if not the same person. Is it possible that the Daily Bugle was applying a different theory? If Peter Parker is Spider-Man then the obvious conclusion is “You did not take these pictures but you claimed you did” which is fraud in and of itself. Did the Daily Bugle ever figure out that all the pictures were taken using a timer and that Parker only kept the “lucky shots” that showed Spider-Man in action? (He must have wasted a lot of film.) They may have wanted him to disclose who the real photographer was. For all they knew he was hiring kids to take his picture. The Bugle could be in a lot of trouble if they paid for these pictures and didn’t know who really took them.

    Frankly, I’ve always thought it was a little bit fraudulent for Peter to get paid for pictures that were taken with a timer. Nowadays the Bugle could just pay for screen shots from traffic cameras. You’d expect the quality to be about the same.

    One last (silly) question. When John Byrne was writing, drawing, lettering and inking the Fantastic Four and Alpha Flight, he had a special contract with Marvel where he got paid not for the individual tasks but simply for the finished page. He mentioned in an interview that he would save time by not even finishing the pencils and instead get started on the inking using a felt pen. Would John Byrne have been in trouble if he had been paid separately as a penciller and inker and didn’t disclose the fact that he was using a short cut? To me that is what Peter was doing: he was putting his camera on a timer because he couldn’t be in two places at the same time. It was a short cut.

    • “Frankly, I’ve always thought it was a little bit fraudulent for Peter to get paid for pictures that were taken with a timer.”

      Well, he didn’t get paid for most of them. (Any photographer takes FAR more shots than are needed, and then they pick out the best ones. And there were several times when A) Peter forget to set up the camera, B) the camera didn’t get any good shots, and even C) the camera was damaged. Peter got exclusive shots of the Spider-Man action because the other photojournalists weren’t on the buildingtops when the fights happened, and by the time they could get there, the fight was over.

      (BTW, time-lapse photography is done with a timer, and people get paid for those…)

      “Nowadays the Bugle could just pay for screen shots from traffic cameras. You’d expect the quality to be about the same.”
      Sure they could, if photos of traffic were as newsworthy as photos of Spider-Man. Plus, of course, ANY photographer can take shots of traffic… only Parker* could take shots of Spider-Man.

      *Not counting either half of the Spider-Clone saga, of course… during which time “Peter Parker” and “Spider-Man” were, in fact, separate people.

  29. “Nowadays the Bugle could just pay for screen shots from traffic cameras. You’d expect the quality to be about the same.”
    Sure they could, if photos of traffic were as newsworthy as photos of Spider-Man.

    What I mean is that Parker had to go to the trouble of setting up the camera while (usually) someone was in danger and then he would later be profiting from the incident. Now, normally photographers do profit from unfortunate events but they don’t have a duty to rescue the people they photograph. Of course, Parker doesn’t have a duty to rescue beyond his own sense of responsibility but my feeling is that the time he takes to set up his camera may put someone at risk. This to me is at the heart of the discussion: he is both the photographer and a participant in the event. To me, the fact that he took the pictures with a timer is at the heart of this. If he had said “Spider-Man would see a crime about to go down and I would place a camera nearby and set it on a timer” people might catch on that he was Spider-Man but he was deliberately allowing people to think that he and Spider-Man were two different people.

    • There are plenty of times when Peter went to someone’s rescue without setting up his camera, because there wasn’t time.

      There are instances for every superhero that maintains a secret identity where the efforts to maintain that secret identity has caused a delay in responding to a person in distress. (i.e., Clark Kent has to find a phone booth to change in.)
      There are some superheroes who don’t bother to hide their identities… the FF for example… but they don’t have poor fragile aunt May to think about, and Peter does.

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  31. I love this post and comment thread, for someone like me who lives in the UK, it is so very topical. I have to agree I’m not completely convinced by the fraud argument (although I admit there is clearly an arguable case, and someone like JJJ would be completely in-character to argue it), but yeah Peter Parker is well out on a limb as far as ethics go. Personally I think Clark Kent is treading dangerous ground on that too; last year when the old News of the Screws went under there was a satirical cartoon published in one of the other papers which showed CK being sacked over revelations he and Lois were reporting on his own activities (and Perry being sacked for lack of oversight).

    Certainly if Peter Parker and Clark Kent (and any other superheroes or superhero allies) were up in front of Leveson it would make for a tough session for them. Having said that, there would be some tough questions for Perry and JJJ on whether they were doing their own diligence on editorial oversight (I can well see some charges of looking the other way on the suspiciously high level of quality and exclusivity of spider-pics being levelled at JJJ),

    Well done on an insightful article and well argued set of responses.

    On something a little less controversial, as an idea for an article, do you have a favourite fictional law? Since lots of fictional worlds introduce some very odd laws, and some not so odd, is there one that sticks out for you and makes you think “we need that” or “that is just too much fun”? I think mine would be from Terry Pratchett’s “Discworld” series, with his “Being Bloody Stupid Act” since it makes the natural consequences of breaking it as part of the criteria for breaking (e.g. walking into a notoriously tough bar and announcing your name is “The Invulnerable”, which was recorded as a suicide attempt).

    • Favorite fictional law? There are quite a few to choose from, and I’m afraid I’m not that great at picking favorites. We’ve written about the Superhuman Registration Act, the Keene Act, the DC Universe’s fictional 12th Amendment, the law that declared Gotham no longer part of the United States in the No Man’s Land story arc, and probably several others. All of them have been fruitful ground for discussion. None of them are particularly funny, though, and I certainly wouldn’t want any of them passed in real life.

      The Being Bloody Stupid Act is interesting. It basically extends the concepts of contributory / comparative negligence and assumption of the risk to intentional torts or crimes. Both are a defense to negligence and the latter can be a defense in strict liability cases. Traditionally neither has been available in intentional tort cases, however, and I think the same is true of criminal cases.

      In modern terms I think we’d say that it amounts to blaming the victim, since the law assumes that intentional wrongdoers always have a choice not to commit the wrong (barring something like duress or necessity), no matter how ill-advised the behavior of the victim. While the example of the person in the bar is funny and satisfying, things get quite a bit more uncomfortable if you ask, for example, if a woman is “being bloody stupid” (within the meaning of the Act) if she walks alone at night in a bad neighborhood while scantily dressed? Dangerous, yes, but very few people would argue that this means someone who attacks the woman should go unpunished.

  32. It occurs to me here that I misread the inital premise of the post. The Bugle has a cause of action against Parker, not that they necessarily can win a court case, especially given JJJ’s known loathing of Spider-Man.

  33. well what about Parker/Spidys clear cut Libel case against the bugle and slander against JJJ?

    • Not necessarily clear-cut. I’m pretty sure Spider-Man would be considered a public figure by the courts, and thus would have to prove “actual malice” by Jameson — i.e., that Jameson either knowingly published false information about Spider-Man or that he published it with reckless disregard as to whether it was true or false. As comic-book readers, we know JJJ’s likely to do just that, but it’s bloody hard to prove it to a jury.

      And his anti-Spider-Man editorials probably don’t count, by the way. If I remember my media law correctly, statements of opinion can’t be libelous because they’re not provably true or false.

      • I’m fairly certain JJJ has, at some point, posted an editorial where he opined that Spiderman was a criminal who was deliberately staging scenes that endanger innocent people for his own self-aggrandizement. As that is provably true or false, I believe that can be considered libelous.

  34. and on another note wouldn’t J3 be responsible for checking up on the creditability of his freelance photographers.

    As far as I’m aware he only “hired” Parker in a few different alt. world settings by and large it was a piece rate? and Parker was in only hired to get photos of Spidy, which he was in a unique position to provide guaranteed photos of the subject that J3 was asking for. even due to some creative web-slinging was able to provide some action shots of Spidy mixing it up with the bad guys.

    On multiple occasions J3 could have attempted to verify how Parker constantly was capable of providing photos of the elusive hero and declined due to the photos ability to generate sales.

    • “JJJ knew that Parker was able to get photos of Spider-Man

      Because Spider-Man was tipping him (Parker) off on where and when to be in order to get the photos.

      Parker admitted that he did, in fact get information from Spider-Man (true!) and shared some of the money he made from selling the photos to the Bugle with Spider-Man.

      JJJ continued to buy the photos, knowing that some of the money was going to Spider-Man. Why? Because he knew that, despite his personal antipathy towards masked vigilante superheroes in general, and Spider-Man in particular, the Bugle befitted from being the only paper with Spider-Man photos.”

      If this fact came to light in the case (most likely from Robbie) wouldn’t this adversely affect the Bugle’s case?

      That and as a freelance photographer he isn’t a photojournalist as he doesn’t have a degree in it or even a press pass as far as I’m aware his credentials would be circumspect in the journalistic community from the start and being in N.Y. if he was a photojournalist he would be a member of an association.

      Heck he’s lucky someone with an I.Q. over 80 didn’t put it together that he only sales photos of Spidy (nice keeping the secret id there Parker) with the rather weak excuse of Spidy tips me off.

  35. I do have to wonder … how much of this debate is occurring because what Peter did is/isn’t doubtful, and how much of it is happening because most of us like Peter and want to see him succeed? :) If it had been someone like, say, the old Flash Thompson behind the mask and taking the pictures, I don’t think there’d be as many defenders.

    (This *can* have indirect courtroom ramifications, for that matter. If Peter gets a jury trial and makes as good an impression on them as he does on most readers, he may well get exonerated regardless. Of course, in-universe, there is the notoriously crippling “Parker Luck” working against him.)

    • Well, yes and no. Part of it is that we like Parker because he is a good guy, and he doesn’t do anything that would make this less ethical in our minds than what he presented the situation as.

      Flash Thompson, if he behaved in exactly the way Spidey does, would get similar defenders, I think. But Flash is the sort of glory hound who’d go out and MAKE news, and that starts stepping into the territory where “I deliberately set up this fight to take these photos” is less ethical because you’re photographing yourself.

      I suppose I might defend even that if Flash admitted the “Spiderflash” set it up in advance when he tipped him off, but that also would have gotten him arrested as an accomplice when he didn’t inform the police of the impending crime.

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  38. Relatedly: Could JJJ or The Bugle be sued for their own misrepresentation of Parker’s photos as actual pictures rather than staged photo-ops? Class action driven by other papers, or some such?

  39. I can find no fault with your reasoning. But what about pictures taken by Peter of his clone in the Spider-suit? I’m fairly certain Peter was publicly seen taking some of those. Since the clone is both Peter and a separate individual what effect could that have on the proceedings?

  40. Sorry I’m a little late to the party, but I think the Bugle would get into trouble if they filed a lawsuit against Peter.
    Firstly, you have to determine whether or not Spider-Man is a ‘state actor’ or not, and as such, given a right to privacy usually reserved to undercover officers, which in all essence a costumed crime-fighter would be. If he’s acting on behalf of the ‘state’ apprehending criminals the state/local law enforcement can’t deal with (i.e. Rhino, Juggernaut, etc.) or engaging hostile military forces (i.e. AIM, Hydra, the Skrulls) on US soil, depending on the laws regarding ‘state actors’ leaking such information could compromise his ability to act on behalf of the state. It would depend on whether or not the laws of MU consider Spider-Man a vigilante or undercover law enforcement officer.
    Secondly, Peter could claim in court that leaking his identity to the Bugle would increase the likelihood of supervillian/superhero (i.e. Punisher, Venom, X-Force)/alien or inter-dimensional force/militant group attacks on the Bugle property. There already were attacks by various supervillians on the Bugle who were looking for Parker to draw out Spider-Man. Of course, this didn’t stop JJJ from continually publishing Spider-Man photos, so Peter could claim that divulging his identity would not have been in his best interest regarding health and welfare of his family, and of the Bugle. His lawyer Murdock could ask Bugle employees if they would be willing to die to keep Parker’s real identity a secret. Public safety clause or whatever.

    More importantly, the Bugle should be making more hay out of the fact that teenagers/children take it upon themselves to make citizen arrests (i.e. fight criminals) and engage hostiles constantly in order to maintain public order. Without the Spider-Men, the police wouldn’t be able to stop the Rhinos (or the Spider-Queens) that seem to attack the NYC area every other day.

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