Monthly Archives: April 2013

Morning Glories

Morning Glories is the ongoing 2010 series from Image about a group of “brilliant but troubled” high school students who enroll in Morning Glory Academy, some kind of exclusive prep school. Very, very bad things happen at MGA, and the series is a kind of supernatural mystery drama somewhat reminiscent of the first season of Lost. The first twelve issues are out in hardcover, the next seven are out in trade, and the most recent trade is available for pre-order and should be out in a week or two.

This post is about a flashback that occurs in issue # 7 and contains some pretty major spoilers, so read with care. But the substance of the post has to do with homicide and related defenses. Continue reading

Genetiks and Human Gene Patents

(This post was the subject of Retcon #6, which addressed the Supreme Court’s decision in the Association for Molecular Pathology v. Myriad case.)

No, that’s not a typo in the title.  I’m referring to Genetiks, the graphic novel from Archaia Entertainment.  The protagonist of the book works for a genetic research company (the titular Genetiks), which requires each of its employees to submit a symbolic cell to the company.  The protagonist’s cell is used in a human DNA sequencing project, reminiscent of Celera Genomics’s private competitor to the Human Genome Project.  Apparently it is the first of its kind in the fictional world of the book, and after the protagonist’s DNA is completely sequenced he is told that, because the company now owns his genetic sequence, it now effectively owns him and everything he will ever do or produce.

This immediately raises a host of questions.  Can an employer commercially exploit the genetic information of its employees without further compensation?  Does sequencing someone’s DNA mean that you own it, in some sense?  Does owning that DNA sequence confer any rights over the person?  And can DNA sequences be owned in the first place?

I. Commercial Exploitation

The answer to the first question is a pretty straightforward yes.  To begin with, people don’t have a property right in their own body parts.  Moore v. Regents of Univ. of Cal., 51 Cal.3d 120 (1990).  Once an employee gives up a cell to the employer, that employer can pretty well do what they want with it, including exploit it for commercial gain, and the employee is not entitled to a cut.  But what’s more, the employee almost certainly signed a contract indicating that the cell and any resulting intellectual property rights or income were being exchanged for employment with the company.  Similar contracts are signed all the time, whereby employees agree to assign rights in creative works or inventions to their employers in exchange for employment.

II. Gene Patents

Genetiks makes a pretty broad leap from “sequenced DNA” to “ownership.”  In reality, there’s a bit more to it than that.  There is no property right in a bare DNA sequence.  Such a sequence is simply a fact.  But if a sequence is observed to be new, useful, and nonobvious, then it may qualify as a patentable invention (NB: in the United States inventions are defined as both inventions and discoveries under 35 U.S.C. § 100(a)).  This might be the case if, for example, the sequence is the sequence for a particular gene, which is what so-called “gene patents” are about.  But that still requires applying for a patent; it’s not automatic the way copyright protection is.

III. The Scope of Gene Patents

What gene patents definitely don’t do, however, is confer any inherent rights over the person that the gene was originally sequenced from or any person that the gene is found in.  First, such patents typically claim isolated DNA molecules with a particular sequence, which don’t exist in human beings, even humans with the genes in question.  Second, it has long been Patent Office policy—now codified in the law—that no patent may claim an invention “directed to or encompassing a human organism.”  Third, even if all that failed, the 13th Amendment would almost certainly have something to say about it.

IV. Are Human Genes Patentable?

But all of this may be a moot point.  The Supreme Court is current considering that question (“are human genes patentable?”) in the case of Association for Molecular Pathology v. Myriad Genetics, Inc.  The oral arguments were heard earlier this month, and the case has the potential to upend the biotechnology sector in the United States.  I won’t try to read the oral argument tealeaves, but I will say that—in general—recent Supreme Court patent cases have not been especially favorable to inventors and patent owners.

V. Conclusion

Genetiks is a good read, even though it rests on an extremely shaky legal premise.  You pretty much have to assume that it takes place in an alternate universe with a very different legal system, despite its apparent similarity to our own world and overall realistic tone.

IP CLE Reminder

This is a reminder of the live 90 minute CLE program this Friday, “IP and the Comic Book Superhero.”  The program starts at 10am Pacific / 11 am Mountain / noon Central / 1pm Eastern. The program will cover many aspects of IP law, including patents, trademarks, copyrights, publicity rights, and their tax implications with examples and inspiration drawn from both fictional superheroes and real-world superhero-related IP.  We hope you can join us!

Skepticality Podcast Interview

Back in December Ryan and I recorded an interview with Skepticality, the podcast of Skeptic Magazine and the Skeptics Society.  Skepticality normally records interviews quite a ways in advance of publication, and ours was no exception, but today it has gone live, so check it out!  Thanks to Derek for a great interview!


R.I.P.D. is the Dark Horse comic about divine law enforcement officers which is being made into a movie starring Jeff Bridges and Ryan Reynolds and scheduled for release on June 19.  The trailer was just released today, in fact.  The basic premise is that Nick Cruz (Reynolds’ character) is a cop who is killed at the beginning of the story. But upon awaking in the afterlife, he finds himself confronted by a figure claiming to be. . . well God’s lawyer, basically. Turns out the Almighty has a bit of a special program for law enforcement officers killed in the line of duty: in exchange for the opportunity to bring their killers to justice, and a shot at heaven, deceased cops spend a century of service working for the R.I.P.D., the Rest In Peace Department, which has the divine mandate to seek out and deal with ne’er-do-wells from the netherworld who don’t stay where they’re supposed to.

So what can we say about this? If we’re to take the story at face value, not questioning its theological assumptions (which are basically a version of Christianity with your standard artistic license), it’s not as if the US legal system–or any mortal legal system–has anything to say to God. Or Satan for that matter. Indeed, the Western District of Pennsylvania basically dismissed a suit against Satan because he could not be served with process. U.S. ex rel Gerald Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D. Pa. 1971).

But we can talk about the general issues of the contract. We’ve already discussed deals with the devil in two posts (Reaper and Ghost Rider respectively), but what about deals with God? Continue reading

This Week in Law

Ryan and I were on  This Week in Law today to discuss a variety of current legal topics.  If you missed the live show you can watch the video online.  Thanks to Evan Brown for a great show!

IP and the Comic Book Superhero CLE

On Friday, April 26th at 10am Pacific / 11 am Mountain / noon Central / 1pm Eastern I will be co-presenting a live 90 minute CLE program called “IP and the Comic Book Superhero“, sponsored by the ABA Section on Intellectual Property Young Lawyers Action Group, the ABA Young Lawyers Division, the ABA Forum on the Entertainment and Sports Industries, and the ABA Center for Professional Development.  My co-presenters are Brad Desnoyer, associate professor at the University of Missouri School of Law and previous guest post author here at Law and the Multiverse; Janet Fries, of counsel at Drinker Biddle & Reath LLP in DC; and Martha L. Voelz, a solo attorney in New York.  The moderator is David Postolski, a patent attorney at Day Pitney LLP in New Jersey.

The program will cover many aspects of IP law, including patents, trademarks, copyrights, publicity rights, and their tax implications with examples and inspiration drawn from both fictional superheroes and real-world superhero-related IP.  We hope you can join us!

The Surrogates: Flesh and Bone

The Surrogates is a limited-run 2005-06 comic series about which we did two posts (1, 2) late last year, and which was made into a movie starring Bruce Willis in 2010.

This time we’re writing about the prequel graphic novel, The Surrogates: Flesh and Bone. The entire series is available in hardcover. Flesh and Bone is set fifteen years before the main series and deals with a sensational homicide case: a minor operating his father’s surrogate unit beats a homeless man to death, more or less just to watch him die. The killing has all the hallmarks of a major news event: the accused is white, the victim black; the accused is rich, the victim poor; the accused is operating a surrogate, the victim is a “boner,” the kid’s slang for someone who lives his life in the titular “flesh and bone”.

Like the comic series, Flesh and Bone includes various miscellany in the form of advertising materials, news stories, and scholarly articles, all about surrogates and their impact on the world. One of these involves a fictional Supreme Court case where the court ruled that employers may make owning a surrogate a condition of employment. In this post, we’ll look at both the homicide issue and that labor issue, which we touched on last year. Continue reading

The Law and Psychiatry of The Walking Dead

Following our joint WonderCon panel (Not Guilty by Reason of Zombification? Law and Forensic Psychiatry After the Zombie Apocalypse“), the psychiatrists from Broadcast Thought, Ryan, and I co-wrote an article for Wired focusing on some of the legal and medical issues raised by The Walking Dead.  We think you’ll enjoy it.  Be aware: the article contains spoilers for the most recent season, including the finale.

NYC Councilman Proposes…A Ban on Superheroes?

We don’t normally talk about real-world issues, but this was too good to pass up.   A New York City councilman has recently introduced bills to ban costumed characters in the city, or at least impose tight regulations on them. The bills are aimed at what’s apparently becoming a problem, particularly in Times Square. There was “Anti-Semitic Elmo,” and now someone dressed as “Cookie Monster” has been arrested for assaulting a toddler.  We should point out that the people involved were not related in any way to Sesame Street; they buy or make costumes and wander around Times Square trying to get paid for photographs with people.

One bill would ban costumed characters outright.  The other would require registration and the carrying of a permission slip indicating that the character was licensed from the intellectual property owner.

But does Councilman Vallone really want to ban Spider-Man? (By which we mean an actual web-slinging superhero, not someone dressed as the fictional character.  Obviously he means to ban the latter.) Because something like this would probably interfere with him as much as it would interfere with costumed panhandlers. As a person in a costume, Spider-Man would be subject to a ban if it were passed. And though he would certainly be able to show that he had permission from the creator of his character for the purposes of the regulatory proposal, he’d still be subject to arrest unless Peter Parker registered, which kind of defeats the point of the costume.

Unlike some of the other laws we’ve discussed (The Keene Act from Watchmen, the SHRA from Marvel’s Civil War), this is a local government passing the regulation, so it starts out from a better position than the federal government does in this area. New York City participates in New York State’s general police power and has the power to regulate anything that the federal and state Constitutions don’t say that it can’t.

But there are still problems here. The ban proposal would simply prevent people from appearing in public wearing costumes. As the article points out, there are First Amendment problems with that. Wearing costumes is generally considered to be protected expressive conduct, and the government probably can’t just ban it outright. But they can institute content-neutral restrictions on the time, place, and manner of such conduct, such as requiring registration or banning the wearing of costumes while peddling or panhandling. New York City already has so-called “mask laws” in effect, which restrict people from appearing in groups wearing masks, and many jurisdictions have laws which penalize wearing masks while committing other crimes.

We don’t know if this will hold up.  At the time of this writing the text of the bills are not available on the NYC Council’s legislation site, so all we have to go on are second-hand descriptions.  The bills have certainly not been passed into law, and they may yet be significantly amended.  And whether or not either bill is a good idea is definitely a political question that is beyond the scope of this blog (and its comments section).  But it is interesting to see life imitating art, even if the danger posed by these “freelance costumed performers” is quite a bit different from the dangers posed by masked comic book characters.