Logan

This is a short, slightly ranty post about the new Wolverine movie Logan.  It’s a great movie, but a throwaway bit of exposition struck a lawyerly nerve.  Major spoilers below.

Midway through the film it’s revealed that Laura (aka X-23) is the product of a Transigen corporate project to produce customized clones of mutants.  The lead scientist on the project, Zander Rice, mentions that the medical staff should not think of the clones as children or people but rather as “it”, covered by patents and copyrights.  “Whoa, whoa, whoa,” I thought, “Why did they have to go and drag intellectual property attorneys into this?”

Admittedly the film is set in 2029, so the law may have changed, but it would have to change drastically indeed to allow a human being to be the subject of patents or (even more so) copyrights.

First, the US and Mexico both forbid patenting humans (and I suspect the same is true in every country, explicitly or implicitly).  In the US, “no patent may issue on a claim directed to or encompassing a human organism.”  Mexico prohibits patents on “the human body and the living matter constituting it.”  Apparently that extends to “humans, human cloning, or genetic modification of human germ lines.”  Clarke, Modet & Co, Current examination practice in Mexico: Which biotech inventions are allowable by the Mexican Patent Office?

Further, at least in the US it would also be difficult to obtain a patent on a naturally occurring mutation, which seems to be what Transigen did.  AMP v. Myriad, 569 US ___ (2013); Mayo v. Prometheus, 566 US ___ (2012).

The copyright claim is pure hogwash.  There’s no legal basis for copyright applying to a person.  I suspect copyright was included because not everyone knows what a patent is and there’s some vague word-association between cloning, copying, and copyright.

Second, even if Transigen managed to get a patent on the cloning process it used or the mutations its scientists found, that would not take any legal rights away from the children anymore than a pacemaker company has legal authority over a patient with a patented pacemaker.  Admittedly, as I recall Gabriella’s video describes what’s happening as “illegal in the US and Canada”, suggesting it is somehow legal in Mexico, but even if that’s true for purposes of the movie, that still leaves unanswered questions.  Transigen is apparently working with the US military, so it presumably expected to eventually export these children (or other clones based on them) to the US or other countries.

Finally, none of this makes any sense!  Patents are public by definition. Copyrighted works don’t have to be published, but they’re only enforceable through public litigation.  If I were running an evil child soldier conspiracy the last thing I would do is base my business model on patents and copyrights!  Even trade secrets are dicey.  Theoretically one could take a wayward former employee to mandatory binding arbitration, which is less public than a trial, but good luck finding an arbitrator willing to go along with turning tortured children into killers.  I know arbitration has a bad rap, but it’s not that monstrous.

In sum: Logan is a good movie, and none of this affects the core plot.  It’s enough that Transigen is an evil company doing illegal things to children.  There are certainly plenty of real examples of that!  But I felt honor bound to try to salvage the reputation of IP attorneys.

25 responses to “Logan

  1. I think it was more “think of them as patents, not people” than literally “they are patents, not people.” A way of trying to dehumanize them in the nurses’ eyes.

    I get the idea that, while what they are doing may superficially appear on the up and up by Mexican law, the actual intention of the corporation is off-the-books black-ops type stuff, and black ops don’t get patents.

  2. James Pollock

    “The copyright claim is pure hogwash. There’s no legal basis for copyright applying to a person.”
    You’ve made the mistake of assuming that mutants in the X-Men film universe are “humans” under the law.
    While this is certainly a reasonable assumption, it is NOT the only reasonable assumption. Historically, there are plenty of cases of various subgroups of “humans” denied the rights and privileges of “humans” under the law. Sticking only to U.S. law, you could go with Chief Justice Taney’s most famous written opinion.

    Considering that several X-Men primary sources refer to mutants with the X-Gene as a separate species from human, it’s possible that in that alternate universe, the bans on human cloning and on copyrighting human beings might hold (as applied to humans), but not apply to mutants.

    Finally, maybe a genetically-engineered-from-human-stock “person” is not “human”, but a creative work, just the way a person who goes through body modification AFTER conception and birth may be. A tattoo artist is entitled to copyright protection for a tattoo… why isn’t a scientist who builds a genetic sequence that causes the body to grow a tattoo without resort to needle and ink?

    • In modern biological parlance, “separate species” is inaccurate; there’s considerable reason to believe homo superior to be cross-fertile with homo sapiens. Thus, it might be more accurate to talk about homo sapiens comoinis versus homo sapiens superior.

      That said, a justice Taney or four on the bench seems one of the easiest routes to the sort of rulings needed to sustain such absurdity; which in turn would likely require a particularly bad president’s appointment.

      • James Pollock

        “That said, a justice Taney or four on the bench seems one of the easiest routes to the sort of rulings needed to sustain such absurdity”

        Chief Justice Taney wrote the majority opinion in Scot v. Sandford… there was only one Chief Justice Taney on that one, six other justices signed on. And, more recently, recall how the final vote in Korematsu came out (6-3), or the final count in Cetacean Community v. Bush (3-0 in the Ninth Circuit, and the USSC didn’t even have to rule).

        Chief Justice Taney and his cohort get hammered on for being on the “wrong side of history”, but they didn’t have the advantage of being raised in the late 20th century, like, I’m assuming, both of us did. They had little exposure to the radical notion that black people or yellow people might be considered to be equal in all ways to the white people… and even though the authorities gathered afterwards to overrule Chief Justice Taney via Constitutional amendment only a decade later, they didn’t bother to include women in the “all people are people” bandwagon for another 50.

    • You make an interesting point as to patents, and if mutants were viewed as non-humans and the mutations were created rather than naturally occurring, patent law might apply.

      Copyright law on the hand would still not apply. First, copyright cannot generally cover useful articles, and tools of war would be useful articles. Now, you can have copyright over a decorative feature on an otherwise useful article, but that didn’t happen here.

      Someone using specifically written genes to cause a body to create its own tattoo might be able to claim copyright over both the artificially created genetic sequence itself and the resulting tattoos. Someone creating useful clones using naturally occurring DNA could not do that.

      • James Pollock

        But the copyright wouldn’t be on the actual people, but rather on the DNA sequence used to build them.

        The analogue is data files used to create 3D-printed objects.

        Consider the “designer pets” from the old Heinlein story “Jerry Was A Man”, or Jerry himself, or replicants from “Blade Runner”.

        Copyright covers “creative expression”, not functionality. So… there may be more than one way to create a mutant healing factor. You can’t copyright the fast healing effect of a mutant power, but you can copyright the exact sequence of amino acids necessary to create Logan’s specific expression of that ability (if, and only if, you are in fact the creator of it. If it occurs naturally, then you are not the creator and thus not entitled to copyright on that basis.)

      • Maybe, but I’m skeptical. The closest analog would be computer code, and you can copyright computer code. But computer code is distinguishable in 2 very important ways.

        1. There are many, many ways to achieve the same thing so copyrighting one particular program will not prevent others from implementing the same goals so long as they do it in different ways. As you mentioned, this might be true of DNA, but that is far from clear currently.

        2. Building on the first one, code contains an expressive element and clearly shows the fingerprints of its author and allows of individual style. It is at least not clear this is true of DNA.

      • James Pollock

        “1. There are many, many ways to achieve the same thing so copyrighting one particular program will not prevent others from implementing the same goals so long as they do it in different ways. As you mentioned, this might be true of DNA, but that is far from clear currently.”

        I think it’s pretty clear that you can use different DNA to create different-looking organisms. Don’t you?

        “2. Building on the first one, code contains an expressive element and clearly shows the fingerprints of its author and allows of individual style. It is at least not clear this is true of DNA.”

        Please don’t take this the wrong way, but… seriously?
        If I genetically-engineer a dog with opposable thumbs because I want him to really shake hands on the command “shake”, does that not show my individual style? If I design a nonapus so it can win any arm-wrestling competition with any mere octopus, is that not a creative work?

        If I genetically engineer a rat that grows functional human kidneys on its back, that’s a patentable achievement… my goal was to achieve a functional goal. But if my goal was to engineer six-foot tall turtles so I could feed them pizza and teach them radical ninja moves, that’s clearly creative expression, even if I DON’T name them after Renaissance painters.

        Hmm. Better engineer them all sterile, so I don’t have to pursue them legally for creating unauthorized derivative works.

      • [I don’t think this argument is going anywhere useful. In any event, while some have argued that DNA sequences should be copyrightable, the current view is that they are not. See, e.g., Jorge R. Roig, Can DNA Be Speech?, 34 Cardozo Arts & Entertainment L.J. 164 (2016); Andrew W. Torrance, DNA Copyright, 46 Val. U. L. Rev. 1 (2011).

        To be clear, I cite those articles because they both implicitly accept that genetic sequences are not currently considered copyrightable, and that’s nearly all the scholarship there is on the subject.

        Even more concretely: A few years ago someone tried to register a genetically modified fish with the Copyright Office. The registration was refused for falling outside the scope of copyrightable subject matter under § 102(a).]

  3. James Pollock

    “Even trade secrets are dicey. Theoretically one could take a wayward former employee to mandatory binding arbitration”

    Presumably, trade secret law backed by national secrets works pretty well; we’ve had a few of them come out. And some experiments have been pretty nasty (The Tuskegee Experiment, for example, came to light only after it had been running for 4 decades). “MK Ultra” has leaked out in dabs and dribbles, but who knows if we’ve seen anything even remotely like the whole truth? Yes, there’s danger in falling into tinfoil hat territory… which is borrowed from in X-Men continuity, as in X-Men continuity HAARP is not what it claims to be… and even Wolverine himself was embroiled in secret government experimentation (although, of course, not the U.S. government. In X-Men 2, Stryker revealed that he’d gone through several experimental subjects in the Weapon-X project before finding Logan, who was the first to survive.

    For many years, encryption products were restricted in the United States as “munitions”, and publishing research on encryption in a scientific journal that was available to foreign powers was considered a criminal offense.

    • ” and even Wolverine himself was embroiled in secret government experimentation (although, of course, not the U.S. government.”

      In the comics, it was the US government; or, at least, a joint US-Canadian government project.

      In the movies it is less clear, but although the Weapon X experiments take place in Canada, Stryker and seemingly his whole team are also American, so the arrangement is likely similar.

      • James Pollock

        In the comics, Wolverine is created by Department H, a Canadian agency. He is placed into national service with Alpha Flight.

        The movie version of Stryker is a substantial departure from his comics version (in “God Loves, Man Kills”). In the movies, Wolverine has Canadian dog tags, but is shown in later movies serving in American uniform.

  4. [Spoiler for Season 1 of _Orphan Black_]

    This same problem with the show Orphan Black was so jarring that I gave up on the series! Throughout season 1, Sam begins to discover that she is one of a group of nearly identical clones. They come to realize that there is a shadowy corporation behind the project, who has inserted some “encrypted DNA” into their genome.

    In the climax to the season, one of the clones manages to decode the DNA, only to find out that….

    It’s a patent notice.

    Really? This was built up as such a big reveal, and then to have it turn out to be the equivalent of a “Kick me” sign taped to the back of the character? They acted as though this bit of text were literal shackles on them, rather than (at best) an unenforceable contract term or illegal act.

    It didn’t bother me so much in Logan. As you noted, it wasn’t critical to the plot, and I took Rice’s comments as heated bluster rather than literal.

  5. Patents are by public by definition.

    Generally; however, 35 USC 181.

    Granting the absurd level of change in the law required to get to human genetics being patentable, the military applications of Logan’s healing power would seem to make the associated genetics one of the most patentable short of the “Omega Level” powers.

    Contrariwise, it would require an even more insane level of change in the law to allow a the containing of patented genes to forfeit a human being their Civil Rights.

    Nohow, given the current state of US politics it seems incautious to under-estimate the capability for stupid changes in the law.

    • Generally; however, 35 USC 181.

      § 181 allows the government to keep patent applications unpublished and prevent them from maturing into patents in cases where the invention must be kept secret for national security reasons. It doesn’t allow for secret patents, only secret patent applications. It’s a somewhat technical distinction, but all patents are indeed public by definition.

    • “Contrariwise, it would require an even more insane level of change in the law to allow a the containing of patented genes to forfeit a human being their Civil Rights.”

      If, that is, an organism containing the X-Gene is a “human being”. (The same considerations apply in a different corner of the Marvel Universe, with the Inhumans).

  6. I think it fundamentally comes down to if mutants have rights. the cloning process does not itself make a difference. (that is, if Cyclops has rights, a clone of Cyclops also has rights. If Cyclops doesn’t, with certain exceptions, (deprivation of rights due to a felony conviction comes to mind) his clone wouldn’t either.)

    However, I suppose it’s possible to make a somewhat specious argument about reproduction- on the other hand, unless there’s accelerated growth involved, wouldn’t the patent probably have expired anyway? Patents expire 17 years after issue even if it hasn’t been 20 years since the priority date, and the lowest age of consent in the US is 16.

    • That, and it does occur to me that it’s entirely possible that if you drew a Venn diagram, the group that know the company is breaking the law and the group that cares simply don’t intersect (the clones presumably don’t know- and if sufficiently brainwashed, may not care- while the staff either don’t care it’s illegal, or have been brainwashed (in the sense of “convinced a lie is the truth”, not of any particular procedure) to believe the company is acting lawfully. If you are never caught, does it make a substantive difference?

  7. OT:
    There are a couple of good legal issues to explore in Iron Fist.

    You have some issues of corporate governance (The board of an apparently closely-held corporation firing the owners)

    The central conundrum, however, is dealing with matters of inheritance and ownership when a dead person turns out to not be dead anymore.
    I didn’t take Wills and Estates, so I’m interested in how the ownership of Rand Enterprises should have been handled. If the Rands were all dead and no surviving heir existed, shouldn’t the 51% controlling interest in Rand Enterprises have escheated to the state?

  8. Now that I’ve seen the movie I see your point. Though fortunately it’s not significant to the plot, as you say.
    One quasi-legal detail that is significant to the plot is this insistence that once they’re over the border in Canada, the kids are untouchable. So a dompany that engages in slavery, murder and illegal (I assume) experimentation is going to balk at illegally entering Canadian territory?

    • It might just be that the Canadian government isn’t willing to play ball, and it’s too risky to retrieve them. I suspect, to be honest, that it’s supposed to be a modern-day version of the Underground Railroad- they are (functionally) enslaved in the US, they reach somewhere where they can live in freedom.

    • That struck me as needing a bit more explanation too. My interpretation was that they intended that the Canadian government had systems in place to actively protect them, but only if they could actually reach Canada since Canada would not invade the U.S. for them.

  9. I believe there was a post on this blog earlier, on how even in our world, Marvel pays less toll on action figures of mutants because they are not human beings. Rulings would this seem to favor “Logan”s storyline.

    http://lawandthemultiverse.com/2011/12/27/are-the-x-men-human-federal-court-says-no/

    • I think it’s more that for it to be a “doll” it has to be purely human- for example, an action figure of Peter Parker is a doll, while Spiderman in full costume is not.

      To use a different example, a Jean Grey action figure would be a doll. a Phoenix action figure would not be. the action figures aren’t dolls because they are of the COSTUMED persona.

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