Category Archives: copyright

Nova’s Complex Legal History

Although the Guardians of the Galaxy movie did not feature a specific character identifiable as the superhero Nova (e.g. Richard Rider), it did feature the Nova Corps, and there have been indications that Nova may make an appearance in a sequel.  It turns out that the character of Nova has an interesting legal history, one that attorney Britton Payne has written a great post about on his copyright blog, Copyright On.  Check it out!

Landslide Article

I recently co-authored an article with Professor Brad Desnoyer and Janet Fries discussing superhero-related intellectual property topics, both real and fictional.  Last month the article was published in Landslide, the magazine of the ABA section of IP law, as the cover story!  You can read the article for free online. Thanks to Brad and Janet for their excellent work on the article and to David Postolski for putting everything together.

ABA Annual Meeting Panel Tomorrow

Just a reminder for anyone attending the ABA Annual Meeting in San Francisco this week: I will be presenting “IP and the Comic Book Superhero” with Brad Desnoyer and Janet Fries tomorrow, Friday, August 9th from 4pm – 5pm at the InterContinental San Francisco.  Complimentary CLE credit is offered with the program.  We hope some of the attorneys and law students in the audience can make it out there!

ABA Annual Meeting

In other convention news, I will be presenting at the ABA Annual Meeting in San Francisco with Brad Desnoyer and Janet Fries.  Our panel on “IP and the Comic Book Superhero” will be Friday, August 9th from 4pm – 5pm at the InterContinental San Francisco.  Complimentary CLE credit is offered with the program.  We hope some of the attorneys and law students in the audience can make it out there!

Law and the Multiverse Online CLE Programs

For many attorneys it will soon be annual CLE reporting season.  If you need CLE credits, we may be able to help.  We have partnered with Thomson West in the past to produce four online, on-demand programs with CLE credit available in most states:

What Superheroes and Comic Books Can Teach Us About Constitutional Law

Real-Life Superheroes in the World of Criminal Law

Everyday Ethics from Superhero Attorneys

Kapow! What Superheroes and Comic Books Can Teach Us About Torts

For a 20% discount on any or all of these programs, use code KABLAM2013.

And if you missed the IP and the Comic Book Superhero program presented by the ABA IP Section, it is available for pre-order as an audio CD for delivery on May 17th.  It may be available as an on-demand program later, I’m not sure.

Finally, if you’ve already taken these courses or are looking for something different, keep an eye out for a new program (presented by Thomson West) to be announced soon.

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!

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!

Pirate Cinema by Cory Doctorow

This guest post was written by Stuart Langley, an intellectual property attorney.  Thanks to Stuart for this fantastic post!  If you are a legal professional (e.g. an attorney, judge, or law professor) or a comic book professional (e.g. an author, editor, or illustrator) and  you have an idea for a post that would be a good fit for Law and the Multiverse, feel free to contact us!  

Cory Doctorow’s novel Pirate Cinema is a 2012 young adult speculative fiction novel set in near-future England that follows roughly a year in the life of a band of footloose youths living in, around, and outside traditional London society.  The story is told from the perspective of 16-year old filmmaker Trent McCauley (a.k.a. Cecil B. deVille) who’s obsession is creating mashups using images from the net.  Guided by his vagabond friends Jem, Dodger and a young woman named “26”, Trent matures from filmmaker to copyright activist.  

If you haven’t read Pirate Cinema, as always with Doctorow’s books you can download it for free, or you can do as I did and buy a copy.

Cory Doctorow is well-known for both his fiction and his informed, thoughtful copyright activism.  Pirate Cinema takes clear positions on copyright issues, but what is exceptionally fun about Pirate Cinema is the energy Doctorow puts forth to set out the whole cornucopia of property issues so we may consider law and theory.  Rather than steadfastly advocating a position, Pirate Cinema advocates advocacy itself; advocacy informed by human needs, respectful of human institutions created to meet those needs, and appreciative that these systems are changeable to satisfy our needs.  I will focus not on copyright issues per se, but the much more interesting context Pirate Cinema creates for understanding copyrights in the scheme of property law.  Pirate Cinema asks us to wonder about whether the way we treat intellectual property follows how we treat other kinds of property.

But first, Trent’s adventure begins when his family’s internet access is disconnected because of his downloading activity.  Is internet access a public utility subject to a higher “obligation to serve” standard, or merely a contractual service that can be denied for violation of any agreed upon term of service?

I. Is Internet Access a Public Utility?

Trent’s home has received a series of notices telling them their IP address has been associated with illegal downloading.  These notices go unheeded because Trent has intercepted them.  The third notice is accompanied by an appealable, but immediate one-year suspension of the family’s internet access.  The appeal process is portrayed as too burdensome and slow to pursue.

The McCauley’s internet access has been disconnected consistently with what appears to be an implementation of the United Kingdom Digital Economy Act 2010.  Implementation of this act has been slow, but is expected to lead to notices and service disruption as early as 2014.  The implementing code of this act obligates ISPs to respond to copyright infringement reports by notice to subscribers, maintain a list of subscribers that have received notices which can be disclosed to copyright owners under court order, and degrade or deny service to repeat offenders.  The technical measures imposed by the law will be appealable; on paper the appeal processes appear designed to protect subscribers, however, the regulations on the appeal process have not yet been published.  This foundational scenario in Pirate Cinema is plausible.

But whether it is acceptable to cut off internet access as punishment for violating how that service is used is another question.  Because of the disconnection Trent’s father cannot find work, his mother cannot find medical care, and his sister’s schooling suffers.  Is internet access is a public utility that should be more difficult to disconnect than summary and unilateral administrative action?  As explained in Jim Rossi’s article Universal Service in Competitive Retail Electric Power Markets: Whither the Duty to Serve? 21 Energy L.J. 27 (2000), common law principles express a public utility having a higher obligation to provide service—to provide extraordinary levels of service, especially to small residential customers.  These obligations include the duty to extend service, provide continuing reliable service, provide advanced notice of disconnection and to continue service even though a customer cannot make full payment.  Public utilities can have terms of service and can terminate service for violations, commonly payment and safety related transgressions.  One U.S. city proposed to cut off utility service for failure to pay speeding tickets, although using utility service as a tool to enforce other regulations seems very unusual and inconsistent with the common law “duty to serve”.  The question posed by Pirate Cinema is timely as governments try to regulate internet access, they do so by treating it as a public utility.  This will be a double edged sword in that one treated as a utility, society should, perhaps, have a higher duty to provide internet access and similarly higher barriers before disconnecting service, including greater due process and evidentiary protections for subscribers.

II. Property Rights in Pirate Cinema

Trent learns quickly how to live without money.  He needs food, he needs shelter, he needs comforts of water and electricity and, significantly, he needs to create films.  Without money the satisfaction of these needs brings Trent face-to-face with all types of property theory and practice.

The origin of property rights–the question of how something moves out of “the commons” to become the exclusive property of an individual is found in variations of “first possession theory” and the more thorough Natural Rights theory advocated by John Locke.  According to these theories property rights arise from the human ability to take something from nature, or the commons, and improve it and put it to use.  This act of taking from the commons gives the taker ownership in the thing taken.

Laws and social institutions have evolved to manage property rights, how they are granted and retained, and what privileges are granted to those that possess them.  These institutions and laws are the creation of man as well, and in spite of the strength of our belief that they are immutable, these institutions change over time to meet the needs of society.  Pirate Cinema asserts that property rights are enforced by political entities and powerful corporations and asks us to think about whether our existing institutions and laws are adequate with the reminder that we can change them to better meet society’s needs.  Paramount of those societal needs is the efficient and effective distribution of resources in our quest to satisfy human needs such as the need to eat, the need for shelter, and the more abstract needs to be comfortable, to share knowledge, and to be creative.

A. Tangible Property: Discarded Goods

Pirate Cinema’s society is characterized by great poverty and apparent abundance of resources being wasted.  At Waitrose, an upmarket grocer in London, Trent has a sinking feeling they might be about to shoplift.  Shoplifting is a crime and Trent is no thief.  Instead, his guide Jem teaches him to gather discarded food from the skips (dumpsters) behind the grocery which provide such abundance that they share this bounty with the less fortunate.  Similarly, they acquire all manner of computer and audiovisual equipment, all discarded.  This contrast—the repulsion of stealing against the acceptance of taking discarded goods—lets us think about when tangible property rights make sense and when they do not.  But is this a difference recognized in law?

Trent is right, people found guilty of shoplifting in the UK are charged with theft under the Theft Act 1968 and repeat offenders risk jail time.  However, can he take those same goods from a skip when discarded?  In the UK, no.  Dumpster diving in England and Wales may qualify as theft within the Theft Act 1968 as well.  However, there is little enforcement in practice.  In England, unless aggravated, theft from a skip will only be a civil wrong.  This non-uniform enforcement suggest that society, like Trent, views these acts differently, with a higher regard for personal property in some circumstances (e.g., when it is inside a store, while the owner is exercising dominion, and when taking property would cause loss to the property owner) than in other circumstances (e.g., once the owner has abandoned the property and would no longer suffer loss by the property being taken).

B. Real Property: Adverse Possession

Later, Trent and Jem take up residence in an abandoned pub they name Zeroday and claim it as their own under adverse possession laws.  Can they hope to own the pub where they take up residence?  Their actions to improve the property and put it to better use appeal to the natural law theory of property.  Acquiring real property by “adverse possession” is the process by which a person who is not the legal owner of real property can become its owner after having occupied it for a specified period of time.  The Land Registration Act 2002 provides a legal scheme by which a person wishing to claim adverse possession of registered land would need to continuously occupy the land for ten years, or for a period of twelve years if the land is unregistered.  Pirate Cinema accurately describes the adverse possession law, although the youth’s rigid interpretation of notice provisions and continuous occupation are likely overstated.  Just as importantly, when the pub’s new owner appears, destroying the adverse possession claim, Trent readily yields to the new owner, apparently acknowledging both the new owner’s claim in law and the natural rights principle that although he could claim property from the commons, he could not claim property owned by another.  Once again, the contrast presented suggests our laws and culture give high regard to real property rights in some circumstances and less regard in other circumstances such as when the property is abandoned and can be put to better use.

C. Abstraction of Electricity

In a third property-like scenario, the pub’s power is originally restored by Dodger, Jem’s friend who bypasses the meter.  Not long after, the authorities forcibly remove the residents of Zeroday for “abstraction electricity”.  Electricity is not property in the UK and cannot therefore be stolen.  See the Crown Prosecution Service citing Low v. Blease Crim L.R. 513 (1975).  However, under section 13 of the Theft Act 1968, electricity used without due authority, or dishonestly wasted or diverted is charged with the offense of abstracting electricity.  Trent and the inhabitants of Zeroday unwillingly recognize this authority, vacating Zeroday as punishment for this crime.  Later, when they wish to re-habit the pub, the youths avoid this problem by installing a pay as you go service.  Consistent with the “duty to serve” notion, so long as the youths pay for their service the utility did not deny them service even though they do not own the property.  The contrast presented here is not in conflicting views of the law, but in that Trent does reluctantly but willingly commit the crime, and then agrees with the terms of service and his obligation to pay for services.  Trent acknowledges his needs alone do not justify theft, or abstraction, of what is rightfully “owned” by another.

III. Conclusion

So now our table is set; we have before us examples of when property rights systems work, and when they don’t.  We have examples of when it is right to acknowledge the rights of an owner and when we should question the scope of the powers conferred by those property rights.  Is internet access more like electricity we should be hesitant to withhold, or is it more like tangible or real property where theft laws are rigorously enforced?  Are downloaded clips more like real and tangible property in which we consistently recognize broad rights of owners, or discards from the skips where society implicitly or explicitly accepts that in spite of laws to the contrary, we restrain our enforcement of owner rights in favor of more effective ways of meeting human needs?

Pirate Cinema does not answer these questions for us.  It urges us to appreciate our own responsibility in defining property rights and systems of crime and punishment that meet human needs, including and most dearly the human need to create.  More than anything, the tale urges us to decide, and to learn about the law and regulation being created to regulate society, and take an active part in how those laws are made.

Superhero Journalists Revisited

You may recall our previous post about superhero journalists Clark Kent and Peter Parker, which discussed how copyright affected them differently as an employee and an independent contractor, respectively.  Well the times they are a changin’, and Clark Kent quit his job at the Daily Planet in Superman #13 to become a blogger.  This will have more than a few legal consequences for Kent, some of which we’ll touch on today and some of which will have to wait for a future post.

I. Intellectual Property

As an individual Kent will either be working as a freelancer, selling stories to companies like the Huffington Post, or he may publish stories himself.  Regardless of which business model Kent chooses, he’ll also have to choose a form of business association (corporation, LLC, etc).  Basically, he could either choose some sort of corporation, or he could operate a sole proprietorship.  The latter is easier, but it’s also riskier (more on that later).

With regard to IP, the different kinds of business association give him some options.  For example, he could be an employee of a corporation, in which case the copyright in his works would be automatically owned by the corporation, just as they were owned by the Daily Planet when he worked there.  Or, if he wasn’t an employee then he could assign those copyrights by contract.  And if he chose not to incorporate, then he could retain ownership of the copyrights as an individual.

One practical effect of this choice will come into play when contracts with publishers are signed.  If Kent’s company owns the copyrights (either automatically or by assignment), then the company will be the one selling the stories, which entails either assigning the copyright to the publisher or granting the publisher a license.  If Kent operates as an individual, then it’ll be Kent selling the stories directly.  Either way it’ll probably be Kent signing the contracts, since he’ll be his company’s sole employee/shareholder/member.  The difference will be whether he signs it something like “Clark Kent, Manager, KentCo LLC” or just “Clark Kent.”

So what’s the point of all of this?  Why would Kent bother setting up a company, especially if he’s going to be the only employee or if it won’t even have any employees?  The answers are, as they so often are in the law, liability and taxes.  Taxes will have to wait for a future post, but let’s take a brief look at liability.

II. Liability

As a writer working alone, Kent probably won’t have to worry too much about some of the common sources of liability for companies, such as products liability or workplace injuries.  But he will have to worry about suits for defamation, invasion of privacy, and related torts.  To a certain extent these risks can be insured against, and it’s usually part of commercial general liability insurance, but there are limits to what insurance will cover.  If Kent intentionally defames someone or (more likely) intentionally invades their privacy, then an insurer isn’t going to cover that.  This is where the liability protection of the corporate form comes in to play.

Basically, the way this works is that the plaintiff could sue Kent’s corporation or company but not Kent himself as an individual.  This means that the corporation’s assets would be vulnerable in the suit, but not Kent’s personal assets.  There are some exceptions to this general rule, however.  Sometimes a plaintiff can “pierce the corporate veil” and sue the employees or directors and officers of the corporation as individuals.  There are several reasons why this can happen, but some of the most common are when the corporation is just an “alter ego” of the individual (i.e. they aren’t really distinct entities) or when the corporation is under-capitalized (i.e it doesn’t have nearly the assets it should given the kinds of risks it undertakes).  Both of these are potential issues for a one-person corporation or LLC.  Kent will have to be careful to observe the corporate formalities, avoid commingling personal and corporate assets, and maintain adequate capital in the company.

If Kent decides not to incorporate but instead operate a sole proprietorship or even act as an individual, then he won’t have this benefit.  He could be named in the suit as an individual and his assets would all be up for grabs, subject to the limitations of bankruptcy.  Incorporation has some upfront costs and requires some effort to maintain, but it beats being on the wrong end of a million dollar damage award.

III. Conclusion

So far there haven’t been a lot of details in the comics, but it’ll be interesting to see where this part of the Superman story goes.  Clark Kent’s work at the Daily Planet has been an iconic part of the character for decades.  “Clark Kent, mild-mannered blogger” doesn’t have quite the same ring to it.

Amicus Curiae Comic

At Law and the Multiverse we mainly talk about how the law is portrayed in comics.  Well here is a very literal example: an amicus curiae brief / comic filed in the ebook price-fixing case, U.S. v. Apple et al.  The brief was illustrated by Julia Alekseyeva and written by Bob Kohn, who is the co-author of Kohn on Music Licensing and knows a thing or two about copyright law.  We take no position on the case itself or the merits of the brief, but it’s easy to read and very entertaining.  There have been illustrated court filings before (here’s the sad backstory to that one), but this is the first full-blown comic we’ve seen.

Thanks to Len for forwarding the brief to us.