Category Archives: copyright

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.

A Tale of Two Superhero Journalists

Today we have a quick post about copyright, works for hire, and the difference between independent contractors and employees.

Peter Parker (aka Spider-Man) and Clark Kent (aka Superman) are both journalists: Parker is a freelance photographer who primarily sells his work to The Daily Bugle and Kent is a reporter for The Daily Planet.  In order to publish their photographs and stories, the newspapers must have either own the copyright to the photo or story or have a license.  As it turns out, the law treats Parker and Kent differently because of the different relationship each journalist has with their respective newspapers.

In general, copyright belongs to the author of a new work by default.[1]  This means that when Peter Parker snaps a picture of Spider-Man, Parker owns the copyright in the work.  When Parker sells a photo to the Bugle he either also sells the copyright or at least grants the Bugle a license to use the photo.  This gives Parker leverage to potentially sell the same photo to multiple newspapers or to charge the Bugle a premium for an exclusive, at least if he can talk J. Jonah Jameson into it.

The situation is different for Clark Kent.  As an employee of The Daily Planet, works that Kent prepares within the scope of his employment (i.e. stories he writes as part of his job as a reporter) are “works made for hire.”[2]  The employer owns the copyright in a work for hire unless explicitly agreed otherwise.[3]  This means that Kent has no rights in the stories he writes: he can’t sell them to another paper or reprint them on a blog, for example.

So how do the courts decide if someone is an employee for copyright purposes?  The Supreme Court has held that the courts should use a long list of factors derived from the common law of agency, including who provides the tools for the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; and the extent of the hired party’s discretion over when and how long to work.[4]  Unsurprisingly, these factors show that Parker is an independent contractor while Kent is clearly an employee.

[1] “Copyright in a work protected under this title vests initially in the author or authors of the work.”  17 U.S.C. § 201(a).

[2] 17 U.S.C. § 101.

[3] 17 U.S.C. § 201(b).

[4] Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989) (the Court listed several additional factors).

Mailbag for April 15, 2011

This week’s reader questions are about intellectual property issues, including trademarked superhero slogans and copyright across alternate universes.  As always, if you have questions or post suggestions, please send them to and or leave them in the comments.

I. Copyright and Alternate Universes

John asks, “In an issue of New Excalibur, Nocturne (Talia Wagner; the daughter of Nightcrawler from an alternate universe), is listening to her iPod.  Dazzler asks what she has on it, and Nocturne tells her it is the Beatles 40th anniversary album.  Apparently in her universe the Beatles never broke up, and John Lennon was never killed.  …

What if somehow either by file sharing or a hacker, the contents of Nocturne’s iPod becomes available to the larger 616 universe.  Who can lay claim to the rights of intellectual property and royalties (if anyone)?  [Assume that the alternate universe copyright holders cannot lay a claim themselves.]”

The answer is a bit complicated. For conciseness and readability we’ll use the phrase “Earth 616 Beatles” to refer to the Beatles and their heirs, successors, and assigns (i.e. whoever it is that owns the relevant intellectual property).

First we must decide if there is an Earth 616 copyright in the recordings at all.  Since the alternate universe United States is not a signatory to the Earth 616 Berne Convention, it’s quite possible that the courts would take the view that there is no copyright in the work at all, or at least not one that the Earth 616 United States recognizes.  NB: Talia can’t claim copyright in the recordings herself because she didn’t create them.  But what if the copyright were recognized?

We still don’t think the Earth 616 Beatles have a copyright claim.  Clearly they didn’t create the tracks outright, and even if the album incorporated music that was substantially similar—or even identical—to Earth 616 Beatles music, the defense of independent creation absolves the alternate universe Beatles (and thus Talia) of any liability for infringement because the alternate universe Beatles created their music without ever knowing about the Earth 616 Beatles.  Indeed, coming up with the same music in an alternate universe is about as independent as independent creation can get.  Notably, independent creation is something the Earth 616 Beatles—George Harrison at least—should be very familiar with.  See ABKCO Music, Inc. v. Harrisongs Music Ltd., 722 F.2d 988 (2d Cir. 1983).

The first complication comes from trademark and the right of publicity.  Theoretically the Earth 616 Beatles could sue to prevent Talia and others from misrepresenting the music as ‘Beatles music.’  They could seek an injunction requiring them to describe it as coming from an alternate universe with no connection to the Earth 616 Beatles.  This would create a contrast to their own “genuine Earth 616 Beatles creations.”

The second complication comes from the possibility of criminal copyright infringement.  While we may assume that Talia properly purchased her copy in the alternate universe, anyone else making copies might run afoul of the criminal copyright infringement statute.  17 USC 506.  If the US government recognized a copyright in the works, it could prosecute distributors of the work even though the copyright holders couldn’t possibly benefit, since they’re in an alternate universe.

Of course, if the Earth 616 US passed an orphan works law, this would be a perfect case for it, since the copyright holders can’t be located.

II. Superhero Slogans and Trademarks

Walter asks, “[Y]ou’ve covered copyrights and trademarks but what about slogans or words of power?  Take, for example, Captain Marvel and the word “shazam.” In the real world, that word is being used by several companies, including a music app recently prominently featured in a television campaign. If the word “shazam” is a legal trademark of the company [it is —James], is Captain Marvel in violation of a law for using it for his transformation? Should he have copyrighted his secret word to protect if from this sort of situation?

The answer to the first question is: probably not.  First, trademark infringement generally requires “the sale, offering for sale, distribution, or advertising of … goods or services” 15 USC 1114(1)(a) & (b).  We suppose Captain Marvel could be accused of advertising his services as a crimefighter, but that’s a slender reed upon which to build a case.

Second, most trademarks only protect particular areas of use (e.g. in this case, “software for music recognition,” among other things).  I think it would be pretty unlikely for a company to register a trademark in the area of “superheroic crimefighting,” which is the essential area of use for Captain Marvel.

Third, trademark infringement depends on a likelihood of mistake, deception, or confusion between the mark and the allegedly infringing use.  Id.  I don’t think it’s very likely that a bystander will hear Captain Marvel transform and think “ah! I’ll bet he could tell me the name of the song I’ve been humming” or “ah! I’ll bet he’s sponsored by the music app people.”

Now, there’s a higher standard for what are called famous marks (e.g. the really ubiquitous names like Kodak and McDonald’s).  Some marks are so famous that they apply to all areas of use.  What’s more, the standard is not likelihood of confusion but rather likelihood of dilution.  15 USC 1125(c).  That is, is it likely that the value of the mark will be diluted by unauthorized use, even if no one would be confused?  However, I don’t think there are any superheroes with a slogan or word of power that happens to be a famous mark, and they could still argue no likelihood of dilution and noncommercial use, especially if they didn’t make a big show out of yelling their words of power or slogans.

Note, though, that using a mark, especially a famous mark, might make it difficult for the superhero to sell merchandise, particularly depending on the nature of the merchandise and the areas the mark is used in.

Now for the second question: “Should he have copyrighted his secret word to protect if from this sort of situation?”  This one is much simpler.  Generally speaking individual words and short slogans can’t be copyrighted.  Captain Marvel could have trademarked it before the other folks did, but he’d need to use it in commerce in order to do so (e.g., sell comics, talking action figures, etc featuring the trademarked word).  And unless his slogan became a famous mark, he’d only be protected in those particular areas of use.  But since he’d probably be safe anyway, such defensive measures probably aren’t necessary in his case.

That’s it for this week.  Keep your questions coming in!

Law and the Multiverse Mailbag VIII

We’ve got some great issues for the mailbag this week, including immortality and copyright and Bizarro, court translators, and competency.  As always, if you have questions or post suggestions, please send them to and or leave them in the comments.

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Superpowered Merchandising, Part One

This is a follow-on from our series on superhero privacy rights.  In this series we’ll be looking at how superheroes (and maybe supervillains) could control the use of their image through copyright and trademarks.  We’ll begin with copyright.

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