Category Archives: mailbag

I Married a Skrull!

Posted on October 5, 2012 by | 35 Comments

Today’s post is about Johnny Storm (aka the Human Torch) and his marriage to Alicia Masters (actually the Skrull Lyja posing as Masters).  Ken wrote in to ask “Was Johnny Storm’s marriage to Lyja valid?”

This isn’t the only time that this scenario has occurred in comics.  Ken also asked about the marriage between Namor the Sub-Mariner and Dorma (actually Llyra in disguise).  In that case a quirk of Atlantean law came to the rescue: because Namor thought he was marrying Dorma, his marriage was to her and not Llyra, even though Dorma was not present at the ceremony.  I’m not sure what that says about the nature of consent in Atlantean law, but we’ll stick with the Johnny Storm/Lyja case, since New York law is a bit easier to research.

I. Void and Voidable Marriages

Perhaps unsurprisingly, the answer is that their marriage would be voidable.  N.Y. Domestic Relations Law § 7 states

A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: … 4. Consent[ed] to such marriage by reason of force, duress or fraud

There’s a distinction between a marriage (or other contract) that is voidable and one that is void.  A void marriage (defined in §§ 5-6) is one that never exists at all, typically in cases if incest or bigamy.  A voidable marriage is a marriage until a court declares it void, and so can theoretically remain a legitimate marriage if the parties want it to be.  So in this case if Johnny Storm and Lyja agreed that they really did love each other after all (certainly Lyja claims to), then they could stay married, though there would be a lot of paperwork to correct.

Alas, love does not conquer all here, and Johnny wants none of it.  So could he prove a case of fraud?

II. Fraud

New York law treats the kind of fraud sufficient to void a marriage as similar to that which would void a contract.  ”Marriage is a civil contract, and the courts will annul such a marriage like other contracts, where the consent of a party to it has been procured by fraud or the misrepresentation of a material fact.”  Lembo v. Lembo, 193 Misc. 1055, 1057 (Sup. Ct. 1949).  Further:

Where the ground relied upon for dissolution is fraud, the fraud contemplated by the statute must be of a nature and import so serious that it destroys the essence of the marriage contract and of a magnitude that the person asserting the fraud as a ground for dissolution would not have entered the marriage contract, if, in advance thereof, the misrepresentations had been revealed.

Di Pillo v. Di Pillo, 17 Misc.2d 673, 675 (Sup. Ct. 1959).  It seems pretty clear that lying about one’s identity as an alien at war with the human race and impersonating another person already known to the other party are sufficient.  Johnny would not have married Lyja had she been honest about her identity.  Indeed, he likely would have attacked her on sight.

III. An Alternate Approach

Another approach would be to argue that the marriage was void from the beginning (as opposed to voidable) because human/Skrull marriage is not legally recognized in New York.  Our prior post about this was a bit controversial, but our conclusion there was that interspecies marriages (e.g. Clark Kent and Lois Lane) may not be legal under current law.  Since the Storm/Lyja marriage occurred in 1987, long before even same sex marriage was legalized anywhere in the United States, we feel even more comfortable asserting that a human/Skrull marriage would not be legal (again, assuming that the marriage laws on Earth 616 were the same in 1987 as they were in the real world).

IV. Conclusion

Whether because a human/Skrull marriage is legally impossible or simply because Storm was tricked into marrying Lyja, Johnny would have no trouble getting out of the marriage.  There might still be legal consequences, however.  A question for any tax attorneys or accountants in the audience: if Johnny had filed his tax return as married/filing jointly and claimed the standard deduction, would he have to repay any tax if the marriage was later declared void?  If so, could he seek compensation from Lyja?

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Posted in family law, Fantastic Four, mailbag, tax law

Hancock and Defense of Others

Posted on September 13, 2012 by | 6 Comments

Today we have a follow up to our post about the movie Hancock.  (Moderate spoilers below!)

In one scene, Hancock foils a bank robbery.  The lead robber was holding a dead man’s switch that would set off explosives, killing bystanders, so naturally Hancock solved the problem by amputating the robber’s hand.  After our review, Heiki watched the film and wrote in with a question about that scene:

How do the facts of Hancock being a state actor (he was called in by the police), his ability to retreat, and his seeming ability to simply move so fast that the robber would not be able to act and being able to squeeze his hand shut without amputating it bear on the legality of the amputation manoeuvre?

As Heiki indicates, there are a few different issues here, but we’re going to focus on whether the amputation was possibly legal under the circumstances.  Hancock is set in Los Angeles, so we can refer to California law.

I. Defense of Others and the Reasonable Person

Presumably Hancock himself would not have been harmed by the blast (or he could have left the scene), so we’ll assume Hancock was acting in defense of the bystanders and police.  California defines self-defense and defense of others by statute, Cal. Penal Code § 197:

Homicide is also justifiable when committed by any person in any of the following cases: …  1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or … 3. When committed in the lawful defense of such person … when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished

NB: the “commit a felony” part has been constrained by the courts to refer to the kinds of felonies that allowed lethal self-defense at common law, not all felonies.  People v. Ceballos, 12 Cal.3d 470, 478 (1974).  The felony must be “some atrocious crime attempted to be committed by force.”  Id.  But threatening to blow up a bank with people inside it seems to qualify in any case.  It would also likely count as “a design to … do some great bodily injury,” and there was imminent danger of the design being accomplished.

So, Hancock may have been justified in killing the robber outright.  Does that include cutting off his hand?  Yes.  ”Since a homicide is justifiable under the circumstances specified in section 197, a fortiori an attempt to commit a violent injury upon another under those circumstances is justifiable.” Ceballos, 12 Cal.3d at 477.

But the analysis does not stop there.  Although it is not directly apparent from the statute, California requires that the use of deadly force must have been reasonably necessary under the circumstances.

For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend.  If the belief subjectively exists but is objectively unreasonable, there is “imperfect self-defense,” i.e., “the defendant is deemed to have acted without malice and cannot be convicted of murder,” but can be convicted of manslaughter.  To constitute “perfect self-defense,” i.e., to exonerate the person completely, the belief must also be objectively reasonable.

People v. Humphrey, 13 Cal.4th 1073, 1082 (1996).  As is often the case, the “objectively reasonable” standard is determined by the ordinary person.  ”California law expresses the criterion for this evaluation in the objective terms of whether a reasonable person, as opposed to the defendant, would have believed and acted as the defendant did.” People v. Aris, 215 Cal.App.3d 1178, 1196 (4th Dist. 1989) (emphasis in original).  Specifically:

a jury must consider what would appear to be necessary to a reasonable person in a similar situation and with similar knowledge. It judges reasonableness from the point of view of a reasonable person in the position of defendant. To do this, it must consider all the facts and circumstances … in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.

Humphrey, 13 Cal.4th at 1082-83.

Unfortunately, it is not completely clear whether this objective standard also takes into account the defendant’s physical abilities, but I think it does.  Those abilities are part of the “situation” and “all the facts and circumstances.”  So, would a reasonable person, knowing what Hancock knew and with Hancock’s abilities, have done what Hancock did in that situation?  I don’t know.  I think a reasonable person might have chosen the amputation route.  It did avoid killing the robber, and it was successful.  Maybe Hancock was unsure if, fast as he was, he could disable the robber in time any other way.

2. Imperfect Defense of Others and Mayhem

But what if Hancock didn’t act reasonably? Could he claim imperfect self-defense and try for a reduced charge, perhaps some kind of battery or even a mere assault?  Alas, no.  The crime Hancock may have committed is not murder (since the robber didn’t die) but rather mayhem:

Every person who unlawfully and maliciously deprives a human being of a member of his body … is guilty of mayhem.

Cal. Penal Code § 203.  The California courts have held that imperfect self-defense is not a general-purpose defense and applies only to murder. “Imperfect self-defense is not an affirmative defense, but a description of one type of voluntary manslaughter.”  People v. Michaels, 28 Cal.4th 486, 529 (2002).  Further, they have also held that it does not apply to mayhem.  People v. Quintero, 37 Cal. Rptr.3d 884, 894-97 (4th Dist. 2006).  It is also unclear whether California even recognizes “imperfect defense of others” as opposed to imperfect self-defense.  People v. Michaels, 28 Cal.4th 486 (2002).

Now, you might be thinking, how can it be fair that Hancock is stuck with mayhem if he was acting unreasonably, but he would have gotten a reduced charge if he outright killed the robber?  The answer is that mayhem is already a less serious crime than voluntary manslaughter (the typical result of imperfect self-defense).  It carries a sentence of 2-8 years, whereas voluntary manslaughter is 3-11 years.  That’s a pretty slim difference in punishment for a pretty huge difference in outcome for the victim, if you ask me, but that’s the wisdom of the legislature for you.

III. Conclusion

It’s hard to say for certain whether Hancock acted reasonably and so was justified in doing what he did, but it’s certainly possible.  Since nobody (other than the robber) seemed to complain, I guess the LA district attorney’s office felt it was reasonable, or at least close enough.

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Posted in criminal law, mailbag, movies

Dodging Missiles, Attracting Liability?

Posted on August 27, 2012 by | 10 Comments

Our latest monthly column at Subculture for the Cultured is up. It was inspired by this question from Promethee:

I’m watching Ironman 2 (I know, I’m late) but something that seems to happen quite a lot (and come to think of it happens in like every other superhero movie) is the scene where the hero is being chased by some sort of tracking missiles. At that point, the hero flies at some sort of building and when really close, takes a tight turn. The missiles can’t turn that tightly, so they fly into the building destroying it and killing a bunch of people. Of course, whoever fired the missiles has plenty of liability coming at them. But what about the hero who performs the maneuver?

Check it out!

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Posted in criminal law, Iron Man, mailbag, movies, sftc columns, torts

Marriage and the Multiverse

Posted on August 17, 2012 by | 59 Comments

Today’s question comes from Marcus, who pointed me to this question from James Nicoll: “Under current US law, can djinn marry humans?”  This was apparently inspired by the show I Dream of Jeannie, in which a human marries a genie.  The broader issue of inter-species marriage comes up frequently in comics, however.  For example, Clark Kent, a non-human Kryptonian, has married Lois Lane, a human.  In both cases the true nature of the participants was not public, so the issue didn’t come up directly.  But if Clark Kent had been ‘out’ as Superman or if Jeannie had been ‘out’ as a genie, would the marriage have been legally recognized?

Alas, probably not.  First, we can consider states that have laws prohibiting same-sex marriage, as they have narrowly defined marriage laws.  But even states that allow same-sex marriage do not go so far as to recognize Kryptonian/human or genie/human marriage.

Many US states prohibit same-sex marriage, either by statute or constitutional provision.  The exact language varies, but typically some variation of “one man and one woman” is used.  Precise definitions of “man” and “woman” are typically not found in state statutes, but the plain meaning of the terms is a male human and a female human, respectively.  This can be seen by reference to animal cruelty laws, which delineate humans as separate from other kinds of animals.  See, e.g., Code S.C. § 47-1-10(1) (“‘Animal’ means a living vertebrate creature except a homo sapien.”); R.S.Mo. 578.405(2)(1) (“‘Animal’ [means] every living creature, domestic or wild, but not including Homo sapiens”).

At the federal level, 1 U.S.C. § 8 defines “person” to include “every infant member of the species homo sapiens who is born alive at any stage of development.”  This is an inclusive rather than exclusive definition (and it’s not specifically about marriage), but it underscores the point that only humans are people.  The federal Defense of Marriage Act provides (for now) that “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”  Combined with 1 U.S.C. § 8 and the plain meaning of the words, federal law also appears to only contemplate marriage between humans.

While Congress may have the power to grant legal personhood to non-human animals (see Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004)), it has not done so yet.  If non-human animals do not have standing to bring suit in court, then marriage would seem to be right out.

And non-humans could be granted legal personhood without necessarily granting them the right to marry humans.  If cetaceans or primates are ever granted personhood, for example, it is incredibly unlikely that a human could marry a dolphin or a chimpanzee.  Thus, the fact that an ‘out’ Clark Kent was allowed to become president does not necessarily mean he could legally marry Lois Lane.  The Constitution merely requires that the president be “a natural born citizen,” but there are many citizens that are prohibited from marrying who could nonetheless theoretically be elected president (e.g. someone who was mentally incapable of consenting to marriage).  It’s about as unlikely as an alien being elected president, but it’s legally possible.

A growing number of states recognize same-sex marriage, but their laws are still framed in terms of humans.  For example, Vermont’s law defines marriage as “the legally recognized union of two people.” 15 V.S.A. § 8.  Vermont further defines ”person” as “any natural person” plus various kinds of legal entities such as corporations. 1 V.S.A. § 128.  So once again we can fall back on the fact that non-human animals are not (presently) persons.  See, e.g., Cetacean Community, 386 F.3d at 1175-79.

So what does this mean for Jeannie and Tony, Lois and Clark, and other cross-species couples?  For starters, their marriages are likely void, and there may also be criminal liability (e.g. fraud).  It is possible that the courts could come to the rescue here and recognize genies, Kryptonians, Tamaraneans, etc, as legal persons who have the right (perhaps under Equal Protection) to marry humans.  But given the slow progress of marriage equality between humans (Loving v. Virginia was decided in 1967; same-sex marriage is still widely prohibited), this seems like a bit of a stretch.

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Posted in family law, mailbag, Superman

The Amazing Spider-Man: Warrants and Assault

Posted on July 6, 2012 by | 20 Comments

As we discussed in our background post, most of the issues in The Amazing Spider-Man aren’t new, but there are two stand-outs.  There are some  minor spoilers ahead for anyone who hasn’t seen the trailers, and a couple of very minor spoilers for anyone who hasn’t seen the film.

Continue reading →

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Posted in criminal law, criminal procedure, mailbag, movies, Spider-Man

The Avengers and Illegal Orders

Posted on June 22, 2012 by | 38 Comments

We have one more Avengers post for you.  Be warned: there are spoilers!  Today’s post was inspired by a question from John, who writes:

I was interested in the bit near the end where Fury first disobeys a direct order (to nuke Manhattan) and then shoots down one of his own planes (his team building skills must be great because nobody seems all that upset) to prevent someone else from carrying out orders.

1) under what circumstances is an order illegal?
2) when are you expected to simply refuse to co-operate and when do you take active steps to attack your own side?
3) what are those around him supposed to do about this?

And there is an additional question of whether or not military law (i.e. the UCMJ) applies at all.

Here at Law and the Multiverse we often deal with subjects that we aren’t experts in.  In fact, given that our day jobs involve insurance and intellectual property, that’s usually the case.  So in order to write posts we first do research, usually beginning with higher-level secondary sources (e.g. legal encyclopedias, treatises, law review articles) and then moving on to primary sources (e.g. cases, statutes).  With a military law question like this, however, we were a bit stuck, so we turned to our readers for help, and you came through in spades.  We received offers of assistance from multiple current or former military lawyers, and we’re excited to put them together here.

Before we get to that, though, first a disclaimer:  These lawyers are speaking only for themselves; they are not speaking for the military or the Department of Defense.  This is not legal advice, nor does it constitute the formation of an attorney-client relationship.  With that out of the way, on to the show!

I. The Military Law Approach

Nick, a military lawyer, responds:

“So, obviously UCMJ jurisdiction (as you pointed out) is questionable, but perusing the wikipedia article on SHIELD, it appears it might be military (Nick Fury was once identified as a Colonel, plus they have that flying aircraft carrier, so we’ll go with that).

(1) I pulled the Military Judge’s benchbook, which says: “A command is lawful if reasonably necessary to safeguard and protect the morale, discipline, and usefulness of the members of a command and is directly connected with the maintenance of good order in the service” (which is interestingly enough a question of law, not of fact). It’s an accepted proposition that a order to commit a war crime would be illegal.

Now the question is was Fury ordered to commit a war crime? This isn’t clear. The basic Law of Armed Conflict rules are proportionality, discrimination, and military necessity. Now, the law of armed conflict hasn’t really been tested by alien armies, but I think we can easily dispatch with military necessity and discrimination. But proportionality? Fury gets a little closer here, but I still think he fails. Proportionality looks at whether the military objective is proportional to the civilian damage caused. Here we’re looking at the destruction of New York (by seemingly two nuclear bombs, unless Fury blew up the guy taking their mail to shore), with a huge loss of civilian life. However, even when you balance this against the alien army that is setting out to conquer the earth, you probably get there on that point (and I’m not just saying that because I’m a Red Sox fan).

The other piece of analysis would be whether there is a less destructive way to accomplish the military goals. This is probably where Fury could get to “war crime.” His argument would be that the Avengers were the less destructive way to end the threat, and could probably get there.

(2) What is Fury’s duty? This is interesting. He seems to believe that the order is illegal. There isn’t a lot of case law on this that I’m aware of, but some secondary sources (the Medina court martial, primarily) suggest that a commander who has knowledge of one of his own people committing a war crime has a duty to act to stop it. Current regulations that I pulled today only reference a duty to report war crimes, so I think we would call this a customary duty. Under this idea, and under a ‘defense of others’ type defense, it seems like Fury would both have a duty and a legal defense to shooting down his guys.

(3) What should everyone else do? THIS is an interesting question. To a certain point, I guess it depends on how they see this. If they’re in agreement that he is trying to prevent a war crime, I suppose they don’t have to do anything. If they think he is committing murder and/or violating a lawful order, they obviously have a duty to report the crimes, and they most likely would have a duty to try to prevent him from killing people and stopping the mission, though my knowledge for this portion is admittedly a bit thin.”

Jason, Former Captain, U.S. Army JAG Corps, responded:

“Assuming that the S.H.I.E.L.D. members are subject to the UCMJ, the bottom line analysis revolves around [UCMJ] Article 92 – “Failure to obey a lawful order or regulation.”  The central question there revolves around the “lawful” nature of the order itself.  Here is an interesting short essay regarding Article 92 that I found online, while not credited to any one source, it appears to have been written from a military perspective.  There is a difference between a simple illegal order and a patently illegal order. An illegal order can be in violation of general legality, such as orders to commit hazing on troops, orders to abuse trainees, an order to go beyond the speed limit in a military vehicle. A patently or manifestly illegal order applies generally, but not exclusively to the protection of persons (civilians, prisoners, medical personnel and clergy), medical facilities, places of prayer, monuments, etc. The US distinguishes a patently illegal order as one which orders someone to commit a crime.

Some of the most famous cases dealing with someone who should have disobeyed an order because it was illegal are that of Lieutenant William Calley at the My Lai massacre in Vietnam (dramatically interpreted by the movie Platoon) and the case of United States v. Keenan, where the accused (Keenan) was found guilty of murder after he obeyed in order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that “the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal.” (Interestingly, the soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).

However, soldiers have to be careful what orders they choose to disobey, lest they suffer the fate of Specialist Michael New - In 1995, Spec-4 Michael New was serving in Schweinfurt, Germany. When assigned as part of a multi-national peacekeeping mission about to be deployed to Macedonia, Specialist New and the other soldiers in his unit were ordered to wear United Nations (U.N.) Helmets and arm bands. New refused the order, contending that it was an illegal order. New’s superiors disagreed. Ultimately, so did the court-martial panel. New was found guilty of disobeying a lawful order and sentenced to a bad conduct discharge. The Army Court of Criminal Appeals upheld the conviction, as did the Court of Appeals of the Armed Forces.

My gut reaction in this situation would be that Nick Fury acted appropriately in disobeying the Council’s directive as his actions were taken to protect the millions of innocent civilians.  I hope this helps!”

So both of our guest authors concluded that, assuming the UCMJ applies, Fury was probably in the right when he acted to prevent the nuclear strike on Manhattan, despite the order being given from higher up.

II. Civilian Law

If the UCMJ didn’t apply, then the situation would probably fall under regular civilian law, and Fury could invoke a defense of others argument.  You might wonder how Fury could justify that, since in theory the Council was likewise acting in defense of others by ordering the strike in the first place.  The problem is the risk to innocent bystanders.  A person acting in self-defense (or defense of others) who accidentally injures or kills a third party is ordinarily not liable.  However, if the person acts recklessly then he or she would be liable.

Of course, the situation may be such that A ought not to shoot at B in self-defense, etc., because of the presence of bystanders like C whom A might hit instead. If there is a high degree of risk to people like C involved in A’s shooting at B, A’s killing of C will amount to manslaughter, Henwood v. People, 54 Colo. 188, 129 P. 1010 (1913); Annot., 18 A.L.R. 917, 928 (1922); if a substantial certainty, to murder.

Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.12, at 402 n. 53 (1986); see also Reyes v. State, 783 So.2d 1129 (Fla. App. 2001).  An intentional killing of an innocent third person in order to save oneself (or, presumably, another) may negate the defense completely. State v. Soine, 348 N.W.2d 824 (Minn. App. 1984).

The Council could argue necessity, but necessity is a “lesser of two evils” defense, and letting the Avengers handle the situation was even less of an evil than the nuclear strike.  Although the Avengers were not certain to stop the Chitauri, neither was the nuclear strike (and indeed it would not have worked, as the bulk of the Chitauri forces had not even arrived yet).

Thus, under civilian law, there’s a strong argument that Fury was acting to defend innocent bystanders from the unjustified actions of the Council.

III. Conclusion

No matter how you slice it, Fury’s actions were probably justified.  Thanks again to Nick and Jason for their help with this post!

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Posted in guest posts, mailbag, military law, movies

Spider-Man and Likeness Rights

Posted on June 20, 2012 by | 19 Comments

Today we have a question from Hurley, who writes:

In [Ultimate Spider-Man #109]  Wilson Fisk, A.K.A. the Kingpin, points out to Spider-Man that the costume he wears and his name were given to him by a now-defunct wrestling company. Kingpin bought said company [in issue #106], which he says gives him merchandising rights to all things Spider-Man related. Clothing, toys, etc. Is this legally correct?

(If you’re interested, this storyline is collected in Ultimate Spider-Man vol. 18.)

Here’s the complete history: As usual, Spider-Man tried to make some extra money on the wrestling circuit.  The company that organized the matches was Hercules Wrestling, Inc., and apparently Parker signed away the Spider-Man name and merchandising rights to Hercules.  Later, a Spider-Man movie came out, and the studio managed to prevent Hercules from putting out Spider-Man merch, resulting in Hercules going bankrupt.  Apparently a company called C and C Licensing picked up the rights from Hercules in bankruptcy. C and C is a subsidiary of GG Enterprises, which Fisk purchased.  Thus, through this chain of subsidiaries, Fisk owns the rights to the Spider-Man name as well as the licensing rights for his likeness.  As a result, Fisk actually wants Spider-Man to keep doing his thing because Fisk makes more money from the merchandise sales than he loses from Spider-Man meddling in his affairs.  Pretty villainous, eh?

There are three major questions here.  First, what rights are involved, exactly?  Second, could Fisk have purchased them that way?  Third, is Spider-Man really powerless to do anything about it?

I. Name and Likeness Rights

Name and likeness rights generally fall under the right of publicity, which is something that we (and guest author Brad Desnoyer) have talked about before.  As Brad noted, the right of publicity “protects an individual’s ability ‘to control the commercial use of his or her identity.’” (quoting 31 Causes of Action 2d 121).  In Spider-Man’s case, the rights of publicity at issue would likely cover his “stage name” and his likeness.

Since this all happens in New York, we can use the New York right of publicity statute.  The statute covers a person’s “name, portrait or picture.” N.Y. Civil Rights Law § 51.  A “name” can include a stage name, if it ”has become known to the public and identifies its bearer virtually to the exclusion of his true name.”  See, e.g., DeClemente v. Columbia Pictures Indus. Inc., 860 F.Supp. 30, 53 (E.D.N.Y. 1994).  Under this standard, Spider-Man would qualify, as he is nationally known as Spider-Man and is essentially unknown as Peter Parker.  And of course his image would qualify as a “portrait or picture.”

So the rights at issue are pretty much as described in the comics (at least at the beginning; later on Spider-Man refers to Fisk owning “his copyright,” which is not accurate, unless Spider-Man was engaging in a little fourth wall-breaking.).

II. The Chain of Title and IP Holding Companies

From what I can tell from the comic, this all seems believable enough.  It’s not 100% clear to me how the movie studio drove the wrestling company into bankruptcy, but admittedly I haven’t read those earlier issues yet, so maybe that’s explained in more detail.  In any event, the maze of holding companies and subsidiaries is par for the course.  Many media companies have separate holding and licensing companies for characters, trademarks, and other IP.  For example, Marvel Entertainment, LLC (itself now a subsidiary of The Walt Disney Company) has three IP holding companies, including Marvel Characters, Inc.

You might be wondering why businesses bother creating IP holding companies.  The answer, as is so often the case with strange corporate behavior, is tax reduction:

Specifically, if a holding company is created to own the trademarks of the operating company, it can license those marks back to the operating company. In some states, tax income from royalties from license agreements owned by the holding company is exempt. Further, the state from which the income is paid, cannot tax that payment either. Finally, the operating company may deduct the royalty payments as operating expenses.

Allan J. Sternstein et al., Designing an Effective Intellectual Property Compliance Program, in Corp. Compl. Series: Intell. Prop. § 3:7 (2011).  Pretty sweet setup, huh?

III. So is Spider-Man Out of Luck?

Probably, unless his original contract with the wrestling company is invalid or unenforceable.  The New York statute allows a person to sign away (in writing) their right of publicity.  Interestingly, if the person is a minor, then their parent or guardian must give their written consent.  N.Y. Civil Rights Law § 50.  Ultimate Spider-Man is apparently a minor at the time, and I doubt Aunt May or Uncle Ben (who was still alive at the time) signed off on the wrestling contract, so that might be a way out.

Another issue might be whether the contract made the right of publicity assignable or available for sublicense.  If the contract was solely with Hercules Wrestling, then it might not have been properly assigned to C and C, leaving Fisk with nothing.  Unfortunately, Fisk’s storyline gets wrapped up before we find out whether Spider-Man had any legal way out.  Too bad, since he was already teamed up with Daredevil, and I’d think Murdock would like to not only see Fisk behind bars but also a piece of his business empire taken away from him.

IV. Conclusion

This was a nice application of what should be a significant issue in comics: within the fictional comic book world, superheroes and supervillains are real people and so have rights of publicity and privacy that would be worth a lot of money.  Shady licensing deals would likely abound, but some superheroes could become rich from merchandise sales and endorsements (or they could donate it to charity, as it is sometimes suggested that Superman does).  At the same time, a lot of the copyright issues that surround comic books in the real world wouldn’t exist.  Thus, instead of comic book authors getting raw deals, the superheroes themselves would.  Progress!

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Posted in intellectual property, mailbag, tax law, trademark

Who Owns Wolverine’s Bones?

Posted on May 18, 2012 by | 57 Comments

Today’s post was inspired by an email from Frank, who asks:

Does Wolverine own his bones? Does Captain America own his shield?

Both of these characters are military agents granted  items by employers. Since I didn’t get to keep my rifle when I left the military, I presume that Cap would have to turn in his shield should he ever leave military service (or, in the case of the Civil War storyline, be prosecuted and presumably discharged).

Wolverine’s a more interesting case. Let’s presume that since adamantium is unbreakable, it will always have value of some kind. Can a body part be repossessed? Can you “own” an artificial organ installed in another person? Would it matter that Wolverine doesn’t need the adamantium to live, because of his healing power?

These are interesting questions!  We’ve previously (and very theoretically) addressed treating superpowers as personal property, but in this case we’re dealing with special equipment rather than intrinsic abilities.  I’m going to address Captain America first, since it’s the easier one to answer.

I. Who Owns Captain America’s Shield?

The answer seems to be “the US military.”  This is true of other military-issue equipment, including weapons and body armor.  And sure enough, the comics treat it that way, with Captain America giving up his shield on the few occasions in which he left service (e.g., Captain America #332).

So that’s that.  On to the much trickier case of Wolverine.

II. Who Owns Wolverine’s Bones?

Of course, what we mean here is the adamantium bonded to Wolverine’s skeleton, not the bones themselves.  In some ways it’s similar to having a plate or screws put in place by an orthopedic surgeon, or a device like a pacemaker implanted by a cardiologist.  The patient still has all of his or her parts, there are just some new bits added.

Normally the patient owns those bits, however, and they are just like any other piece of personal property.  In the UK, for example, ”on implantation, an implant becomes the property of the person in whom it has been implanted and it remains his or her property even if it is subsequently removed. Following the patient’s death, it forms part of his or her estate unless there is any specific provision to the contrary.”  Department of Health and Social Security Health Notice HN(83)6 (1983).  The situations appears to be the same in the US, although I was unable to find such a specific statement.  I assume it is likewise the same in Canada, which is really the relevant jurisdiction here.

(Note that the situation with implanted devices is distinct from naturally-occurring organs and tissues.  The courts have pretty universally held that people do not have a property right in their own bodies or the parts thereof.  See, e.g., Moore v. Regents of Univ. of Cal., 51 Cal.3d 120 (1990).)

So under normal circumstances, Wolverine would appear to own the adamantium in his body.  But these are not normal circumstances.  Wolverine was a soldier, but he was also brainwashed by the Weapon X project.  So while he may have technically signed some sort of agreement giving the Canadian government ownership of the adamantium, the circumstances under which the agreement was made mean that it is probably not binding, either because of fraud or Wolverine’s mental incompetence.

But what if there had been no brainwashing and the Weapon X project had been completely forthright with Wolverine?  Is it even possible for someone to own a part of another person’s body?  What if it can be removed without (permanently) harming them?

These are interesting questions with no clear answer.  At least one commentator, writing in the context of microchip implantation, has argued that it is both possible and desirable to extend existing law to reach the conclusion that “anything within an individual’s body [is] the property of that individual.”  Elaine M. Ramesh, Time Enough? Consequences of Human Microchip Implantation, 8 Risk: Health Safety & Env’t 373, 403 (1997).  I agree with that conclusion, even if it is difficult to point to a particular legal principle that supports it.

Another approach is to consider not the property right but the remedy.  Supposing that the Canadian government did own the adamantium, how could it enforce that right?  It’s true that Wolverine could probably survive the removal of the adamantium, but it would be extremely intrusive even if the pain could be minimized through anesthesia.  It seems doubtful that a court would order such an operation.  Involuntary medical operations are generally limited to prisoners and people who have been involuntarily committed and even then there are significant due process safeguards.  Washington v. Harper, 494 US 210 (1990).  I suspect the law is similar in Canada, though Wolverine seems to spend most of his time in the US these days.

III. Conclusion

Not all superhero equipment is created equal, even equipment that came from the military.  Captain America will have to give up his shield if he retires, but Wolverine probably owns his adamantium bones, or can at least retain possession of them as long as he lives, which should be a very long time!

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Posted in constitutional law, contracts, mailbag, property law, X-Men

Mayor Jameson’s Eminent Domain Problem

Posted on May 2, 2012 by | 30 Comments

We’ve picked on Spider-Man a bit recently, so in interests of fairness we’re going to pick on J. Jonah Jameson, who is currently the mayor of New York in the Marvel Universe.  Recently, Jameson has focused his ire on Horizon Labs, a research and development company that happens to employ Peter Parker in his capacity as a scientist.

The particular issue in today’s post comes from a question from Christopher, who writes:

[In Amazing Spider-Man #682] Parker and other Horizon Labs employees witness a confrontation between HL owner Max Modell and Mayor Jameson in which the Mayor says “As Mayor of this city, I am ordering all of you to vacate these premises immediately!” He has arrived to bully HL into shutting down and gives various reasons [, listed below]. Later in issue 683 he comes back with “Chief Pratchett” presumably some ranking officer in the NYPD and shuts off the company’s power supply: “You’re not getting a single amp out of Con Ed!” He then orders “Chief Pratchett, have your men clear the building, after that, no one gets in or out, understood?” Chief Pratchett accedes to the request but we cut away from the confrontation and don’t return this issue.

This is obviously an ongoing storyline which will play out over another 4/5 issues but surely Jameson is overstepping his authority to clear out a private building without any kind of court order. And isn’t Pratchett wrong to comply?

At various points in #682 and #683 Jameson gives some reasons for wanting Horizon Labs shut down, including:

1. “This man has access to spider-jammers that could control Spider-man! Yet he refuses to turn them over to the city!” (see Spider-Island 667-673)
2. “One of your people built a time machine that did destroy the city.” (678-679)
3. “And now I hear you have a monster holed up here?!” (679.1 The “monster” is Dr. Morbius)
4. “Two days ago, you almost got my son killed.” (680-681)

So, is any of this sufficient to justify cutting power and ordering the police to clear the building?

As Horizon’s lawyer, who was present for the first confrontation with Jameson, argues, probably not.  The spider-jammers have been destroyed, the EPA cleared Horizon regarding the alternate universe incident (who knew that the EPA had jurisdiction over time travel and alternate futures?), and Dr. Morbius isn’t a monster but rather suffers from a poorly-understood medical condition.  Jameson isn’t satisfied and vows to return, which leads to the second confrontation (the one with the power-cutting and the police).

But suppose Jameson’s allegations were correct.  Could the mayor really do that?  And if not, what is the potential liability for Pratchett and the other police officers?

I. Eminent Domain

The most likely source of Jameson’s power to order Horizon shut down is eminent domain, which allows the taking of private property for public use in exchange for just compensation.  New York has a statute, the New York Eminent Domain Procedure Law, that is just what it sounds like.  It sets out “the exclusive procedure by which property shall be acquired by exercise of the power of eminent domain in New York state.”  N.Y. Eminent Domain Proc. Law § 101.  Unfortunately for Jameson, it doesn’t look like he has complied with the procedures.

A. Public Hearing

Ordinarily the eminent domain process begins with a public hearing.  § 201.  However, there are some exemptions, one of which is when “because of an emergency situation the public interest will be endangered by any delay caused by the public hearing requirement in this article.” § 206(D).  I suppose it’s arguable that Horizon presents such an extreme danger to the city that a public hearing can be avoided.

However, Horizon labs could file suit to challenge the City’s determination that it is exempt under § 206(D).  ”Where, however, a condemnor proceeds under one of the exemptions provided in EDPL 206, and therefore claims that it is not required to comply with the foregoing notice, hearing, and determination requirements, a condemnee may, unless otherwise provided by statute, challenge the applicability of the claimed exemption in the Supreme Court … .” Steel Los III, LP v. Power Authority of N.Y., 33 A.D.3d 990, 990-91 (2006).  The reviewing court would almost certainly issue a temporary restraining order or preliminary injunction preventing the City from shutting down Horizon until it had reviewed the case.  Given that Horizon appears to be represented by competent legal counsel, I think it’s likely Horizon would go to court once Jameson threatened to take the building.

B. Negotiations

The eminent domain law also requires the condemnor (i.e. the City) to “make every reasonable and expeditious effort to justly compensate persons for such real property by negotiation and agreement” “at all stages prior to or subsequent to an acquisition by eminent domain.” § 301.  This includes making at least one written offer representing the just compensation for the property.  § 303.

In this case, we don’t see any discussion of compensation, much less negotiation or a written offer.  Instead, Jameson seems to think he can simply take the building outright.  There is a lot more to eminent domain, but I think that’s enough to establish that Jameson wasn’t doing it right.

II. Consequences

Assuming the City can’t legally take the building through eminent domain, what are the possible consequences for cutting power and forcibly evacuating the building?  The most likely result is a § 1983 suit alleging a violation of Horizon’s constitutional rights, specifically their rights under the Fourth Amendment.  If successful, this could result in an award of actual damages, punitive damages, and attorney’s fees.  Given the expensive equipment and experiments that may have been lost or damaged by the sudden loss of power, that could be a pretty significant bill for the city.

Importantly, the City and officers could claim qualified immunity under § 1983.  ”The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Pearson v. Callahan, 555 U.S. 223, 231 (2009).  ”The protection of qualified immunity applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”  Id.

So, for example, if the officers were told that the City had a court order to shut down Horizon, then the officers might not be liable because they were operating under a mistake of fact.  Jameson, however, clearly knew what was up, and I think it would be hard for him to claim qualified immunity, at least if he thought he was exercising the power of eminent domain, since a reasonable person would have known about the proper procedure for doing so.

III. Conclusion

There are other possible ways that the City could try to shut down Horizon (e.g. alleging violations of the law and arresting everyone or suing the company), but the way it’s depicted in the comics really suggests eminent domain to me.  I think it’s reasonable to assume that if the City had a good claim to criminal or illegal activity then it would have simply called in the cops or sent in the lawyers.  Jameson’s approach is so vague that eminent domain is the only thing that I can think of that fits the bill.  Alas, his failure to follow proper procedures is likely to get him (and the City) sued.

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Posted in civil rights, constitutional law, mailbag, property law, Spider-Man

Peter Parker, Con Artist?

Posted on April 19, 2012 by | 124 Comments

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.

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Posted in contracts, mailbag, Spider-Man, torts