Category Archives: torts

Age of Ultron, Part I

(This post contains spoilers for Avengers: Age of Ultron.  You have been warned.)

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Marvel’s Agents of S.H.I.E.L.D.

For most of the first season of Agents of S.H.I.E.L.D. I wondered what on earth I could write about.  Comparatively little of the series raised any interesting legal questions, at least ones that could be answered in any kind of concrete way based on the information presented in the series and the Marvel Cinematic Universe.  For example, S.H.I.E.L.D.’s jurisdiction is still kind of an open question, with the agency operating freely in some countries but not others.  This suggests some kind of treaty, but there just aren’t enough details to do more than speculate.

And then, finally, near the end of the season I received an email from a reader asking some great questions.  Massive spoilers for Agents of S.H.I.E.L.D. below, so if you haven’t seen season one and don’t want to be spoiled, stop reading now.

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She-Hulk v. Paparazzi

Today’s post was inspired by a question from the enigmatically-named Master182000, who recently reminded me that I hadn’t gotten around to it.  The question points to a 1985 John Byrne-era She-Hulk story (in Fantastic Four #275) in which She-Hulk is photographed while sunbathing on the roof of a tall building (maybe the Baxter Building).  The paparazzi used a helicopter to take the photos, the propellor wash of which blew away the towel she was covering herself with.  As Master18200 summarizes:

Later that day [She-Hulk] (in alter-ego form) and her friend track down the chopper, intimidate the pilot, and confront the photographer, who owns a tabloid called “The Naked Truth”. She confronts him, telling him since She-Hulk is a member of the SAG [as well as other show business unions] and images of her require her release before going to print. The photographer balks, claiming that She-Hulk is a ‘public figure’ and thus images of her are in the public domain and thusly don’t require She-Hulk’s release to print. He carries this argument forward until She-Hulk appears and crunches the photographer’s safe.

This led to the following questions:

1) Which party’s interpretation of the law is more accurate?
2) At what level of celebrity does a person lose 100% of their ‘media rights’ or become ‘public domain’ as the photographer suggests? Is this issue a settled matter at Federal law level or State law level?
3) Aren’t there issues with the way the pictures were taken? I don’t know much about aviation laws, but that chopper was pretty close to the building, close enough for She-Hulk’s clothes and stuff to be blown around.

I’ll take them one at a time.

I. So Who’s Right?

Well, technically neither of them.  There’s nothing special about being a member of SAG that would grant someone more rights than usual with regard to their image, unless SAG has negotiated an agreement with the other party (e.g. a movie studio).  Presumably the tabloid has no agreement with SAG or any other union.

On the other hand, public figures can still have an expectation of privacy, and the roof of a 30 story building, while somewhat exposed, is still a place where most people would have a reasonable expectation of privacy.  Furthermore, She-Hulk was covered up initially and only became exposed because of the close approach of the helicopter, which was intentionally done to blow away her towel.  The First Amendment wouldn’t protect that kind of action.

So She-Hulk is right in that the photographs can’t be published, but not for the reason she offers.

II. Public Figures, Invasion of Privacy, and the Right of Publicity

The notion of a person being a “public figure” mostly has to do with slander and libel, the standard for which for statements about a public figure is higher than for statements made about ordinary people.  Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).  As Chief Justice Warren described it in his concurrence, public figures are those who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.”  Curtis Publishing, 388 U.S. at 164.  As between federal and state law, this is a federal First Amendment issue.

Is She-Hulk a public figure?  Maybe.  It’s hard to get a sense of just how famous any particular comic book character is within their own universe (with a few exceptions such as Superman).  But even if she were, that would only matter for purposes of libel and slander.  And as the sleazy tabloid owner said, the pictures are accurate depictions of what happened, so truth might well be a defense to any libel or slander claim anyway.

But that’s not the claim She-Hulk should be bringing.  What she should be claiming is invasion of privacy (which, when it involves nudity, is a crime in many states) and violation of her right of publicity.  These would be state law claims.  All of this would be sufficient to claim significant damages if not prevent publication of the photos outright (although the courts are pretty loathe to engage in censorship).

III. Aviation Laws

Nowadays the regulations regarding helicopter flights in and around Manhattan are fairly strict.  There are no-flight corridors, weekend bans, and other rules.  But these are mostly new developments, often in response to noise concerns.  Thirty years ago things were a little more free-wheeling, as far as I can tell, and private helicopters may well have been free to more or less buzz buildings.  Of course, had been an accident it would likely have been very easy to establish the tabloid’s negligence or recklessness.

IV. Conclusion

In the US the paparazzi can get away with a lot because of the stringent protections of the First Amendment.  But (perhaps unsurprisingly) ambushing someone with a helicopter in a private space and forcibly removing their clothing is beyond the pale.  She-Hulk (as attorney Jennifer Walters) could probably have succeeded in court where She-Hulk (as She-Hulk) failed using traditional Hulk methods.  In the end, the pictures were published anyway, but the developer messed up the skin color so that the pictures didn’t look like She-Hulk.  A court case might have meant a more satisfying result.  At the very least the damages award (and possible criminal sanctions) might have driven the tabloid out of business.

Superman and the Duty to Rescue on Bloomberg Law

Bloomberg Law has produced a short video about my piece on about Superman and the duty to rescue in Man of Steel.  Check it out!

Truth, Justice, and the American Rule

I have a piece over at on Man of Steel and the duty to rescue.  There are some moderate spoilers in the article.  All in all it was a pretty good movie, though not without its flaws (<- serious spoiler alert!).  I recommend checking it out.  We’ll have more on Man of Steel here at Law and the Multiverse later this week.

Iron Man 3: Property Law and Medical Experimentation

We started talking about Iron Man 3 on Monday with some questions sent to us by a lucky reader who caught a sneak preview. Now we’ll take a look at two more issues: property law and medical experimentation.

Without giving too much away, we can say that at one point in the movie, Stark gives out his home address on live TV. Shortly thereafter, the press and bad guys show up and things start to get a bit hairy. The movie seems to assume that this would not have happened if Stark hadn’t given out his address. That strikes us as. . . dodgy. Further, the movie takes some inspiration from the Iron Man: Extremis storyline, and though the details of Extremis seem to vary quite a bit from the source material, both involve experimental medical injections. So we’ll talk about those issues as well. Continue reading

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.

Quick Questions from the Mailbag

In today’s mailbag we have a couple of quick questions from a couple of Christophers.

I. Batman and Bats

The first Christopher had two questions about Batman and actual bats:

In Batman: Year One, and in the film Batman Begins, Bruce has that little gadget that essentially summons swarms of bats, which always looks really cool. But is he responsible for any of those bats dying? Because you just -know- some of them got smushed, or died somehow in the confusion. Also, if someone gets rabies or otherwise gets seriously injured by said bats, is that Bruce’s responsibility?

A. Injuries to the Bats

With regard to the bats themselves: it depends on the kind of bats and the laws of the state.  There are some federally protected bat species, and messing with an endangered species in that way would almost certainly run afoul of the Endangered Species Act, which  makes it a crime to “harass, harm, pursue, … trap, capture, or collect [an endangered species], or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).

Even if the bats weren’t endangered, state animal welfare laws may prohibit what Batman was doing.  If any of the bats were “unjustifiably injured”, for example, then under New York law that would constitute “overdriving, torturing, and injuring animals.”  N.Y. Agriculture & Markets Law § 353. Whether summoning a swarm of bats to confuse or evade criminals makes any resulting bat injuries unjustifiable is a difficult question to answer, but one has to wonder if someone has smart and well-connected as Bruce Wayne couldn’t have come up with a less risky alternative.

B. Injuries to Others

By ‘others’ I mean innocent bystanders.  We’ll assume self-defense, defense of others, or some other justification applied to any injuries inflicted on the criminals.

Ordinarily the owners of wild animals (such as bats) are strictly liable for injuries caused by those animals, assuming the injury is a result of the kind of danger that the animal poses.  Bites and rabies transmission from bats certainly fall into that category.  The trick is that Batman isn’t necessarily the owner of these bats.  There is a bat cave on the Wayne Manor property, but I don’t remember if it’s clear that these particular bats came from there.  Merely exercising some degree of control over the wild animal may not be enough to result in strict liability.

However, even if a more typical negligence standard were applied, Batman could still lose out.  He may be justified in using force against his attackers, self-defense will not necessarily prevent a negligence claim.  Would a reasonable person exercising ordinary care summon a swarm of wild bats in a crowded city?  I think a reasonable person might have opted for a less risky method.

II. Animal Transformations

The second Christopher had a question about the magician Zatanna turning people into animals:

I was reading Zatanna and she has a habit of turning people into animals (briefly, in one case, just to get rid of annoying guests.).  Later her father transforms someone into an inanimate doll?  This seems like assault … Can she be arrested and/or sued?

I think the answer is yes, such a transformation would be both a tort and a crime.  If the transformation were effectively permanent—it could not be treated and the responsible magician refused to undo it—it would be murder, particularly if the animal form was truly an ordinary animal and not the person’s mind trapped in an animal’s body.  From a legal point of view, the person would be dead.  Their cardiopulmonary and brain functions would have permanently ceased, since their body had been effectively destroyed.

In the case of a temporary transformation, that would be a very serious injury, albeit one that the victim recovered from.  That would affect the sentencing or damages, but it would still be a crime.  You might think: hey, she changed the victim back, no (permanent) harm, no foul, right?  But what if Zatanna had performed the transformation and then been killed or incapacitated?  Or if Zatanna and the victim had been separated?  We don’t want to encourage her to take the risk that she might not be able to change someone back.  This is similar to why factual impossibility is not a defense to an attempted crime: the defendant could not actually have committed the crime they were trying to, but we don’t want to let them off the hook just because they got lucky.

And then there’s the psychological harm of being turned into an animal, even temporarily.  So even a temporary transformation would be a criminal assault or battery (depending on the term the particular state uses) and a tortious battery.

Powers: Little Deaths

The third major story in Powers is entitled “Little Deaths.” It has to do with the investigation into the death of a superhero known as “Olympia,” discovered dead, and completely naked, in a crappy apartment in a seedy part of town. This story lends itself to a discussion on the issue of superheroes and privacy rights. James wrote a four-part series on privacy rights (1, 2, 3, 4) in December 2010, and we had a pair of guest posts on the related right of publicity (1, 2) in late 2011, but I don’t think either of us have come across another story that touches on these issues so directly.

Definite spoilers within, and almost right away. Like most of the Powers stories, this is a murder mystery, but it’s hard to talk about some of the legal issues without giving it away. If you haven’t read it and want to preserve the sense of surprise, go read it and check back. You have been warned.

Also: This story is a little on the racy side. We’re a family blog, but this post is basically a legal analysis of the public disclosure of allegedly private facts, specifically details of superheroes’ sexual histories. If that isn’t something you want to read about, maybe skip this one. Continue reading

Firestorm on Trial, Part 5

Finally we come to the actual trial, in Fury of Firestorm #48.  I’m afraid it’s a bit of an anti-climax, but it’s written in a television courtroom-drama kind of way.  Given that the writer (Gerry Conway) went on to write and produce for several police procedurals, that’s not too surprising, but it’s interesting to compare Conway’s courtroom writing style to, say, Mark Waid’s in Daredevil.  Once we get to Smoak’s lawyer’s speech I think you’ll see what I mean.

I. The Setup and the Speech

Just before the trial we learn that Smoak apparently didn’t remember being knocked out by Ronald before he transformed into Firestorm.  We also learn that Firestorm will be representing himself.  The plaintiff’s attorney makes the first opening statement, which is the usual order.  His theory of the case is very emotionally charged, which makes the parties’ joint decision to waive their right to a jury trial a little weird to me.  Anyway, here’s his speech:

Your Honor, we live in a complex world.  Every day the average citizen encounters danger from a hundred, a thousand different directions. Poisoned cheese…faulty breaks in a new car…industrial pollution…medical incompetence…bankrupt financial institutions…The threats to our well-being are manifold, and common to all of these threats is a contemptuous disregard for the safety of the American citizen.

Where can the citizen turn for protection against those who would harm by their negligent disregard for his basic human right to life, liberty, and the pursuit of happiness? Only here, your Honor, to the courts.

Here, the defenseless citizen is given armor against those who would crush him without a thought.  Here, redress is made, however inadequate, for the injuries caused by uncaring, incompetent, cynical betrayers of society’s trust.

Your Honor, the concept of professional malpractice is well established in law and legal tradition.  The doctor, lawyer, or other professional whose negligence or incompetence brings injury to a client can be sued for damages.  Malpractice is usually associated with the exchange of a fee for services … and there are those who might argue that the defendant, a self-styled “super-hero,” performs his services gratis, without recompense.  But how do we define recompense for a so-called “heroic act”?  What “payment” does the “super-hero” receive for his deed

The answer, I submit, is obvious.  For his services, the “super-hero” receives a princely fee…public adulation.  The “super-hero” is indeed well paid in a coin most of us never see.  The public is the “super-hero’s” clientele; the fee simply is fame.

What ego!  What arrogance!  Self-anointed “heroes” endangering the lives of innocent citizens, destroying property without qualm or consideration, unlicensed and uncontrolled grandstanding for the reward of a two-minute feature on the evening news!

And who pays for the damage these “super-heroes” cause then their deeds go awry? We do, your Honor!  The citizens of the Republic.  We pay, every man, woman, and child in the country.  I say, enough!

Let those who cause the damage pay for their contemptuous incompetence!  Let us judge them by the same standards we use to judge ourselves!  This man, your Honor, the defendant known only by the alias Firestorm, destroyed my client’s established business by a reckless misuse of power.  He must pay, your Honor, in our common coin.  We ask one million dollars in damages and punitive payment.  And he will pay, if there is any justice left in this sorry world.  Thank you.

See what I mean?  A speech like that could have been delivered by Jack McCoy or (more appropriately, since this is a civil case) Alan Shore.  It’s a great example of a Hollywood opening statement and a terrible example of a real-world one.

In the real world, opening statements have a lot of statements like “we will show that the defendant knew that magnetism could affect computers” or “you’ll see that the defendant could have easily and safely subdued the criminals without endangering the plaintiff’s property” or “you’re going to hear from Ms. Smoak, who ran a successful computer software business that would still be operating today if it were not for Firestorm’s negligence.”

But we can look past the style.  What about the substance of the arguments?  And did you notice that somehow Smoak’s damages claim went from $8 million from the freight train incident alone to just $1 million in compensatory and punitive damages?

II. The Plaintiff’s Argument

Smoak’s lawyer’s theory of the case is sort of all over the map.  He’s sticking with malpractice, but his malpractice theory is a novel one to be sure.  He’s apparently assuming that superheroes are potential professionals and jumping straight to the question of whether they are paid.  As we discussed a few posts back, payment isn’t really the issue.  And even if it were, it would be a big leap from public adulation to a professional-client relationship with a particular rescuee.

The plaintiff’s attorney also freely mixes malpractice, negligence, and recklessness, all of which are different standards of liability.  It’s possible that he’s advancing all three theories, which is likely what would happen in a real case, but it comes across as confused.

The opening statement does touch on an interesting public policy argument, which is that, one way or another, superheroes need to be held liable for the collateral damage caused by their powers.  Since insurance apparently rarely covers such damage, there’s definitely an argument to be made about shifting those costs onto the superheroes themselves in order to encourage more responsible use of their powers.

III. The Outcome

Alas, we don’t get much more of the trial than this.  Firestorm makes a little speech of his own, basically conceding most of the plaintiff’s argument, but saying that he doesn’t help people for the attention or glory but rather because he has the power to do so and it’s the right thing to do.  In the end, Smoak voluntarily dismisses the lawsuit (which evidently was not a class action after all), and that’s pretty much the end of that.

IV. Conclusion

Overall, the trial of Firestorm raises some interesting questions about superhero liability and who should bear the cost of their mistakes, but it doesn’t give very satisfying answers.  The legal parts of the story could have been a little more accurate, but they were okay, especially allowing for some dramatic license.  All in all, about on par with an average episode of Law & Order, actually.