Category Archives: torts

Legal Responsibility for Insane Robots

Posted on January 19, 2012 by | 41 comments

Insane robots that turn against their creators or try to destroy humanity are a pretty common theme in lots of media, not just comics.  Of course, this is a blog primarily about comic books, so we’ll take an example from there, as inspired by a question from TechyDad, who asks about Henry Pym (aka Ant-Man) and his potential liability for the creation of the robot Ultron, which in its various incarnations has done all kinds of terrible things, including attempting to destroy the world.

I. The Setup

The first thing to consider is whether an intelligent robot could be criminally or civilly liable for its own actions.  As with all other intelligent non-humans, the answer seems to be no unless Congress explicitly allows for it.  Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004).  Since Congress doesn’t seem to have done so in the comics, we must now consider whether any of the liability falls to Pym, and for that we need the facts of a particular case.

The example TechyDad wanted to know about comes from the TV series The Avengers: Earth’s Mightiest Heroes, specifically the episode The Ultron Imperative.  In the episode, Ultron nearly destroys the entire world by launching S.H.I.E.L.D.’s nuclear arsenal.  Ultimately, Pym stops Ultron at the last second, but Pym is blamed for the incident, since a) he created Ultron and b) infused it with his own mental patterns, although it may have been corrupted by Kang the Conqueror and was definitely weaponized by Stark Industries, albeit with Pym’s help.  Pym accepts the blame and admits that it was his fault.

So, then, who is liable here and for what?  We’ll start with torts.

II. Tort Liability

There are three major bases for tort liability: intentional misconduct, negligence (and its close cousin, recklessness), and strict liability.  We can definitely weed out intentional misconduct, since Pym neither intended nor had knowledge to a substantial certainty that Ultron would turn violent and try to destroy the world.

Next we consider negligence.  The key question (although not the only question) is whether Pym used reasonable care in the design and deployment of Ultron (i.e. whether the cost of avoiding the incident was more or less than the expected value of the harm caused by the incident).  This is a complicated question.  On the one hand, Pym is a genius and seems to have tried very hard to make Ultron a force for good.  And before Ultron 6 showed up Pym was in the process of destroying every last Ultron component he had previously created.  On the other hand, the potential for serious harm caused by a nigh-indestructible, highly intelligent, weaponized robot is so high that it’s possible that even that level of care was not enough.  In fact, the potential for harm is so high that it might even fall under strict liability.

Strict liability (i.e. liability without regard to the level of care or fault) is rare in torts.  There are two main cases where strict liability is applied: abnormally dangerous activities (aka ultrahazardous activities) and some kinds of products liability.  Since Ultron wasn’t a product, that leaves abnormally dangerous activities.  Examples of abnormally dangerous activities include transporting gasoline, dynamite blasting, and the ownership of wild animals.  The Restatement (Second) of Torts defines abnormally dangerous activities thus:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

It seems that the creation and weaponization of Ultron meet all of these criteria.  There’s a high degree of risk of harm because robots are unpredictable.  The likelihood that the harm will be great because it was equipped with powerful weapons.  Pym couldn’t eliminate the risk despite (in the comics) decades of trying.  Such robots definitely aren’t common.  Ultron was meant to protect people, which necessarily means he would be close to bystanders, which doesn’t seem appropriate.  Ultron’s value to the community seems to have been pretty low since existing superheroes were capable of handling the threats Ultron was meant to help with.

So then, it may not matter whether Pym was blameworthy or not.  If strict liability applies then the rule is “you makes your insane robot and you takes your chances.”

III. Criminal Liability

Luckily for Pym, strict liability is even less common in the criminal law.  In fact, it’s usually only found when the stakes are very low (e.g. speeding), although there are exceptions (e.g. statutory rape).  It doesn’t apply to anything Ultron did, in any case.  Another thing we can say is that Pym wouldn’t be guilty of attempted murder (or attempted anything, for that matter) because attempt requires intent, and Pym clearly didn’t intend for Ultron to attempt to kill anybody.

That doesn’t clear Pym of wrongdoing, however.  There’s still criminal negligence (which is a higher standard than ordinary tort negligence).  For example, in New  York, criminal negligence is defined by N.Y. Penal Law § 15.05(4) this way:

A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

So, in New York criminal negligence requires a “gross deviation” from reasonable care.  Since Pym seemed to try very hard to avoid harm, he might escape criminal liability unless a reasonable person would say “there is no way to make this safe, so I won’t even try to make a robot like Ultron.”

IV. What About Other Defendants?

So that’s Pym’s potential liability, but what about the other people involved?  After all, it was Tony Stark and his company that weaponized Ultron in the first place, and Stark says that he is “just as responsible.”  That probably doesn’t take Pym off the hook, however, since Pym was involved with that work.  It might make Stark and Stark Industries liable, however.

V. Evidentiary Issues

Finally, we’ll note that Pym’s admission of responsibility could be used against him in court.  Ordinarily one cannot testify as to something someone else said out of court—that’s basically the definition of hearsay.  But a statement offered against the opposing party (i.e. Pym, as the defendant) that was made by that party is specifically excluded from the definition of hearsay in the Federal Rules of Evidence, specifically Rule 801(d)(2)(A), and many states have similar rules.  So Pym probably should have kept quiet until he talked to a lawyer; his invention did nearly destroy the entire world, after all.

VI. Conclusion

Creators and owners of robots, even intelligent autonomous ones, are (generally) responsible for injuries caused by those robots.  Between that legal rule and robots’ terrible track record of violent rebellion, it’s kind of surprising that so many comic book inventors keep making them.  Maybe Matt Murdock can lead a class action suit against Stark Industries for all the trouble Ultron has caused over the years, although the statute of limitations has probably run on some of the older stuff, since he first appeared in the late 1960s.

41 Comments

Posted in criminal law, evidence, mailbag, torts

Gotham Central: Half a Life

Posted on January 16, 2012 by | 17 comments

The Eisner award-winning “Half a Life” storyline comprises Gotham Central # 6-10, and was first published in 2003. Rather than focusing on a crime, this story is mostly about the outing of Detective Renee Montoya as a lesbian and the consequences that has. Continue reading →

17 Comments

Posted in labor law, torts

Batman: The Musical and the Right of Publicity

Posted on January 13, 2012 by | 18 comments

Today’s post was inspired by Steven, who writes: “In one episode of Batman Beyond, New Batman Terry McGinnis takes Bruce to see a performance of Batman: The Musical, which portrays the original Batman. Bruce is not enthused by the idea. What are his rights here vis-a-vis right of publicity and/or privacy?”

We’ve discussed the issues of privacy rights and the right of publicity in general before, and we even had a couple of guest posts on the subject, but this is an interesting concrete example.  We’ll ignore the practical difficulties of Bruce bringing a suit without revealing his secret identity, however.  Let’s run down the list of possible privacy torts:

  • Intrusion: This one is pretty easy to dismiss.  Unless the musical writers researched it by spying on Bruce or something like that, it doesn’t represent an “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.”
  • Disclosure: This also doesn’t seem to fit.  Everything in the musical seems to be based on Batman’s public activities (e.g. he wears a costume, fights crime, and sometimes works with the police commissioner).  The musical isn’t giving publicity to a private matter that would be highly offensive to a reasonable person and is of no legitimate concern to the public.
  • Appropriation: Now we’re getting somewhere, but it’s still not a great basis for a lawsuit.  Someone is liable for appropriation if he “appropriates to his own use or benefit the name or likeness of another.”  This fits, but the problem is the measure of damages.  Appropriation is based on the mental anguish of the person whose privacy was invaded.  The biggest problem is that the aspects of Bruce’s life that make him so upset (i.e. his reasons for fighting crime and the personal toll his double identity has taken on him), are not public knowledge and so are presumably not featured in the musical.  So while he might be able to sue for appropriation, his damages would probably be minimal.
  • The Right of Publicity:  This is an interesting one.  Liability for infringement of the right of publicity is based on the likelihood of causing “damage to the commercial value of [the] persona,” and unlike some superheroes, Bruce does not seem to derive any commercial value from the Batman persona, so it’s hard to say that any damage could be done to it.  This suggests that, if he can sue on this theory, the value of his damages would be low.
  • False Light: False light requires, among other things, “giving publicity to a matter concerning another that places the other before the public in a false light.”  Arguably the musical does that, since it makes Batman out to be a little silly, but it probably does not rise to level of “highly offensive to a reasonable person.”
  • Libel/Slander: Nothing in the musical seems to be false, and to the extent the details are wrong, defamation of a public figure like Batman requires “knowledge of falsity or reckless disregard of the truth or falsity of the statement,” which is pretty hard to prove.

So, there are at least a couple of bases for a suit, but neither of them would be particularly valuable.  The main purpose of the suit, then, would have to be getting an injunction against the performance of the musical.  Unfortunately for Bruce, the musical seems to be very popular (it took McGinnis weeks to get tickets), and quashing it would likely not endear him to the public.  On the other hand, Bruce is basically retired at this point, so maybe he doesn’t care.

The real problem is whether Bruce Wayne has standing to sue, since he’s no longer active as Batman.  By passing the mantle to McGinnis, has Bruce given up ownership of the Batman persona?  I think that’s a pretty good argument that the defense could make, but it depends on the jurisdiction.  In some cases, the right of publicity has been held to be personal and non-transferable.  See, e.g., Bi-Rite Enterprises, Inc. v. Button Master, 555 F. Supp. 1188, 1198-1199 (S.D. N.Y. 1983), opinion supplemented, 578 F. Supp. 59 (S.D. N.Y. 1983); Lombardo v. Doyle, Dane & Bernbach, Inc., 58 A.D.2d 620, 396 N.Y.S.2d 661, 664 (2d Dep’t 1977).  The majority view, however, is that the right of publicity is transferable and applies even to public figures and public information.  See, e.g., Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868-69 (2d Cir. 1953); Haith v. Model Cities Health Corp. of Kansas City, 704 S.W.2d 684, 688 (Mo. Ct. App. W.D. 1986); Palmer v. Schonhorn Enterprises, Inc., 96 N.J. Super. 72 (Ch. Div. 1967).

Since the show is set in the future, it’s very likely that Gotham takes the modern, majority view.  In that case, it’s arguable that Bruce has passed the right of publicity to McGinnis and thus has no standing to sue.

Oddly enough, to the extent any of the villains portrayed in the musical are still alive, however, they might have a better case.  They definitely haven’t transferred their rights of publicity to anyone, and most of them don’t have a secret identity to worry about.

18 Comments

Posted in Batman, television, torts

The Incredibles

Posted on January 4, 2012 by | 24 comments

In today’s mailbag we have a question that several people have asked about, most recently Thomas, who wrote: “In The Incredibles, Mr. Incredible is sued for foiling a suicide attempt. Would a superhero be liable for something like that? Aren’t suicide attempts illegal?”

(If you haven’t seen The Incredibles, you should check it out.  Like most Pixar movies, it’s pretty great.)

This is an interesting question with significant ramifications for the story.  If the suicide attempt was a crime, then arguably Mr. Incredible had an airtight defense: he was justified in using reasonable force to prevent the commission of a crime.  And if the lawsuit was bogus, then maybe the supers wouldn’t have been driven into hiding in the first place.  It’s not clear what state The Incredibles takes place in, so rather than give an exact answer we’ll have to look at the broader history of the issue.  It’s also not clear to what extent Mr. Incredible was acting as a government official with the benefit of qualified immunity.  For simplicity, we’ll assume he was acting as a private citizen.

I. Common Law History

At common law suicide and attempted suicide were both crimes: suicide was a felony and attempted suicide was a misdemeanor.  Since a “successful” suicide can’t be punished in the usual way, a more creative sanction was developed: the deceased was given an ignominious burial and his assets were forfeited to the crown.  The burial usually took the form of driving a stake through the body and burying it at a crossroads (i.e. not a proper Christian burial).  This was the law in the early American colonial era, but by the time of the American Revolution the states had generally moved away from the common law punishments, although suicide was still technically a crime, just an unpunished one.  See Washington v. Glucksberg, 521 U.S. 702, 711-13 (1997).

II. Attempted Suicide and Modern Developments

Most courts held that once suicide itself was no longer punishable, attempted suicide could likewise no longer be punished.  May v. Pennell, 101 Me. 516 (1906); Com. v. Dennis, 105 Mass. 162 (1870).  At least one court took a different view, however, holding that attempt was still punishable.  State v. La Fayette, 15 N.J. Misc. 115 (Ct. Com. Pleas 1937).  A few states, such as New York (though it has since repealed it), made attempted suicide a crime by statute even as they rejected the common law crime of suicide.  See Darrow v. Family Fund Soc., 116 N.Y. 537 (1889).  This makes a certain amount of sense, given that the attempter can be sentenced to jail or fined, whereas punishing a suicide only punishes the innocent (and likely grieving) survivors, which was the main reason for abolishing the common law punishments in the first place.

Coming somewhat closer to the modern era we have State v. Willis, 255 N.C. 473 (1961).  This North Carolina case followed the logic of La Fayette. Suicide was a common law crime and is therefore still a felony under North Carolina law, which defines a felony as, among other things, “a crime which was a felony at common law.” Similarly, attempted suicide was still a misdemeanor.  The fact that suicide had no punishment was immaterial because North Carolina had a catch-all statute that said “All misdemeanors, where a specific punishment is not prescribed shall be punished as misdemeanors at common law.”  In this case, that means fines and imprisonment were theoretically possible, although the court recognized that “This, of course, does not mean that the court may not place offenders on probation, or make use of other state facilities and services in proper cases.”

Interestingly, Willis has not been overturned or distinguished, and the relevant North Carolina laws are essentially still in place.  If The Incredibles took place in a similar jurisdiction, a court could agree that attempted suicide was still theoretically a crime and so Mr. Incredible was justified in stopping it.

But what about something more straightforward: are there any jurisdictions left that still criminalize attempted suicide by statute?  As far we can tell, no U.S. state still has a statute criminalizing attempted suicide.  The Willis / La Fayette approach would seem to be the only way for it to remain a crime.

III. An Alternative Approach

Even if it isn’t a crime where The Incredibles takes place, that doesn’t mean Mr. Incredible couldn’t be justified in stopping the attempt.  As the Minnesota Supreme Court held in 1975: “There can be no doubt that a bona fide attempt to prevent a suicide is not a crime in any jurisdiction, even where it involves the detention, against her will, of the person planning to kill herself. Had defendant seized complainant as she was about to leap from a building, and had he kept her locked in a safe place until the authorities arrived, it is clear that a conviction for the crime of false imprisonment could not be sustained.”  State v. Hembd, 232 N.W.2d 872, 878 (Minn. 1975).  That case was decided in the criminal context, but a civil court could come to the same conclusion.

IV. Conclusion

Regardless of the law of the jurisdiction, Mr. Incredible probably could have beaten the case.  Would it have been enough to keep the supers from retiring?  Maybe, maybe not, but at least one of the sillier lawsuits in cinema history could have been thrown out.

24 Comments

Posted in criminal law, mailbag, movies, torts

The Invisible Woman and Indecent Exposure

Posted on December 30, 2011 by | 11 comments

Today’s post was inspired by William, who pointed us to Amazing Spider-Man #657.

In the issue, Spider-Man reminisces with Mr. Fantastic, the Invisible Woman, and the Thing about the recently deceased Human Torch, each one telling a story about him.  The Invisible Woman’s story involves a fight with members of the Fearsome Four.  While searching for the Four, Spider-Man and the Invisible Woman find the Human Torch signing autographs.  Seeing an opportunity to bring him down a peg, Spider-Man sneaks up and pantses the Human Torch.  Sure enough, the Fearsome Four choose that moment to show up.  With the Torch too embarrassed to fight pants-less, the situation looks grim until the Invisible Woman realizes how she can turn the tables.  Using her power to make things invisible, she effectively removes the pants of the three Fearsome Four members, who are then easily rounded up by Spidey and the Torch.

As the police take the villains away everything looks like it will turn out okay until the Invisible Woman (aka Sue Storm) explains her trick.  The officer taking her statement says “Ms. Storm, I’m sorry, but if what you say is true, I’m afraid I’ll have to bring you in as well.”  Asked what she’s being charged with he replies: “Indecent exposure.  She pantsed three men in public.  That’s a serious offense.”  And sure enough she gets arrested and booked, though apparently she avoids conviction.

So, is rendering someone’s pants invisible indecent exposure?  Or if it isn’t, is at least some other kind of crime?  Luckily we know the story took place in New York, so we can refer to the law there.

I. Indecent Exposure

In New York the crime commonly called indecent exposure is called “exposure of a person.”  Exposure of a person is a violation, less serious than even a misdemeanor, and is (basically) defined thus:

A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed.

N.Y. Penal Law § 245.01.

As you can see, exposure is defined in terms of the exposed person being responsible for the exposure, rather than being exposed by another person.  So could Sue Storm be guilty of exposure of a person?

Probably not.  As mentioned, the statute is worded in terms of the nude person exposing themselves, not being exposed by another.  The best theory we can come up with is that, if the villains could claim a defense of duress (i.e. that they did not intend to expose themselves but rather were compelled to do so), then perhaps Sue could be liable under the theory that someone who compels another to commit a crime is liable for that crime.  But this is a weak argument because the villains didn’t remove their pants under Sue’s compulsion; rather, she rendered them invisible all on her own.

So if she can’t be brought up on charges of indecent exposure, are there any other options?

II. Assault, Invasion of Privacy, and Emotional Distress

Ordinarily a person who exposes another would be guilty of assault, since normally the only way to do so is to forcibly remove their clothing.  Even someone with the power of telekinesis could still be charged with assault, since even an intangible force can be enough to constitute assault.  See, e.g., Adams v. Com., 534 S.E.2d 347 (Ct. App. Va. 2000) (holding that shining a laser pointer at a police officer constituted assault).  But the Invisible Woman’s power doesn’t seem to touch an object at all but rather to warp light around it.  So she might not be guilty of assault, either.

Scraping the bottom of the barrel we have the torts of invasion of privacy and intentional infliction of emotional distress.  The villains could theoretically try to sue Sue (heh) in civil court, but it would be a hard sell.

III. Defenses

Even if a prosecutor could bring an exposure or assault charge under some theory (or if the villains sued in tort), Sue would have an excellent claim to self-defense and defense of others.  The villains attacked without provocation and clearly intended to kill the Invisible Woman, the Human Torch, and Spider-Man.  Since the heroes would have been justified in killing the villains, something as mild as a minor public humiliation would certainly be a reasonable force.

IV. Conclusion

On the whole this is a pretty good issue (for those interested, it’s collected in Spider-Man: Matters of Life and Death), but we aren’t surprised that Sue apparently managed to beat the rap.

11 Comments

Posted in criminal law, Fantastic Four, torts

Daredevil #7

Posted on December 28, 2011 by | 13 comments

There weren’t a lot of legal issues raised in the most recent Daredevil, so this will be a slightly short post, but there are a couple of points, including a nice detail about the tort defense of necessity.  Spoilers inside!

Continue reading →

13 Comments

Posted in contracts, criminal law, torts

Guest Post: Superheroes and the Right of Publicity 2

Posted on November 25, 2011 by | 1 comment

Today we have the second half of Brad Desnoyer’s guest post on superheroes and the right of publicity.  If you missed it, check out the first post here.  Thanks again to Brad for this great series!

Missouri’s Predominant Purpose Test

Comic book creator Todd McFarlane introduced the popular comic series Spawn in 1992.1 In 1993, McFarlane introduced the fictional, mafia boss into the Spawn mythos known as “Antonio Twistelli,” a/k/a “Antonio Twist,” a/k/a “Tony Twist.” Id. McFarlane acknowledged in the comic’s September 1994 issue that he named “Tony Twist” after Quebec Nordiques hockey player Tony Twist. Id.

In 1997, hockey player Tony Twist, now playing for the St. Louis Blues, learned of the infamous comic book character after numerous young hockey fans approached Twist’s mother with Spawn trading cards featuring the fictional mob villain. Id. at 367. Twist subsequently filed suit against McFarlane and various companies associated with the Spawn comic book. Id.  A St. Louis based-jury returned a $24,500,000 verdict in favor of Twist. Id. 368-69.

On appeal, the Missouri Supreme Court declared that Twist’s “right-of-publicity tort,” should balance against McFarlane’s freedom of expression under a new, Missouri standard. Looking at standards implemented across the country, such as the transformative use test, the Missouri Supreme Court stated the current tests afforded a defendant too much protection when her speech is only somewhat “expressive.” Id. at 372-74. Therefore, the court created its own standard – the predominant purpose test:

If a product is being sold that predominantly exploits the commercial value of an individual’s identity, that product should be held to violate the right of publicity and not be protected by the First Amendment, even if there is some “expressive” content in it that might qualify as “speech” in other circumstances. If, on the other hand, the predominant purpose of the product is to make an expressive comment on or about a celebrity, the expressive values could be given greater weight.

Id. at 374. The Court then held that “the use and identity of Twist’s name has become predominantly a ploy to sell comic books and related products rather than an artistic or literary expression, and under these circumstances, free speech must give way to the right of publicity.” Id.

Ironically, after barraging the transformative use test for failing to effectively balance speech and property rights, Missouri’s Supreme Court conducted little balancing itself, simply finding commercial value based on Twist’s ability to make a prima facie case. By the court’s logic, almost any fictional character referencing a famous individual is likely to be a commercial exploitation lacking credible expression.2

In creating the predominant purpose test, the Court forgot that commercial and expressive value will inextricably blend together. Most artists intend to express themselves while also supporting themselves financially.3 It is virtually impossible to view the two principles independently because both are the intention of a professional. Moreover, neither predominates; the two “cannot be separated out ‘from the fully protected whole.’” See Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1185 (citing Gaudiya Vaishnava Soc’y v. City & County of San Francisco, 952 F.2d 1059, 1064 (9th Cir.1990)  And as courts have stated repeatedly, the First Amendment protects artistic works regardless of the creator’s desire to profit.4

Further the predominant purpose test protects shrewd defendants appearing to convey expressive speech, but who are in reality masking their attempt to gain commercial value. This placement on intent renders the predominant purpose test overly simplistic.

Take for example the possibility of McFarlane littering his internal documents with self-serving statements pushing his creation of “Tony Twist” as predominantly, or entirely, based in expressive speech. Therefore, under this test, artists foreseeing the possibility of litigation with a wronged celebrity could simply wrap themselves in the First Amendment from the onset of their “creative” endeavor, guaranteeing themselves victory in Missouri. Similarly, an artist could truly be predominantly motivated by expressive comment, but in reality be promoting commercial exploitation. They too would be shielded from losing in a right of publicity suit. By looking at an artist’s intent, or supposed intent, the court misses its own underlying question – was the work predominantly commercial or expressive?5

For these reasons, Missouri’s Predominant Purpose Test is lacking at best. It promotes the chilling of free speech while allowing shrewd creators to bypass the test’s underlying purpose with its overly narrow focus on intent.

Superheroes Should Sue in Missouri

So what about Spider-Man and my suction cup action figure mentioned in the first post? Chances are Spidey would have a pretty good right of publicity claim against Hasbro under either test. Even under the looser transformative use test the figure is little more than a miniaturized depiction of Spider-Man. Although the toy company could argue that adding suction cups to Spider-Man’s figure shows a significant creative component, that the company transformed Spider-Man’s likeness into its own expression, such a literal depiction of Spider-Man is little more than mere imitation.

Now, as we all know too well, toy companies can only produce so many versions of a superhero’s likeness before their toys become unquestionably gimmicky and strangely ridiculous. A prime example: all of those “specialized” Teenage Mutant Ninja Turtle and Batman action figures that dorky kids like me never wanted; they just weren’t “real” enough. “Piranha Blade Batman,” and TMNT’s “Bandito-Bashin’ Mike” are two classic examples of toy companies simply giving up.

But in addition to worthless accessories, these gimmicky action figures come with the greatest chance of being legally transformative. Disregarding a toy company’s use of a superhero’s name – these gimmicky figures are not mere imitations of a superhero’s likeness. In fact, a company could, and likely would, argue that these figures are meant to comment on a superhero – to convey a message of action or danger or “piranha-ness.” Further, arguing that an action figure conveys a significant artistic message would be even easier with a figure like “Crimson Mist Batman,” which depicts the Dark Knight as a feral (not sparkly) vampire. The key: the further an action figure – or indeed any product – deviates from being simply a replica of a superhero, the slimmer a chance a hero has in wining his or right of publicity action. That is, of course, if the court utilizes the transformative use test.

If the superhero sued in Missouri, however, he or she would likely win millions of dollars based on the plaintiff-deferential predominant purpose test. Of course, it would also help if the superhero was a St. Louis celebrity.

1. Doe v. TCI Cablevision, 110 S.W.3d 363, 366 (Mo banc 2006).

2. See Brief for Todd McFarlane, et al. as Amici Curiae Supporting Petitioners, Doe v. McFarlane, 110 S.W.3d 363 (Mo. 2003) (No. 03-615)

3. Id.

4. Time, Inc. v. Hill, 385 U.S. 374, 396-97 (1967); see Comedy III, 21 P.3d at 802 (stating “[an expressive activity] does not lose its constitutional protection because it is undertaken for profit

5. Doe, 207 S.W.3d at 57 (stating the test’s purpose is to determine if a product, not the creator’s intent, is predominantly expressive or commercial).

1 Comment

Posted in intellectual property, torts

Guest Post: Superheroes and the Right of Publicity

Posted on November 23, 2011 by | 29 comments

Although we don’t normally feature guest authors here, this week we’re making an exception for an exceptional guest: Brad Desnoyer is a law professor at the University of Missouri who has also written stories for DC Comics and worked as an assistant to Brad Meltzer.  He has written a two part guest post for us on superheroes and the right of publicity, which we’ll be featuring today and Friday.

Superheroes and the Right of Publicity

My Wolverine action figure’s claws really “popped” from his plastic forearms. My suction cup Spider-Man could stick to walls – as long as those walls were glass. And although some knock-offs were better than the originals, like most kids, my favorite action figures always were “officially licensed.”

These official action figures were, and still are, huge profit grabbers for licensors such as Marvel and DC. Posters, bedspreads, toothpastes – slap a picture of Superman on them and a product’s price skyrockets along with customer demand.

If real, “superhero celebrities” would possess a right to capitalize on their fame, their commercial value – just as real celebrities capitalize on their fame by endorsing products. And just as with real celebrities, superheroes would likely demand monetary compensation for the unpermitted use, or “appropriation,” of their image. They consequently could look to the courts for redress by filing a “right of publicity” claim.

Unlike invasion of privacy or copyright claims, a right of publicity is not meant to protect one’s “right to be left alone” or one’s ability to benefit from his or her creation, but rather it protects an individual’s ability “to control the commercial use of his or her identity.” 31 Causes of Action 2d 121. As stated by McCarthy in 1 Rights of Publicity and Privacy § 3:2, and as noted in a previous post, the elements of a right of privacy action are as follows:

  1. Validity – Plaintiff owns an enforceable right in the identity or persona of a human being; and
  2. Infringement
    (A) Defendant, without permission, has used some aspect of identity or persona in such a way that plaintiff is identifiable from defendant’s use; and
    (B) Defendant’s use is likely to cause damage to the commercial value of that persona.

The legal quandary comes when courts attempt to strike a balance between a celebrity’s (or superhero’s) exhaustible fame and an artist’s First Amendment right to create.

Interestingly, some of the most seminal cases struggling to achieve this balance between the seeming absolutes of property rights and freedom of expression deal with comic books.

The Transformative Use Test

The “transformative use” test, the most implemented test for right of publicity cases, comes from the state with the most celebrities: California.

In Comedy III Productions, Inc. v. Gary Saderup, Inc., Comedy III – the registered owner of the Three Stooges’ property rights – sued artist Gary Saderup, arguing Saderup infringed on the Three Stooges’ rights of publicity by producing and selling merchandise bearing Saderup’s charcoal drawings of the Three Stooges. 21 P.3d 797, 800 (Cal. 2001).

Working to formulate a general standard, the California Supreme Court reasoned that the government’s interest in protecting a celebrity’s property interest outweighed an artist’s First Amendment protection when that artist simply drew mere literal depictions of the celebrity. Id. at 808. “On the other hand,” the court observed, “when a work contains significant transformative elements,” as found in works of parody, the creative endeavor is entitled to complete First Amendment protection. Id. (emphasis added).

Therefore, the court held that the underlying inquiry needed for balancing right of publicity claims against First Amendment defenses is whether the work-at-issue is “transformative” – that is “whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” Id. at 809.

Applying the transformative use test to Saderup’s drawings, the court found no “significant transformative or creative contribution.” Id. Rather, Saderup’s literal charcoal depictions of the Three Stooges appropriated the trio’s economic value while expressing little more than imitation. Id.

In 2003, California distinguished Comedy III, in Winter v. DC Comics, finding DC Comic’s creative works transformative. 69 P.3d 473, 478 (Cal. 2003). In Winter, musicians Edgar and Johnny Winter sued DC Comics after DC released a five-issue Jonah Hex miniseries featuring “Edgar and Johnny Autumn” – “villainous half-worm, half-human offspring born from the rape of their mother by a supernatural worm creature.” Id. at 476. These pale, white haired monstrosities bore a distorted likeness to the real-life musicians in both physicality and modes of dress. Id. Additionally, the Winter brothers probably were not too pleased that the end of the miniseries Jonah Hex and his cohorts shot down and killed their fictional counter-parts during an “underground gun battle.” Id.

In applying the transformative use test to DC’s Jonah Hex miniseries, the court stated, “An artist depicting a celebrity must contribute something more than a ‘merely trivial’ variation, but must create something recognizably ‘his own.’” Id. at 478 (citing Comedy III, Productions, Inc. 21 P.3d at 810). Therefore, the court held that “[a]lthough the fictional characters Johnny and Edgar Autumn [were] less-than-subtle evocations…” of the Winters, DC’s creation was expressive enough outside its resemblance to the Winters to be transformative. Id. at 479.

Finally, in what might be the most difficult balancing between the seeming absolutes of property rights and the First Amendment, in ETW Corp. v. Jireh Publ’g, Inc, the Sixth Circuit looked at whether reprinted serigraphs and lithographs titled “The Masters of Augusta” infringed on golfer Tiger Woods’ right of publicity. 332 F.3d 915, 918 (6th Cir. 2003). Looking to the transformative use test for guidance, the court held that prints featuring three literal depictions of Tiger Woods to be distinguishable from the “unadorned, nearly photographic reproduction” in Comedy III because the prints did “not capitalize solely on the literal depiction of Woods.” Id. (emphasis added). Rather, the court reasoned, the work consisted of a collage of images – including other golfers in the background – conveying a message of sporting and historical accomplishment. Id. at 936-38. Therefore, the prints possessed “a significant creative component” Id. at 938.

In the next post, we will look at Missouri’s “predominant purpose” test and the Missouri Supreme Court’s use of the test in finding that Todd McFarlane’s Spawn comic infringed on a St. Louis hockey player’s right of publicity.

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Posted in intellectual property, torts

Superman: Grounded Vol. 1

Posted on November 7, 2011 by | 12 comments

Superman: Grounded is a twelve-issue story written by J. Michael Straczynski which took up Superman # 700-712. Issues 700-706 have been released in hardcover, with 707-712 scheduled to be released next month. The basic premise of the story is that in the aftermath of the 100 Minute War, in which New Krypton is destroyed, Superman is feeling disconnected from the average American, and really just Earth in general. He gets… uncharacteristcally mopey and philosophical, and the series raises a number of the most interesting and pervasive philosophical and ethical issues with the concept of superheroes, though it fails to come up with anything like adequate answers for any of them.

This isn’t going to be a particularly long post, but there were a number of minor legal issues, most of which we’ve talked about previously, that come up in the course of the story. Continue reading →

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Posted in criminal law, criminal procedure, immigration law, tax law, torts

Superhero Corporations II: Piercing the Corporate Veil

Posted on October 14, 2011 by | 13 comments

So a couple of days ago we talked about superhero corporations and respondeat superior. This time we’re taking a look at the opposite situation, where corporate actions can result in personal liability for the owners of a corporation.

I. Basic Doctrine

This is significantly less common than respondeat superior liability, as the whole point of corporate entities is limited liability. Corporations were invented to permit investors in trade missions to limit their liability to the money they had actually invested—ships were lost pretty frequently, so this was a big deal. Without the joint stock company, the Age of Exploration just wouldn’t have happened. These let the risk of investment be spread not only among multiple investors, but across multiple voyages. So while a particular ship may go down with all hands, but not only can the creditors not proceed directly against the investors for anything owed, but the debtors can use the profits of another voyage they’ve funded to make good the debt. Everybody’s happy.

The basic point here is that while it’s pretty easy for a company to be liable for the actions of its employees, it’s very difficult for an executive or owner to be personally liable for the actions of the corporation. When that happens, it’s called “piercing the corporate veil”. In US law, there are a series of factors that courts look at to determine whether the veil should be pierced. This isn’t a checklist, and it’s not the kind of thing where if you have more than half of the factors you win. Even a single factor can result in piercing if it’s bad enough, particularly when we’re talking about undercapitalization, i.e. when the investor hasn’t actually put enough money into the corporate entity to cover its debts. The courts do recognize that the point of corporations is to limit liability, but they aren’t very happy with people who create corporations solely for that purpose, particularly when the risk to be avoided is less just the ups and downs of business than avoidance of a known debt. The law lets you limit your liability for business purposes, but it won’t let you play games.

II. Superheroes and Piercing the Corporate Veil

So then, might it be that actions of various superhero corporations could result in personal liability for the superheroes that own them? Again, this is a fact-intensive analysis. But going with the examples above, we can again see something of a spectrum.

Remember, now we’re talking about something the corporation does, not something that the superheroes do as a result of their connection to the corporation. Products liability is perhaps the most obvious example, but it can come up with contracts, too. Basically, we’re now thinking about a situation in which the corporation, as a corporation, has gotten itself into trouble, completely independent of any superhero activities.

First, Batman. Here it seems very unlikely that the actions of Wayne Industries could result in personal liability for Wayne himself. Again, we’re talking about a multinational conglomerate with legitimate business operations in multiple continents, most of which have absolutely nothing to do with Wayne personally. The corporation is certainly well capitalized, and Wayne doesn’t appear to be doing much in the way of co-mingling of funds, though he may be guilty of siphoning away corporate assets for personal purposes as part of his Batman sideline. Still, the facts would probably have to be related to Batman in particular for that last one to matter, in which case Wayne would be personally liable anyway.

Tony Stark seems to be in almost the same position. Here we’ve got a major corporation, and though his identity as Iron Man is well-known, Stark Industries appears to be a healthy, well-run defense contractor with little in the way of corporate irregularities. Piercing again seems unlikely.

But just as with respondeat superior, the Fantastic Four seem a lot more susceptible to this. Fantastic Four, Inc. exists almost solely to let them operate as superheroes, and it doesn’t do all that much aside from licensing Reed’s patents and manufacturing goods based on them. There’s also a sense that personal and corporate assets may not be kept very distinct, in that while both Wayne and Stark are said to be independently wealthy apart from their role in the corporation, the FF’s money seems to be entirely based on the corporation. Wayne and Stark both own mansions, boats, sports cars, etc., and frequently show off their personal wealth. The FF live a lot more modestly and while they really don’t seem to worry about money, a lot of their material comfort really does seem to be linked directly to their corporate activities. So if FF Inc. is sued for products liability, this isn’t going to look good. It’s entirely possible that Reed and potentially the rest of the family could be on the hook personally.

III. Conclusion

Piercing the corporate veil is strongly disfavored by the courts, and plaintiffs really need to show that the corporate investors/owners are trying to pull off some kind of manifest injustice before the courts are going to put the investors/owners on the hook personally. But it can happen, particularly in situations like the Fantastic Four where the corporation is basically just a front for personal activities.  With Wayne and Stark, by contrast, it’s unlikely to happen unless Wayne or Stark personally ordered or oversaw something seriously illegal.

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Posted in Batman, contracts, corporations, Fantastic Four, Iron Man, torts