Author Archives: James Daily

Mark Waid Interview at Abnormal Use

Posted on September 20, 2011 | Leave a comment

Jim Dedman over at Abnormal Use just posted a great interview with Mark Waid, the writer of Daredevil.  You may remember Jim and Abnormal Use from the interview with us back in March.  And speaking of Daredevil, we’ll be covering issue 3 tomorrow and issue 4 next week.  Waid continues to do a great job writing the book, and there are some really interesting legal issues to discuss, so check back soon!

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Posted in Uncategorized

Law and the Multiverse Retcon #1

Posted on September 16, 2011 | 19 comments

This post is the first in an occasional series we’re calling Law and the Multiverse Retcons.  We’ll be using these posts to discuss changes in the law (or corrections to our analysis) that affect older posts.  Today we’re going to discuss the America Invents Act, which was recently passed by Congress and is expected to be signed into law tomorrow.  The AIA is a patent reform act, and among its many changes to US patent law are two that affect topics we’ve written about here on the blog.

I. Batman, Patents, and Absolute Novelty

Way back when the blog was first started we wrote about Batman and patents.  In that post we talked about two related issues.  First, how Batman could use gadgets based on Wayne Enterprises technologies without preventing Wayne Enterprises from filing, and second, how Wayne Enterprises could patent those technologies without revealing it to Batman’s enemies, who might replicate it or exploit its flaws.  In short, the answer was for Batman to use the technology no more than one year before Wayne Enterprises filed a patent application (thus avoiding the “on sale bar“) and for Bruce Wayne to use his Department of Defense connections to have the technology classified so that the Patent Office would not publish the application.

The America Invents Act changes the answer slightly.  With the AIA there is no longer a one year grace period during which an invention can be sold, offered for sale, used, or published before the inventor has to file for a patent. This means that the US joins Europe in requiring what is called “absolute novelty.”  The practical upshot for Batman is that he needs to make sure that Wayne Enterprises has filed for a patent before he uses a new gadget in public. Without the one year grace period even a single public use would be enough to destroy Wayne Enterprises’ patent rights.

(Edit: Technically the AIA preserves a grace period for disclosures made by the inventor or by someone who obtained the technology from the inventor.  The problem is that Batman is usually not the inventor of technologies ‘borrowed’ from Wayne Enterprises, and it would be difficult for Wayne Enterprises to prove that Batman got the technology from them.  With very few exceptions, nobody at Wayne Enterprises knows where Batman gets his gadgets, and those that do know (e.g. Lucius Fox in the movies) aren’t going to tell.)

II. Spider-Man and Gene Patents Redux

Another post that the AIA affects is this mailbag post on Spider-Man and gene patents.  In the 2002 movie Spider-Man, Peter Parker becomes Spider-Man after being bitten by a genetically engineered spider (as opposed to the traditional radioactive one).  In a post on the subject we discussed various reasons why Parker likely wouldn’t be liable for patent infringement if the genetically modified spider were covered by one or more gene patents.

The AIA makes this even simpler.  The Act flatly prohibits any patent that is “directed to or encompass[es] a human organism.”  In order for Parker to be liable the patent’s claims would have to encompass a human organism (namely Parker), and thus the patent would be invalid under the AIA.  We can pretty firmly shut the book on that one, then!

If there are any posts that you’d like us to revisit, let us know by emailing us at james@lawandthemultiverse.com and ryan@lawandthemultiverse.com.

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Posted in intellectual property, patents, retcons

A Tale of Two Superhero Journalists

Posted on September 14, 2011 | 21 comments

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

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

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

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

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

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

[2] 17 U.S.C. § 101.

[3] 17 U.S.C. § 201(b).

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

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Posted in copyright, intellectual property

Batman: No Man’s Land, Part 3

Posted on September 8, 2011 | 12 comments

This is our third post on the No Man’s Land story arc.  The subject this time is property law with a side of torts.

J. Devlin Davenport, Gotham’s other billionaire playboy, has returned from vacation to discover that the crown jewel of his real estate empire, Davenport Center, has toppled during the quake.  What’s left of the building is now blocking a major road that the city needs to clear in order to expedite relief efforts.  Unfortunately, Davenport demands that the city stop its plans to bulldoze a path through the fallen building, and he further threatens to sue the city “for every cent it has left” (frankly this is likely to be less than zero) and, more importantly, he also threatens the city with an injunction (i.e. a court order prohibiting the city from destroying his property).

In the end, Batman cuts the apparent Gordian knot by commandeering a bulldozer at night and plowing through the building, but did Davenport’s claims have any legal merit?  We don’t think so, for multiple reasons.

First we must explain the distinction between the two main kinds of property, real property and personal property, also called “chattels.”  Real property includes land and things “permanently attached to the land,” typically buildings and other permanent structures.  Personal property is basically everything else, including money and even certain intangible forms of property such as patents.

This is an important distinction because Davenport Center was real property before it fell over but became mere personal property thereafter because it ceased being permanently attached to the land.  The land on which Davenport Center previously sat remained real property, of course.  As personal property left on a public street, Davenport Center itself basically became litter, which Gotham had the right to clean up.  Furthermore, many states have specific laws dealing with the removal of debris following a disaster, and the federal government (specifically FEMA) will reimburse states for the cost of cleaning up debris in declared disaster areas.

Even if Davenport Center were still real property, cities typically have the right to demolish unsafe buildings and even collect the costs of the demolition from the owner.  See, e.g., N.Y. Gen. Muni. Law § 78-B.  Davenport should be thankful that the city didn’t hand him a bill.

Finally, regardless of the property status of Davenport Center and even if it still retained some value, Gotham could claim the tort defense of public necessity and remove it anyway.  Although some state courts have held that, at least in certain circumstances, the government must reimburse the private owner for the damage done, the traditional rule is still that the government is not liable.

Our conclusion is that Davenport didn’t have a leg to stand on, so it’s unfortunate that it took an act of Batman to set things right.

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Posted in property law, torts

AABANY Fall Conference

Posted on September 8, 2011 | Leave a comment

For our law student and attorney readers in the New York area: James will be participating in a panel on legal blogging at the Asian American Bar Association of New York fall conference, September 17, 2011.  The conference offers up to 6 CLE credits as well as multiple networking opportunities.  Registration is still open, and we hope to see you there!

Speaking of legal blogging, nominations for the American Bar Association Blawg 100 can be submitted through tomorrow, September 9th.  If you’re a lawyer or a law student, we invite you to consider nominating Law and the Multiverse.

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Posted in conventions and talks

Law and the Multiverse Holiday Special – Labor Day Edition

Posted on September 5, 2011 | 8 comments

Today is Labor Day in the United States, a holiday that celebrates workers and the labor movement (it also celebrates hamburgers, if most people’s Labor Day activities are anything to go by).  Unionization doesn’t make sense for most superheroes (they work for free, after all), but there are some exceptions.  For example, in some continuities the agents of S.H.I.E.L.D. are basically federal employees, and many federal employees are union members.  Although some superheroes who work for S.H.I.E.L.D. / the Avengers don’t have much use for a union (e.g. Tony Stark is independently wealthy and Thor is a god), folks like Nick Fury are regular employees for whom union benefits would be pretty appealing, and there are countless non-superhero employees working in the background.

So could S.H.I.E.L.D. unionize?  Maybe, maybe not.

Federal employee unions are governed by the Federal Labor Relations Act (whereas most unions are governed by the National Labor Relations Act).  However, the FLRA specifically excludes certain agencies from coverage, including the FBI, the CIA, the NSA, and the Secret Service.  The exclusion of these law enforcement and espionage agencies suggests that S.H.I.E.L.D. might be excluded in the Marvel Universe.  On the other hand, however, some other law enforcement and defense agencies are unionized or in the process of unionizing, including the Transportation Security Administration, the National Park Service, the Border Patrol, the Bureau of Alcohol Tobacco and Firearms, and the Department of Defense (the civilian workers, not the armed forces, which are forbidden from unionizing by 10 USC 976).  So it’s possible that S.H.I.E.L.D. employees could unionize.

In general the FLRA works like the NLRA, although federal unions cannot create “union shops” in which employees are required to join the union in order to work for the agency.  They also cannot strike.  Thus, S.H.I.E.L.D. employees could always choose not to join the union.  The benefits of a union formed under the FLRA include collective bargaining rights, the right to file grievances, and the right to protection from unfair labor practices.  Like most unions it would probably be more concerned with working conditions and compensation for regular workers than, say, hazard pay for fighting Kang the Conqueror.

From a comic book writer’s perspective it’s unfortunate that federal employee unions can’t go on strike.  Otherwise it might lead to some pretty funny scenarios.  Can you imagine the Avengers forming a picket line or the government bringing in some B-list superhero scabs?

Update: Over at Abnormal Use they have a class Justice League cover featuring striking superheroes.

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Posted in labor law

Batman: No Man’s Land, Part 2

Posted on August 30, 2011 | 1 comment

This is our second post on the No Man’s Land story arc.  The subject this time is a little more serious than the first post in this series.

Following the earthquake and fire, Gotham City hospitals were quickly overwhelmed.  Unable to adequately care for many patients, there was talk of euthanizing the terminally ill.  In the end that plan was not put into effect because of a shortage of the necessary drugs.  We’re not too sure how much sense that makes, medically-speaking, but it raises a question: could doctors or nurses legally end a terminally ill patient’s life if it was clear that care could not be continued following a disaster?  In this case the comics were prescient, since that’s what happened in the aftermath of Hurricane Katrina.

In that case, one doctor was charged with murder but the grand jury did not return an indictment (there were, however, several civil suits filed).  Furthermore, the doctor maintained that she lacked the intent necessary for a charge of either murder or euthanasia.  This is true as far it goes, but there are lesser crimes that do not require an intentional killing, including involuntary manslaughter or even assault.

In any case, three laws were subsequently passed in Louisiana that give healthcare workers additional immunity during disasters.  First, healthcare workers are immune from suits for ordinary negligence (though not gross negligence or willful misconduct) in the provision of medical care during a disaster even if they are compensated for their work.  La. Rev. Stat. § 37:1731.1.  Second, healthcare workers are immune from suits for ordinary negligence and gross negligence during an evacuation following a “disaster medicine” protocol (i.e. evacuating the sickest patients last).  La. Rev. Stat. § 29:735.3.  Third, a “Disaster Medicine Review Panel” will review issues of medical judgment during a disaster, further protecting—although not immunizing—healthcare workers from both criminal and civil liability so long as “good faith clinical judgment” was exercised under the circumstances.  La. Rev. Stat. § 40:1299.39.3.

In the absence of such laws, however, there is little protection for doctors or nurses who euthanize patients in a disaster situation.  After all, necessity is generally not a defense to murder.  R. v. Dudley & Stephens, 14 QBD 273 DC (1884).  And no competent doctor or nurse could argue that they didn’t know that the patient’s death would be accelerated by the administration of the drugs, which makes it hard to avoid lesser included offenses.  The medical community has embraced the doctrine of double effect as an ethical rule that may permit euthanasia in these situations, but it is only an ethical rule, not a legal one.

We conclude, then, that it’s just as well that Gotham’s doctors did not attempt the proposed plan.  There is no statute of limitations on murder, and they may have found themselves at the mercy of a jury once Gotham was rebuilt.

(A side note: Oregon’s Death with Dignity Act would be of little help in a disaster, as the protocol that must be followed requires, among other things, a 15 day waiting period.)

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Posted in criminal law

Daredevil #2

Posted on August 22, 2011 | 21 comments

Our coverage of the recently re-launched Daredevil continues with the second issue.  There are some great legal topics here, including criminal procedure and legal ethics.

Continue reading →

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Posted in criminal procedure, legal ethics

Superman Returns

Posted on August 17, 2011 | 27 comments

Superman Returns was a pretty good movie (though hopefully the Man of Steel reboot will be an improvement).  The legal issues the movie raises are quite a bit different from our usual crime & torts fare, which is a nice change of pace.  Spoilers inside:

Continue reading →

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Posted in estate law, movies, Superman

ABA Blawg 100 Nominations

Posted on August 16, 2011 | 3 comments

If we may be allowed a moment of rank self-indulgence: The American Bar Association is taking nominations for the 2011 ABA Blawg 100.  If you’re a lawyer or a law student, we invite you to consider nominating Law and the Multiverse.

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Posted in Uncategorized