Author Archives: James Daily

Mailbag for April 15, 2011

Posted on April 15, 2011 | 23 comments

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

I. Copyright and Alternate Universes

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

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

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

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

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

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

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

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

II. Superhero Slogans and Trademarks

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

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

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

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

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

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

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

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

23 Comments

Posted in copyright, intellectual property, mailbag, trademark

Animal Sidekicks, Part Three

Posted on April 13, 2011 | 21 comments

In this latest installment of our series on animal sidekicks we’re going to discuss the many regulations that affect animals, including leash laws and import restrictions (see here for part one and part two).

I. Leash Laws and the Like

Leash laws vary widely from jurisdiction to jurisdiction.  Many cities and counties (and some states) require animals to be kept on leashes or otherwise controlled when in public, or at least in certain public areas.  Sometimes these ordinances are specifically aimed at dogs, but sometimes they are written to apply to all pets or kept animals.  See, e.g., St. Louis County Revised Ordinance 611.200.  It’s not common in the US, but some cities even require dogs to be muzzled in public.

So what does this mean for a superhero with an animal sidekick?  First, it means doing a bit of research before traveling with the sidekick.  This is an area where the law can vary substantially from one city or county to the next, and ignorance of the local laws is not a defense.  It would be pretty embarrassing for a superhero get busted for not having his or her faithful companion on a leash while out fighting crime.

Second, it means brushing up on the defense of necessity.  If violating a leash law allows a superhero and his or her animal sidekick to stop a much worse crime about to be committed by a supervillain, then the defense of necessity may excuse the lesser harm of letting the animal run loose.  Necessity is usually based on some kind of reasonableness standard, so the superhero can’t just let the animal run loose all the time on the theory that a crime is bound to be attempted sooner or later.  Instead, we recommend investing in some kind of quick-release harness.

Note that many leash laws have exceptions for service animals, but we don’t think many animal sidekicks would meet the criteria for being a service animal.  Daredevil briefly had a seeing-eye dog named Deuce, but that’s about it as far as we can recall.

II. Health Regulations

Many animals are also subject to a host of health regulations, particularly vaccination requirements.  There are also laws regarding the quarantine and even destruction of diseased animals, but let’s assume that superheroes keep their sidekicks healthy.

The most important requirement is rabies vaccination, although the rules vary from state to state and even within states (e.g., Missouri doesn’t have a state-wide standard but instead directs individual counties to adopt appropriate rules and regulations.  Mo. Rev. Stat. 322.090).  However, most vaccine laws specify particular types of animals, so they are less of a concern for superheroes with unusual sidekicks.  But really this shouldn’t be much of an issue.  Making sure Krypto gets his rabies shots might be pointless (assuming a superpowered Krypto), but it’s not a significant burden, either.

III. Restrictions on Importation and Ownership

Now we come to the big one: can these animals be lawfully imported (or moved across state lines) or even privately kept at all?  Many states prohibit or restrict private ownership of wild or exotic animals, which are defined differently from state to state: another headache for the superhero on the go.

At the federal level, the Endangered Species Act generally prohibits, among other things, the possession, importation, sale, and taking of endangered species.  16 USC 1538(a)(1).  By the way, “‘[t]ake’ is defined … in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” S.Rep. No. 93-307, at 7 (1973).  There are a lot of endangered animal species, and although most of them would probably make pretty bad sidekicks—clams are not known for striking fear into the hearts of evildoers—there are some popular choices on the list, such as the gray & red wolves and several eagles.

So there’s a trade-off here.  Having a wild or exotic sidekick avoids some animal regulations, but it subjects the superhero to a new set at the same time.  Also remember from part two of this series that wild animal owners are subject to a higher standard when it comes to injuries caused by their animals.  On balance, our conclusion is pretty simple: “get a dog.”

21 Comments

Posted in administrative law, criminal law

The Trial of Reed Richards

Posted on April 6, 2011 | 23 comments

Several readers have inquired about The Trial of Reed Richards (aka The Trial of Galactus), which is a great John Byrne-era Fantastic Four storyline.  There are several legal issues to discuss here, but we’ll start with a brief synopsis of the story line.  Readers who are already familiar with the story can skip to section II.

I. The Story

In Fantastic Four #243-44, Reed Richards saved the life of Galactus, a powerful creature with a nasty habit of devouring inhabited planets.  Later, in Fantastic Four 261-62, the survivors of Galactus’s prior attacks put Reed on trial for the deaths caused by Galactus after Reed saved him, most notably the deaths of 7 billion Skrulls when Galactus consumed the Skrull throneworld.

(Actually, first the survivors sentence Reed to a summary execution, but after a brief fight between the rest of the Fantastic Four and Reed’s would-be executioners, the Watcher intervenes, and then the survivors decide to hold a trial.)

Princess Lilandra of the Shi’ar Empire appoints herself prosecutor.  Apparently Lilandra had appeared to Reed after he saved Galactus and warned him “Should [Galactus] consume any world known to us you will be in part responsible…and will be held responsible for it…to the full extent of Shi’ar law!”

Lilandra first calls a survivor of the destruction of the Skrull throneworld.  Following that, she calls innumerable survivors of prior Galactus attacks to establish that Reed knew full well of Galactus’s pattern of planet-eating.

In the face of the prosecution’s evidence, Reed pleads guilty—but not to a crime, rather to the fact of saving Galactus’s life.  Reed argues that doing so was no crime because Galactus is a force of nature and part of some greater plan for good in the universe.  To this end, the god Odin is summoned by the Watcher to testify as to Galactus’s origin, as told to him by Thor, who was told by Galactus himself.  Odin testifies that Galactus was created at the beginning of the universe, the lone survivor of the end of the prior universe, and thus Galactus is a natural force.

Alas, Odin’s testimony fails to persuade everyone.  And so Galactus himself shows up to testify that Reed’s act was “honorable and good.”  Unsurprisingly, the testimony of an alleged mass murderer whose life was saved by the defendant is unpersuasive.  So the Watcher and Galactus combine powers to summon Eternity, the embodiment of the entire universe.  Eternity links the minds of all of the creatures in the court room, allowing them to see the Cosmic Truth that Galactus is a necessary force in the universe.  In the face of such overwhelming evidence, Reed is exonerated and the Fantastic Four return to Earth.

So that’s the story.  We don’t know anything about Shi’ar law or M’ndavian procedure, so we’ll analyze the case from an earthly legal perspective.

II. The Legal Issues

A. Preliminary Issues

There are a whole host of legal issues here, but we’ll stick to the big ones.  Right off the bat we can say that the appeal of Reed’s summary execution is a kind of habeas corpus petition, essentially a demand that the authorities prove that they have the right to detain (and for that matter execute) Reed.

Next: the issue of Reed’s extradition.  Here we can take some issue.  The alleged crime (saving Galactus) occurred on Earth, Reed is a citizen of a nation of Earth, he was on Earth at the time of his forcible extradition, and it doesn’t appear that the US or UN have agreed to any kind of extradition treaty with the Shi’ar or the ad hoc Galactus-survivor court.  On the other hand, Reed seems to waive the jurisdictional issue and accept the legitimacy of the trial, which by Reed’s choice is conducted under M’ndavian procedures, “the most perfect legal system in the galaxy.”

B. The Prosecution’s Case

Now we get into the trial proper.  Lilandra’s argument is that Reed saved the life of someone he knew would go on to kill others, and therefore Reed is guilty of a crime, though the specific crime is not named.  We can’t speak to Shi’ar law, but under the US legal system Reed’s actions would probably not be a crime.  There are three main theories under which Reed might be liable: conspiracy, accomplice or accessory liability, and facilitation.  However, the first two require a level of intent that Reed did not possess (i.e. he did not intend for Galactus to go on to commit any crimes).

That leaves facilitation.  In New York, where we believe the alleged crime took place, facilitation is, in general, “a kind of accessorial conduct in which the actor aids the commission of a crime with knowledge that he is doing so but without any specific intent to participate therein or to benefit therefrom.” Staff Notes of the Commission on Revision of the Penal Law. Proposed New York Penal Law. McKinney’s Spec. Pamph. (1964), p. 328.  Here’s the definition of the most general form of facilitation:

A person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony.

N.Y. Penal Law § 115.00.  At first glance this looks pretty bad, and it is a closer case than conspiracy or accomplice liability.  Again, the answer turns on intent, but in this case it’s Galactus’s intent that matters, not Reed’s.

At the time Galactus’s life was saved, Galactus did not have the required intent to commit a crime.  Sure, at some point Galactus was likely to get hungry and eat a planet, but at that particular moment he did not have the intent to eat any particular planet.  Without that intent element, Reed couldn’t commit the crime of facilitation.

But even supposing Reed’s conduct would have been a crime, he may still offer the defense of necessity, which we’ll discuss below.

C. The Defense’s Case

First off, Reed’s guilty plea is completely backwards.  Rather than pleading guilty to the fact of saving Galactus’s life but arguing that his conduct was not a crime, it would make more sense to say that he stipulates to the facts but maintains a plea of not guilty.  But that’s a pretty technical point.  There are bigger problems with the defense’s case, specifically Odin’s testimony.

Odin’s testimony is a gigantic ball of hearsay problems, and we don’t think there’s any answer to it.  Odin is trying to offer the rare double hearsay: the words of Galactus as spoken to Thor as spoken to Odin.  It would also have been hearsay if Thor had been the one to testify, since there’s no exception that would apply there, either.  What’s more, all of the hearsay issues could have been circumvented since Galactus himself showed up and so could have given the same testimony properly.

Finally we have Eternity’s testimony, which basically amounts to the defense of necessity mentioned above: saving Galactus was a lesser harm to the universe than allowing him to die, even though he would go on to destroy other planets.  So even if Reed’s conduct would have been a crime, he may still claim the defense of necessity.  We’re not so sure that his actions were actually reasonable under the circumstances (i.e. an ordinary reasonable person would probably not have made the same choice), but who’s going to argue with Eternity?

III. Conclusion

The Trial of Reed Richards is a classic and enjoyable Fantastic Four story, and we’ll take John Byrne’s word for it that M’ndavian procedure and Shi’ar law were followed in the comic.  It’s interesting to note, though, that roughly the same result would probably have been achieved under US law, in some cases for the same or similar reasons.

23 Comments

Posted in criminal law, criminal procedure, international law

ABA Journal

Posted on April 4, 2011 | Leave a comment

Law and the Multiverse was featured in an article in this month’s American Bar Association Journal.  A big hello to our fellow attorneys, and thanks to Eriq Gardner for a great interview!

Leave a comment

Posted in interviews and podcasts

Mailbag for April 1, 2011

Posted on April 1, 2011 | 9 comments

Today we have questions about sentient property and Asgard’s extraterritoriality.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Lost Sentient Property?

Both of today’s questions from Wusheng.  The first question is about Alan Scott (i.e. the first Green Lantern) and his ring: “The ring and lantern that Alan uses were carved from a meteor called the Starheart.  This meteor … was sentient.  As a result, the ring and energy within both it and the lantern, are sentient. … [H]ow does that affect the ‘lost property’ label that you gave it?”

This was partly addressed in the comments on the Lost and Found post that Wusheng referred to, but we wanted to take the opportunity to mention another possibility.  For intelligent artifacts that are not legally considered people (e.g. either because the courts don’t recognize non-human intelligences or because the artifact fails whatever test the courts set up), it is possible that a court could treat them as a kind of animal.  So we wondered how the lost property analysis changes if one views the ring as a lost animal (albeit one that doesn’t move around much).

As it turns out, there is a particular body of law dealing with lost or stray animals, which the law calls “estrays.”  (The initial e comes from the Old French estraier. This is a common pattern in old legal terms.  See, e.g., estoppel).

At common law estrays were generally defined as “a beast wandering, or without an owner; one wandering at large, or lost, or whose owner is unknown.”  Walters v. Glats, 29 Iowa 437, 439 (1870).  However, most states (including Iowa at the time of that decision) have specific statutes for estrays.  Importantly for superheroes, the reason the beast was wandering is unimportant: “it is plainly immaterial how the animal escaped from the owner,—whether by his voluntary act, by the act of a trespasser upon his premises, or by a thief.” Kinney v. Roe, 7o Iowa 509 (1886); see also State v. Miller, 41 N.M. 618 (1937).  Relatively recently the Vermont Supreme Court held that estray laws only apply to animals of considerable economic value and so do not apply to dogs.  Morgan v. Kroupa, 167 Vt. 99, 102-03 (1997).

The sentient ring and lantern would seem to fit this definition: they are plainly lost (albeit not wandering), the owner is unknown, and they definitely have considerable economic value.  The next question is, what rights are conferred on the finder of an estray?  The particulars vary from state to state, but the general framework is that the finder acquires a qualified property right that becomes an absolute right if the original owner doesn’t show up and claim the estray after a set time period.  Since the original owner never shows up, Scott would get a complete property right in the ring and lantern.

Since many states have enacted estray statutes rather than rely on the common law, a judge might not be able to apply the estray statute directly (that’s the problem the Vermont court ran into).  However, estray law provides a template or framework that courts can use to apply to things that sit in that “special place somewhere in between a person and a piece of personal property.” Corso v. Crawford Dog & Cat Hosp., Inc., 415 N.Y.S.2d 182, 183 (City Civ.Ct.1979).  So a court could use estray laws as the basis for handling sentient artifacts.

II. Extraterritoriality and the Asgardian Embassy

For his second question Wusheng writes about Thor moving Asgard to Oklahoma (Thor, vol. 3, #2-3).  “He started out just hovering it over farmland, but eventually bought out the farmland for a massively inflated price (he filled the back of the farmer’s truck with gold).  At this point, Iron Man tried to force Thor into declaring it to be under U.S. rule, but Thor knocked him around like a rag doll for a bit and Iron Man agreed to let it remain sovereign.

My question is, if we disregard the attempt by Iron Man to force it under U.S. rule, how would International Law handle something like this?  Or would Iron Man’s response (if heavy handed and more than a bit foolish) have been a more or less appropriate response?”

What the US granted Asgard was extraterritoriality.  As Iron Man explained in the comic, this is indeed a common feature of an embassy or other diplomatic mission.  The bigger issues here are Asgard’s size (i.e. just how much space is being ceded), whether Iron Man really had authority to negotiate on behalf of the US (we’ll assume he did for narrative convenience), and whether the US was willing to give territory to a foreign power that effectively just invaded the US (we’ll assume it was willing to do so because, c’mon, he’s the God of Thunder).

It’s not clear exactly how large Asgard is, but it looks to be at least several acres and perhaps as much as a square mile.  This would be exceptionally large for an extraterritorial space in the US.  The largest such space is the UN headquarters in New York, which sits on 17 acres (.026 square miles).  There are roughly 190 foreign embassies and 1200 foreign consulates in the US.  Assuming they all enjoy extraterritorial status (which is not actually the case) and occupy an average of one acre each (which is being very generous) that amounts to about 2.18 square miles.  So Asgard would likely be the largest extraterritorial space in the US and quite possibly the largest embassy in the world (the current record holder, the new US embassy in Iraq, sits on 104 acres or .16 square miles).

However, while that might be unusual for the US and for embassies, it is not unusual in other contexts.  For example, the US operates hundreds of military bases in dozens of foreign countries, some of which are quite large (e.g. Guantanamo Bay Naval Base is 45 square miles).  So it is not without precedent for a country to cede a large extraterritorial space to another country.  It would be unusual for the US to do so, but given that we’re talking about a God of Thunder here, the result seems reasonable and consistent with how international law treats embassies and similar extraterritorial spaces.

That’s all for this week!  Until next time, keep your questions and post suggestions coming in!

9 Comments

Posted in international law, mailbag, property law

Animal Sidekicks, Part Two

Posted on March 30, 2011 | 11 comments

For this installment of our series on animal sidekicks (part one here) we’ll be discussing an animal owner’s tort liability for injuries caused by the animal.  This would also apply to supervillains who sometimes use animals, such as Catwoman and the Penguin.  Like most tort law issues, the law here varies from state to state, but there are some common principles that we can discuss.

There are two basic categories of animal here: domesticated animals and wild or exotic animals.  In both cases there are two sub-issues: the bases for liability and the available defenses.  As we shall see, the broad scope of liability makes the defenses particularly important.

I. Domesticated Animals

A. Liability

At common law a domesticated animal’s owner is liable for injuries caused by the animal if the owner knew or should have known that the animal was dangerous.  See, e.g., McCaster v. Jackson, 833 So.2d 36 (Ala. 2002).  This leads pretty naturally to the question “how can you prove an animal is dangerous?”  An animal’s dangerous propensities can be proven in a couple of different ways.

The first and most direct approach is to show that the owner knew or should have known that the animal acted dangerously in the past.  However, it is generally not necessary that the animal previously caused an injury; knowledge of its dangerous disposition is sufficient.  Mungo v. Bennett, 238 S.C. 79, 81-82 (1961).  Once knowledge is established, in some jurisdictions owners are strictly liable for injuries caused by the animal, but in other jurisdictions liability requires negligence on the part of owner.  See, e.g., Bard v. Jahnke, 6 N.Y.3d 592 (Ct. App. N.Y. 2006) (strict liability); Mungo, 238 S.C. at 82 (negligence).

The second, indirect approach is to show that the animal was of a breed or type known to be dangerous (e.g. that a dog was of a vicious breed or that a bull was particularly dangerous during breeding season).  However, not all jurisdictions recognize this approach.  See, e.g., Bard, 6 N.Y.3d at 599.

Some states have enacted statutes that eliminate or modify the requirement of knowledge of the animal’s dangerous disposition.  See, e.g., Robinson v. Meadows, 203 Ill.App.3d 706 (App. Ct. Ill. 1990).

The practical upshot of this is that any superhero with an animal sidekick is going to be potentially liable for injuries caused by the sidekick.  Heck, if the animal didn’t have dangerous propensities it’d be a pretty lousy sidekick.  So let’s turn to the defenses to see if our heroes can find a way out of having to leave their animals at home.

B. Defenses

There are four main defenses to an injury by an animal: contributory or comparative negligence, intentional provocation, assumption of the risk, and a fourth defense that we’ll call “being up to no good.”  Contributory or comparative negligence are, as the names imply, generally only available in states where liability is based on negligence.  Assumption of the risk, by contrast, is a defense to strict liability.  These defenses are the basis for things like “beware of dog” signs.  While those defenses are handy for people in the real-world, superheroes need a bit more, since they tend to go on the offensive.

For superheroes the main defenses are intentional provocation and “being up to no good.”  If a supervillain provokes an animal sidekick by attacking it, the animal may react without incurring liability for the owner.  See, e.g., Grams v. Howard’s O.K. Hardware Co., 446 N.W.2d 687 (Ct. App. Minn. 1989).

What we’ve called “being up to no good” is a slightly unwieldy phrase we made up to refer to a defense available in many states.  For example, Minnesota’s dog attack statute reads, in part:

If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.

Minn. Stat. § 347.22 (emphasis added).  As you can see, separate from provocation is a defense that the person attacked was either not acting peacefully or was trespassing.  Illinois has a similar defense. 510 ILCS 5/16.  As long as the superhero waits until the supervillain has started breaking the law, there appears to be considerable leeway for an animal sidekick (or at least a canine sidekick) to attack, at least in states that recognize this defense.

It is unclear to us to what extent self-defense or defense of others can be used as a defense.  That is, if the owner deliberately sics the sidekick on a villain in order to defend himself or herself or to defend a third party.  It seems like this would be proper self-defense or defense of others, so long as employing the animal amounted to reasonable force.

II. Wild Animals

Wild animals are treated differently than domesticated animals.  The general rule is that the owner of a wild animal is strictly liable for injuries caused by the animal, even if the owner had no knowledge of the animal’s propensity for harm and even if the owner took the utmost care in keeping the animal.  See, e.g., Poznanski ex rel. Poznanski v. Horvath, 788 N.E.2d 1255, 1259 (Sup. Ct. Ind. 2003).

There is an exception to this, albeit a narrow one.  Under the Restatement (Second) of Torts, and as adopted by many jurisdictions, strict liability only applies to the kind of danger that is characteristic of the particular class of wild animal.  Consider a wild snapping turtle kept as a pet.  Now suppose someone tripped over the turtle’s hard shell, causing a painful toe stubbing and hurting themselves in the fall.  A court would not apply strict liability in that case.  The danger of a snapping turtle is that it might bite a person, not that someone would trip over it.  Now, if the owner had deliberately put the turtle in the victim’s path, the owner might still be liable, but under a different theory.  Unfortunately, that exception is unlikely to be very helpful to a superhero, since the harm caused by a wild animal sidekick is likely to be exactly of the type that is characteristic of the animal.

As with states that apply strict liability in cases of dangerous domesticated animals, there are defenses here, too.  For example, provocation has been held to be a defense.  Whitefield v. Stewart, 577 P.2d 1295 (Okla. 1978).  And we see no reason self-defense or defense of others might not apply as well.

III. Conclusion

Superheroes selecting an animal sidekick should probably stick to domesticated animals such as domestic dogs.  Wild animals, even well-kept or tamed ones, carry with them additional legal risks and fewer defenses.  Since this is another area that varies widely from state to state, superheroes traveling around the country should do a little research before bringing their animal sidekick along.  What’s fine for their sidekick to do in one state might get them sued in another.

11 Comments

Posted in torts

Reader Polls

Posted on March 28, 2011 | 16 comments

We wanted to take a moment to let you, our readers, give us some feedback about what kind of posts you would like to see on the blog.  There are three polls.  If you have any questions, comments, or other feedback, please drop us a line in the comments to this post or send us an email.

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Thanks for voting, and don’t miss today’s post about Smallville right below this post!

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Posted in Uncategorized

Animal Sidekicks, Part One

Posted on March 23, 2011 | 21 comments

Today’s post, which is the first in a series, was inspired by Christopher, who wanted to know about animal sidekicks (e.g. Zabu, Krypto, Lockheed), particularly Red Wolf’s wolf companion Lobo.  There are a lot of potential issues here, but we’re going to focus on three major ones: animal cruelty, liability for the animal’s acts, and animal regulations (e.g. leash laws and import regulations).

I. Animal Cruelty Laws

Similar to juvenile sidekicks and child endangerment laws, one possible issue with having an animal sidekick is that it might constitute animal cruelty.  After all, the animals are placed in dangerous situations and some are even asked to attack people, albeit usually villainous people.  But if Krypto takes a bite out of Brainiac, is that really enough to make Superman into Michael Vick?

For the most part animal cruelty laws are state-based.  There is a federal law criminalizing depictions of acts of animal cruelty and another federal law dealing with housing animals for exhibition or sale, but those aren’t really the issue here (and in case you were wondering, comic books depicting villains being cruel to animals don’t run afoul of the statute; the depictions must be of actual, real-world acts of animal cruelty).  Since cruelty laws vary from state to state, this will mostly be a general overview of their common features and principles.

II. The Scope of the Law

An immediate question is: do these sidekicks even qualify as “animals” for purposes of the statutes?  Lobo is a fairly ordinary wolf, but some versions of Krypto are super-powered, super-intelligent, or both, and Lockheed is a dragon for crying out loud.

As it turns out, most animal cruelty statutes are pretty broad. For example, California’s statute encompasses “every dumb creature,” which the California courts have held means “all animals except human beings.”  People v. Baniqued, 85 Cal.App.4th 13, 20-21 (Cal. Ct. App. 2000).  Pretty much every animal sidekick would qualify under that definition, since even the super-intelligent versions of Krypto are “by nature incapable of speech like that of human beings” and so would qualify as “dumb” for purposes of the statute.

Some statutes are a little narrower, however.  For example, Missouri’s only applies to “every living vertebrate except a human being,” and many states, such as Arkansas, go one step further and exempt fish. Mo. Rev. Stat. 578.005; Ark. Code § 5-62-102(2).  Both statutes would exempt Legion of Super-Pets member Proty II, which, as a shapeless mass of protoplasm in its native form, would not qualify as a vertebrate.  Interestingly, once Proty eventually learned how to talk he effectively disqualified himself from the protection of the California statute as well.

III. What Counts as Cruelty?

Now that we’ve established that most animal sidekicks would qualify for protection, the focus turns to the superheroes’ conduct.  As with the child endangerment post, we’ll assume none of the superheroes are engaging in obvious cruelty or neglect (e.g. no super-powered animal fighting rings or other deliberate cruelty).  The question is whether bringing animals along for regular superhero activities like investigating and fighting crime constitute animal cruelty.

California’s statute (Cal. Penal Code § 597) is typical and has two primary provisions.  First:

“every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of an offense”

But that certainly wouldn’t apply to our upstanding heroes.  Second

“every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal… and whoever, having the charge or custody of any animal … subjects any animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or who drives, rides, or otherwise uses the animal when unfit for labor, is, for every such offense, guilty of a crime”

That’s a pretty long laundry list, but the overriding theme is one of fairly serious abuse or neglect. We actually had trouble finding cases that didn’t involve revolting or disturbing conduct, so we won’t go into detail here.

In any event, it would be surprising if taking a trained animal sidekick along to fight crime constituted animal cruelty, so long as the animals were otherwise well cared for.  There are three long-standing analogous situations to look to: the private use of dogs and other animals (e.g. llamas, believe it or not) as guard animals, the private use of dogs in hunting, including hunting dangerous prey such as wild boars, and the government use of dogs in potentially dangerous police work. Taken together, these situations encompass many of the same issues and risks as a superhero’s employment of an animal sidekick.

One final issue: at this point in the conversation we’re talking about animals which are either “normal” but highly trained or even start with some kind of superpowers. Whether or not an “uplift” situation would constitute animal cruelty is something we’ll discuss in a post on that subject in general, as there are a number of other issues related to that topic (e.g. is giving an animal enhanced intelligence a kind of animal experimentation?).

IV. Conclusion

Like any responsible animal owner, superheroes should be careful to keep their animal sidekicks healthy and safe, and certainly some missions would be too dangerous for a normal animal.  But superheroes seem to do a good job of caring for their animals, and we don’t think they have to worry about animal control officers knocking on their headquarters any time soon.

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Posted in criminal law

Law and the Multiverse Mailbag XII

Posted on March 18, 2011 | 18 comments

Today we have a question about a supervillain-worthy plot from the movie Swordfish.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

NB: If you haven’t seen the movie, the question and answer technically include spoilers, but they’re from the opening scene.

Alan writes “In the film Swordfish, the villain Gabriel Shear has an elaborate plan involving hacking a bank’s computer while holding hostages.  He wires these hostages with explosives rigged to a sensor which will detonate them if they leave the bank, and he explains this to the authorities.  However, SWAT members still grab one of the hostages and drag her away from the bank, against her will, and she explodes, presumably dying in the process and killing several SWAT team members. … Is Gabriel Shear liable for murdering the woman, or the SWAT team members? (Would this be ‘felony murder’?)  Would the woman’s relatives have a civil claim against the police?  Does the fact that she was unwilling to go with the officers affect these considerations?”

There are basically two issues here: Shear’s liability and police liability.  Since this scene is set in L.A., we’ll use California law.

I. Shear’s Liability

In California, murder is described in Cal. Penal Code § 187-89.  Immediately we see two potentially applicable kinds of first degree murder: murder by explosives and felony murder.  The felony murder rule may apply because the murder was committed in the perpetration of, amongst other things, the kidnapping of the hostages.  The question is: is Shear liable for the murder given that he didn’t ‘pull the trigger,’ so to speak?  Intuitively the answer seems like it should be yes, but let’s work through the analysis.

A. First Degree Murder by Explosives

This is the most straightforward charge: Shear murdered the victim with explosives.  But there are at least two potential sticking points: cause and intent.

i. Causation

An essential element of murder is that the defendant must cause the victim’s death, and Shear’s actions were at least one step removed from the victim’s death.  It was the SWAT team member pulling the victim out of range that was the immediate cause of death.  Does that get Shear off the hook?

As it turns out, probably not.  A defendant can also be responsible for a death if he “sets in motion a chain of events that produces as a direct, natural and probable consequence of the [act] [or] omission the death in question and without which the death would not occur.”  People v. Fiu, 165 Cal.App.4th 360, 369 (Cal. Ct. App. 2008) (emphasis in original).  The prosecution would argue that a direct, natural, and probable consequence of fitting hostages with explosive collars designed to kill people is that someone will, in fact, get killed.

Now, the defense might argue that the SWAT team member’s intervention broke the chain of causation, but it takes a lot to break the chain: “To relieve a defendant of criminal liability, an intervening cause must be an unforeseeable and extraordinary occurrence.  The defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act.”  Fiu, 165 Cal.App.4th at 371.

Here, it’s pretty clear that Shear in fact contemplated and foresaw the possibility of a hostage being harmed by police intervention in precisely this way.  That’s why he warned the police about the collars.  It’s no defense that the police tried to intervene anyway.  Indeed, as Justice Cardozo said in the context of torts, “Danger invites rescue….The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.”  Wagner v. Int’l Ry., 232 N.Y. 176, 180 (1926) (by the way, the Wagner case justifies a tort claim against Shear by the deceased police officer’s heirs; superheroes could make the same claim against supervillains if they are injured while trying to rescue the supervillains’ victims).

ii. Intent

Another potential issue with a straightforward murder charge is that arguably Shear did not intend to kill anyone.  Indeed, he specifically instructed the police regarding the explosives, which suggests he wanted a clean getaway.  In California the intent required for murder (‘malice aforethought’) may be express or implied.  Cal. Penal Code § 188.  According to the California Supreme Court, “Malice is implied when: The killing resulted from an intentional act, 2. The natural consequences of the act are dangerous to human life, and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.”  People v. Dellinger, 49 Cal.3d 1212, 1222 (1989) (en banc).  Here, Shear intentionally caused the killing (per the above), the natural consequences of putting explosive collars on people are pretty obviously dangerous to human life, and Shear clearly was aware of the danger to human life and deliberately acted with conscious disregard of it.  So the intent requirement appears to be met.

But suppose a court disagreed and found that causation, intent, or both were absent.  Could another approach fit, perhaps the felony murder rule?

B. Felony Murder

The California felony murder rule is limited to killings committed in the perpetration of, or attempt to perpetrate various specific violent crimes listed in the statute.  Let’s assume that Shear and his conspirators committed at least one of those other crimes (most likely kidnapping).  Would the felony murder rule help us out here if regular murder were unavailable?  The answer is “probably not.”

The purpose of the felony murder rule is two-fold.  First, to upgrade what would be manslaughter or second degree murder to first degree murder.  Second, to impose liability on every participant in a felony.  If Shear isn’t guilty of first degree murder because he didn’t cause the hostage’s death or intend to harm the hostage, then he’s likely not guilty of second degree murder or manslaughter either.  So felony murder won’t work for the first purpose.  And since the SWAT team member that was the most direct cause of the hostage’s death wasn’t a participant in the underlying felony, felony murder won’t work for the second purpose.

This seems like an unsatisfying result, but as it turns out the California courts have plugged this hole.  The fix actually takes us back around to regular murder by way of the “provocative act” doctrine.

C. Provocative Act

Under the provocative act doctrine, “When the defendant … with a conscious disregard for life, intentionally commits an act that is likely to cause death, and … a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.  Thus, … the police officer’s killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant.”  People v. Gilbert, 63 Cal.2d 690, 704-05 (1965).

In fact, the courts have specifically found provocative act liability in cases where hostages have been taken, used as shields, and then accidentally killed by a would-be rescuer.  Pizano v. Superior Court, 21 Cal.3d 128 (1978) (en banc).  In Pizano the court noted “Taking [the victim] as a hostage, pointing a pistol at him, stating he would be shot if the police intervened, and then using him as a shield provided a more than sufficient basis for an inference of malice. Indeed, it has been argued that malice is express in such cases on the ground that using the victim as a shield is a direct and deliberate creation of immediate lethal danger to the deceased and to him alone.”  Pizano, 21 Cal.3d at 136.

So we think we can safely conclude that Shear is guilty of murder, even in the unlikely event that the straightforward murder charge didn’t apply and he escaped the felony murder rule.  But Shear’s criminal liability does not necessarily excuse the government of any tort liability for the victim’s death.

II. Police Liability

In California, police officers and their employers generally enjoy absolute immunity from tort liability for their discretionary acts, even if they abuse that discretion.  Cal. Gov. Code §§ 820.2, 815.2.  However, if the police officer exercises discretion and chooses to act, then he or she (or his or her employer) may be liable for his or her negligent performance.  McCorkle v. City of Los Angeles, 70 Cal.2d 252, 260-61 (1969).  As we’ve discussed on the blog before, however, police officers have no general duty to rescue anyone, and this is true in California as well.  Camp v. State, 184 Cal.App.4th 967, 975 (Cal. Ct. App. 2010) (noting “A police officer … is as much entitled to the benefit of this general rule as anyone else.”).  “Liability may, however, be imposed … if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff.”  Id.  A special relationship, and therefore a duty to rescue, has been found in cases where a police officer “placed a citizen in harm’s way.”  Id at 977.

I’m not sure if the police officer knew about the explosive collar.  It’s been a while since I saw the (admittedly not very good) movie, but from a review of the script I don’t think the officer knew about it.  Regardless, trying to drag a hostage away from a well-armed and clearly dangerous group of bank robbers would pretty clearly increase the risk of harm to the hostage even without the explosive collar.  It seems at least as dangerous as what the officer did in the McCorkle case, which was to direct the plaintiff to walk into a dangerous intersection.  But is it enough?  Alas, probably not.

It is not enough that a police officer’s actions increased the risk of a pre-existing harm (e.g. that the collar would explode); the officer’s actions must change the risk or introduce a new risk.  Adams v. City of Fremont, 68 Cal.App.4th 243, 284 (Cal. Ct. App. 1998).  Furthermore, “law enforcement officers are shielded from ordinary negligence claims based on their response to public safety emergencies when those efforts prove to be ineffective in preventing self-inflicted harm or harm caused by third parties.”  Munoz v. City of Union City, 120 Cal.App.4th 1077, 1097 (Cal. Ct. App. 2004).

Here, the officer’s actions increased the pre-existing risk that the collar would explode, but he did not create a new risk by, for example, opening fire on the bank.  And of course the fairly blanket public safety emergency exemption described in Munoz applies anyway, since the harm was caused by a third party.  It’s generally pretty difficult to sue a government for incompetent police work, and this case is no exception.

III. Conclusion

One way or another, Shear is guilty of murder, likely first degree murder, as well as a host of other crimes.  The police officer and the government, however, are likely not liable for the hostage’s death.  Theoretically Shear is liable for the deaths of both the hostage and any police officers, but (spoiler alert!) since he manages to get away with billions in the end, that’s cold comfort for the victims’ families.  That’s what life insurance is for, we guess.

That’s all this week!  Keep your questions and post suggestions coming!

18 Comments

Posted in criminal law, mailbag, torts

Mercenaries and Bounty Hunters

Posted on March 14, 2011 | 17 comments

Today’s post is inspired by David, who wondered about mercenary characters like Deadpool and Deathstroke, and a comment by John, who wanted to know about bounty hunters (in the “wanted poster” sense).  We touched on some of the legal issues surrounding bounty hunters, particularly the bail bondsman type, in the comments to our post on Superheroes and Citizen’s Arrest, but there are some more topics to discuss.  We’ll address mercenaries first, then bounty hunters.

I. Mercenaries

The term mercenary doesn’t really have a particular legal meaning outside the international law context (i.e. “a professional soldier hired by someone other than his or her own government to fight in a foreign country,” Black’s Law Dictionary (9th ed. 2009)).  Mercenary is also used to describe military security contractors like Blackwater/Xe.  But in comics the term is usually used to describe a “gun for hire” or private security typically employed by private individuals or companies rather than governments.  Frequently comic book mercenaries are hired to steal things or kill people, which leads us to two criminal law concepts: solicitation and conspiracy.

A. Solicitation

Solicitation is one of the inchoate offenses, and at common law consisted of soliciting, requesting, commanding, or importuning another person to commit a felony or serious misdemeanor.  These days solicitation is typically defined by a statute such as 18 USC 373(a):

Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned …

Something to notice here: the solicitor must intend that the other person actually commit the felony, so it’s not solicitation if, for example, an undercover police officer ‘solicits’ the commission of a crime in a sting operation.  Related to the intent requirement, the federal statute (like some state statutes) provides a defense of abandonment in 373(b):

It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited.

So what happens if the mercenary agrees to take the job?  Then the solicitor and the mercenary are guilty of conspiracy (some jurisdictions also require that the solicitor or mercenary take an affirmative step towards completing the crime; more on conspiracy later).

And if the mercenary finishes the job, committing the crime he or she was hired to do?  Then a curious thing happens: the solicitor and mercenary both become guilty of the crime (e.g. theft, murder) but the solicitation charge goes away.  In legal terms, the crime of solicitation merges with the underlying offense.  The solicitor can be charged as a principal (i.e. as though he or she committed the crime himself or herself) because he or she acted as an accessory to the crime.  See, e.g., 18 USC 2.

Fun Fact: In many jurisdictions, contract killings are automatically first degree or capital murder for the solicitor and the killer. See, e.g, N.Y. Penal Law § 125.27(1)(a)(vi).

B. Conspiracy

Like solicitation, conspiracy is generally defined by statute these days.  The general federal conspiracy statute is 18 USC 371:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned …

However, unlike solicitation and attempt, conspiracy does not merge with the underlying offense if the underlying offense is completed.  Instead, it’s a separate crime.  The usual rationale for this is that criminal conspiracies are especially dangerous because two or more people can do far more damage than one person acting alone and because people are more likely to go through with a crime if they are in agreement with others.

Like solicitation, some jurisdictions provide for a defense of abandonment or withdrawal in conspiracy cases, but it usually requires more than just ceasing one’s involvement in the conspiracy.  The defendant must also show that he or she tried to stop the commission of the crime, and that can be difficult to prove.

The practical upshot of all of this is that most comic book mercenaries are criminals, as are the folks that hire them.  Although we’ve seen that self-defense, defense of others, and citizen’s arrest are all useful legal tools for superheroes, those looking to stay on the right side of the law should probably look for work as bodyguards rather than mercenaries.

II. Bounty Hunters

First, some nomenclature: Strictly speaking, most bounty hunters are actually seeking a reward rather than a bounty.  A bounty may be claimed by multiple people performing the same service, while a reward may only be claimed by one person performing a unique service.  For example, a bounty may be offered for the destruction of dangerous animals (e.g. coyotes), whereas a reward may be offered for the arrest and return of a particular fugitive.

States generally have the power to post rewards as part of their general police power.  However, political subdivisions of states usually do not have general police powers, and so cannot post rewards without statutory authorization.  See, e.g, Brite v. Board, 21 Cal.App.2d 233 (Cal. Ct. App. 1937).  Courts have generally held that when statutes authorize rewards, the language of the reward has to hew pretty closely to the language of the statute.  See, e.g., Smith v. Vernon County, 188 Mo. 501 (1905).  Many statutes still have reward laws on the books.  See, e.g., Mo. Rev. Stat. 544.150, 145.  And those statutes do get a work out, even today.

Note, though, that the reward statutes generally only allow rewards for the capture or arrest of fugitives or felons, not their killing or the production of their bodies.  So “wanted: dead or alive” won’t work these days.  Frankly, I doubt it would work even with statutory authorization, since it amounts to a reward for an extrajudicial killing that couldn’t possibly survive modern due process analysis.

Private individuals and organizations can also offer rewards so long as the reward doesn’t request or require anything illegal (that would be solicitation, as discussed above).  In that case the reward is simply a unilateral contract (i.e. a contract that is accepted by performing the requested service).

Most states require that someone seeking a reward knew about the reward before they did whatever it is the reward requires.  See, e.g., Smith.  So going around arresting fugitives in hopes that a reward has been or will be posted is a good way not to get a reward.  Professional bounty hunters should wait for a reward to be posted first, then go get the bad guy.

As a final note, most modern “bounty hunters” are actually bail bondsman, i.e. people whose line of business is posting bail for criminal defendants and then rounding them up if they fail to appear in court when required. There isn’t really a public reward posted in these cases. Rather, a defendant contacts a bail bondsman when arrested, and the bondsman agrees to post bail in exchange for a commission, usually 10-15% of the bail amount. If the defendant fails to appear, the bond is forfeit, so the bondsman has an incentive to make sure that he does. But there isn’t any sort of general bounty or reward posted which would incentivize other persons to go after the defendant. Rewards are usually only posted for the most dangerous and notorious criminals. Bail bondsmen deal with mostly lower-end offenses and are thus far more common and far less interesting, story-wise.

III. Conclusion

Under the right circumstances, bounty hunting is a legally sanctioned way for a superhero to make money while fighting crime.  Mercenary work, by contrast, is usually more legally questionable, at least in the comics.

17 Comments

Posted in civil rights, constitutional law, contracts, criminal law