Category Archives: property law

A common trope in comic books and other literature is the hero (or villain) who accidentally stumbles across a magical artifact or other source of power.  One famous example is Tolkien’s The One Ring, but examples abound in comics as well.  Alan Scott found his namesake Green Lantern in the remains of a train wreck.  Dara Brighton, protagonist of The Sword, finds the namesake weapon in a hidden basement.  Cain Marko, aka The Juggernaut, finds the ruby that gives him his power in a temple in Korea.

In the comics it is taken for granted that these characters are the rightful possessors of the artifacts.  “Finders keepers,” right?  And in the case of the Green Lantern and the Juggernaut’s ruby there also seems to be an implicit invitation to take the artifact.  But what are the legal principles at work here?

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The superpowers of many comic book heroes and villains are often in a state of flux.  Powers can be gained, lost, used up, given away, abandoned, shared, and stolen, which sounds a lot like the attributes of property.  Comic book characters even speak of powers as though they were possessions.  Here we consider whether superpowers should be treated as personal property and the legal consequences of that view.

I. Why Property?

At first it may seem strange to view superpowers as property.  After all, we can imagine an alternative view, which is that superpowers are just extreme versions of intrinsic human abilities like a sprinter’s speed or a chess grandmaster’s intellect.  If someone intentionally cripples a sprinter, that person is liable in tort and criminal law for battery.  If someone takes away the Flash’s superspeed, why should that be treated differently?

I think the answer is that superpowers seem much more fluid and interchangeable than ordinary human abilities, and lost superpowers have a habit of returning, one way or the other.  A crippled sprinter may never run competitively again even if he or she is not permanently disabled, but powers drained by Rogue, for example, will fully return on their own after the effects of her power-draining ability wear off.

It should also be noted that viewing superpowers as property is not incompatible with also punishing the theft or involuntary loss of a superpower as a crime and tort against the person as well.  The mundane analogy might be to a person who uses a prosthesis.  Someone who forcibly took that prosthesis while the person was wearing it would be guilty of both theft and battery and liable for both conversion and battery.

II. Legal Consequences

One immediate consequence of viewing superpowers as property is that power-drainers like Rogue, Scrambler, or Leech may be liable for the tort of conversion and the crime of theft (or common law robbery, if you prefer) in addition to the tort and crime of battery for which they were likely already liable.  This would only apply to unjustified uses of the ability, of course.  Use of such powers against a willing subject or out of self-defense, defense of others, or necessity would still be justified.

But the consequences don’t stop there.  If Superman uses the power of a blue sun to bestow superpowers on another person, is that a taxable asset transfer?  Who would want to try to collect?

If two superheroes marry, share a power, then later divorce, could one be forced to give up the power during the division of assets?  Does it matter who had the power originally?  Even though the shared power may be a non-rival good, one of the two superheroes may still have a claim to exclusivity.  Perhaps the power is a trademark ability of one character, or maybe they signed a superhero pre-nuptial agreement that determined the disposition of any shared abilities.

If one superhero lends a power to another (or to a normal person), does that superhero have an implied right to its return?  In other words, is a bailment created?  I think the answer here is yes.

What about characters like Mimic that only copy the abilities of others rather than stealing or draining them?  Should there be an intellectual property-like exclusive right in superpowers?  For intrinsic abilities the answer would seem to be no, since providing such an exclusive right would not lead to the development of more or better superpowers.  But for superpowers that are the product of experimentation, subjecting oneself to dangerous radiation, etc, then perhaps there should be.  If a power-mimic can effortlessly copy a power that the original owner nearly died to gain, maybe there would be fewer superpowers produced in the first place since people would no longer think the risk worth the reward of a unique power.  On the other hand, there does not seem to be a shortage of powers in most comic book universes, so maybe the incentive is not needed.

The property rights view may also give rise to new business models.  Consider a superpowered individual who had an amazing power but who did not personally feel like becoming a superhero.  With a property right in his or her power (and the assistance of someone like Mr. M or Sage), he or she could rent it out or lease it to others who were willing to take on the responsibilities of superherodom.

III. Conclusion

There is a good argument for treating superpowers as property or at least a kind of quasi-property in many circumstances.  This treatment might lead to occasional complications, but it would also bring a lot of advantages and protections to superpowered individuals.

Is being immortal illegal?

Probably not as such, but living longer than the standard three-score and ten, as many superheros in both major multiverses are wont to do, does create some interesting legal issues.

I. Successive alter-egos

As a preliminary matter, if our immortal has decided not to make his immortality known to the general public, he’s going to need an alter ego, some of the difficulties of which are discussed here. But being immortal adds another wrinkle: you’re going to have to do this on a regular basis. You’ll basically have to ditch your original identity once it becomes clear that you aren’t aging, and then you’ll probably need to do it again every ten to twenty years to avoid the obvious “Why haven’t you aged in the last decade?” sorts of questions. This means completely severing ties with people who don’t know your true identity and coming up with a completely new alter-ego, from scratch, every decade or two.

That compounds the difficulties, because in addition to the standard this-is-a-fraudulent-activity-anyway problems, you’re now replacing a fictional identity with another fictional identity. The odds of someone noticing something strange don’t go up with repeated brushes with the law.

In pre-modern times, this wouldn’t actually have been that big of a deal. Public records were basically non-existent, and proving that you were who you said you were was not really something the law looked too closely at. But with the advent of modern recordkeeping and property registries, this becomes much, much more difficult.

II. The Rule Against Perpetuities

Immortality also raises the specter of a now mostly abandoned feature of property law doctrine which is nonetheless used to torture first-year law students to this very day, the Rule Against Perpetuities. The RAP dates back to early-modern England, when it was realized that aristocratic families were so encumbering their properties with conditions on inheritance that it was becoming impossible to transfer good title to vast swaths of the countryside. In response, the courts imposed a rule that no interest was valid unless it could “vest,” i.e. become a present interest in a living person, within twenty-one years after the death of some person alive when the interest was created. In short, you’re allowed to create interests which vest in your kids, but you can’t perpetually encumber your property such that your grandkids won’t have clear title to the property.

What exactly are we talking about? Well consider a family farm. Say mom ‘n pop are sentimental about the farm, so they leave the farm to their son but put some conditions on it, like so: “To our son, we leave the family farm, but if he ever stops using it as a farm like we did, the farm will revert to the estate.” That would be permitted by the Rule Against Perpetuities, but an attempt to pass that restriction on to their as-yet-unborn grandchildren would probably not.

A lot of states have abandoned the RAP, as hereditary land dynasties are no longer de regeur, and simply administering the RAP was a pain in the neck. Law students are still taught it, more often than not, but no one really runs into this in practice.

Which in the context of any of the comics multiverses wouldn’t necessarily matter, as immortality would play merry hell with the property law even with the RAP. An immortal could easily put all sorts of restrictions on property he sells over the course of his unnaturally long life, creating right of reentry in himself. And because he isn’t going to die, that land would never, ever be able to used for something he didn’t permit, because it is impossible to grant better title to land than you yourself possess, ergo any restrictions placed by an immortal would remain on the property forever. This is clearly less than ideal, and though most superheros would persumably not be dicks about this, one can easily imagine a supervillain really mucking things up that way over time.

III. The Fee Simple and Alter-Egos

But that aside, the actual nature of the fee simple also presents some problems. In normal society, a person accumulates property slowly over the course of their lifespan, perhaps inheriting some from their parents, and then passes whatever they haven’t managed to spend on to their children. It has been this way for all of human history, and even though some families manage to accumulate more wealth than others, but even the longest dynasties die out after a while. The House of Habsburg was the most powerful family in Europe for almost four centuries, but none of its heirs currently occupy any positions of particular influence, and their wealth pales in comparison to newer fortunes. The natural cycle of life and death has ensured a more-or-less orderly transition of property from parents to children since the dawn of time.

But an immortal person could simply go on amassing property forever. The perpetual nature of the fee simple and the power of compound interest mean that even starting from abject poverty, an immortal person could become quite wealthy in a century or two and could become one of the wealthiest in the world if given a thousand years. Exactly why Apocalypse didn’t simply buy every last scrap of available real estate as it came up for sale over the millennia is probably because that would have been boring, but as the best form of land use control is ownership, any number of nefarious plots would be a lot easier to pull off if you just bought the damn planet.

This presents two problems. The first is with anonymity, i.e. creating and maintaining a fictional person who is really one of the richest people in the world just doesn’t work. An immortal who wished to remain largely anonymous would find it difficult to do that while maintaining any significant level of wealth, contributing to the other problems with maintaining an alter-ego. This is not an entirely academic point, as at least some degree of wealth will be necessary to avoid being forced to get a real job. There’s a reason Batman, Tony Stark, etc. have playboy-billionaire alter-egos: it explains how they can afford to spend all of their time running around in exotic suits chasing villains. Being Batman is cool and all, but one of the defining characteristics of being a vigilante is that no one is paying you to do it.

Then there’s the simple fact that owning property requires interacting with it on some level, even if only through intermediaries, and the odds are decent that over the course of maintaining a financial empire, someone is going to notice that you look exactly like you did fifty years ago. Again, if you’re public about your identity, that’s fine, but if you aren’t, this will cause problems.

There are two obvious practical solutions to this issue. The first is to assume that being a superhero is really expensive, which it may well be. Batmobiles don’t come cheap. But Wolverine doesn’t seem to need much more than clothes, motorcycles, and beer to do his thing, so that isn’t a universal solution. The second is to simply be in the business of giving away lots of money on a regular basis so as to avoid accumulating more than a modest fortune. That’s risky–even real estate is no guarantee of future income–but it is potentially workable.

Of course, there’s always the option of faking your own death periodically–or actually dying–and either becoming your own heir or picking up a new, fabulously wealthy patron. That or a continuity reboot.

The second problem with adding immortality to the fee simple is that unless an immortal actually conquers the world, it seems doubtful that he would be permitted to acquire property ad infinitum. Someone is eventually going to notice. Then a bunch of someones, including various state actors, and there’s a good chance the latter will be pissed. Authoritarian governments certainly wouldn’t permit a private citizen to own large chunks of their real estate, and even democratic governments would probably wind up reaching a point where enough is too much. This would raise interesting Fifth and Fourteenth Amendment issues. Seizing or interfering with property interests generally requires compensation under US law, and trying to carve out an exception for that for immortal people who are just too damn rich would raise interesting Equal Protection and discrimination issues, some of which have been discussed elsewhere. But if political pressure were strong enough, the courts and/or legislature would presumably make something up.

IV. Conclusion

So again, while being immortal doesn’t appear illegal as such, it does make keeping a low profile a bit more difficult, and the law would probably wind up making an attempt to literally capitalize on immortality more difficult than it sounds.