Category Archives: superheroes

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

Gotham City: Daydreams and Believers

Posted on January 2, 2012 by | 17 comments

This story was just a one-shot, written basically as a letter from the office receptionist, Stacy, to a friend on the West Coast. There isn’t a crime to be solved here as such, but it’s the most in-depth exploration of the relationship between Batman, the Bat-Signal, and the GCPD we’ve got on record. This implicates the state actor doctrine we’ve been talking about for a while and the discussion we started in our post about “In the Line of Duty”. But it adds two little details which complicate the analysis. Continue reading →

17 Comments

Posted in Batman, constitutional law

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

Are the X-Men Human? A Federal Court Says No

Posted on December 27, 2011 by | 13 comments

Thanks to Neal for alerting us to a recent episode of Radiolab, which discusses a real life legal issue involving Marvel characters, including the X-Men, the Fantastic Four, and Spider-Man (although the episode focuses on the X-Men).

In brief: Attorneys for a company that imported Marvel character action figures noticed that imported dolls were subject to a higher tax than toys, per the Harmonized Tariff Schedule.  More importantly, dolls were distinguished from toys by “representing only human beings and parts and accessories thereof.”  The company sued for a declaration that the action figures did not represent human beings and so should be classified as toys, subject to the significantly lower tax.  Ultimately the Court of International Trade agreed with the company and held that mutants, the Fantastic Four and related villains, and Spider-Man and related villains were all non-human.  Toy Biz, Inc. v. United States, 248 F.Supp.2d 1234 (Ct. Int’l Trade 2003).

The case actually went on for several years, and some earlier decisions in the case were also reported: Toy Biz, Inc. v. United States, 123 F.Supp.2d 646 (Ct. Int’l Trade 2000); Toy Biz, Inc. v. United States, 132 F.Supp.2d 17 (Ct. Int’l Trade 2001); Toy Biz, Inc. v. United States, 219 F.Supp.2d 1289 (Ct. Int’l Trade 2002).  The 2001 opinion shows that Toy Biz was not universally successful: a Silver Samurai figure was held to be a doll, for example.

A final note: the Harmonized Tariff Schedule has since been changed to eliminate the distinction between dolls and other toys, which are now in the same category.

Update: Thank to Stephen for alerting us to the related case of Kamar Int’l v. United States, 10 C.I.T. 658 (Ct. Int’l Trade 1986).  That case dealt with whether E.T. the Extraterrestrial dolls represented an “animate” object, which would result in a lower tax rate than for toys in general (the customs classifications have changed a lot over the years, apparently).   The Court of International Trade agreed with the plaintiff, despite the United States’ arguments that E.T. was a fictional alien and thus not an animate object.  The Court cited as precedent the classification of Star Wars toys as toy figures of animate objects because “as depicted in the movie Star Wars they are living beings endowed with animal life.”  Kamar, 10 C.I.T. at 661.

The Court’s analysis (and the analysis in the Marvel toy cases) shows that sometimes the courts have to look to the “subjective characteristics of mythical or fictitious characters” in order to classify them properly.  It’s almost too bad the distinction between human and non-human toys was abolished, otherwise somebody at Customs could get paid to “research the subjective characteristics of fictitious characters” (aka “read comic books and watch movies”).  Sounds like a pretty nice job to me!

13 Comments

Posted in administrative law, international law, tax law, X-Men

Law and the Multiverse Holiday Special: Batman: Noel

Posted on December 25, 2011 by | 11 comments

For this year’s Law and the Multiverse’s Christmas post, we’re going to be taking a quick look at Batman: Noel, the graphic novel written and illustrated by Lee Bermejo that came out last month. It’s a sort-of retelling of Charles’ Dickens A Christmas Carol with Batman as Scrooge and various other characters as the ghosts of Christmas Past, Present, and Future. Well, maybe more like Batman’s Past, Present and Future. But it’s set on Christmas Eve, so hey. There you go. The main thing we’re going to be taking a look at is the legality of using wireless tracking devices without a warrant. Continue reading →

11 Comments

Posted in Batman, constitutional law, criminal procedure, labor law

Magneto’s Scheme in the X-Men Movie

Posted on December 16, 2011 by | 24 comments

This is a question we got a while back from Christopher, who wondered about Magneto’s evil plot in the 2000 X-Men movie.  In the movie, Magneto devises a plan to win respect for mutants by turning the world’s leaders into mutants, starting with a particularly anti-mutant U.S. Senator, which would force them to see things from the mutant perspective.  But what if the plan backfired, and anti-mutant sentiment led to an effort to remove the leaders from office?  In particular Christopher wanted to know about the President.*  There are four ways we can think of for getting rid of the President: two might actually work, one is tenuous for legal reasons, and one is tenuous for practical reasons.

* If you’re wondering, Senator Kelly could have been removed by expulsion by the Senate itself, impeachment, or constitutional amendment (more on those last two later).  The Senate, like the House, has the power to decide whether its members meet the constitutional requirements for election but may not do so in order to discipline its members.  Powell v. McCormack, 395 U.S. 486 (1969).

I. Impeachment

Strictly speaking, impeachment refers to charging an official with misconduct, not the resulting trial or getting kicked out of office.  It’s basically an indictment.  At the federal level, the President can be removed from office on impeachment for and  conviction of treason, bribery, or other high crimes and misdemeanors.  U.S. Const. art. II, § 4.  Getting the ball rolling requires a simple majority in the House, but conviction requires a two-thirds vote in the Senate.  The conviction cannot be reviewed by the federal courts.  Nixon v. United States, 506 U.S. 224 (1993) (NB: this was a case about a federal judge named Nixon, not former President Nixon, who was almost-but-not-quite impeached before he resigned).  Nor can the new President (i.e. the former Vice President) use the pardon power  to reinstate the ex-President.  U.S. Const. art. II, § 2, cl. 1 (impeachment is expressly excluded from the pardon power).

On the one hand, it’s unlikely that being a mutant would qualify as a “high crime or misdemeanor.”  The phrase is misleading to modern ears, and it encompasses more than just criminal acts and includes maladministration and subversion of the Constitution.  But even these broader terms require some kind of overt act or omission; simply existing as a mutant wouldn’t seem to qualify.  On the other hand, no one is perfect, and some trumped-up charge could probably be dug up.  Besides, the impeachment and conviction aren’t reviewable by the courts: once you’re out, you’re out.

The major downside of the impeachment route is that it’s still a trial, and since the Chief Justice of the Supreme Court would preside over the case, it’s unlikely that Congress could make a complete mockery of the proceedings.  The President would have the opportunity to present evidence and call witnesses, which buys a lot of time for building public support against removal.

II. The 25th Amendment

The 25th Amendment addresses the problem of Presidential succession.  This includes not only what to do if the President dies, resigns, or is removed from office (the Vice President takes over) but also what to do if the President is nonfatally disabled (the Vice President takes over as acting President).  This second option can be voluntary (e.g. for a planned surgery during which the President will be incapacitated) or involuntary (e.g. an unplanned incapacitation).  It’s the involuntary option that interests us because it can effectively be used to stage a coup, albeit one that needs considerable Congressional support.

The way the process works is that the Vice President and the majority of the Cabinet transmit a written declaration of the President’s disability to the President pro tempore of the Senate and the Speaker of the House.  This makes the Vice President the acting President.  The President can then challenge this declaration.  Ultimately, Congress decides the issue: if two-thirds of both houses vote that the President is indeed disabled, then the VP remains acting President.

The advantages here are that there’s no need for trumped-up charges, the executive branch can start the process, there’s no intervention by the judicial branch, the VP immediately assumes power, and Congress only has 21 days to decide the issue, so there’s a limit on how much time the President has to gather public support.  The downside is that it requires a majority of the Cabinet, who presumably are fans of the President, and two-thirds of both houses, which is a higher bar than impeachment.  And it’s probably still pretty difficult to sell mutant status as such a disability that the President couldn’t discharge his or her duties, although some mutations come close, particularly dangerous, uncontrolled ones.

III. Adding a Qualification for Office

Now we come to the legally tenuous approach.  Congress could try to force a new qualification for office on the President, but we don’t think it would work without a constitutional amendment.  The Constitution specifically lists the qualifications to be President and doesn’t provide for adding any new ones.  It’s also not one of Congress’s specifically enumerated powers.  The houses of Congress are explicitly empowered to judge the qualifications of their own members, which suggests they are not empowered to do so for the Presidency.  Finally, Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) suggest that the qualifications to be President, like those for federal legislators, are constitutionally fixed and cannot be altered by Congress or the states (except by amendment).

Besides, the President would assuredly veto the bill, and overriding it would require a two-thirds vote in both houses.  It would probably be easier to go the impeachment route.

IV. Constitutional Amendment

And here we come to the wildly impractical but guaranteed effective nuclear option.  There’s no reason the President couldn’t be removed by amendment, either explicitly (“Amendment 28: John Smith, currently President of the United States, is hereby removed from office.”) or implicitly by barring mutants from holding office, notwithstanding all that stuff about equal protection and due process.

The downside is that it would be completely impractical unless virtually the entire country were rabidly anti-mutant.  The upside is that an amendment could affect all mutant office-holders at once, which the other three methods could not.

V. Conclusion

Magneto’s plan, though criminal and insane, would probably not have backfired.  Removing mutant politicians from office would have been difficult, fairly slow, and politically divisive at best and effectively impossible at worst.  It’s more likely that the mutant politicians, if they refused to resign, would have stuck around at least to the end of their terms.

24 Comments

Posted in constitutional law, mailbag, movies, X-Men

Law and the Multiverse Retcon #3

Posted on December 14, 2011 by | 7 comments

This is the third post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts.  This time around we’re revisiting another early post, a mailbag post from March.  In that post we considered an Adam West Batman episode in which the Joker and Catwoman were prosecuted by Batman.  One of the issues was whether their plan to pack the jury with henchmen would work or whether they could be re-tried.  Our conclusion was that the acquittal would stand, though there could be other charges (e.g. perjury for the henchmen, since they probably lied during jury selection, and maybe jury tampering for the Joker and Catwoman, or at least their attorney).

As it turns out, however, there is a chance that they could be re-tried.  This has implications not just for this case but lots of other kinds of supervillain courtroom shenanigans, including psychic manipulation of the judge or jury and replacing the judge or jury with henchmen, robot doubles, or shapeshifters.  But before we get to the possible exception, let’s review the general rule against double jeopardy.

I. Double Jeopardy

The Fifth Amendment provides that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”  There are several aspects and limitations to this rule, but we only have to consider two in this case: when is a defendant “in jeopardy” (a.k.a. when does jeopardy “attach?”) and can an acquittal by a jury ever be appealed by the state?

In a jury trial, jeopardy attaches when the jury is selected and sworn in, and this is true of both federal and state courts.  Crist v. Bretz, 437 U.S. 28 (1978).  In non-jury trials jeopardy attaches when the first witness is sworn in.  So it would appear that the Joker and Catwoman were “in jeopardy” at the time of the acquittal.

As to the second question, the general rule is that the prosecution cannot appeal a jury acquittal, an acquittal by a judge, or a judge’s dismissal on the basis of insufficient evidence.  The Supreme Court has stated this repeatedly and in very strong terms:

A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal. … To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that “even though innocent he may be found guilty.” United States v. Scott, 437 U.S. 82, 91 (1978) (emphasis added).

The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal, for the public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though the acquittal was based upon an egregiously erroneous foundation. Rodrigues v. Hawaii, 469 U.S. 1078, 1079 (1984) (emphasis added).

II. Is There an Exception for Foul Play?

The Court’s language, strong though it is, came out of cases where there was no allegation of foul play by the defendant.  Could a defendant really escape liability by bribing a judge or packing the jury?  If so, it seems like that rule would encourage desperate or powerful defendants (and supervillains looking at a life sentence or the death penalty would fit the bill) to go for broke.  Unfortunately for us, such cases are rare enough that there aren’t a lot of court opinions to go off of.  In fact, there’s really only one modern case: Aleman v. Honorable Judges of Circuit Court of Cook County, 138 F.3d 302 (7th Cir. 1998).

The Aleman case was an appeal brought by Harry “The Hook” Aleman, a Chicago mobster who was charged with murder, successfully bribed the judge for an acquittal, and then was re-tried (and ultimately convicted) after the bribery was discovered.  The 7th Circuit affirmed the validity of the re-trial, holding that double jeopardy was not violated because Aleman had never been in jeopardy the first time around because the judge was in Aleman’s pocket from the beginning.  Thus, Aleman was never in any real danger of conviction.

How solidly grounded is this rule?  Aleman appealed to the United States Supreme Court, but the Court declined to hear the case, so it’s hard to say definitively.  And the case has not been cited frequently, so we don’t know what other courts would think of it.  Legal scholars were divided on the issue both before and after the case, with some arguing for a limited exception for fraud while others find no room for it in the Constitution.

What’s more, some scholars that supported the Aleman court’s conclusion have proposed that the exception should be limited to corrupt judges and should not apply to a corrupted jury.  See, e.g., Anne Poulin, Double Jeopardy and Judicial Accountability: When is an Acquittal not an Acquittal?, 27 Ariz. St. L.J. 953, 989-90 (1995).

So, what can we learn from this unusual case?

III. Applying the Aleman Exception

The Aleman rule would seem to apply to the Joker and Catwoman, scholarly commentary notwithstanding.  Here’s how the Aleman court summed up its view:

Aleman had to endure none of these risks [“traditionally associated with criminal prosecution”] because he “fixed” his case; the Circuit Court found that Aleman was so sanguine about the certainty of his acquittal that he went so far as to tell [a witness] before the trial that jail was “not an option”. Aleman may be correct that some risk of conviction still existed after Judge Wilson agreed to fix the case, but it cannot be said that the risk was the sort “traditionally associated” with an impartial criminal justice system. Aleman, 138 F.3d at 309.

In the case of the Joker and Catwoman there was similarly no risk because the entire jury consisted of their henchmen.  Their attorney engaged in no cross-examination and even declined to deliver a closing argument, stating only that “we feel sure that the jury will bear out the truth in this case.”  It seems clear that the defendants were never in danger.

But what if they hadn’t gone whole hog?  What if the jury was only partially packed with henchmen?  Would that be enough risk?  Or what if the jury were initially uncorrupt but were later psychically manipulated or bribed?  The Aleman rule seems to imply that as long as there is some risk after jeopardy has attached, then the acquittal must stand.  The implication for a supervillain seems to be not to corrupt the jury until after the trial has started or to leave a couple of token regular jury members in place and hope that they are convinced by the others, although this approach risks a hung jury, mistrial, and re-trial.

Another lesson is not to be as brazen about the fix as the Joker and Catwoman’s attorney was.  In the Aleman case the defense still put on a show, even though they knew what the result would be.  It ultimately didn’t work, but it took about 16 years before the sham was discovered.

On the other hand, outright replacement of the jurors partway through a trial seems like a surefire route to a mistrial, however, as in the case of jurors who become unavailable or are dismissed.  Any robot doubles, shapeshifters, or henchmen would need to be put in place before the jury was sworn in for sure and quite possibly before jury selection.

IV. Conclusion

Under some circumstances it may be possible for a supervillain to abuse the double jeopardy rule despite the Aleman exception.  Nonetheless, the supervillain wouldn’t get away completely free, since he or she would still be guilty of jury tampering and potentially many other crimes (e.g. conspiracy and fraud), but that might be preferable enough to more serious charges to make the gamble worth it.

7 Comments

Posted in Batman, constitutional law, criminal procedure, retcons

Batman’s Medical Records

Posted on November 14, 2011 by | 18 comments

Russel Saunders over at The League of Ordinary Gentlemen has mocked up a hospital record for Bruce Wayne. It reads remarkably like an actual medical history, which shouldn’t be surprising given that Saunders is a physician. But it winds up getting at a few legal issues about which some comment is merited.

First of all, reading this document should demonstrate, in part, just how hard it would be for a superhero or supervillain to maintain a secret identity. We talked about the difficulties inherent in alter egos about a year ago, but actually looking at what a medical record for a superhero might actually look like just drives the point home. If you go to the hospital, people do ask questions, and health care professionals are trained to ask uncomfortable questions about unexplained injuries. This is partly for the safety of the patient, as a lot of domestic abuse goes unreported until someone shows up at the hospital, and even then it can take some real prodding before the truth comes out. But it’s also partly for public safety reasons, as many people who wind up with unexplained injuries, especially things like gunshots or knife wounds, are involved in something slightly less than legal a lot of the time. While the doctors and nurses who actually provide medical care don’t usually care about whether someone was injured while breaking the law, police departments routinely call emergency departments and hospitals to see if suspects likely to have been injured have turned up.

Second, even though medical records are protected by privacy laws like HIPAA, once this information is out there it doesn’t just go away. If an enterprising Gotham City DA ever suspects that Wayne is up to something untoward, he can get a warrant for Wayne’s health records. All of this information—including the little speculative note at the end of the record—will come out, all of which will put a DA that much closer to putting the pieces together. Wayne may be able to account for his whereabouts in some cases where Batman is known to have been involved, but if he shows up at the hospital every time Batman does his thing, that gets harder to explain. Similarly, a person who sues Wayne for unrelated reasons may well be able to get access to Wayne’s medical history, assuming it’s within the realm of permissible discovery. This could, in turn, lead to other connections being made and investigations started.  Hacking and other unintentional leaks are another way the information could become public. And like with WikiLeaks, once information is out there it’s hard to make it go away.

Third, there’s the issue of payment. Wayne is listed as self-pay, which is entirely plausible given his particular position. But what about Dick Grayson and Jason Todd? Or Selina Kyle? Or Frank Castle? Or basically any other more-or-less normal guy with a dangerous sideline, no healing factor, and a masked identity? How are they paying for their medical care? Insurance? Certainly not from their employers, and even if they were, that means that some claims adjuster out there is getting regular reports of outrageous physical trauma. Phone calls are going to be made. Self pay? Do these people even have jobs? If not, where are they getting the money for all of this? If they’re paying, someone is going to start asking how, and if they’re not, the hospital is going to start getting pissed. Again, attention, which is bad news for anyone trying to maintain a successful, secret alter ego. Field-medic-style first aid isn’t really a solution here, as even if our heroes never go to the hospital for the traumas they suffer, they’ll still probably wind up stopping in for something eventually, at which point even a minimal probing of their medical history or a cursory imaging study is going to reveal unexplained past injuries. Questions will be asked.

So good on Saunders for a plausible take on what a document like this would look like. It’s a valuable bit of added realism that comic book writers would do well to consider.

18 Comments

Posted in Batman, evidence

All-Star Superman I: Criminal Liability for Lex Luthor

Posted on November 14, 2011 by | 24 comments

All-Star Superman is the non-canonical, bi-monthly limited Superman series written by Grant Morrison and drawn by Frank Quitely which ran from January 2006 to October 2008. It’s the second title published by DC’s All-Star imprint, designed to let authors take a new run at old heroes by freeing them from the constrictions of continuity, both retrospective and prospective, similar to the Marvel Ultimate series. While All-Star Batman and Robin the Boy Wonder was rather poorly received, All-Star Superman is generally regarded as a successful and interesting take on Superman. One can say without offering much of a spoiler that the whole premise of the series is that Superman learns he is terminally ill and sets about setting his affairs in order before his impending death, setting the scene for a rather more poignant and thoughtful set of stories than one would normally expect from the Man of Steel. It also presents a pair of related legal issues which we’ll consider here: is Lex Luthor criminally liable for Superman’s death, and even if he were, how would one go about prosecuting something like that? This time we’re going to look at the first issue, saving the second for another post. Continue reading →

24 Comments

Posted in criminal law, Lex Luthor, Superman

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.

13 Comments

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