Halloween is the one day that superheroes can walk around in costume without drawing extra attention. Some heroes have even participated in Halloween activities dressed as their alter-ego, my favorite of which is Peter Parker “dressing up” as Spiderman and going to a school carnival only to have the jocks call him “puny Parker” and say that he’s too small to be a crime fighter.

It appears, however, that in many states wearing a mask, not just on Halloween, represents a misdemeanor or class 6 felony in certain situations. These laws are broken up into two distinct types: one carries a blanket restriction on wearing costumes that fully or partially obstruct your face while in public and the other prohibits a face-obstructing costume in public while engaged in certain activities. For the most part these laws are also limited in their application to individuals over the age of 16, more than likely to account for trick-or-treating. This means tht some heroes (like the Teen Titans) would not have to concern themselves with these laws as they are young enough to be allowed to trick-or-treat and therefore allowed to wear costumes of any type whenever they wish.

For the first class of laws, which have the blanket restriction against masks, there’s really no way around them, superheroes that wear masks are simply in violation of these provisions. Hooded crime fighters should stay out of North Carolina, Virginia and West Virginia and be wary of New York¹. The anti-mask law in New York is unique in that it requires people wearing masks to congregate (which has been interpreted to mean a group of 3+) before they are in violation of the statute. With seemingly half of the Marvel Comics Universe residing in and around New York this legislation could pose a problem for any team of 3 or more superheroes or any heroes that band together for a particular mission or enemy.

For the laws that attach to certain activities, however, only a certain number of hereos would automatically be violators. One general restriction on mask wearing is the use of a mask to conceal one’s identity during the commission of a public offense or to avoid detection following such a commission². While most heroes do not regularly commit public offenses these laws could be used to increase the penalties for heroes that are branded vigilantes and hunted by the police.

Another restriction is the use of a mask “[w]ith the intent to intimidate, threaten, abuse, or harass any other person.”³ Many superheroes develop their costumes and personas for this very reason, to use the fear that criminals inflict on their victims against them. This is a theme that is mirrored throughout the Batman comics and movies. Bruce Wayne chooses a bat both because it is terrifying to others and to himself; he seeks to strike fear into the hearts of criminals.

References

1 - North Carolina Code sections 14-12.7 and 14-12.8, Virginia Code 18.2-422, West Virginia Code 61-6-22, New York Penal Law 240.35 (4).

2 - California Penal Code Section 182-185.

3 - D.C. Code § 22-3312.03.

Superheroes have armor to protect their bodies, and gadgets to fight their enemies, but what protects them from impostors, what can they use to fight off infringers? A superhero’s intellectual property consists of everything from their insignia to their gadgets and even their catch phrases. In some cases intellectual property protection safeguards the means by which they obtained their powers and their very DNA.

Copyright

Congress is granted the power to extend limited protection to authors and artists for their works by the United States Constitution¹. To receive copyright protection a work must be original and fixed in a tangible medium of expression. A dance for example, while original, would not be fixed, however recorded choreography could receive protection. The subject matter of copyright must be in one of the following categories:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

In no case does copyright protection extend to any idea, which is unprotectable or a procedure, process, system, method of operation, concept, principle, or discovery, which are the subject of patent law. Similarly words and short phrases, simple geometric shapes, and colors even if used in an original fashion can only be protected, if at all, by trademark law².

While an idea cannot be protected, its expression is usually capable of being copyrighted. If a friendly neighborhood superhero wants to put a symbol on his chest to help his adversaries and admirers identify him, that is an idea that is unprotectable; the stylized spider that he chooses is the expression of that idea. This rule limits protection to works that have actually been created and prevents registrants from barring access to entire areas of thought and art for other artists.

Superhero Costumes
Almost every superhero has a costume to protect their identity, usually thanks to their mom. Aside from the ubiquitous nature of masks, capes, and utility belts, many of these costumes look substantially similar. Unfortunately for Mrs. Kent or Mrs. Reed³, the creators of these uniforms would be unable to bring a claim against heroes with similar (or even identical) costumes because fashion is excluded from copyright protection. The rationale lies in the purpose of the Copyright Act, which is to grant protection to artistic works, at the exclusion of “useful” works. Something that is both useful and artistic can be protected so long as the useful aspect can be separated either physically or conceptually. Without getting into the analysis too much, under current law clothing has been deemed useful and incapable of copyright protection. This designation is the reason “knock-off” clothing is available and why Batman never sued Batgirl for copyright infringement.

Superhero insignias
Batman, The Punisher, The Flash, and Spiderman all have an identifiable symbol associated with their superhero identities. For all of these heroes that symbol is permanently affixed to their costumes and sufficiently original, satisfying the elements for copyright protection. No one else can use a substantially similar bat, skull, lightning bolt, or spider, respectively. For some crime fighters, however, the copyrightability of their emblem is not so straightforward.

Depending on which version of the story you subscribe to, Superman’s “S” symbol was 1) created by Superman as a boy, 2) created by Jonathan or Martha Kent, or, 3) the family crest for Superman’s family on Krypton and found in the shuttle with him when he crashed to Earth. If Superman did indeed develop the symbol as an “S” to stand for “Superboy, and later Superman” and also “Saving lives, Stopping crime, and giving Super-aid wherever it’s needed,”⁴ then Superman would have had a valid copyright in the symbol. (See my previous post on immortality and the law to read more about his unique issues with copyright law.)

If Jonathan or Martha created the symbol, however, they would be the owners of the copyright. In certain situations works created by one party are the property of another. In a “work-made-for-hire” situation someone hires an author to create a work that becomes the property of the employer after it is created. Since no version of the story shows Superman paying for the creation of any part of his costume, in this case the “S” would actually belong to Superman’s adoptive parents.

Similarly, if the insignia were the symbol of his biological family on Krypton the copyright protection would have vested in the original author (probably one of Superman’s ancestors). Copyrights are granted for the life of the author plus 70 years so it is likely that the protection would have run its course and the symbol would be part of the public domain.

The limits of copyright protection can be seen when analyzing Captain America’s symbol, a white, five-pointed star. Simple geometric shapes cannot be copyrighted because they lack the requisite degree of originality⁵.

Derivative Works
One of the exclusive rights granted to copyright owners is the right to create derivative works. These works are based on the underlying copyrighted work and either extend the expression into a new area or build upon what is already protected. Common examples of derivative works are sequels, games based on movies, and guides that accompany some video games.

In some versions of the story, Batman gives the Batsignal to the city of Gotham, in which case there would be no issue of infringement for its creation as a derivative work. Some versions though depict Commissioner Gordon creating the signal as a means of contacting the Dark Knight. In addition to violating Batman’s right to create derivative works in his protected symbol, the Batsignal also violates his right to publicly display his works. Each time the Commissioner turns the signal on he is casting an image of the bat symbol for the whole city to see and each use represents a case of infringement. The Copyright Act awards a copyright holder statutory damages equal to a set sum of money for each violation of their rights so over the years the Commissioner has seriously exposed the city of Gotham to liability.

Trademark

Trademarks are distinctive marks or symbols that identify the source of products or services to consumers. The intent is to prevent one business from mimicking the look and feel of another in an attempt to confuse the public about the origin of products.

To receive the protections of trademark law, a superhero must use a mark in commerce, which means that they must charge for their services. While this may seem counterintuitive to the notion of fighting for justice, the pursuit of justice is not the motivation of all crime fighters. While some well-known heroes have charged for their services at some point or another, there are a few that consistently charge for their activities — Luke Cage “Hero for Hire” and The Goon are two such examples.

Because Luke Cage charges for being a superhero he is granted additional protection under trademark law for aspects of his costume, name, and even his catchphrase (”Sweet Christmas!”), which serve to identify him to his customers. This protection is limited however, and only prevents other heroes who charge fees as well from using the same or confusingly similar elements of his persona in an attempt to create a false designation of origin. Thankfully, unless you charge victims of crime for your protection you are free to cry out “Sweet Christmas!” as you offer gratuitous assistance.

Patent

As I mentioned briefly above, patent protection is reserved for processes, methods, machines, manufactures, and compositions of matter that are new and useful. Patent protection would allow Batman to exclude all others from creating any of his proprietary bat-technology or allow Ironman to protect his suits and war machines. Even Spiderman could claim patent protection for the compound he created that allows him to sling webs, but patent law would also cover some of the processes by which superheroes have gotten their powers.

The Incredible Hulk and Doctor Manhattan received their powers through scientific experiments. Though not the intent of either experiment, the process by which a human could be endowed with near limitless strength or power over time and space, respectively, could be patented.

I have mentioned before that many accidents that result in superpowers take place at work. In most situations where an employee makes a discovery at work the fruits of that discovery belong to the employer. In states where the law does not provide for an automatic assignment of intellectual property created at work⁶, many employers draft employment agreements that transfer rights in discoveries to the employer. Similar provisions are also generally found in enrollment agreements for colleges and universities. Professors, however, almost always retain rights to their discoveries, however their contracts may grant limited licenses to the University to use those discoveries at least in the context of publicity and soliciting grants.

As a result it is likely that the U.S. Army could claim a patent for making “Hulks,” the the Gila Flats research facility could start churning out “Doctor Manhattans,” and the Central City Police Station could develop an “Incredible Flash” formula for all their officers. Doctor Connors, a professor at NYU who developed a gene serum that turned him into the Lizard, would probably retain the rights to his discovery.

Trade Secret

The biggest problem facing almost every superhero with intellectual property to protect is that to enforce their rights they would be required to register their creations thereby disclosing their identity. Tony Stark is usually very forthcoming with his Ironman alter-ego but others are more reluctant to go public. Trade secret protection offers limited protection along the same lines as the theories discussed above and does not require any registration. As long as the information sought to be protected is:

it can be preserved and enforced through industrial espionage and misappropriate laws. The most famous example of trade secret protection is the “secret formula” for Coca-Cola, which has no patent protection but has remained undiscovered by anyone outside the company. If trade secret has thwarted the forces of Pepsi and Mountain Dew, Batman and Spiderman should rest easy that their inventions are safe from prying eyes.

IN THE NEXT EXCITING INSTALLMENT
Next week we’ll discuss laws that have been specifically drafted to apply to superheroes.

References

1 - Article I, Section 8, Clause 8

2 - 17 U.S.C. section 102(a)-(b).

3 - My absolutely favorite superhero costume moment is from Meteor Man with Robert Townsend where his mother, Mrs. Reed, makes a series of ridiculous costumes. Yes, there is a montage.

4 - More Fun Comics #101.

5 - U.S. Copyright Office: Compendium of Office Practices II, section 503.02(a).

6 - Cal. Labor Code Sec. 2860

“No one is above the law…and now this principle will be the driving force of my presidency.” - Lex Luther

On Tuesday, September 29, 2009, DC Universe released “Superman/Batman: Public Enemies,” a title that immediately got my attention. Overall I recommend the movie to anyone who is a fan of cartoons of either character, especially if you like the Justice League Unlimited series. The basic premise is that Lex Luther is elected President of the United States and he reaches out to his former adversaries, the superheroes of the world, to unite under his authority for the good of our country. Superman and Batman refuse his invitation and continue to fight crime on their own. Meanwhile, in space, a giant meteor made of kryptonite approaches the planet and threatens to kill most of the population.
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Every superhero needs a place to retreat and think about a case, lick their wounds after a fight, or even occassionally bring a date¹. Depending on the hero’s means and persona, that place can take many forms: a one-bedroom apartment, a mansion, a cave, a whole building, a satellite, or a base on the moon². From time to time these sanctums are infiltrated so many crime fighters put measures in place to prevent, and even repel, trespassers. What duty do the owners of these hideouts owe to would-be intruders? For that matter, what right do they have to build these hidden fortresses without permits and without paying taxes?
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The Batmobile, Ghostrider’s flaming Harley Davidson, and even Wonder Woman’s invisible jet, no crime-fighting gadget is more identifiable or awesome than the superhero vehicle. (Ok, maybe not the jet.) While maintaining a secret identity prevents these heroes from listing their vehicles on an insurance policy, what other regulations are these turbo-charged transports violating as they careen through our streets and fly over our homes?
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