This week NBC launched The Cape, a superhero series that follows the journey of a framed police officer who dons the hood of a vigilante. I have seen a number of posts criticizing the show for being an unoriginal adaptation of various existing comic characters, most obviously Batman, but personally I welcome the series. Even though the story is obviously heavily borrowed from the Batman origin story, and, like Heroes, will probably mirror other comics as it progresses, I think shows like The Cape bring a new audience to the genre who may not have tuned in for an actual Batman series¹.

In addition to bringing additional media attention to our genre, The Cape has already provided me with new Superhero Law topics to write about. I will keep the details of this post fairly general in case reading this persuades any of my readers who missed the premier to catch one of the upcoming reruns.

The Defense of Duress

In the first episode of The Cape, Vince Faraday² is framed for murder and narrowly escapes police capture. While on the run he is kidnapped by a gang of bank-robbing circus folk and agrees to join their gang in exchange for being allowed to live. Naturally, over time he is accepted by the gang and their leader teaches Faraday many of the skills that he will later use to fight crime. Before leaving to fight crime, however, Faraday does participate in a number of criminal acts. While some of these initial acts were under the pretense that the criminals would kill him if he did not participate, at some point any reasonable defense that situation would have provided began to fade.

In most jurisdictions, the defense of duress is available to someone facing criminal charges where they can show that they were subject to an imminent danger and that they broke the law to avoid some greater evil. The defense is also an admission of guilt as to the acts of a crime but not to the mental state, or intent, required. Also, in order to be eligible for this defense, the imminent danger imposed on the actor cannot be the result of any reckless or negligent behavior of their own.

When Vince is originally being held hostage it is safe to say that any actions he took immediately following his apprehension would have been excused due to duress. He had a reasonable fear that his life was immediately in danger and he was stealing (a lesser offense than murder³) to avoid that fate. As time progressed, however, he was presented with more and more opportunities to escape and his continued participation in criminal activities was less the result of a fear of imminent danger and more the result of a desire to stay with the group and continue to learn. Once the reasonable fear subsided, and more reasonable opportunities for escape presented themselves, Vince would have lost any excuse he once had based on duress.

Superhero Hacking

There are quite a few superheroes who are known for their technological savvy, specifically their ability to infiltrate various computer systems (including those of the government). Heroes such as The Question and The Oracle⁴ have few other abilities to rely upon, but even Batman and the Red Tornado have been known to do some hacking. While this post will be restricted to laws relating to invasions of electronic privacy, I have previously covered more general privacy issues concerning government actors in Privacy Chapter I - Or why a phone booth is a terrible place to change clothes and against private actors in Privacy Chapter II - Your friendly neighborhood tortfeasor.

When The Question runs a program in order to intercept confidential emails being sent between government agents in real-time, or when Batman puts an unauthorized tap on a suspect’s phone, each would be liable for violations of Title I of the Electronic Communications Privacy Act of 1986 (ECPA).

The ECPA is a Federal statute that criminalizes the unauthorized interception and disclosure of wire, oral, or electronic communications. Anyone who even attempts to intercept these types of communications, attempts to use a device to intercept such communications, or who uses or discloses information that was received through interception, is liable under the law.

In addition to the acts covered above, Title II addresses electronic communications that are stored by a provider, which would be triggered when one of these heroes accesses a restricted database to read past communications or collect evidence of criminal activity. The final section of the ECPA, Title III, covers the use of pen registers and trap and trace devices, which gives a user information about who a person is calling or sending an email to in real-time, rather than the actual content of the communication.

While a government actor (see my first post, Your tax-dollars at work?, for a discussion of which superheroes may be considered government actors) is not even required to obtain a search warrant before applying a pen register, private superheroes and vigilantes face civil damages, punitive damages, and the possibility of paying a victim’s attorney’s fees for violations of the ECPA.

Throughout the premier of The Cape, the mysterious figure of “Orwell” is seen intercepting media transmissions and broadcasting his/her own message of “the truth,” Orwell is already in serious violation of statutes such as the ECPA and I suspect that his/her efforts throughout the series will continue this trend.

IN THE NEXT EXCITING INSTALLMENT
Next time we will be visiting the world of Real Life Superheroes (RLSH) in our first Superhero Law Case Study.

References

1 - Although I haven’t had a chance to write about it, No Ordinary Family also seems to be doing well with its ratings.

2- Given his last name, I would have expected the main character of The Cape to have some type of magnetism or electricity abilities (See Michael Faraday). Perhaps that was part of an earlier version of the plot?

3 - Many jurisdictions do not extend the defense of duress to homicide, however under the Model Penal Code section 3.02, the only restriction is that the crime avoided is greater than the crime committed, allowing for the possibility of a duress defense even in a case of homicide.

4 - The Oracle is actually Barbara Gordon, formerly Batgirl, who was shot through the spinal cord by the Joker. Now in a wheel chair, she uses her computer skills to detect and solve crime as well as provide aid to other superheroes.

Comics and T.V. shows are filled with depictions of superhero minors. This is probably partially to appeal to a key demographic, and partially to add drama with characters dealing with balancing crime-fighting with homework, dating, and acne. This portrayal is so popular that many story-lines have been retconned¹ to flesh out underage back-stories². Essentially the genre of superhero minors breaks down into two categories: (1) Superhero Minor Protagonists who act on their own, such as the early adventures of Spider-Man and Impulse, and (2) Superhero Minor Sidekicks who work with an older superhero mentor, such as Robin and Speedy. This distinction also comes with legal significance with superhero minor protagonists liable for their own actions (but also possibly subjecting their parents or guardians to liability as well), and superhero minor sidekicks acting under the control and guidance of their mentors.

Superhero Minor Protagonists

At common law, minors were not considered to be capable of having the requisite intent to commit many crimes and intentional torts, and were similarly held to a lower standard for negligence-type torts. The rationale for this disparate treatment of children was that without a sufficient understanding of their actions, and the consequences, they could not be considered to have made a full and conscious decision regarding their actions, and, because they lacked life experience, they could not fully understand how to act properly to avoid dangerous consequences.

While the age of majority currently varies from state to state, some states have enacted statutes to hold minors to adult standards well below the age of majority, where certain enumerated laws are broken³. While a minor is usually held to the standard of care of a reasonable child of a similar age and capability, minors will be held to an adult standard where they engage in an “adult activity.” The reason for exacting a higher standard of care is related to the specialized skill required to engage in such activities and the danger that is imposed on the public.

In light of these rules and standards, it is not a difficult stretch to imagine all superhero minors being treated as adults with full responsibility for their actions. These heroes are regularly engaged in combative behavior that does, on occasion, lead to serious bodily injury or death, and an argument could be made that all crime-fighting activity constitutes “adult activity.” Clearly it takes a minor of unusual characteristics, and ability, to decide to take the law into his/her own hands, whether or not that vigilante activity includes the use of complicated gadgets and machinery.

Superhero Minor Sidekicks

Everyone is familiar with Batman’s sidekick Robin, but in my opinion, many of the X-Men (juveniles sent to Xavier’s School for Gifted Youngsters by their unwitting parents — See below for a brief treatment of Professor Xavier’s own liability for tricking parents into sending their children to his school⁴.) also fall into this category with Xavier, and his “professors” acting as the mentors of the children.

Adults who encourage minors, Superhero Minors included, to engage in dangerous and/or illegal behavior, ranging from skipping school to playing with volatile explosives, will likely run afoul state contributing to the delinquency of minors statutes⁵.

Superhero Parental Liability

At common law there was very little liability imposed on parents for the acts, or omissions, of their children. Because children themselves were not generally liable for their actions, any damages that were caused were simply written off (hence, “boys will be boys”). Under modern law, however, there is contingency of statutes that create what is known as “parental liability,” wherein parents are vicariously liable for certain acts of their children committed under specific circumstances.

• Negligent Supervision - Under a number of state statutes, if a parent is determined to have exercised negligent supervision over their children, they may be held liable for the effects of their child’s actions.
• Family Car Doctrine - Under this theory of liability, a parent is liable for any damage caused by the use of the family car by a family member if the parent was aware that the child was using said vehicle.
• Court Costs and Restitution - For certain criminal acts, a parent may be responsible for reimbursing the State for court costs and/or for paying restitution to the victim(s).
• Child Access Protection Laws - A number of states have “child access” laws relating to use or access to firearms and other deadly weapons. Under these laws, parents can be liable for simply allowing their child to have access to weapons, let alone, directly handing them over.

Consider Robin and Hit-Girl, who are Superhero Minor Sidekicks to their guardian and father, respectively. Both are given direct access by their guardian to various dangerous and deadly weapons (Hit-Girl is given a myriad of guns and knives, and while Batman and Robin don’t use guns, they have a number of incendiary devices, blades, billy clubs, and other regulated weaponry), both are given access to the “family” vehicle (both without a license) and it is no stretch to argue that training, encouraging, and accompanying a juvenile vigilante, would constitute “negligent supervision.” As such, both Batman and Big Daddy would certainly be liable for any damage caused by their ward-sidekicks.

Misc. Statutes

• Curfew laws - 45.04 (a) LAMC “Daytime Curfew” It is unlawful for any minor under the age of 18, who is subject to compulsory education . . . to be present in or upon the public streets . . . during the hours of the day when . . . school . . . is in session. 45.03 (a) LAMC “Nighttime Curfew” Curfew laws restrict the rights of juveniles to be outdoors or in public places between the hours of 10:00 pm and sunrise.
• Furnishing a deadly weapon to a minor - Providing a minor with access to a deadly weapon is generally a misdemeanor, however, certain enumerated weapons can result in a felony charge. Weapons that are likely to lead to a conviction, and which are popular among superheros, include guns, explosive devices, and brass knuckles⁶.
• Driving/Flying without a license - California Vehicle Code 12500 a vc prohibits people from driving in California without a valid driver’s license subject to a misdemeanor conviction.

Considering all the potential pitfalls for liability relating to Superhero Minors, crime-fighting teams and superhero parents would do well to consider the following waiver:

PARENTAL WAIVER AND RELEASE

As the parent or legal guardian of the child named below, I hereby give my full consent and approval for my child to participate as a team member of The Justice League.

I understand that there are certain risks of injury inherent in fighting crime and I am willing to assume these risks on behalf of my child. I hereby certify that my child is fully capable of participating in The Justice League and that my child is healthy and has no physical or mental disabilities or infirmities (other than a mutation that has lead to super-powered abilities) that would restrict full participation in these activities.

I hereby agree to inform the Justice League immediately upon the discovery of any significant weakness or limitation of my child’s powers.

In addition to giving my full consent for my child’s participation, I do herby waive release and hold harmless The Justice League, it’s officers, sponsors supervisors and representatives for any injury that may be suffered by my child in the normal course of fighting crime, and the activities incidental thereto, whether the result of negligence or any other cause.

If my child is lost in another dimension or transported to another plane of existence I hereby agree to take whatever reasonable steps requested of me by the Justice League to return my child to his/her normal state of existence.

_______ _________________________ _________________________
(Name of Child) (Date of Birth)

________________________________ _______________ _______
(Street Address) (Town) (State)

_______________________________________________
(Superpower)

Please list any physical limitation (allergies, weakness, aversion to kryptonite, etc):

______________________________________________________________

________________________ ________________________

References

1 - Retconned - A “retcon” or “retroactive continuity” is a situation where the previous facts in a story-line are rewritten in a later literary work.

2 - See Superboy, Justice League Unlimited, ….. — think Muppet Babies with superpowers!

3 - California Proposition 21 - A minor 14 years of age or older will be tried as an adult where he/she has committed First Degree Murder, Rape, or one of another listed sexual offenses.

4 - Professor Xavier travels the country identifying young mutants with the assistance of his brainwave-amplifying machine, Cerebro. Once he has identified a new mutant, Xavier approaches them, and their parents, about enrolling in his school. Many, if not most, of the parents who are approached are apprehensive about encouraging their children’s mutations but are drawn to the idea of sending their child off to a secluded school to avoid detection. What we rarely see, however, is Xavier giving full disclosure about his plan to train the children for the purpose of fighting for mutant equal rights.

Under California Penal Code Section 272 (and similar statutes in other states), it is unlawful for “[a]n adult stranger who is 21 years or older, who knowingly contacts or communicates with a minor who is under 14 years of age, for the purpose of persuading and luring, or transporting, or attempting to persuade and lure, or transport, that minor away from the minor’s home . . . for any purpose, without the express consent of the minor’s parent or legal guardian, and with the intent to avoid the consent of the minor’s parent or legal guardian, is guilty of an infraction or a misdemeanor . . .” Because Xavier is not giving parents all the information about his school, they are incapable of giving true “express consent.”

5 - California Penal Code Section 272

6 - 2010 Arkansas Code 5-73-109

The original Superhero Law Blog has returned following the successful launch of WLF Lawyers, my California law firm. In addition to the continuation of our normal posts, I will also be introducing a few new twists (starting with this post). Like Jean Grey, Superman, Captain America, and many others¹ before us, Superhero Law is back and better than ever.

For over a year, this blog has dealt with the numerous problems super heroes and super villains would, and sometimes do (See Heroes in the Night), pose to our legal system, but until now we have offered little guidance. Today I would like to introduce the Model Superhero Code (MSC) as a statutory text created for the purpose of creating order in the superhero world by proposing revisions and modifications to existing law.

What exactly is a “model code?” The American Law Institute (ALI) develops a number of restatements and model codes aimed at organizing and making sense of not only the legislation in the various states of this country, but also of the case law that interprets those statutes. The result is a set of restatements that provide the ALI’s interpretation of existing law, and model codes, which propose a new set of unified law to be adopted by the states.

In addition to all of the revisions to existing law that are needed to account for individuals with incredible powers, a unified system of law would be extremely valuable when trying to enforce order on the vastness of the multiverse. Consider, for example, the Guardians and the Green Lantern Corp. The Guardians were one of the first races of beings in the universe who also inadvertently created the multiverse. They have created the Green Lantern Corp. in an attempt to enforce order on the universe, however, “order” is a somewhat ambiguous term. Were the Guardians to adopt the Model Superhero Code, there would be a unified system of law and order and a set standard for all sentient beings to live by.

Because the theme of this post is resurrection, the first sections to the MSC will deal with the changes to homicide law that are needed to account for the seemingly impermanent nature of “death” when dealing with superheroes. There are some individuals in the superhero universe who are completely invulnerable and some where resurrection is actually a character trait² (additional legal implications of immortality are covered in a previous post³). For these beings, conventional notions of “death” or “homicide” are either impossible, or only temporary. Not only is our current system of laws unable to deal with these types of beings, there are also circumstances in which an otherwise vulnerable character who is normally susceptible to “permanent death” is able to be revived, cloned, or rebooted, or where it is later discovered that the supposed death was only extreme injury⁴.

It seems reasonable that if someone shoots Superman with an ordinary bullet there is no way that can be considered murder or even attempted murder because even if Superman stood in front of the bullet (as he often does) it would do absolutely no damage. Unfortunately, the law recognizes two forms of impossibility, legal and factual. Legal impossibility occurs when the act(s) committed do not constitute a crime⁵ whereas factual impossibility occurs when something unknown to the defendant makes the completion of the crime impossible⁶. Legal impossibility is generally a defense to a crime while factual impossibility generally is not a valid defense. Shooting Superman, whether or not it actually will kill him, results in a factual impossibility and his invulnerability is not a defense. The analysis gets muddied, however, when we enter into the equation the prior knowledge of our villain that the superhero “victim” is either invulnerable, or susceptible to resurrection, or that we live in a universe where superheroes are frequently afforded extra lives.

In order to account for the possibilities of resurrection and invulnerability, allow me to introduce the first sections to the Model Superhero Code. Additional and future sections can be found on the main M.S.C. page here.

The Model Superhero Code

M.S.C. § 100 Homicide
An entity is guilty of criminal homicide under the Model Code if it unjustifiably and inexcusably takes the life of a sentient being purposely, knowingly, recklessly, or negligently.

M.S.C. § 2.01 Definition: Death
Death shall mean “brain death” of a sentient being, the complete destruction of a sentient being’s body, the capture of a sentient being’s soul, the unlawful disruption of a timeline resulting in the prevention of the creation of a sentient being, or the removal of a sentient being’s consciousness from its natural timeline, plane of existence, and/or dimension, where the resurrection and/or return from such state is not a characteristic of the sentient being, where all options to resurrect or return the sentient being to its natural state have been exhausted, or where ten (10) years and one (1) day have passed in the world of origin of the victim sentient being from the date of such altered state.

M.S.C. § 100.1 Murder
A homicide is murder if an entity intentionally takes a life, or prevents a life known to exist in the future from coming into existence, where that entity acts with knowledge that its actions will lead to the death of a sentient being, or if it acts with extreme recklessness.

M.S.C. § 100.2 Manslaughter
In general, an entity is guilty of manslaughter if it:
1) recklessly causes the death of a sentient being;
2) causes the death of a sentient being under circumstances that would ordinarily constitute murder, but which homicide is committed as a result of “extreme mental or emotional disturbance” for which there is a “reasonable explanation or excuse;” or
3) takes the life of a sentient being, where resurrection is not a characteristic of that sentient being, or where a likelihood of resurrection cannot be established by clear and convincing evidence, but that sentient being is returned to its original state within ten (10) years and one (1) day from the date of the life taking event.

All other forms of taking a life shall constitute “temporary homicide” and shall be commuted to a lesser charge.

M.S.C. § 1.01 Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act.

(1) An entity is not guilty of an offense unless its liability is based on conduct which includes a voluntary act or the omission to perform an act of which it is physically capable.

(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis, while under the influence of magic, lycanthropy, or zombie infection, or resulting from the influence of the same;
(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law.

(4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

Legislative History
Several notable changes have been made to existing homicide law, namely the following:

• “Person” has been replaced with “entity” such that an unconventional defendant (such as a robot or sentient star) can be charged with homicide, provided it meets the requirements of M.S.C. § 1.01 and is in control of its own actions.
• “Human” has been replaced with “sentient being” to include not only additional races and creatures, but to include animals⁷.
• The concept of death now includes going back in time to prevent someone’s birth, or altering their plane of existence or dimension. As a result, cloning or rebooting⁸ a dead hero does not change the status of dead.
• Where a victim is known to possess the ability to resurrect, where a criminal can establish that there is a high likelihood that a victim will resurrect, or where a victim actually resurrects within 10 years and 1 day from the date of “death” will result in a charge for a lesser crime. Under the common law a defendant could only be charged with murder if their actions resulted in the death of a victim within a year and one day from the date of their actions. With advances in medical science and the ability to maintain a person’s life on life-support for multiple years, this rule has fallen out of favor in many jurisdictions.

References

1 - Jean Grey, Superman, Captain America, Bucky, Jason Todd, The Flash, Hal Jordan, Optimus Prime, Spider-Man, The Thing, and the Green Arrow, were all proclaimed dead at one point, only to be resurrected, cloned, brought back to life by an all-powerful artist, or re-loaded from a backup on a floppy disc.

2- Solomon Grundy, Mister Immortal, and the aptly named Resurrection Man, were all capable of returning to life each time they were killed.

3 - See also Superhero Immortality and the Law, Superhero Law (Oct. 14, 2009).

4 - After the much publicized death, and resurrection, of Superman, the Kryptionian Robot caretaker of the Fortress of Solitude theorized that the laws of human death did not apply to Superman while he was under the effects of a yellow sun.

5 - Booth v. State, 398 P.2d 863 (Okl. Cr. 1964). A man stole but was apprehended by the police. The police set up a sting operation and brought the goods to the man in custody’s potential buyer. Because the goods had been intercepted they were no longer stolen so the buyer could not be charged with receipt of stolen property.

6 - State v. Haines, 545 N.E.2d 834 (1989). The conviction of two HIV positive inmates for attempted murder who tried to transmit HIV by biting guards was upheld. Even though HIV cannot be transmitted by biting that factual impossibility was not known to the prisoners at the time of the commission of their act.

7 - There is extensive treatment of anthropomorphic animal superheroes throughout comic books, movies, and television, such as Mighty Mouse, Teenage Mutant Ninja Turtles, and Dynomutt.

8 - A backup of Optimus Prime on a floppy disc was once used to create a new Transformer after his death.

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.

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

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.

Luther sets up a meeting with the Man of Steel to discuss plans to destroy the meteor but he brings his own metal man, recently pardoned Metallo¹, who fights, and almost beats, Superman. With the help of Batman, Superman crushes Metallo with a car allowing the duo to escape Luther’s trap. Metallo is later found crushed and melted and his death is blamed on our heroes. Luther suggests that the radiation from the approaching meteor has affected Superman’s mind and issues a 1 billion dollar bounty on Superman and Batman.

SPOILER ALERT
Superman didn’t murder Metallo. Luther ordered Captain Atom and Major Force to kill Metallo and use their radiation powers to make it look like it was done by Superman’s heat vision.

Conspiracy

At common law conspiracy was an agreement between two or more people to accomplish a criminal or unlawful purpose. Modernly it is treated as a separate crime that doesn’t “merge” with the intended crime. This means that conspirators can be charged both with conspiracy and, for example, murder, receiving additional penalties. Lex Luther and his “heroes” were engaged in potentially two separate conspiracies²: one to commit murder, and one to frame Superman. In many jurisdictions, to be guilty of conspiracy the actors don’t even have to accomplish the goal crime(s) or complete the requisite acts, it is sufficient to join in the illegal agreement³.

Though not shown in the movie, it can be inferred from conversations between Captain Atom and Major Force that agreements to kill Metallo and frame Superman were made with Lex Luther. These agreements would be enough to bring charges against each co-conspirator equally for conspiracy. If, however, Luther’s co-conspirators were to be dismissed or acquitted for the conspiracy, some jurisdictions state that Luther could not himself be charged.

Actors inelligible for conspiracy
There is a split among jurisdictions as to whether an agent can conspire with his/her master. In this case both Captain Atom and Major Force were agents of Lex Luther and therefore potentially unable to enter into a conspiracy with him. (See my previous post for a discussion of determining whether someone is an agent or independent actor). The rationale used by States that preclude conspiracy in this situation is that an agent is the legal representative of the master and acts for the master’s benefit rather than the agent’s own. If the agent is carrying out the master’s intent there is no “agreement” between the two and legally there is only one actor falling short of the requisite two for conspiracy. Many jurisdictions have historically taken the same approach for marriage, finding that there can be no conspiracy between husband and wife who are legally treated as one entity.

Just following orders
As their names suggest, Captain Atom and Major Force are members of the United States Military. As such they are required to follow orders from their superiors (Lex Luther as the President and Commander and Chief would certainly qualify) or risk being court-martialed. The defense of “just following orders” is also known as the Nuremberg defense, the defense of Superior Orders, or the presumption of Lawful Orders. Military subordinates are expected to assume that issued orders are lawful and required to follow them. The exception to this doctrine is orders that are clearly defective on their face. Well-reasoned examples of this exception are orders that were issued to kill unarmed civilians or to beat up prisoners of war in preparation for interrogation. While orders issued by the President to kill might seem to be unlawful, murder is a common practice in war and the soldiers could not have been expected to see a problem with such an order. Further, it is likely that Luther’s orders would have seemed facially valid with some rationale for killing Metallo whether or not such an act would ultimately be deemed illegal. What should have raised more concerns for the service members was the order to frame Superman for the murder. Had they declined to carry out this order they would have been privileged in that decision however following the order carries some measure of punishment leading to a charge of conspiracy for all three.

Framing Superman

Lex Luther, Captain Atom and Major Force all took steps to frame Superman for the murder of Metallo. “Framing” someone actually consists of providing either false evidence or false testimony leading law enforcement officials to falsely arrest an innocent party. Anyone found guilty of these acts can be charged with obstruction of justice. Overt acts as well as omissions can lead to liability. In the present case Luther and his cohorts committed both the acts of falsifying evidence to make it appear as though Superman had killed Metallo and the omission of not telling the investigating officers that they were involved.

The Bounty

Lex Luther issued a $1,000,000,000 bounty on Superman and Batman and supervillains and superheroes alike showed up to collect. Aside from the fact that this contract would be unenforceable⁴, Luther would be liable for the damage and harm done by those who attempted to apprehend the heroes.

Impeachment

The President can be impeached for “treason, bribery, or other high crimes and misdemeanors.”⁵ Conduct of a President falling into one of these categories is decided by a simple majority of the House of Representatives. The President is then tried by the Senate with the Chief Justice of the Supreme Court presiding and removed from office following a two-thirds vote of the senators. Following removal the former President can then be punished further by the Senate and subjected to criminal charges.

In addition to the criminal activity described above, Lex Luther was more than just aware of the approaching meteor, he took steps to ensure that the country (and world) would be unprepared. His plan was to have the meteor strike so that he could reshape civilization under his rule. There is very little precedent for an individual hatching a plan to end life on this planet as we know it, however, the following crimes would probably apply and would almost certainly be enough to have Luther removed from office.

Mass murder is the killing of four or more people in a relatively short period of time, usually during a single event like a robbery or a prison riot. While Luther’s actions would qualify they’re probably more severe than this crime was intended to handle.

Crimes against humanity as defined by the London Charter of the International Military Tribunal, which was charged with defining the regulations and procedures at the Nuremberg trials, is:

Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Charges are usually reserved for individuals and leaders who engage in a widespread and systematic practice of included offenses, however, considering the scope of persons affected by Luther’s plan they would likely be applied to him as well.

Treason and sedition in relevant part consist of levying war against the United States and forcefully wrestling authority from the State. Luther’s plan consists both of destroying this country and unlawfully taking control of it, making him guilty of both crimes.

IN THE NEXT EXCITING INSTALLMENT
Next week we discuss the concept of superhero intellectual property. From copyrighted outfits to patented gadgets, what rights and protections would these heroes have in their crime-fighting identities and paraphernalia?

References

1 - Metallo is a robot powered by kryptonite created to kill Superman. The President has the power to grant pardons for offenses against the United States except in cases of impeachment.

2 - While agreements to engage in included offenses are part of a larger conspiracy, the act of killing Metallo is not actually required to frame Superman for his murder (only that he is murdered by someone) therefore there are two separate conspiracies.

3 - U.S. v. Rahman, 189 F.3d 88 (2nd Cir. August 16, 1999).

4 - A contract that can be accepted only by performance (such as an offer to bring in Superman or Batman in exchange for payment) is known as a unilateral contract. Contracts of any kind, however, cannot be for an illegal purpose, such contracts are void at the time of formation.

5 - U.S. Const. Article 2, Section 4.

Kent Farm was started in 1871 by Nathanial Kent and passed through the Kent family to Martha and Jonathan Kent, Clark Kent’s (Superman) adoptive parents. Ma and Pa Kent are free to give away or sell the farm in any way they choose, however, property law places a number of restrictions on the amount of control that can be exercised over the farm once it is transferred. The law favors the free exchange of land and transfers with restrictions are repugnant to that end. One of the limits on conditional transfers, so-called “dead hand control,” is the Rule Against Perpetuities. This “rule” states that the transfer of property must vest or fail within 21 years and 9 months¹ from the death of a measuring life². At the time of drafting, if the conveyance violates the rule it is invalidated. Thankfully this archaic legalese makes more sense with an example and is being modified or abolished in many jurisdictions.

Example: Ma and Pa Kent want to leave their farm to Clark but they can’t stand the thought of his city-slicker wife Lois ruining the property, or worse yet, selling it. They decide to transfer the parcel to Clark for life so long as the property is used as a farm, otherwise to his cousin Kara. The “so long as” language of the conveyance means that the property has to be used as a farm forever if Clark wants to retain ownership, giving him a “fee simple subject to an executory limitation,” and his cousin an “executory interest.” Under the Rule Against Perpetuities this transfer is invalid because we won’t know within 21 years and 9 months whether Clark will always use the land as a farm. It would be possible for Kara’s executory interest to vest at any point in Clark’s life, or the life of his descendants, which is exactly the kind of possible future transfer the rule was designed to prevent³.

An immortal superhero would create a number of issues with property transfers not seen by mortal land owners. Anytime an immortal superhero is the “measuring life” for a transfer the Rule Against Perpetuities will become moot. A subsequent transfer, implicated at the death of the hero, will never take place.

Ordinarily a transfer to one individual for life then to their first child to reach 21 would not violate the Rule Against Perpetuities because we will know within 21 years and 9 months after the death of the transferee whether or not the transferee will have a child that reaches the age of 21. If the conveyance instead says “to the first child to reach 25″ or any other age over 21, the Rule would be implicated and the transfer will be stricken. If the transferee is an immortal however, it wouldn’t matter that the transfer is invalid because the subsequent transfer will never take place.

Essentially, there can only be a violation of the rule if an improper conveyance is drafted and the superhero happens to die at some point. If the transfer is to an actual immortal⁴ that will never happen. Some heroes, while immortal, are possibly not invulnerable. Superman for example, will probably live forever without interference from a third party⁵. Even after he was “killed” in the early ’90s it was revealed that either “the laws of human death do not apply” to him while he’s on our planet (as expressed by the robot custodian of the Fortress of Solitude), or that it will take more than just a physical beating to end his life (Jonathan Kent’s theory). We do know, however, that he is susceptible to red sun radiation, kryptonite, and magic and could potentially meet his end to one of these influences.

Some jurisdictions apply a “wait and see” approach to the Rule Against Perpetuities, waiting 90 years to see whether an interest vested rather than deciding at the time of the conveyance whether it would vest within 21 years and 9 months. This could also be applied to transfers to superheroes like Superman with a future interest in someone else to see if anyone managed to kill him within that 90 year period.

The fact that a transfer “for life” to an immortal will actually be forever probably goes against the grantor’s intent. If the person transferring the property is aware that the superhero is immortal this isn’t the case but for anyone giving property to a superhero’s alter ego they are probably expecting the person to die at some point. When a grantor gives property to one person for life and then to another their intent is violated by immortality. When facts unknown to a grantor invalidate their intent, courts can apply the cy pres doctrine, which alters a conveyance to bring it inline with the original intent. In this case the court would be able to limit the grant to an immortal to some length of time more in line with an average mortal life and then transfer the property to the next person in line.

Intellectual Property Law

The Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (emphasis added)⁶. The current Copyright Act grants copyright protection to individuals for their life plus 70 years. This length of protection has increased in the past and will probably increase in the future⁷ but is ultimately bound by the language in the Constitution mandating limited protection. While it is important to protect original expression for some period of time to allow creators time to exploit their works, the drafters of the Constitution felt that protection should be limited in the best interest of art and science as whole in our country. Protection and exclusive use can inhibit the creation of subsequent works while the free exchange and use of ideas fosters a creative culture. The intent of the drafters is obviously frustrated for immortal superhero artists essentially given unlimited control over their creations.

Criminal Law

Much of our criminal law system is based around the protection of our fragile lives and imposing punishment for any deprivation thereof. The idea of proportionality pervades this system from our perception of the severity of a crime to the degree of punishment we administer. With the average person in this country living between 70 and 80 years murder represents the violent theft of some portion of our time on this planet. Some jurisdictions even take into account the age of the victim and the expected number of years left in their life when sentencing a criminal. What about sentencing for the murder of someone like Superman who we know is capable of living more than 80,000 years⁵? Were someone to kill him they would be stealing more time from him than any of us can comprehend (human civilization is less than half that old). Surely that criminal would be owed a punishment greater than the remainder of their 70 to 80 years of life in prison but our sentencing laws are constrained by our short life spans.

As I’ve been discussing in this blog, there are a number of laws that superheroes violate, some of them serious criminal infractions. Proportionality as applied to an immortal criminal suggests that our entire sentencing structure would be inadequate if any of these superheroes went to trial. Small crimes receive small sentences (1 to 5 years), representing a small fraction of human life but time nonetheless that the criminal cannot spend freely. This amount of time in prison, or even 50 and 60 years, would be insignificant to someone with a much longer life span, let alone an infinite one. Also, “life” in prison or the death penalty, our harshest penalties, would be disproportionate to almost any crime a superhero could commit under these circumstances.

With the current cost of incarceration for the average inmate in the Federal Prison system averaging overing $25,000 per year, would anyone want to keep an immortal superhero in prison for “life,” assuming we could?

IN THE NEXT EXCITING INSTALLMENT
Next week we’ll review the new animated movie by DC Universe, “Superman/Batman: Public Enemies.”

References

1 - 21 years and 9 months may seem like an arbitrary length of time but it is designed around the time it takes a baby to reach the age of legal maturity plus a 9 month period of gestation. Using this computation the legal rights of a child that has just been conceived at the death of the measuring life are preserved.

2 - A measuring life is a life in being at the time a conveyance is drafted that has some relation to the transfer.

3 - Drafters of the Rule Against Perpetuities were primarily concerned with burdening a piece of property with conditions and restrictions that could become a problem for future holders. Burdened land is not as freely bought and sold so the rule was drafted to make sure that if anyone was going to come and claim a right to a parcel of land they had 21 years to grow up and do so or forfeit their rights.

4 - Like the aptly named “Mister Immortal” who always returns to life after dying.

5 - Superman encounters a sentient sun from the future named “Solaris” who reveals that Superman is still alive 83,000 years into the future of the current D.C. comics universe.

6 - U.S. Const. Article I, Section 8, Clause 8.

7 - Copyright duration is largely driven by the copyright on Mickey Mouse. Whenever protection for Disney’s mouse comes to an end some friendly legislator comes up with a way to extend it.

Ma and Pa Kent were driving home one night when an object falling through the sky crashed into Shuster’s Field. The couple investigated the crash and discovered a baby whom they eventually named Clark and raised as their own. The Kents originally took young Clark to an orphanage but later decided to adopt him. When they returned to the orphanage they found the administrators more than happy to approve the adoption as the young boy was destroying everything in sight with his super strength.

Ordinarily adopting an American child is a relatively simple procedure assuming the adopting parents meet minimum eligibility requirements. Clark (later known as Superman) was born Kal-El. Native to Krypton, Kal-El was placed into a rocket by his parents and sent to Earth moments before the planet was destroyed by seismic activity. To adopt a foreign child, United States adopters must comply both with domestic and foreign regulations. These regulations vary from income requirements to strict health and well-being criteria. For example, in Korea, adopters cannot weigh more than 30% over the normal weight for their height when working with certain adoption agencies. It is difficult to imagine what requirements would have been imposed on the Kents by Kryptonian law but thankfully for them, and for Clark, no one consulted the Kryptonian data banks contained in the spacecraft before the adoption.

Superhero Marriages

While the original comic story of Superman depicted at least some form of an adoption process taking place other versions of the story have either omitted the events or implied some type of cover-up². Whether or not Clark was properly adopted by Martha and Jonathan became a moot point in a number of Superman storylines after Clark’s marriage to Lois, a U.S. citizen.

One of the most common ways for foreigners to gain citizenship status is to marry a citizen. This process is not automatic, however, after a legal marriage (either abroad or within this country) an alien must apply for a green card. Once the card is issued the residency status is deemed temporary and revoked after two years unless the applicant applies to remove the restrictions.

Clark/Superman certainly could have filed for a temporary residence card based on his marriage to Lois, however, the government reserves the right to investigate the legitimacy of resident–alien unions. It is not unheard of to have an Immigration Officer randomly checking in on applicant marriages, asking questions about the relationship and snooping around the residence. Clark had enough trouble making up excuses for gaps in his past and reasons for leaving unexpectedly, I can’t imagine how well he would have faired in an official investigation of his relationship.

Superhero Visas

While most superheroes fight crime locally many travel across the world in the pursuit of justice. Short trips into the United States generally do not require a visa. If Fire, a Brazilian hero, or Wolverine, a native Canadian, enter U.S. territory briefly to capture a criminal Immigration is probably not concerned. The following activities, however, do require a work visa:

Work Visas
As I discussed in a previous post, members of superhero teams are more employee than independent contractor and therefore would have to apply for a work visa to join teams such as the X-Men or Justice League. The most recent physical locations for the Justice League, to which Fire is a member, are a satellite in geosynchronous orbit and on the moon. Also discussed previously, objects in space are governed by the laws of the country from which they were launched. Because the Justice League headquarters were launched from the United States, Fire would have to apply for a work visa to participate in the League.

School Visas
The presumption when all visa applications are reviewed is that the applicant is a potential illegal alien who will stay beyond the terms of their visa. Because of that presumption applications for work visas are heavily scrutinized when there is little evidence of an applicant having strong ties to their country of origin that would increase the likelihood of their return. Wolverine for example, who was living in the wilderness of Canada before coming to the United States, with no living relatives other than an estranged son, would be seen as a high risk applicant for a work visa to join the X-Men. Thankfully for Wolverine, the X-Men operate out of the Xavier School for Gifted Children and he could also apply for residency under an educational visa, which are easier to obtain based on the limited duration of most educational programs.

Superhero Asylum

Some superheroes are in this country, or on this planet, not by their own choosing. In such situations it might be possible to apply for residency status through a petition for asylum as a refugee.

The United Nations Convention Relating to the Status of Refugees defines a refugee as:

A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it..

The Silver Surfer agreed to be Galactus’ Herald in exchange for the protection of his home world. This job entailed finding uninhabited worlds for Galactus to devour. When Galactus became intent on consuming Earth, the Surfer, working with the Fantastic Four, tried to stop him, and succeeded, but was bound by Galactus to remain on Earth. Because of this turn of events the Silver Surfer may be able to qualify for refugee status. Galactus exerts power over the Surfer, and most other beings, because of his inability to wield the Power Cosmic, making him an inferior class of being in the eyes of Galactus. The Power Cosmic also prevents the Surfer from leaving Earth and returning to his home world.

Deportation

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)³, granted the U.S. much broader powers to deport alien residents for violations of the law. Where previously deportation was reserved for illegal acts carrying penalties of more than 5 years in jail, IIRIRA expanded the list of deportable offenses to even minor infractions such as shoplifting. Also under IIRIRA, residents who gained citizenship through marriage are also susceptible to deportation for committing crimes. Many of the potential liability issues discussed in previous posts of this blog would subject alien superhero residents to possible deportation.

IN THE NEXT EXCITING INSTALLMENT
Next week we take a look at the effect of immortality on laws drafted with the mortality of humans in mind.

References

1 - President Clinton, commencement address, Portland State University (1998)

2 - The Warner Brothers television series Smallville alludes to the Kents using a sham adoption agency set up for the sole purpose of adopting out Clark. When Lex Luther and others looked into Clark’s history a number of inconsistencies in the process and paper trail emerged.

3 - Pub.L. 104-208, Div. C, 110 Stat. 3009-546.

Attempted Murder

I have read about and watched thousands upon thousands of attempted murders in comics and movies but I’ve never seen one of those superhero victims press charges¹. Under the Model Penal Code, an actor is liable for murder if they take a substantial step that is strongly corroborative of their intent and purpose to kill. When a crime fighter demands that a villain stop their crime and that villain shoots at the hero or deploys some elaborate trap meant to end their life they have committed a crime. Whether the hero is able to escape unharmed is irrelevant because a substantial step has been taken in an attempt to kill.

Why then do so many superheros spend so much time trying to figure out their adversary’s plans and collecting evidence when they can just bring them in for attempted murder? The primary reason is probably a clause in the 6th Amendment to the Constitution, which states that individuals being prosecuted for criminal activity have the right to confront the witnesses against them². To properly bring a claim for attempted murder heroes would have to reveal their secret identities in court. An exception to this requirement exists in certain cases where minors are the victims and the court reasons that, in the interest of protecting that minor, the identity of the victim should be concealed. While there are a few underage superheroes, it would be difficult to convince anyone that their need to protect their identity outweighs a Constitutional protection for the accused. The most a crime fighter victim could do would be to make an anonymous tip to the authorities and hope they were able to corroborate the information provided in order to bring charges against the villain without their testimony.

An interesting defense that might come up should any superheroes bring a claim for attempted murder is the theory of impossibility. It seems reasonable that if someone shoots Superman with an ordinary bullet there is no way that can be considered attempted murder because even if Superman stood in front of the bullet (as he often does) it would do absolutely no damage. Unfortunately, the law recognizes two forms of impossibility, legal and factual. Legal impossibility occurs when the act(s) committed do not constitute a crime³ whereas factual impossibility occurs when something unknown to the defendant makes the completion of the crime impossible⁴. Legal impossibility is generally a defense to a crime while factual impossibility generally is not a valid defense. Shooting Superman, whether or not it actually will kill him, results in a factual impossibility and his invulnerability is not a defense.

Hazardous Waste Accidents

Young Matt Murdock was walking through his neighborhood of Hells Kitchen, New York, when he narrowly avoided being hit by a truck carrying toxic waste. While the truck missed him, some of the radioactive contents spilled out and splashed into his eyes leaving him permanently blind. Matt later discovered that the chemicals changed him, heightening his other senses and giving him the ability to fight crime as the Daredevil, the man without fear.

When someone is injured through the acts or omissions of another the injured party must establish 4 elements to bring a claim: (1) a duty owed by the actor to the injured party, (2) a breach of that duty, (3) a causal link between the act or omission and the harm caused, and (4) damages. In Matt Murdock’s case the driver of the truck probably had a duty to avoid hitting a pedestrian and the company who owned the waste likely had a duty to properly secure it but the comics are unclear as to whether Matt was also at fault, possibly in the street when he shouldn’t have been, or why the waste spilled out so easily. Many companies are able to hide behind whatever the “industry standard” is for safety since the law generally only requires reasonable efforts to protect the public. If the company satisfied its burden and did what everyone else was doing to secure its waste Matt would be unable to bring an ordinary tort claim. However, when an actor is engaging in ultra-hazardous activity they are strictly liable for harm caused by their conduct. The transportation of toxic waste is one of the classic examples of ultra-hazardous activity so regardless of whether the company that owned the waste or the driver of the truck did anything wrong, Matt could bring a suit for his damages without proving any tort elements.

Work accidents

Jon Osterman was working at the Gila Flats research facility when he was trapped in an Intrinsic Field Subtractor and completely obliterated. His consciousness was later reborn as the “quantum” being Dr. Manhattan who experiences time in a non-linear fashion and who has seemingly limitless control over physical reality. Barry Allen was a police scientist working in his lab late one night when a bolt off lightning struck his lab causing him to inhale electrified chemicals. The chemicals altered his DNA, giving him super speed and leading him to become the second⁵ superhero to be known as the Flash.

The difference between Jon and Barry’s origin stories is that Jon can file for workers’ compensation insurance to cover his damages while Barry probably cannot. Workers’ comp. is provided by employers, or the state, to provide for the costs of work related injuries. Most insurance policies specifically disclaim injuries arising from an act of nature from being work related⁶ unless an employee’s job puts them at greater risk for natural disasters than members of the general public. Because there was nothing special about the Flash’s job that lead to his encounter with the bolt of lightning, he would not likely be able to collect insurance for the accident but Doctor Manhattan probably would.

School accidents

One of the more well-known origin stories is that of Spiderman as depicted in the recent movies. Peter Parker goes on a school field trip to a laboratory doing genetic research on spiders. One of the spiders gets out of its enclosure and bites Parker, imparting a part of its new DNA and turning Peter into the Amazing Spiderman.

Were Peter to attempt a lawsuit against the laboratory, possibly for negligently letting the spider get out, he would run into difficulty showing they breached their duty with regards to the spider’s enclosure. Because the standard of care in a particular industry is set by what a reasonable company would do, the standard ultimately becomes one of “what is everyone else doing?” If everyone else is doing the same thing, how can one company be singled out and punished for following suit? Changes to industry standards generally come from the legislature. For example, the industry shift toward including seat belts in cars, which were originally thought to be neither cost efficient nor effective in reducing accident injuries.

Because there are probably very few other laboratories experimenting with spiders the one in question basically gets to set the standard. The court may look to how other companies confine other genetically altered/dangerous animals but there may be enough differences for those methods not to apply. Unfortunately, Peter would also probably be precluded from bringing a negligence suit against his school because his Aunt May and Uncle Ben probably signed a permission slip, which waived all rights to bring a lawsuit. Additionally, some states actually bar lawsuits against public schools by statute for injuries that occur on field trips.

Claims against the government or military

Bruce Banner was conducting an experiment in gamma radiation when he spotted a teenager driving across the test field. He left the safety of the bunker, telling another scientist to stall the experiment, and attempted to warn the young man of the impending explosion. The scientist, jealous of Dr. Banner, neglected to tell anyone to wait and the bomb released dangerous gamma radiation that transformed banner into the Incredible Hulk.

The principle of sovereign immunity prevents the government (including the military) from being sued directly unless that immunity is waived. Additionally, the Feres Doctrine prevents suits against the U.S. government or the military for injuries that occur during active military duty. Immunity has been waived in certain situations for limited recovery when the injuries involved result in deprivations of Constitutional rights⁷. That waiver, however, is primarily used for civil rights violations. As horrible as the injuries to Bruce Banner were, his only real hope lies in the employment classification of the scientist who acted improperly. If that scientist were a contractor, and not a member of the military, Bruce could bring a claim directly against him for his resultant damages. Unfortunately, it is unlikely that this ordinary government scientist would be able to pay the judgment on such an incredible lawsuit.

IN THE NEXT EXCITING INSTALLMENT
Next week we’ll take a look at the immigration laws and regulations affecting superheroes from other planets and dimensions.

References

1 - Let me know if you have an example because I would love to see it/watch it!

2 - “In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him . . . ” U.S. Const. 6th Amendment

3 - Booth v. State, 398 P.2d 863 (Okl. Cr. 1964). A man stole but was apprehended by the police. The police set up a sting operation and brought the goods to the man in custody’s potential buyer. Because the goods had been intercepted they were no longer stolen so the buyer could not be charged with receipt of stolen property.

4 - State v. Haines, 545 N.E.2d 834 (1989). The conviction of two HIV positive inmates for attempted murder who tried to transmit HIV by biting guards was upheld. Even though HIV cannot be transmitted by biting that factual impossibility was not known to the prisoners at the time of the commission of their act.

5 - The first “Flash” was Jason Garrick, a college student in the ’30s who inhaled hard water vapors in a lab giving him super speed.

6 - Texas for example: “Injuries arising out of an act of nature, unless the employment exposes the employee or volunteer to a greater risk of injury from an act of nature than ordinarily applies to the general public.”

7 - 42 U.S.C. section 1983.