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THE LAW AND THE LORE – Attorneys James Daily and Ryan Davidson on The Law of Superheroes

October 22 2012

Could Batman patent the Batmobile? Does using X-ray vision violate search and seizure laws? This, and much more, answered in a revealing new legal tome…

by Rachel Hyland

If there has ever been a better gift for the comic-loving lawyer in your circle (come on, everybody has one), then I should be very much surprised. Born out of what is certainly among the most erudite comic-related sites online, where even the comments are learned and well-argued, attorneys/authors James Daily and Ryan Davidson have put together a fascinating collection applying real world US (and in some cases, international) law to situations found in both the Marvel and DC Universes. Full of clever insights, thought-provoking allegory and enjoyable flashes of wry humor – as well as, of course, precedents and case studies and copious notes and references – The Law of Superheroes does not take sides in legal debate or try to push an agenda, but instead stays resolutely factual, and yet remains eminently intriguing. As Ryan Davidson says, “We’re more interested in what the law is than what it should be.”

Here, James and Ryan discuss blogging, Superman’s “human” rights, Marvel’s Civil War, their dream multiverse jobs and more…

GS: First up, could you please tell us a little bit about The Law of Superheroes?

JD: The Law of Superheroes is an expanded, revised, organized, and illustrated extension of our blog, Law and the Multiverse. We present a high level overview of some important and interesting legal issues that are raised by comic book characters and stories. Obviously we can’t cover every legal topic or go into too much painful detail, but we hope readers of the book will come away with a general idea of how the law fits together as well as a new appreciation for the depth of a lot of comic book stories.

GS: In your Introduction to the book, you suggest – and I’m paraphrasing – that using comic book characters and situations as examples in hypothetical legal cases makes learning fun. This is hard to disagree with, of course; but was your decision to delve so deeply into comic book law really so high-minded?

JD: It’s true that the blog didn’t start out with an explicit goal of teaching people about the law. Originally I thought they were just interesting ideas to think about: nerds (ourselves included) love to overthink and scrutinize whatever they’re passionate about. In this case we’re passionate about comics and the law. On the other hand, I think one of the reasons these issues are so interesting to think about is that, by thinking about them, you learn about the law. Examining extreme hypotheticals like those presented in comics can often be a great way to think about how the law works. And this is true both for us as writers and for our readers. We’ve learned a ton about both what the law is and why it is what it is.

RD: I think it was. Part of being a committed member of one of the learned professions–and law is one of them–is supposed to be a commitment to educating others about the profession, or at least attempting to present it in as engaging and positive a light as possible. I’ve actually been a teacher before, and I’ve frequently compared the task of a lawyer as not being all that different from a teacher: a lot of what we do is teaching. In briefs, we educate the judge about our clients’ position. At trial, we educate the jury. So the insight that comic books could provide a unique angle on educating people about the law had an immediate appeal. Which is not to say that pure geekery wasn’t a nice bonus…

GS: Can you give us a little background on the blog? When did you start it? What first got you thinking about the relevance of real world law on the actions of assorted parallel Earths?

JD: I started Law and the Multiverse in late November of 2010 by writing a backlog of a few posts, then I ‘went public’ with it on November 30, 2010, and it took off from there. Ryan came on board about an hour after it went public. The initial idea came from a dinner conversation with my wife (who is also an attorney) and a couple of good friends of ours. The topic turned to Superman and his X-ray vision, and I pointed out that if there were a society of superpowered Kryptonians, their privacy laws would probably have to be very different (NB: I am aware that in most continuities Kryptonians on Krypton did not have superpowers because Krypton orbited a red sun). One of our friends suggested I start a blog about that kind of thing. I thought he’d be the only person to read it and that would be that, so I was very pleasantly surprised when it got the attention it has.

GS: And how do you two know each other?

RD: James and I met each other on MetaFilter, one of the best-moderated community blogs on the web….

JD: … though we had never met in person. In fact, we didn’t meet until about 6 months after I started the blog, and I think we’ve only met in person twice ever. That’s the magic of the internet, I guess.

GS: How have you found the process of going from blog to published book? Whose idea was it? Was it easier, or perhaps more difficult, than you had imagined—especially, in going from the immediacy of the online world to the long delays inherent in more traditional publishing?

RD: My first comment on James’ [MetaFilter] Projects post included a suggestion that a book deal might be in the offing. As it happens, the blog generated significant media coverage almost right away–we were in the New York Times within a month of really going public–and agents, publishers, and producers approached us directly. We retained an agent by the end of 2010, and the auction for the book rights was held within a few months. We had already developed a pretty effective collaborative process from the blog, so expanding that to a longer format was natural and painless.

Peter Parker's egregious fraud began all the way back in THE AMAZING SPIDER-MAN #2 (1963)

GS: What has been the most contentious issue you have ever raised, with regard to multiverse law? What was the most obscure, or frustrating to answer?

JD: The most contentious is likely my post “Peter Parker, Con Artist?” I’ll admit that the title was a bit inflammatory, but I still stand by the conclusion: Parker’s sale of Spider-Man photographs to the Daily Bugle (without disclosing that he is Spider-Man) was probably fraudulent.

We try to stay away from really obscure stuff on the blog and especially for the book. We can’t expect everyone to go out and buy a copy of whatever it is we’re talking about, so we stick with popular enough material that at least some of our readers have likely heard of it. Sometimes we’ll answer those questions privately via email, though.

One of the most frustrating issues I’ve talked about a couple of times is the rights of intelligent non-humans, especially with regard to marriage. We see inter-species marriages in the comics all the time (e.g. Clark Kent and Lois Lane got married at one point). Strictly speaking, this shouldn’t be a legal marriage, and in fact non-humans don’t have any legal rights in the US at all. Some have legal protections (e.g. laws against animal abuse), but that’s different from a legal right. Of course, the comics don’t treat non-humans that way at all, with one exception that I know of: in the New 52, Lex Luthor justifies torturing Superman on the basis that he is an alien and so has no legal rights. At the same time, the comics don’t address the issue, either. I have not yet found a reference to a fictional law or court decision deciding that intelligent non-humans are legal persons. The fictional Supreme Court decision deciding that Superman could run for President (in Action Comics Annual #3) was about whether he was a natural born citizen. Presumably that implies that he is a legal person, but that comic was set in an alternate reality, so who knows? We wish Marvel or DC would give us a satisfying answer regarding the legal status of the various intelligent aliens, animals, and robots. It’s especially frustrating for us because, on the one hand, the law kind of compels us to conclude that intelligent aliens aren’t legal persons until Congress says so, but on the other hand, a lot of our posts depend on assuming that they are legal persons.

GS: Do you have a favorite superhero? Who?

JD: I’m really bad at picking favorites, but I usually say that Batman is my favorite superhero whereas the X-Men comics have my favorite setting.

RD: I’m pretty partial to Iron Man.

GS: And which would you most like to defend in court? Against which charge?

Show me the (fictional) money...e the money is...

RD: There are several ways of answering this. On one hand, lawyers frequently like to represent clients who are clearly in the right. So defending someone like Superman or Spider-Man, both of whom tend to be pretty law-abiding, would be preferable in many ways. On the other hand, law-abiding clients tend to need fewer legal services than those who regularly get in trouble, so from a fees perspective, it might make sense to represent a more villainous character. On the gripping hand, if we’re really going to look at fees, a lot of superheroes and supervillains don’t actually have all that much money. Spider-Man might be in the right, but the case would probably have to be pro bono or done on contingency, because Peter Parker is constantly almost broke.

With all of those things in mind, I’d personally like to represent someone like Bruce Wayne, Tony Stark, or Reed Richards. They all keep their noses relatively clean, so there wouldn’t be as many crises of conscience as with some other characters, they’ve all got money to pay for lawyers, but most importantly, they’re all engaged in significant business activities which would require legal services as a matter of course. More accurately, rather than being Bruce Wayne’s lawyer, I’d like to be Wayne Enterprises’ lawyer.

JD: That’s a tricky one. On the one hand you kind of want to defend someone’s who is actually innocent, so Superman is usually a good choice there. On the other hand, most lawyers dream of being able to take on a difficult case presenting a new or unique issue. So actually I’d like to defend Lex Luthor against a charge of assaulting Superman. I would argue that, since Superman is a non-human alien, it’s actually only animal abuse. One way or the other, I suspect Superman’s legal personhood would be recognized quite quickly, either in court or, if my argument won, by a new law.

No smoking in the court, Mr. Fisk!

GS: Speaking of Lex, which supervillain do you believe would be easiest to prosecute? How would you present the case?

JD: The incompetent ones that get caught red-handed in public would be the easiest to prosecute. Having it happen in public is important because you want a lot of witnesses other than the superhero, who may not be able to appear in court, at least not in a mask.

RD: Easiest how? As in “easiest to get into a courtroom and indict”? The Kingpin, or one of the other sorts of villain who amount to nasty but otherwise mundane criminals would probably work best. As in “most interesting to prosecute”? The Joker would certainly be a challenge, particularly if he tried to assert an insanity defense, but supervillains using special gadgets or technology would probably require significant expert testimony which could be utterly fascinating. But I wouldn’t want to prosecute someone like Dr. Doom or Namor, i.e., a character who happens to be a foreign head of state. Probably wouldn’t even be able to do it.

GS: What side were you on in the Marvel Civil War? Registration or non-Registration? And why?

JD: I was anti-registration. First, the law wasn’t very well written or executed, and I don’t think registration would have prevented the Stamford Disaster. [The deaths of 612 humans caused by Nitro during a standoff with the New Warriors, and the nominal beginning of the Marvel Civil War. - Ed.]

RD: I’ve always been on the side of forcing all of the writers into a single room and deciding exactly what they want the SHRA [Superhero Registration Act – Ed.] to do before letting them write any of their stories. That thing was a hot mess. But I think that in any world where superhuman powers existed, some form of government registration is probably inevitable, so I’d have to say I’m tentatively pro-reg. You can do registration wrong, of course, but that doesn’t mean it shouldn’t happen.

GS: Personally, I was Pro; we very rightly make gun owners register their deadly weapons; why shouldn’t, say, Pyro have to register his inbuilt flamethrower? Discuss!

RD: Right. Several characters in several different media have made the firearms/superpowers connection, and it’s a really hard argument to refute effectively. Even the “But I didn’t ask for these powers!” objection doesn’t hold a ton of water, particularly if registration were limited to simply telling the government that you exist. Forcing people with superpowers to work for the government is a lot more problematic, but the basic idea that the government has a legitimate interest in keeping tabs on these things seems pretty common-sensical.

Have you fulfilled the legally mandated waiting period, Mr. Stark?

JD: Actually, rightly or wrongly most places in the US don’t require any kind of registration to own a typical gun, only the federal background check. However, something like Pyro’s flamethrower or Iron Man’s suit would probably fall under a whole host of state and federal regulations (e.g. many states classify flamethrowers as “destructive devices”). But further, registering a flamethrower is very different from registering an inherent power. A person can choose whether to possess or use a flamethrower. Mutants and many other superpowered individuals cannot choose to have a power, and many cannot even turn it off.

GS: Ah, dissent among the ranks! Indeed, you say in the book that the SHRA is an untested area of the law; were you surprised to learn that it might possibly be legal, within the bounds of the current US Constitution, to “raise an army” of mutants – or, essentially, to selectively draft citizens into the armed forces? Or were you more surprised that it might not be legal

JD: I was surprised to learn just how far the draft power goes. In theory the US could draft minors, for example. It seems to be an area where the Supreme Court has been unwilling to find any limit on Congress’s power, despite quite a few challenges over the years.

GS: Have there been any other big surprises along the way, when filtering the law through comic book lore? Which multiverse case you’ve pondered do you think has the most resonance in the real world?

JD: There have been several big surprises. I don’t want to spoil anything in the book, but on the blog we’ve talked about legal ethics several times, typically using superhero attorneys like Daredevil (aka Matt Murdock) as examples. In the current run of Daredevil, Murdock and his law partner Foggy Nelson have tried out some “innovative” business models. I thought for sure I would find that they were unethical, but it turns out they’re basically okay, albeit riskier than I would prefer in my own practice.

Those ethical issues are also pretty applicable to the real world, since people should know how to spot an unethical lawyer. But in terms of iconic comic book examples, I think the issues surrounding non-humans really resonates, for several reasons. First, there is a serious legal debate regarding the rights of primates and cetaceans (e.g. dolphins and whales). Second, at some point we may discover how to create more intelligent animals or intelligent computer programs, and that’s going to raise a lot of legal questions.

Yes, but was the temp UNION?

RD: One of the biggest surprises for me has been the extent to which the comic books get it right on the substantive law. They’re frequently all over the place on procedural law, but we tend to excuse a lot of that as artistic license because civil and criminal procedure are pretty boring. It’s much more dramatic for the case to be resolved in a courtroom drama than via six months of lawyers writing motions back and forth, even though the latter is what happens most of the time. But the general pattern has been the observation that most comic book writers, and by extension the general public, has a sort of intuitive understanding of the broad structure of the law and civil rights that is more correct than incorrect. In places where the writers get it wrong, they frequently recognize that there’s something funny going on, even if they ultimately resolve the issue incorrectly. For example, the writers of Gotham Central knew that Batman working with the GCPD was a problem, and even if their solution–having a temp turn on the Bat Signal–doesn’t really work, they were right about there being a problem there. On the whole then, I’d say that I’ve been pleasantly surprised that in most cases, we can find ways of making things work which aren’t that different from the stories we’re reading.

As to which story has the most resonance in the real world, we’ve actually had an issue which was addressed fairly directly in a Supreme Court holding just a few months after the initial post. It had to do with the legitimacy, under the Fourth Amendment protection against unreasonable search and seizure, of planting tracking devices on people. This has been part of comic book and sci-fi stories for decades, but it’s finally becoming technologically practical, and the Supreme Court took a look at it this past January. But their decision was kind of confusing–unanimous as to the outcome but split three ways as to reasoning–so it’s likely that this will come up again.

There goes the neighborhood... and the insurance premiums.

GS: I’ve always wondered about who pays for all the damage wrought by various superheroes when defending a city; things like how anyone in Metropolis ever got car insurance, or if the City of Townsville would need a special emergency fund to cover constant rebuilding, given how many times their resident superheroes have knocked it all down “saving” it. Thank you for answering those questions – and so many more – so concisely! But I do have another insurance-related one: what about when it’s Thor doing the damage? Does that make it an “Act of God”, and therefore unclaimable?

RD: We talked about this one too! Turns out that insurance is actually specifically designed to cover “acts of God.” There can be coverage for lightning strikes, after all, and for fires, hurricanes, earthquakes, floods, etc. (provided you buy the right policy!), all of which can fairly be construed as “acts of God.” The problem is that the term is really a feature more of contract law, and the term has been largely superseded by the law French term “force majeure,” meaning “superior force” or “unavoidable accident.” The idea is that if something really unexpected happens that makes performance of a contract impossible, e.g., a recording contract where the lead singer is hit by a bus, both sides are released from performance. Insurance is actually specifically designed to cover those “really unexpected” accidents, so the fact that anything Thor does might be an “act of God” is irrelevant.

That being said, if the damage is caused in the course of a riot or defeating an alien invasion, there probably wouldn’t be coverage, because insurance specifically doesn’t cover “civil disturbances” or “acts of war.” Those are viewed as “uninsurable risks,” for which there is no premium which would adequately compensate the insurer for accepting the risk.

JD: “Act of God” is a phrase with a specific legal meaning; it doesn’t literally mean the actions of a deity. In fact, these days contracts prefer to use other terms. Now, there’s still the question of whether Thor’s actions count as an act of God in the same way a hurricane, earthquake, etc does, but I don’t think they do. Thor isn’t the most stable person in the Marvel universe, but he’s not an unpredictable, unpreventable, unstoppable force of nature, either.

GS: Which comic-related person, fictional or non-, would you like to sue, and on what grounds? (Personally, I’d go after Chris Claremont for pain and suffering; that’s a thing, right?)

JD: I don’t think I’d like to sue anybody. I’m a transactional attorney at heart. Litigation gives me agita. But I’d love to be Reed Richards’s patent attorney!

RD: I don’t necessarily think I want to sue anyone. I’d much rather collaborate with comics creators on law-related plot points. We’ve actually made contact with a few creators over the past few months and really hope to do a lot of this in the near future.

The Powerpuff Girls. Emphatically NOT superheroes. Apparently.

GS: Oh, and by the way, in the Disclaimer to your book – and, hey, who’d have thought a book on law would have a legal disclaimer? – you state: “The terms ‘superhero’ and ‘supervillain’ are trademarks co-owned by Marvel Characters, Inc. and DC Comics, Inc.” SERIOUSLY? Woah. Can you perhaps explain just how this is possible—and just what the theoretical implications might be for those of us who have been indiscriminately using both terms for years? Can Marvel and/or DC sue if someone were to refer to, as for example, The Powerpuff Girls as “superheroes”? Have they? WILL THEY?

RD: Check out US Trademark No. 3674448. Marvel and DC have filed as joint owners of the mark and have maintained their registration since the 1960s. In 2009, Marvel and DC successfully opposed someone’s attempt to register the term in connection with sunblock.

JD: As to how it’s possible, see the great article by Ross D. Petty called The “Amazing Adventures” of Superhero®. As for theoretical implications: I’m afraid that’s a little close to legal advice, which, as a rule, you should never get from a stranger on the internet.

THE FINAL 5 WITH JAMES DAILY

Trek or Wars? Star Trek. My wife and I are rewatching Voyager on Netflix right now.
Marvel or DC? Marvel has more and better superhero attorney characters, so I’ll go with that.
Vampires or Werewolves? Vampires. (Of course the attorney would pick the blood-sucking parasite!)
Dragons or Unicorns? Dragons, preferably with a side of Dungeons.
Time Travel: Pro or Con? Definitely con. It never seems to end well. Support the Campaign for Real Time!

THE FINAL 5 WITH RYAN DAVIDSON

Trek or Wars? I love all three Star Wars movies.
Marvel or DC? Marvel.
Vampires or Werewolves? Vampires, but not the sparkly kind.
Dragons or Unicorns? Dragons.
Time Travel: Pro or Con? Con. Most definitely con. A bad idea all ’round.

– Rachel Hyland 

Our thanks to James and Ryan for their time and, of course, legal expertise.

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