by James Daily
As one can probably guess, appropriation is related to the right of publicity, but it concerns different kinds of harm. One commentator puts it this way: “[A]n infringement of the right of publicity focuses upon injury to the pocketbook, while an invasion of ‘appropriation privacy’ focuses upon injury to the psyche.” 20 Note, though, that an invasion of appropriation privacy may be caused by commercial exploitation of someone’s name or likeness (and indeed many state statutes require it), but the measure of damages is still the mental anguish and physical distress caused by the appropriation.
Given the effort that many superheroes put into maintaining a sterling reputation in the community, one can see how they might suffer significant mental and physical distress upon seeing their name or likeness used without their permission, particularly if the use was unsavory (e.g., using the image of the Human Torch and his “Flame On!” catchphrase to sell cigarettes).
As mentioned, the right of publicity has more of a property right quality to it. And indeed, unlike the right of privacy, the right of publicity may be assigned or licensed to others. And this makes sense because privacy is inherently personal; it cannot really be divorced from the individual in question. The commercial use of one’s name and likeness, however, can be licensed or assigned to others, and so the right to sue for infringement of that right follows.
This is where we come back to the Fantastic Four gift shop and the Boostermobile. Superheroes, particularly well-known ones, are likely to have significant commercial value in their identity or persona. Superhero product endorsements, movie and TV appearances, and other uses are probably at least as valuable in the comic book world as the real one. Thus, the right of publicity is an extremely important one for a superhero, whether it’s used as a carrot to fund an otherwise cash-strapped superhero or as a stick to fend off inappropriate use of a superhero’s name and likeness.
But where Spider-Man can really go after Jameson is for so-called “false light” defamation. Jameson uses the Daily Bugle to paint Spider-Man as a menace to society. More generally speaking, an article on the abuse of superpowers accompanied by the picture of a superhero who either doesn’t have such powers or who has never hurt anyone would invite the public to draw an unfair inference about the person in the picture.
False light is a relatively new tort, but it has been adopted by a majority of jurisdictions. Most states have adopted the Restatement’s definition:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
a. the false light in which the other was placed would be highly offensive to a reasonable person, and
b. the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. 21
Note that many jurisdictions have held that mere negligence is sufficient if the victim is not a public figure, but in this case most superheroes are public figures, so knowledge of or reckless disregard of falsity is required. Examples of false light highly offensive to a reasonable person and potentially applicable here include drug use, teenage crime, police brutality, and organized crime. News stories or other publicity that falsely connect a superhero to such things could give rise to a false light case, and the Daily Bugle’s consistent depiction of Spider-Man as a threat to public safety almost definitely counts. This, combined with the fact that Jameson has reason to know that Spider-Man is not a menace to society and routinely and recklessly disregards that knowledge, should be enough to base a false light claim on.
Excessive Force and Assault
Batman, Superman, Daredevil, and Spider-Man habitually patrol the streets of their respective cities, looking for crimes being committed and intervening to prevent them and apprehend the criminals. On the whole, this is a noble endeavor, but there’s a potential problem here: excessive force.
Basically, the question is whether using superpowers to prevent the commission of crimes can subject the superhero to civil liability from the criminal. The answer here is “Quite possibly.” Remember the discussion in chapter 2 of whether or not Wolverine’s claws count as a deadly weapon for the purposes of aggravated assault? This is similar, only here, the idea is that injuring someone to prevent a property crime is generally legally problematic.
This is not an idle question. In the summer of 2011, a jury in El Paso County, Colorado, awarded about $300,000 to the family of a man who was killed while attempting to rob a used car lot. 22 Robert Johnson Fox was a methamphetamine user who, along with a companion, scaled the fence to steal stereos. But the owner of the lot had already been robbed a few times that month and was waiting for them—with a semiautomatic Heckler & Koch rifle. Fox was shot through the heart and died on the scene, and the jury determined that this was a wrongful death for which the lot owner was liable. The reason this is the right result is because using deadly force to prevent property crimes is never justifiable. One is only permitted to use deadly force to prevent death or serious bodily injury to one’s self or to another, but not to protect property. Even “Make My Day” or “Castle Doctrine” laws, which permit the use of deadly force to prevent trespassing in one’s home, won’t work here, because the theory there is really that trespass to a residence always carries with it the threat of violence, particularly at night. This just isn’t true when the property in question is a business or personal property.
The parallels to Batman and other superheroes are pretty easy to see. If Superman injures a robber while preventing a bank robbery, he could actually get in big trouble. His superstrength and heat vision arguably constitute deadly force, and if the robbers weren’t using guns or otherwise posing a threat to the lives of others, this would be unjustified. Spider-Man, on the other hand, will probably have an easier time of it here, because his powers, even if he uses them, aren’t the sort that cause injury unless Spidey really goes out of his way to hurt someone. Being shot with webbing is unpleasant, but not actually harmful. Wolverine, on the other hand, had better watch his step. The fact that his claws are naturally occurring almost doesn’t matter: he has a choice whether or not to use them.
Accidental Superpowers
Quite a number of superheroes were not born with their superpowers, receiving them either accidentally or deliberately, somewhere along the way. 23 The Fantastic Four were bombarded with cosmic rays during a test flight. Spider-Man was bitten by a radioactive or genetically engineered spider, depending on the origin story. Bruce Banner was exposed to gamma rays during a physics experiment. The question arises, “Can these characters sue anyone for the changes to their bodies?”
Assumption of Risk
The answer depends strongly on the facts of the case. Consider the case of Ben Grimm, who first appears in Fantastic Four #1. 24 Dr. Reed Richards is planning a space mission and feels a sense of urgency because the Communists are apparently on the verge of launching their own. The story was published at the height of the Cold War, and this issue came out mere months after Cosmonaut Yuri Gagarin became the first human being to leave the earth’s atmosphere. Richards is discussing the flight with his team when the following exchange occurs:
Grimm: If you want to fly to the stars then you pilot the ship! Count me out! You know we haven’t done enough research into the effect of cosmic rays! They might kill us all out in space!
Susan Storm: Ben, we’ve got to take that chance…unless we want the Commies to beat us to it! I— I never thought that you would be a coward!
Grimm: A coward!! Nobody calls me a coward! Get the ship! I’ll fly her no matter what happens!!
Ben Grimm provides a textbook example of assumption of risk. Stan Lee, Jack Kirby et al., The Fantastic Four!, in FANTASTIC FOUR 1 (Marvel Comics November 1961).
If Grimm were then to act as a plaintiff—presumably against Reed Richards for organizing the flight without adequately researching it first—this little
conversation would come back to haunt him. Why? Because assumption of risk is a defense in tort law. The basic idea is that if a plaintiff is aware of a specific risk related to a particular activity and engages in that activity anyway, a defendant would be absolved of any duty to protect the plaintiff from that particular risk. 25 This is not a blanket protection, however; the specific nature of the risk generally needs to be contemplated by the plaintiff, but in Grimm’s case, there’s a good argument to be made that he has assumed the risk of flying Richards’s ship.
First, the comic indicates that in addition to being a test pilot and thus familiar with the risks associated with piloting experimental craft, he specifically knows about the risk of cosmic rays. Granted, he did not know that they would turn him into the Thing. Everyone involved was consciously aware that they had no idea what the effects of exposure to cosmic rays might be, but they did know that death was a distinct possibility. So because there was an apprehension of some kind of serious bodily injury, up to and including death, the fact that Grimm turns into the Thing rather than receiving an ordinary injury doesn’t matter. Besides, “I’ll fly her no matter what happens,” is a pretty broad statement.
Second, both Grimm and Richards seem to possess the same mental state with respect to the risks involved. Assumption of risk will not protect a reckless defendant against a negligent plaintiff, but it may well protect a reckless defendant against a similarly reckless plaintiff. The idea here is that the law does not want to protect a party that acted with a lower degree of care over one who acted with a higher degree. When the playing field is equal, the argument that everyone involved knew the risks of the activity and voluntarily engaged in it is a lot stronger.
Third, Grimm was not a mere passenger. He was a pilot. As such, he had a significant role in the planning and execution of the test flight, and was in fact the only person even potentially capable of steering the craft out of danger. So unlike a passive participant or even someone participating in an event organized by others, Grimm had ample opportunity to mitigate the risks involved both before and during the incident. It’s even theoretically possible that the Storm siblings might have a cause of action against Richards and Grimm as the joint organizers of the project! However, neither of them seems to have been affected negatively, so their “damages” may be nominal.
Ben Grimm knew as well as anyone what he was getting into. He knew that the trip involved the risk of cosmic rays, and he knew that exposure to those rays posed a risk of serious bodily injury or death. No one seems to have known more about the risks than he did, even Richards, though that’s more a matter of shared ignorance than anything else. What Richards did was arguably incredibly foolish, but to quote a non-comic-book character for a minute, “Who’s the more foolish? The fool, or the fool who follows him?” 26
Workplace Accidents
So if a character goes into a dangerous situation with full knowledge of the danger, that’s going to be a problem. But many superhero and supervillain origin stories involve situations where this doesn’t really apply. For instance, She-Hulk encounters an “accidental superpowers” situation in She-Hulk (Vol. 1) #2. Dan “Danger-Man” Jermain falls into a vat of experimental chemicals while working for the company Roxxon 27 and comes out with unspecified “atomic powers.” 28 There’s a real question as to whether or not “bodily injury” includes being made “larger, stronger, and more powerful,” 29 but more than that, the fact that the injury took place at work is significant, and not just for the question of suing over accidental superpowers. Injuries that occur while on the job are treated very differently from injuries that happen outside the workplace.
The rise of industrialization was accompanied by the rise of severe workplace injuries, as people started working around machines more often, sometimes incredibly dangerous ones. In the nineteenth and early twentieth centuries, it was commonplace for factory workers to lose fingers and even whole limbs to machinery. This was hugely problematic, especially for plaintiffs, because the “master-servant” relationship required that they prove negligence or even malice on the part of the employer to be able to recover anything. This was a very high burden, and courts ruled for employers far more often than not, leaving large numbers of industrial workers injured on the job with no recovery at all. Further, even if they were eventually able to recover, tort cases routinely take years to resolve, and if the injured person was unable to work because of their injury, they could very easily find themselves in a very bad way. But legal reforms favoring labor began in the late nineteenth century, and by 1949, every state and the federal government had instituted a “workers’ compensation” regime.
Workers’ compensation operates by creating a system for compensating workers for workplace injuries regardless of fault. What this means is that if you are injured while serving your employer, you get paid the vast majority of the time, even if your employer was completely without fault. This may seem very favorable to the workers, so to even things out, i.e., to make sure that employers weren’t bankrupted every time someone broke an arm, workers’ compensation regimes were limited in three ways.
First, unlike traditional tort cases where damages are awarded by juries, which can lead to unpredictable and occasionally massive awards, compensation for workplace injuries is computed based on actuarial tables created by state agencies rather than by juries. This rationalizes and limits compensation. Whereas a jury can award a basically arbitrary amount of money, workers’ compensation payouts are known ahead of time and are thus a lot easier to plan for and insure. Second, compensation is limited to purely economic damages, i.e., medical bills, lost wages, lost future earnings, etc. There is very little provision for noneconomic damages like “pain and suffering” or punitive damages, which really drive up verdicts in traditional liability cases. Third, workers’ compensation is an exclusive remedy, i.e., employees cannot choose to forgo participation in the workers’ compensation program and sue their employers. Workers’ compensation is their only way to recover. Likewise, employers cannot decide not to pay for workers’ compensation insurance. It’s just a cost of doing business.
So employees benefit because they almost always get paid, even if the accident was their fault, and they usually get paid in a fraction of the amount of time they’d have to wait if they sued. But employers benefit because their costs are controlled and employees can’t turn around and sue them. Workers’ compensation coverage is mandatory in just about every state for just about every employee. There are, of course, certain exceptions, but a worker in an industrial plant working with radioactive materials, e.g., Dan Jermain, would definitely be covered.
So what happened to Roxxon’s workers’ compensation carrier? How is Jermain able to sue at all? Sure, She-Hulk might act as plaintiff’s counsel in the workers’ compensation case (coverage can be disputed, leading to litigation, but this is much simpler than suing in open court), but workers’ compensation is largely limited to economic damages. Danger-Man is basically uninjured, and even if we want to go with She-Hulk’s argument and say that Dan Jermain is “dead” (more on that in a minute), workers’ compensation only pays out a couple of hundred grand—at best—for wrongful death. Not $85 million, which is the settlement reached at the end of the issue.
Of course, the whole issue goes away if Jermain isn’t an employee. If the writers had him be some random schmo who happened to get in a wreck with a Roxxon tanker truck, covering him in radioactive goo, he would not be covered by the workers’ compensation regime and thus would be free to sue as he does in the comic. Oh well.
Damages for the Hulk
Bruce Banner’s story contains another big difference. Banner is characterized as one of the world’s most brilliant scientists, rivaling if not surpassing Reed Richards and Tony Stark. Banner is involved with a Defense Department project to develop a gamma ray bomb or “G-bomb” when he is accidentally exposed to gamma rays, which due to a fluke in his genetic structure transforms him—periodically—into the
rampaging Hulk.
Sounds pretty similar to Ben Grimm, right? So far, yes. But there’s a wrinkle that makes all the difference. In the case of the Fantastic Four, just about everyone involved is acting recklessly, and no one intends for anyone to get hurt. But Banner was actually a victim of attempted murder. The way the story is told in the comics, just before the test of the G-bomb, Banner notices that a teenager has breached security and is inside the blast zone. He orders the test to be delayed and runs to get the kid out of the way. Banner is able to get the kid to a protective trench when the bomb goes off, but does not make it himself, and he is exposed to gamma rays. But the reason the bomb goes off is because Igor Drenkov, a Russian agent, orders the test to continue, hoping that Banner would die in the resulting explosion. Assumption of risk will protect a defendant against a reckless plaintiff, but it will not protect a defendant who acts with malice. Indeed, Drenkov could be subject to civil and criminal liability, as attempted murder is a serious felony.
But wait a minute…doesn’t this all happen while Banner is at work? And didn’t we just talk about how that might not work out very well for a potential plaintiff? Banner’s case is a little different from Jermain’s because Banner works for the government. First off, Banner would probably not be able to sue the government directly, as he is the organizer of the project and the government is likely not liable for the actions of enemy infiltrators. Furthermore, depending on the nature of Banner’s employment, either the Federal Employee Compensation Act (FECA), the federal equivalent of workers’ compensation, or the Veterans Affairs Administration (VA) would provide compensation for his injuries, as he sustains them while executing his duties as a government employee. So he is theoretically entitled to some money, though only in proportion to his medical bills (nonexistent) and expenses related to mitigating his disability. 30 In practice, he’s going to have trouble proving his damages, and as the FECA or VA would be an exclusive remedy, no other recovery would be available with respect to the government. He’s still free to sue Drenkov, though, because while workers’ compensation does shield employers from traditional liability, intentional tortfeasors 31 are pretty much on their own.
