The Law of Superheroes

by James Daily

  34. See, e.g., Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., 523 U.S. 135, 152 (1998) (“The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.”).

  35. Note, by the way, that the Joker wouldn’t lose his alleged copyright, just his right to control what happens to the particular fish. “Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.” 17 U.S.C. § 202.

  36. Effects Associates, Inc. v. Cohen, 908 F.2d 555, 55859 (9th Cir. 1990).

  37. Apologies for the spoilers!

  38. “Copyright in a work protected under this title vests initially in the author or authors of the work.” 17 U.S.C. § 201(a).

  39. 17 U.S.C. § 101.

  40. 17 U.S.C. § 201(b).

  41. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751–52 (1989) (the Court listed several additional factors).

  42. As a “musical work” a superhero theme song could be copyrighted too, but those usually don’t exist within the comic book universe.

  43. See, e.g., Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (2d Cir. 1929); Whimsicality, Inc. v. Rubie’s Costume Co., Inc., 891 F.2d 452 (2d Cir. 1989) (“We have long held that clothes, as useful articles, are not copyrightable.”).

  44. Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995).

  45. Tompkins Graphics, Inc. v. Zipatone, Inc., 222 U.S.P.Q. (BNA) 49 (E.D. Pa. 1983).

  46. In contrast to regular (aka “utility”) patents, design patents cover the ornamental design of a functional article. They are commonly used to protect car designs, among many other things. In fact, at least three Batmobiles have been the subject of design patents, including the Batmobiles from the Adam West TV series (U.S. Pat. No. D205998), Batman Forever (U.S. Pat. No. D375704), and Batman & Robin (D396662).

  47. See Bennis v. Michigan, 516 U.S. 442, 459 (1996) (Stevens, J., dissenting).

  48. Pub. L. No. 79–489, 60 Stat. 427 (July 6, 1946) (codified as amended at 15 U.S.C. § 1051 et seq.).

  49. See Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (1995).

  50. Herman Miller Inc. v. Palazzetti Imports and Exports, 270 F.3d 298, 317 (6th.Cir. 2001).

  51. “Laches” is an equitable defense (i.e., based on fairness and judicial discretion rather than legal rules) that prevents a party from bringing a claim. More specifically, laches is “the neglect or delay in bringing suit to remedy an alleged wrong, which taken together with lapse of time and other circumstances, causes prejudice to the adverse party and operates as an equitable bar.” AC Aukerman Co. v. RL Chaides Const. Co., 960 F.2d 1020, 1028–29 (Fed. Cir. 1992) (en banc).

  CHAPTER 10

  Travel and Immigration

  Superheroes and supervillains tend to be a rather peripatetic lot, and one of the coolest parts about many comic book stories are inventive ways of getting around. The Fantastic Four have the Fantasticar. Batman has the Batmobile, Batcopter, and Batwing. Superman, the Flash, and Nightcrawler don’t even need to bother with such pedestrian things, as they can go basically anywhere they want under their own power.

  All of which is well and good, but as any traveler knows, especially in this post-9/11 world, crossing international borders is kind of a big deal. But even absent security checkpoints, customs and immigration are real legal issues and have been for centuries. Going from Metropolis to Ohio isn’t a problem, as travel within the United States can be done almost entirely without government authorization, particularly if you aren’t using a commercial airline. But in addition to massive violations of airspace (see chapter 8), simply showing up in another country without going through customs is illegal. In this chapter, we take a look at some of the implications of this area of the law for comic book stories.

  International Travel and

  Arms Control Regulations

  Wolverine deciding to leave Professor Xavier’s mansion to go to Alberta to discover his origins is all well and good, but he’s going to have to cross the border somewhere, and that means either showing a passport or jumping the border. In essence, a law-abiding superhero is going to need official documents, and as discussed in chapter 12, that has its own problems.

  But that’s just the beginning. Another potential wrinkle is the issue of teleporters. Does it matter that while Superman does need to actually cross a border at some point, Nightcrawler can disappear on one side and reappear on the other without ever actually traveling in between? Probably not. The law is written in such a way that it isn’t just crossing the border without authorization that’s illegal, but rather simply being in a given country without permission. Said permission is usually obtained at the border, but it needn’t be, and the fact is that teleporting across the US border would probably annoy US Customs and Border Protection quite a bit.

  But there’s another issue, aside from the mere fact of travel, which is likely to be an issue for a certain category of superhero, namely those whose “powers” are based on technology, like Iron Man or Batman. The issue is that the federal government, like most other national governments, takes a pretty dim view of people transporting weapons across its borders without permission.

  Here we run into the International Traffic in Arms Regulations (ITAR) 1 and specifically the United States Munitions List (USML). 2 This is where the federal government lays out in great detail the restrictions placed on the export of weapons and related technologies. So, for example, it is illegal to export a gas turbine specifically designed for use in a ground vehicle. The regulation probably has in mind things like the M1 Abrams tank, but as the Batmobile is (in some versions anyway) powered by a gas turbine, it would be subject to the regulations too. Just about everything in one of Iron Man’s suits is going to find its way on the list somewhere, from the armor itself down to the micro-controllers in the servo motors. Almost everything specifically designed for a military application, and even some things that aren’t, is on the export list. The ITAR even apply to civilian-developed software encryption, so they could easily apply to something as kickass as the arc reactor.

  So what about S.H.I.E.L.D.? If the story goes that S.H.I.E.L.D. is under the control of the United Nations, it would clearly be a “non-US person” under the terms of the USML, making it illegal for any US person to share restricted tech with it without government authorization. But if the Department of Defense doesn’t have access to S.H.I.E.L.D. gadgetry, it seems unlikely that the Department of State would authorize such a transaction. It gets worse. It is a violation of federal law 3 to export any item on the USML without a license, and “export” is defined as “sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data.” 4 Even assuming that Bruce Wayne or Tony Stark invents his weaponry completely using his own funding and resources, the ITAR do not limit themselves to weapons developed with federal money: they apply to everything that fits into one of the categories on the USML. So Iron Man’s little jaunt to Afghanistan in his first movie and Batman’s little extradition trip to Hong Kong in The Dark Knight almost certainly constituted a violation of federal arms control laws, but Iron Man’s invitation by the US military to assist in fighting the Mandarin in Southeast Asia on a few occasions in the 1960s was probably okay.

  Here we actually run into some difficulty trying to make the legal system in the real world sync up with the legal system in the comic book world. It is highly unlikely that the federal government would either (1) decide to scale back arms-control laws when faced with gadget-based superheroes or (2) decide to give those superheroes a pass, especially if they wouldn’t share their toys. So the question becomes, why doesn’t the US Attorney attempt to prosecute Tony Stark for this violation of federal law? More to the poi
nt, why is Congress messing around with hearings when they can simply send Stark to jail?

  Well, probably because having Tony Stark do ten years for arms control violations 5 would be a pretty boring story, and because fining Tony Stark the $1 million penalty wouldn’t really make him think twice. Ultimately, this may just be one of those places where we have to remember that if we’re okay with a world where guys can shoot laser beams out of their eyes or turn into metal, arms control regulations may be the least of our worries.

  Immigration and Citizenship

  Kurt Wagner (a.k.a. Nightcrawler) is a German national. Piotr Rasputin (a.k.a. Colossus) is Russian. Superman isn’t even human, for crying out loud. If it’s so difficult for regular old humans to establish residency in a country of which they are not a citizen, shouldn’t this be an issue in comic books from time to time?

  There have been a few times when the writers have picked up on this. For instance, in one alternate reality, Superman ran for President after his secret identity was revealed. In the story, the United States Supreme Court ruled that Superman was actually a natural-born citizen and thus eligible to run for President. Did they get it right? To answer that question we look to immigration law.

  You can tell this story is from the 1990s because the decision was unanimous. Roger Stern et al., Executive Action, in ACTION COMICS ANNUAL 3 (DC Comics 1991).

  Immigration law is a purely federal matter and is codified in Title 8 of the United States Code, particularly Chapter 12. Regulations on the subject—the practical implementation of statutes—are found in Title 8 of the Code of Federal Regulations, especially Chapter 5. There are enough different situations created by various superhero characters that we can really put these laws through their paces.

  Birthright Citizenship

  Let’s start with how a character might get US citizenship in the first place. The easiest ways are to be born to at least one American parent (aka jus sanguinis) or to be born inside US territory (aka “birthright” citizenship or jus soli). The latter method is how Superman was able to run for President. The Supreme Court ruled that Superman was a natural-born US citizen, as he wasn’t technically “born” until he was extracted from the Kryptonian “birthing matrix” in Kansas. 6 Clearly the Supreme Court justices in this alternate universe are not constitutional originalists!

  But in most versions of the Superman mythology, Ma and Pa Kent stumble across little Clark after he’s been “born.” What then? Well, in that case, we turn to the Foundling Statute:

  The following shall be nationals and citizens of the United States at birth…(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States. 7

  Superman is definitely of unknown parentage, was found in the US, and appeared to be under the age of five when found, so he’s looking good so far. The last criterion, i.e., no showing of having been born outside the US before he turns twenty-one, is a little stickier, because the Kents presumably know that Clark was born elsewhere, or at least has his origins somewhere else. But if neither they nor anyone else come forward to expose him, Clark Kent will probably be eligible for citizenship under the Foundling Statute. 8 If Superman obtained his citizenship this way, then he would likely qualify as a natural-born citizen and be eligible for the presidency because citizenship under the Foundling Statute implies citizenship from birth.

  This may solve his immigration problems, but where is he going to keep those 193 passports? He doesn’t even have pockets! Otto Binder et al., The Story of Superman’s Life, in SUPERMAN (VOL. 1) 146 (DC Comics July 1961).

  Private Acts of Congress

  There’s another way that someone can become a citizen without going through the immigration process: a “private act” of Congress, i.e., a law targeting a specific person and declaring him or her to be a citizen. 9 Although unusual today, private acts have a long history in the United States. 10 Members of Congress regularly put forward names of constituents to be granted citizenship or residency, and though most of the time nothing comes of it, it is certainly within Congress’s power to take such action. As a matter of fact, in at least one story, Superman is granted citizenship by every country in the world, presumably by their respective versions of a private act of Congress. This method would not, however, result in someone being a natural-born citizen, which is necessary for running for President.

  For other immigrant superheroes, however, Section 1181 of Title 8 provides that with certain exceptions:

  [N]o immigrant shall be admitted into the United States unless at the time of application for admission he

  1. has a valid unexpired immigrant visa or was born subsequent to the issuance of such visa of the accompanying parent, and

  2. presents a valid unexpired passport or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General.

  This creates immediate problems for Superman. He’s not going to have any documentation, as he never went through customs and thus never had an opportunity to acquire the appropriate documentation. The basic story is that Superman (nee Kal-El) is born on the planet Krypton just before it was destroyed by…something. Depends who you ask. Anyway, Kal-El’s parents put him on a starship escape pod that crash-lands in rural Kansas, where Jonathan Kent finds him and takes him home, raising him as Clark Kent, and only learning later about his superpowers.

  The actual history of Superman comics is of note here, as Action Comics #1 was published in 1938, just after the country, still reeling from the lingering effects of the Great Depression, was smacked by the Recession of 1937. Unemployment was well north of 15 percent. The Dust Bowl was recent history. So the idea that a motorist in Kansas would discover an abandoned baby on the side of the road was depressingly plausible. In an age when immigration laws were far more lax than they are today, 11 no one was going to ask any questions about the origin of such a child or his lack of a birth certificate.

  Granted, this storyline means Kal-El would have crashed to Earth sometime earlier in the twentieth century, but it seems plausible that the environment in which the comic was actually published would have a lot to do with the way original readers interpreted things.

  Of course, recent rewrites do not necessarily enjoy the benefits of those earlier legal environments. Adopting a random infant is actually a lot harder to do these days, as state laws about that sort of thing create many hoops for potential parents to jump through. The upshot is that some kind of documentation would be needed for an infant who basically appears out of thin air. That would require clever forgeries at the very least, 12 and the Man of Steel suggestion that Jonathan and Martha were snowed in for six months doesn’t really ring as true in the 1980s as it might have in the 1920s. 13

  Employment Visas and Green Cards

  But that’s just for characters that seem to have been born in the United States. How can a superhero that isn’t born here get his immigration status worked out? 14 In short, the same long, hard, and often expensive way that everyone else does. Section 1151(d) provides for employment-based visas, and § 1153(b)(1)(a) and (b)(2) give aliens 15 with “extraordinary abilities” preferential treatment. Anyone likely to be of interest to the leader of a superhero organization would probably be deemed to have “extraordinary abilities” almost automatically. Sure, having a Ph.D. or being an excellent manager is impressive and all, but being able to, say, turn one’s body to organic metal is just a whole different level of awesome. So Professor Xavier could probably sponsor Kurt Wagner and Piotr Rasputin for employment-based visas and expect to get that sorted pretty quickly. Generally speaking, any superhero connected to some kind of organization that works for the public good, whether it is a public or private organization, e.g., the X-Men, the Avengers, the Justice League of America, etc., will probably be able to get this done pretty easily, as they’ve got a
n employer willing to put their extraordinary abilities to immediate use for the benefit of the country. But a character without a sponsor might have a hard time of it.

  Still, the process is not immediate. These types of visas may be issued on a priority basis, but getting a green card—i.e., permission to reside and work in the US permanently—can take a year or two, and actual citizenship can take another seven years. 16

  Renouncing Citizenship

  Recent comics have raised another potential immigration wrinkle. In Action Comics #900, Superman actually deals with the other side of the coin and says he’s going to renounce his US citizenship. 17 It turns out that you can, in fact, renounce your citizenship. Section 1481 of Title 8 governs the voluntary renunciation of citizenship through a variety of ways, e.g., taking up arms with a foreign government or committing treason, but also by simply making a statement to that effect to an appropriate diplomatic officer. In some ways it’s surprisingly easy; the hardest part is traveling outside the country to do it. 18 The State Department has actually formalized the Oath of Renunciation:

  I desire and hereby make a formal renunciation of my US nationality, as provided by section 349 (a)(5) of the Immigration and Nationality Act of 1952, as amended, and pursuant thereto, I hereby absolutely and entirely renounce my United States nationality together with all rights and privileges and all duties and allegiance and fidelity thereunto pertaining. I make this renunciation intentionally, voluntarily, and of my own free will, free of any duress or undue influence.

  Although he never actually went through with it, this announcement was one of the most controversial things Superman has ever done, drawing ire from several real politicians and pundits. David S. Goyer et al., The Incident, in ACTION COMICS (VOL. 1) 900 (DC Comics June 2011).