Marvel’s “Civil War” is fairly civil when you compare superhero legal wars

Posted on 04-29-2016 by
Tags: attorney movies , top law movies , good lawyer movies , Oscars , movies , legal films , Top Stories

Not a comic book junkie? Then here’s your one-sentence plot primer for Marvel’s “Captain America: Civil War”:

  • Team Captain America vs. Team Iron Man.

For legal junkies, this battle of legendary heroes might mirror some of our greatest legal gladiators:

  • Thomas Jefferson (Team Republican) vs. John Marshall (Team Federalist);
  • Clarence Darrow (Team Evolution) vs. William Jennings Bryan (Team Creationism);
  • Antonin Scalia (Team Originalism) vs. Ruth Bader Ginsburg (Team Living Constitution).

In these examples, the ink bleeding between comic books and the law is fairly superficial. But there’s a deeper connection. It happens when superheroes wander into the courtroom and do legal battle. Not a "Hulk SMASH!” battle, but civil litigation, where superheroes aren’t afraid to throw punches.

5 superheroes who did galactic battle in the courtroom (plus, honorable mentions):

1. Spider-Man: The ownership of Spider-Man, along with several iconic superheroes, instigated a 10th Circuit tug-of-war between Stan Lee Media, Inc. (SLMI) and Walt Disney. This case, Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292 (10th Cir. Colo. 2014), was a smaller battle in the greater war involving Stan Lee Media and Stan Lee himself, the Marvel Comics icon and Spider-Man’s creator.

In 2007, SLMI claimed ownership of various Marvel characters, filing lawsuits across the country. SLMI’s claim derived from a 1998 contractual agreement with Stan Lee, in which Lee allegedly transferred character ownership to SLMI in exchange for salary and other benefits. In Stan Lee Media, Inc. v. Lee, 585 Fed. Appx. 597 (9th Cir. Cal. 2014), cert. denied, 2015 U.S. LEXIS 2248 (U.S. 2015), the 9th Circuit denied SLMI ownership. The 9th Circuit held:

Given the significant value of these franchises, SLMI's failure to publicize, protect, or exploit its right to profit from the characters establishes that these claims are simply implausible.

2. Superman/Superboy: In February, Larson v. Warner Bros Entm't, Inc., 2016 U.S. App. LEXIS 2507 (9th Cir. Cal. Feb. 10, 2016) added another chapter to the long-running litigation stemming from the 1938 transfer of Superman’s copyright from co-creator Jerome Siegel to DC Comics. In granting summary judgment to DC Comics and Warner Bros., the lower court optimistically said that “this litigation of superhero proportions now draws to a close.”

The Superman dispute began in 1947, followed by another round of litigation in 1969, which appeared to settle the copyright ownership of Superman and, by extension, Superboy. However, with the passage of the Copyright Act of 1976, Siegel's heirs attempted to recapture the copyrights. In the most recent case, the district court held (and the 9th Circuit affirmed) that a “2001 settlement agreement between DC and the Siegels re-granted the Siegels' Superman, Superboy, and Superman Ad works to DC in return for substantial advances and royalties.”

3. Captain America: Like the Siegel heirs, the children of comic book artist Jack Kirby (Captain America’s co-creator) sought, pursuant to the Copyright Act of 1976, to terminate alleged assignments of their father's works.

In Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. N.Y. 2013), cert. dismissed, 135 S. Ct. 42, the 2nd Circuit affirmed the lower court’s holding that the works at issue were "works made for hire.” Thus, Marvel had acquired the federal statutory copyright in the Kirby works by virtue of its status as their "author" under the work-for-hire doctrine.

4. Batman: In DC Comics v. Towle, 802 F.3d 1012 (9th Cir. Cal. 2015), the 9th Circuit summarized the dispute this way:

We are asked to decide whether defendant Mark Towle infringed DC Comics' exclusive rights under a copyright when he built and sold replicas of the Batmobile, as it appeared in the 1966 television show Batman and the 1989 film BATMAN. Holy copyright law, Batman! [emphasis added]

In addressing the legal issues, the 9th Circuit invoked more Batman talk:

In order to prevail on its claim for copyright infringement, DC must prove that it owns a copyright in the Batmobile as it appeared in the 1966 television series and 1989 movie, and that Towle infringed that copyright by creating unauthorized replicas. To the Batmobile! [emphasis added]

And in wrapping things up, this final Batman homage from the court:

As Batman so sagely told Robin, "In our well-ordered society, protection of private property is essential." Batman: The Penguin Goes Straight, (Greenway Productions television broadcast March 23, 1966). Here, we conclude that the Batmobile character is the property of DC, and Towle infringed upon DC's property rights when he produced unauthorized derivative works of the Batmobile as it appeared in the 1966 television show and the 1989 motion picture.

5. Wonder Woman: A singing telegram company performed skits that featured characters named "Wonder Wench” and "Super Stud." DC Comics didn’t see the humor and sued for infringement. Defendants unsuccessfully relied upon the defense of fair use, claiming that their works parodied those of DC Comics. The court in DC Comics, Inc. v. Unlimited Monkey Bus., Inc., 598 F. Supp. 110 (N.D. Ga. 1984) held that:

There is a difference between works that incidentally parody other works while creating a genuinely distinct product and those that comprise little more than an adaptation of another's original work. Here both of the challenged skits have been sold on the strength of their association with plaintiff's originals, not on the strength of defendants' imagination and originality. Trading upon the imagination and originality of another is not fair use.

Honorable Mention

Not superhero litigation, but 3 superhero insights from the bench:

Bertman v. J. A. Kirsch Co., 377 U.S. 995 (U.S. 1964) (Black, J. dissenting)

I am aware of the argument that an able, alert, everdiligent lawyer could have, had he tried hard enough, discovered that the Government had appealed - even in the closing hours of the sixtieth day. I do not doubt that had Bertman's counsel been Superman, his X-ray eyes would have told him that a notice of appeal was being filed blocks away in the courthouse …. But Bertman's counsel (so far as the record shows) is not Superman, nor should the law expect him to be.

People for the Ethical Treatment of Animals v. United States Dep't of Agric., 797 F.3d 1087 (D.C. Cir. 2015)

The same principles that prevent any individual caped crusader from using the courts to vindicate his or her views as to the proper enforcement of the laws should preclude the same gambit by a group of likeminded individuals. As for Batman or Wonder Woman, so too for the Justice League.

Spina v Michael J. Defilippo P.C., 27 Misc. 3d 1225(A) (N.Y. Civ. Ct. 2010)

Defendant must be reminded that Zorro (Don Diego de la Vega), The Shadow (Lamont Cranston) and Superman (Clark Kent) each had an alter-ego but was in fact only one person who understood the difference between right and wrong and, unlike the defendant, never sought to disavow responsibility for their own actions. …

As were Superman's DC Comics cohorts: Batman (Bruce Wayne), Green Arrow (Oliver Jonas Queen), Green Lantern (Hal Jordan), The Flash (Barry Allen), Aquaman (Arthur Curry), Hawkman (Carter Hall), Hawkgirl (Shiera Hall), The Atom (Ray Palmer) and Wonder Woman (Princess Diana of Themyscira). Note these are the characters from the Silver Age of Comics (Justice League) and not the Golden Age (Justice Society).

And a final legal/superhero note:

William Moulton Marston, an American psychologist and lawyer, is credited with inventing the systolic blood pressure test, which became a component of the modern polygraph/ lie-detector. Marston was also a comic book writer, and under the pen name Charles Moulton, he created Wonder Woman … who, coincidentally, is well known for her truth-inducing magic lasso.

'Nuff said.

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