Batman has a problem.
His company, Wayne Enterprises, is the top manufacturer of bulletproof body armor, for which it holds a patent. Until recently, they were one of only three manufacturers of the body armor worldwide.
But now, a company in Asia called Demon’s Head Ltd. is illegally using Wayne Enterprises’ patent to create inferior body armor, hoping to sell it to the American market.
Alfred Pennyworth, a representative of Wayne Enterprises, comes to your law firm to find out what to do.
How you will advise him?
That’s the question adjunct professor Lawrence M. Friedman posed to his students in a final exam at The John Marshall Law School.
Friedman — a partner at Barnes, Richardson & Colburn LLP whose practice focuses on international trade and intellectual property — used the exam this spring in his LL.M. graduate elective class, International Trade Remedies Law.
The test focused on two areas of intellectual property: patents (Demon’s Head is illegally using the Wayne Enterprises’ patent) and trademarks (Demon’s Head is marketing its armor as Wayne Enterprises’ armor).
It also addressed two areas of international trade law: price dumping (Demon’s Head is selling its product at an unfairly low price) and the question of receiving unfair subsidies from a foreign government (Demon’s Head is receiving a tax break from its home government for exports).
“My tests have always used as examples things that I’m interested in,” Friedman said. “But this is the first test that I’ve written that had a cinematic scope to it. I did it in part to give the students more room to discuss different things — but also honestly to entertain myself.”
The seven-student class in the International Business and Trade Law Program veered into discussions about comic books during a conversation on customs enforcement of intellectual property rights. The topic was what Friedman called “a gray area in copyright law,” whether someone can own a copyright on a character such as Batman as opposed to the specific text of a character, such as Frank Miller’s “The Dark Knight Returns.”
The answer depends on the degree to which the character is developed, a topic that gave Friedman the opportunity to teach his students about differences between comic book characters.
“We talked a little about Batman, talked a little about Superman,” he said. “I think that’s what got the idea in my head to do that.”
The test-writing creativity did not lead to a difference in grades from previous tests, and Friedman received only one student e-mail about the test’s content. The student told him that a reference to Ted Kord was, as Friedman put it, “unfairly obscure.”
“I took it in a good-natured way,” Friedman said. “He must have gone and looked up Ted Kord and identified him as the Blue Beetle.”
Along with creative test-writing, Friedman writes the Customs Law Blog at customslawblog.com. He plans on writing more themed tests, finding it “a more entertaining, more inspiring process for me this year than in previous years.”
“It’s an opportunity to do some creative writing while at the same time taking care of a necessary task, which is designing an exam,” he said.
“I think a lot of lawyers have a little bit of creative writer in us, so this was a good way to do it. And I had a guaranteed readership because they had to take the test.”
The topic of comic books and the law brings other questions to mind. Namely, what superheroes are in danger of the largest legal issues?
Most of them, Friedman said.
“I deal with export controls, and export controls at the most restrictive level involves the movement of weapons and the movement of materials useful for weapons in and out of the country,” Friedman said.
“If Tony Stark just popped into his (Iron Man) suit and flew down to Mexico to save somebody, he would have violated a half a dozen laws just by leaving the country in his suit, assuming he didn’t have a license.”
While renegades such as Iron Man and Batman facing potential legal recourse is no surprise, clean-cut superheroes such as Superman and Captain America could also run into problems.
Superman, Friedman said, is “clearly an illegal alien … or at least undocumented.” And questions surround the authority vested upon heroes fighting crime overseas.
“If Captain America shows up in some country to break up a civil war, (he needs to say) whether he’s acting on behalf of the U.S.,” Friedman said. “If he is, then international law applies to him and he needs to follow the rules. If not, he’s technically a terrorist.”
The hero probably in the least amount of legal trouble, Friedman said, would be Aquaman.
“He keeps himself out of the jurisdiction of other countries most of the time,” Friedman said. “He’s usually out in international waters. And he’s a foreign sovereign because he’s the king of Atlantis. So there’s not a lot that can happen to him.”
Friedman also expressed an interest in representing Superman — who he called “a trustworthy guy to have as a client” — as well as Iron Man.
“In terms of my client base, we really should be representing Tony Stark and Stark Industries,” Friedman said. “It’s a defense contractor. He’s got lots of import-export data issues. That’d be a clear win for us if we could have him for a client.”
Friedman did acknowledge, however, that representing Stark would come with concerns.
“I feel like he would be a problematic client to have because he’s in a highly regulated industry and he seems a bit like a madman,” Friedman said. “He’d be a tough client to rein in. But he’d be the ideal client for us.”