If you’re a single person wearing a Batman costume to San Diego Comic-Con, your use is almost certainly non-commercial and you are not liable for copyright infringement. But if you’re a business who specializes in making these costumes, the question becomes a bit more problematic. On its face, it’s easy to assume that it would constitute infringement. After all, DC Comics owns the character of Batman and his general look. If you were to visit your average costume shop looking for a Batman cowl to wear at Halloween, every single one of them would have “officially licensed product” printed on a tag somewhere. No costume designer wants to tempt fate by producing unlicensed Batman merch even if they could get away with it. That’s the smart move.Read More
Summer 2012 has given us two of the biggest films in history, both from a cultural and box-office standpoint. With the summer movie season waning, I thought this was a good opportunity to look back and discuss the relationship these films have with the law. Today, I begin with The Dark Knight Rises.
Warning: Spoilers! If you haven’t seen The Dark Knight Rises and don’t want to know what happens, read no further.
The Dark Knight Rises raised a number of interesting legal issues that could each be the subject of their own posts: the way the film dealt with the Bruce Wayne bankruptcy, the federal response to the siege of Gotham, to name a few. But one stands taller than the others and that's the subject of this post.
In the immediate aftermath of the movie’s release, there was some discord amongst critics about one issue in particular… something they felt was so wrong-headed that they had to call the director on it – they hated the Dent Act. More specifically, there was some hand-wringing over the Act’s constitutionality.
Cliff notes version: it is utterly constitutional.
Let’s step back for a minute. What exactly is the Dent Act? At the beginning of the film, we learn that shortly after the death of Gotham’s District Attorney Harvey Dent, sweeping anti-crime legislation was passed that gave the city’s police and prosecutors “teeth” to fight organized crime in the city. We know that eight years after Dent’s demise, the Dent Act did it’s job, almost completely decimating crime in the city, and leaving a gaping hole for Bane and his League of Shadows thugs to storm in and take the city.
So what tools does the Dent Act grant law enforcement Gotham City to combat organized crime? Did the Act authorize a mass hiring of police officers, in effect turning Gotham into a police state? Did it place stricter sentences on those convicted of organized crime activities? Did it finally root out the bad guys in Gotham’s notoriously corrupt police force? Unfortunately, the movie doesn’t tell us much about the mechanics of the law and only pays it lip service before delving into the “Batman coming out of retirement” storyline. The only substantive information we have on the Dent Act is told to the audience by Joseph Gordon-Levitt’s character; apparently the Act has kept hundreds of mobsters behind bars by denying them parole.
I readily admit ignorance here. Like others when I first heard this, I threw my hands up in disgust. “How unconstitutional is that?!” I nearly screamed aloud to my wife in the theater. As it turns out, it’s pretty damn constitutional.
Let’s get some basic facts out of the way: the discretion to grant or deny parole typically resides in a state’s parole board. They have the right to determine if an offender should be released before his full sentence has been served and they may grant or deny parole based on a variety of factors. What concerned me was whether a piece of legislation could make that determination for them.
As a rule, states have the power to regulate their own law enforcement and legislate their own criminal codes. With some Eighth Amendment exceptions (such as sentencing juveniles to life in prison with no possibility of parole), the state is allowed to make a blanket determination regarding who should and should not be released from incarceration before the full sentence has been served.
In reality, many states have done just that. The Massachusetts legislature recently considered an overhaul of the state’s criminal sentencing laws that, among other things, would abolish parole for repeat violent offenders. Massachusetts already bans parole for anyone convicted of first-degree murder. Pennsylvania considered a similar overhaul of their criminal sentencing statutes three years ago. Sixteen states have taken it much farther by abolishing the parole system altogether.
Therefore denial of parole under the Dent Act for prisoners convicted of violent crimes such as murder, assault, or drug dealing (in many states, crimes of possession with intent to distribute are considered crimes of violence) is constitutional because there is a framework for just that kind of legislation in other states. On the other hand, I think the Dent Act will have a harder time demonstrating its constitutionality when is denies parole to those convicted of non-violent crimes such as racketeering, gambling, prostitution, and money laundering.
Movies so often get it wrong when it comes to portraying the law so it’s nice to find a case where the movie gets it right (even though I’m convinced no one in the screenwriting process actually did the necessary legal research). While we don’t know anything else about the substance of the Dent Act, the parts we do know about will probably hold up under scrutiny. And frankly, even without knowing the Act’s other substantive provisions, I think that denying parole to 1000 dangerous and violent criminals would be enough to give Gotham’s Police Department a break in getting its crime problem under control. Putting the Batman out of the job was probably just icing on the cake.