Protecting The Brand: Marvel Displays Goodwill and Badwill Over Its New Avengers Trailer

A few weeks ago, Marvel had a strategy to punch up ratings on its much-improved, but declining-in-popularity Agents of S.H.I.E.L.D. on ABC. To drive up viewership, it would unveil the new trailer for Joss Whedon's The Avengers: Age of Ultron, the colossal sequel to the already colossal Avengers.

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Thor's Dark World: Why Over-Delivering is a Breach of Contract

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Thor: The Dark World, the sequel to Marvel's 2011 hit Thor is currently deep in post-production and is slated for release this winter.  If you've been following the production of the film like I have, then you've heard rumors that Marvel President Kevin Feige and the film's director Alan Taylor are in the midst of a major disagreement.   The nature of that disagreement remains a mystery, but one recent rumor claims that the fight is over - of all things - the running time of the film.  Taylor apparently wants the film to run for two and a half hours, while Feige wants the film to clock in at two hours even.  Evidently, the conflict has gotten so bad that editing has halted and a mediator has allegedly been brought in to resolve the situation.

Now this rumor may be complete BS (although the rumor mill has been swirling for weeks that Taylor was taken off the film, right before composer Carter Burwell's exit a few days ago), but I thought it was unique opportunity to highlight an interesting little wrinkle in contract law.  Namely, that over-delivering on a contract is technically a breach and can result in a lawsuit for damages.

Holy Hell?  You can actually be sued for giving the other party more than they originally bargained for?  Yes you can, and if these rumors are true, it's exactly what Feige appears to be accusing Taylor of - breach of contract by delivering more movie than was originally requested.  It feels counter-intuitive to say that getting MORE than you paid for is somehow a negative thing worth suing over, and to some extent that's right.  It's rarely considered a bad thing to get more than you asked and if you were to sue over it, a judge would probably dismiss the case and maybe even hit you with a Rule 11 sanction for bringing a frivolous lawsuit.  That's probably why Marvel is bringing in a mediator instead of suing Taylor outright.  Why waste the time and money to sue the guy when a judge would just dismiss the case because of its inherent ridiculousness?

But a breach is a breach, even if benefits the aggrieved party.  There's a reason why high-level contracts like these are so time-consuming and expensive to put together; the parties have very specific needs and demands. You can bet your bottom dollar that if a provision ends up in a contract, no matter how absurd it seems,  it's important to the parties that it gets carried out exactly as written.  Any deviation from the terms of the contract is considered a modification, which is not enforceable without the approval of both sides.

And anyway when you think about it, over-delivering on a contract can actually be a negative thing in some situations.  Movie studio generally hate long films because they can't schedule as many showings - 5 to 6 showings per theater per day for a two hour film as opposed to 3 or 4 for a three hour film - meaning the film will make less money during its theatrical run (Although Avatar and The Lord of the Rings films bucked that trend). Marvel is not, after all, a charity.  They want to make as much money as they can, and they've contracted with their talent a certain way to achieve that goal.  If Taylor's contract does indeed specify that he is to deliver a two hour film, and he breaches that provision by delivering a movie that's 30 minutes too long, then it could actually be detrimental to Marvel.  Marvel will be required to spend extra time and extra money they hadn't planned on to edit the film down to the requested two hours.  Reasonable minds can argue whether it is financially or artistically prudent to predetermine a film's running time before a director has even been hired, but Marvel has determined what it wants, has contracted to get what it wants, and is perfectly within its right to enforce that.

The Avengers and Copyright Reform

In honor of the most shoppingest weekend of the year, I'd like to discuss how The Avengers got me thinking about copyright reform.

You see, following the mammoth success of The Avengers this past summer, Marvel Entertainment (owned by Disney) planned to release a six-film box set just in time for the holidays that contained Blu-rays of The AvengersIron ManIron Man 2The Incredible HulkThor, and Captain America. The films would arrive in a package that replicated the metal briefcase used in The Avengers to carry the film's MacGuffin, the "tesseract."  Here's what it looked like:

Unfortunately for Marvel, the release of the box set was put on hold when German luggage manufacturer Rimowa GmbH sued for trademark infringement and trademark dilution, alleging that the silver briefcase for the six-movie collection was too similar to one of its products, and that releasing the box set would hurt its brand.  The good news for consumers is that while it won't be ready for your holiday shopping needs, the set WILL be released in April with new packaging and special features.

When I read Rimowa's complaint, I rolled my eyes at their claim of trademark dilution claim (they may have a good case on the infringement claim... but I won't use this space to weigh the merits of that argument).  "Here we go again" I thought.  "Another instance of one giant company wielding their intellectual property as a weapon against another giant company so they can squeeze out a few more pennies."  Then my next thought was "at least it's Disney getting sued and not some poor struggling artist."

As you know, I'm a big supporter of intellectual property protection, especially as it pertains to individual artists and creators.  But when the copyright holder is a multinational corporation, my support for protection becomes less absolute.  I don't like bullies and I especially don't like it when giant corporations use their copyrights* to trample over innovation, even if that innovation means some copyrights get infringed.  And to my surprise, a Republican staffer named Derek Khanna agrees with me, writing a policy paper on copyright reform that recently caused a stir.  In the paper, Khanna argues chiefly that our current system of copyright law actually harms the free market, hurts the consumer, and stifles creativity and innovation.  Khanna further argues that the powers to protect intellectual property granted to Congress in the Constitution were designed not solely to benefit the creator.  Rather, they were created to benefit the public, and creator compensation was just a way to fulfill that need.  FYI, the actual text of the Constitution, Article 1, Section 8 reads that Congress shall have the power:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Khanna recommends several fixes, most of which I agree with.  Expanding Fair use protections (basically, allowing more people to use copyrighted material for certain purposes without paying for it), lowering statutory damages (current damages can see you paying upwards of $150K for each infringed work.  Khanna argues that it's un-American to charge someone millions of dollars for downloading a few dozen songs), punishing false copyright claims (I've talked about this issue before), and significantly lowering the length of copyright ownership from "life of author + 70 years" to 14 years, renewable every 14 years while the author is alive.  Khanna's paper proved so controversial that 24 hours after publishing it, his Republican bosses removed the paper and issued a letter stating that the paper hadn't been properly vetted.  Which makes sense after all; the major media companies (who are also the biggest copyright holders in the world) are big political donors.

In the case of Rimowa v. Marvel, the stakes aren't very high for the average consumer.  People will get the box set they want eventually and if they can't wait, they can go out and buy the films individually.  Disney is going to be just fine... maybe a few million bucks poorer, but that's about it. The underlying issue here is larger than whether I can go and buy a cardboard case filled with movies.  It even goes beyond how much power our current copyright law grants to companies that can use those copyrights to bully the small artist and innovator.  The issue really boils down to whether companies have the same rights as individuals.  Should a company get the same rights I get under the law?  While Khanna's paper rarely singles out corporations as the biggest profiteers and abusers under our current copyright law, it's difficult to imagine that he wasn't thinking about them directly while writing it.   In one passage, he says that "Current public policy should create a disincentive for companies to continue their copyright indefinitely..."  The whole point of the paper seems to be this: copyright too often is used as a weapon to harm individual creators.  Disincentivize that by making copyright ownership less profitable for the corporate owner.  I wholeheartedly agree.  Actually, I will agree with and support just about any reform that takes the power out of the hands of the corporate copyright owner and gives it back to the individual creator.  Art should belong to the artist.

And if the end result is that I can get my Avengers box set sooner than later, then that will be a welcome side effect.

* For the record, yes I do know the difference between copyright and trademark.  For the purpose of this post, however, I'm treating them as interchangeable because they protect different types of the same thing... intellectual property.

 

Suing The Avengers

(Author's note: I don't want to be a one-trick pony, so this'll be the last of my legal movie analyses for a little while - unless there's a demand... or unless I change my mind).

Warning: Spoilers! If you haven’t seen The Avengers and don’t want to know what happens, read no further.

This past May, as I sat in the theater thoroughly enjoying Joss Whedon’s “The Avengers,” I began to wonder: what if I had been injured by falling debris during the final battle between the Avengers and the invading Chitauri army?  Anyone who has seen a comic book movie knows that superheroes cause a lot of collateral damage.  The Avengers is a unique example because destruction isn’t solely the result of the alien horde descending on New York with their massive floating bio-mechanical weapons.  The good guys who are charged with protecting the city cause their fair share of damage as well.  Unlike previous superhero entries, The Avengers have not one, but three super-powered being (Hulk, Thor, Iron Man), each with significant anger issues.

In fact, it has been estimated that approximately $160 billion in property damage was caused during the battle of New York.  That figure is staggering, not least of which because, thanks to the unsurpassed leadership of Captain America, the Avengers were able to keep the battle confined to a 4-6 block radius.  We also know that the Chitauri invaded New York without warning and the sudden nature of the attack meant that the Avengers did not have enough time to clear the battle zone of bystanders.  The film goes out of its way to show us innocent civilians caught in the crossfire.  It stands to reason that with so much damage, a storm of laser fire, and so little opportunity to get innocents out of harms way, someone is going to get badly hurt.  So when the battle is done and the superheroes have long since departed, who can you sue to recover your medical costs?

The obvious answer is to sue S.H.I.E.L.D.  After all, S.H.I.E.L.D. assembled the Avengers, and in legal parlance, is both the “actual” and “proximate” cause of the injuries.  But S.H.I.E.L.D. is a government agency and is protected by Sovereign Immunity, a legal doctrine that prevents government entities from being sued for monetary damages.  In certain situations, however, the government can waive its immunity by way of the Federal Tort Claims Act (FTCA), which allows federal agencies to be sued for damages as if they were private entities.  Under the FTCA, if you can prove that the Avengers acted without due care in their rescue of the city, you can sue S.H.I.E.L.D. for the negligent acts of its employees (in tort law, we call this Respondeat Superior).

Thus, in order to sue S.H.I.E.L.D. under the FTCA, we must determine if Iron Man, Hulk and Thor are employees of S.H.I.E.L.D.  The FTCA defines employee as, “officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty… and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation….”  So, were Iron Man, Hulk, and Thor acting on behalf of S.H.I.E.L.D. in an official capacity?

It’s best to stop right here because this will lead us down a rabbit hole that isn’t worth the travel.  S.H.I.E.L.D. can probably be liable for your medical costs, but there are inherent problems with suing a clandestine black-ops organization staffed predominantly with super-powered beings.  Chiefly, how can you know such an organization even exists?  To the best of my recollection, the finale of The Avengers had various news reports blaming the team individually for the destruction and nary a mention of their handler organization was to be found anywhere.  As far as the public is concerned S.H.I.E.L.D. doesn’t officially exist.  And even if you were to somehow hale them into court, you're only going to anger them.  And we all know what happens when you get Bruce Banner angry.

Besides, there’s lower hanging fruit to be had.

You can sue Tony Stark in his individual capacity for negligent rescue.  After all, he’s a billionaire and can afford it.  Not only that, he’s the sole member of the Avengers whose real life identity is known to the public at large.   A lawsuit against Stark sounding in negligence is a goodly bet.

In tort law, there is generally no duty to rescue someone in distress.  However, if you do commence a rescue, it must be done reasonably.  Any defendant who rescues unreasonably can be liable under a negligence action if the aggrieved party is injured as a result of the unreasonable rescue.  In this case, there’s no legal precedent instructing us how to deal with an armored man wearing jet boots leading an alien horde bent on destruction through the city.  Even still, I would be willing to argue in front of a judge that Stark’s actions, though well intentioned, were unreasonable.  Why?

  1. At extreme speed, Stark led hundreds of aliens on a chase through the canyons of Manhattan, weaving in and out of columns, buildings, and directly into heavily trafficked areas.  Any professional driver will tell you that as velocity increases, there’s an inverse relationship with control (there’s a reason the world’s fastest cars are driven in the middle of the desert… they can’t stop and don’t corner).  Stark would know this due to his extensive time in the Iron Man prosthesis.
  2. Both Stark and his alien nemeses fired lasers at each other for the duration of this chase.  Logic tells us how difficult it is to hit a moving target; it is even more difficult when both targets are moving at great speed.  The likelihood of both Stark and the Chitauri warriors accidentally striking bystanders and real property with their laser blasts is increased exponentially.  Moreover, Stark is a world-renowned genius (he built a fist-sized fusion reactor in a cave with only spare missile parts, after all).  He either knew or should have known the likelihood of causing bystander injury, yet he continued to lead chase through Manhattan.
  3. Later in the battle, Stark led a hundred foot long space snake directly down Park Ave into the path of Bruce Banner, whose ability to stop the snake was, as far as Stark is concerned, highly questionable.  At this point in the battle, Banner had not yet transformed into the Hulk and had not demonstrated to his teammates that he could call out the Hulk at his command (it was pretty awesome though, right?).  As far as Stark knew, he was leading that beast right into the heart of Manhattan where it would crash into the team, killing every member of the Avengers, destroying a significant part of mid-town, and possible murdering hundreds – if not thousands – of innocent New Yorkers.

When you willfully undertake a rescue that could wind up killing thousands, that is per se unreasonable.  If I were a lawyer in the Marvel Universe, I would be unhesitant in representing a class-action suit against Tony Stark in his individual capacity.

There may be more causes of action that I just can’t think of at the moment, but I think Stark is your best bet to recover damages in a case like this.  And honestly, you’re lucky if you get injured in an attack that was prevented by Iron Man.  Imagine if all that damage were caused by a hero with no assets... like Aquaman.