Did the Supreme Court’s Spidey-Themed Patent Decision Evade its Power and Responsibility?Comics Features
“With great power, there must also come great responsibility.” Usually, that phrase serves as the moral of the Spider-Man mythos. Yesterday, it was part of the law of the land, thanks to a Spidey-themed Supreme Court decision.
In Kimble v. Marvel Entertainment, SCOTUS tackled a patent-royalty dispute over a real-life toy version of Spider-Man’s web-shooters. Writing for the 6-3 majority in Marvel’s favor, Justice Elena Kagan channeled her inner Stan Lee and penned the first Supreme Court decision ever to address “web-slinging fun.”
But did Kagan correctly apply Marvel’s pop wisdom to this sticky situation? We’re not lawyers, but we know a thing or two about the moral lessons inspired by poor Uncle Ben’s demise. For our critical analysis, read on, true believers!
About 25 years ago, according to court opinions, Stephen Kimble patented a foam-shooting device and met with Marvel to pitch it as a Spidey toy. Marvel reportedly said it was not interested, then later marketed a similar toy, the Web Blaster. Kimble sued, and eventually received a settlement of about $500,000 and a three-percent royalty on Web Blaster sales, which amounted to more than $6 million.
But the legal dispute reopened 10 years ago, when Marvel licensed the device to Hasbro for a new line of Spidey toys. Patents expire after 20 years, and Marvel pointed to a 1964 Supreme Court decision that says royalty rights expire with the patent. Lower courts agreed with Marvel that it no longer owes Kimble any fees.
Enter the Supreme Court to untangle this legal web.
Kagan’s opinion describes Kimble’s toy idea as “web-slinging fun” and notes it was intended not only for children, but also for “young-at-heart adults.” In other words, she would love to strap on a Web Blaster and squirt some foam in Justice Scalia’s face, but will settle for a Spidey-riddled opinion instead.
Kagan notes the original royalty deal had no end date, with both Kimble and Marvel “apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).”
But patents don’t work that way, she explains: “Patents endow their holders with certain superpowers, but only for a limited time.” (This would have been a great spot for a footnote contrasting Spider-Man with the power-absorbing mutant Rogue or the Hulk, but no Supreme Court opinion is perfect.)
And because the patent expires, so do the royalties, under that Supreme Court precedent in Brulotte v. Thys Co. Kimble had asked SCOTUS to overturn that precedent. Kagan suggests the majority isn’t thrilled with it, either, but declines to overturn it under the crucial legal principle of stare decisis. That basically means respecting earlier legal decisions in the interest of order and predictability—even though, as Kagan bluntly states, it sometimes “means sticking to some wrong decisions.”
That’s when Kagan comes to her marvelously Marvel-ized conclusion, in which she cites Spidey’s first comic-book appearance as if it were an old legal case itself:
“What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: ‘Spider-Man,’ p. 13 (1962) ([I]n this world, with great power there must also come—great responsibility’).”
It’s a fun opinion, and Kagan sure knows more about law than we do. But she gets the moral of the Spidey origin story totally backward. As every true believer knows, Spider-Man’s mistake was not abusing his power—it was using it too sparingly. In that Amazing Fantasy story, the fame-addled Spidey lets a petty criminal escape, thinking the chase beneath him—only to have the very same criminal kill his beloved Uncle Ben.
In a dissenting opinion calling for the precedent to be tossed out, Justice Samuel Alito makes a much more Spidey-like point.
Unfortunately, Alito has no comic-book game beyond mocking the majority’s “super-duper” adherence to precedent. He blew his chance to say this is like Green Goblin stealing Spidey’s web-shooters, or a legal Doc Ock strangling innovation with patent-law tentacles. But he makes his point: “Stare decisis is important to the rule of law, but so are correct judicial decisions.”
That sounds more like the lesson Spidey learned about power and responsibility.
Our verdict: Marvel should give Kagan a No-Prize, while to Alito we say—excelsior!