The superpowers of many comic book heroes and villains are often in a state of flux. Powers can be gained, lost, used up, given away, abandoned, shared, and stolen, which sounds a lot like the attributes of property. Comic book characters even speak of powers as though they were possessions. Here we consider whether superpowers should be treated as personal property and the legal consequences of that view.
I. Why Property?
At first it may seem strange to view superpowers as property. After all, we can imagine an alternative view, which is that superpowers are just extreme versions of intrinsic human abilities like a sprinter’s speed or a chess grandmaster’s intellect. If someone intentionally cripples a sprinter, that person is liable in tort and criminal law for battery. If someone takes away the Flash’s superspeed, why should that be treated differently?
I think the answer is that superpowers seem much more fluid and interchangeable than ordinary human abilities, and lost superpowers have a habit of returning, one way or the other. A crippled sprinter may never run competitively again even if he or she is not permanently disabled, but powers drained by Rogue, for example, will fully return on their own after the effects of her power-draining ability wear off.
It should also be noted that viewing superpowers as property is not incompatible with also punishing the theft or involuntary loss of a superpower as a crime and tort against the person as well. The mundane analogy might be to a person who uses a prosthesis. Someone who forcibly took that prosthesis while the person was wearing it would be guilty of both theft and battery and liable for both conversion and battery.
II. Legal Consequences
One immediate consequence of viewing superpowers as property is that power-drainers like Rogue, Scrambler, or Leech may be liable for the tort of conversion and the crime of theft (or common law robbery, if you prefer) in addition to the tort and crime of battery for which they were likely already liable. This would only apply to unjustified uses of the ability, of course. Use of such powers against a willing subject or out of self-defense, defense of others, or necessity would still be justified.
But the consequences don’t stop there. If Superman uses the power of a blue sun to bestow superpowers on another person, is that a taxable asset transfer? Who would want to try to collect?
If two superheroes marry, share a power, then later divorce, could one be forced to give up the power during the division of assets? Does it matter who had the power originally? Even though the shared power may be a non-rival good, one of the two superheroes may still have a claim to exclusivity. Perhaps the power is a trademark ability of one character, or maybe they signed a superhero pre-nuptial agreement that determined the disposition of any shared abilities.
If one superhero lends a power to another (or to a normal person), does that superhero have an implied right to its return? In other words, is a bailment created? I think the answer here is yes.
What about characters like Mimic that only copy the abilities of others rather than stealing or draining them? Should there be an intellectual property-like exclusive right in superpowers? For intrinsic abilities the answer would seem to be no, since providing such an exclusive right would not lead to the development of more or better superpowers. But for superpowers that are the product of experimentation, subjecting oneself to dangerous radiation, etc, then perhaps there should be. If a power-mimic can effortlessly copy a power that the original owner nearly died to gain, maybe there would be fewer superpowers produced in the first place since people would no longer think the risk worth the reward of a unique power. On the other hand, there does not seem to be a shortage of powers in most comic book universes, so maybe the incentive is not needed.
The property rights view may also give rise to new business models. Consider a superpowered individual who had an amazing power but who did not personally feel like becoming a superhero. With a property right in his or her power (and the assistance of someone like Mr. M or Sage), he or she could rent it out or lease it to others who were willing to take on the responsibilities of superherodom.
There is a good argument for treating superpowers as property or at least a kind of quasi-property in many circumstances. This treatment might lead to occasional complications, but it would also bring a lot of advantages and protections to superpowered individuals.