Justice Kagan Slings Comic References in Marvel Spider-Man Case

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“In 1990, petitioner Stephen Kimble obtained a patent on a toy that allows children (and young-at-heart adults) to role-play as ‘a spider person’ by shooting webs –really, pressurized foam string – ‘from the palm of [the] hand’,” Kimble v. Marvel Entertainment, 576 U. S. ____ (2015) , at 1.


Legal writing is still writing. The purpose of a well-crafted argument is to persuade and in order to do that effectively, you must use every weapon in your utility belt, including the use of humor and pop culture. To many, the actual issues in Kimble v. Marvel Entertainment, which has long been known as “the Spider-Man case,” are about as dry as they come. Kimble obtained a patent for a spiderweb-shooting glove back in 1990. Marvel ripped Kimble off and he sued them for infringing his patent. They came to a settlement, under which Marvel paid Kimble royalties. However, their agreement did not provide any expiration date for the royalty payments.

Prior precedent from the Supreme Court (the dreaded Brulotte decision) decreed that patent royalties end according to the contract (and in practicum after 20 years.) Brulotte is the Green Goblin of patent law, since almost everyone hates the decision and feels it was wrongly decided for reasons that are beyond the scope of this note. Kimble wanted the Court to overturn Brulotte and require Marvel to continue paying royalties, but the Court is mostly a slave to stare decisis, the principle requiring the Supremes to stand behind their prior decisions. As a result, Justice Elena Kagan wrote for the majority, the Court was ruling for Marvel. Brulotte is not “the kind of doctrinal dinosaur or legal last-man-standing for which we sometimes depart from.” Kimble v. Marvel Entertainment, 576 U. S. ____ (2015) , at 11.

The idea of shooting a spiderweb from one’s hand or wrist is, of course, awesome. Justice Kagan agreed, sprinkling her ruling with fanciful references from Spider-Man. “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).” Kimble v. Marvel Entertainment, 576 U. S. ____ (2015) , at 2.



Kagan has long described herself as a comic books junkie and she had a lot of fun with that knowledge here. She observed that “Patents endow their holders with certain superpowers, but only for a limited time,” noting that the Court would need something mega-special to overturn precedent. “[T]he decision’s close relation to a whole web of precedents means that reversing it could threaten others…As against this superpowered form of stare decisis, we would need a superspecial justification to warrant reversing.” Kimble v. Marvel Entertainment, 576 U. S. ____ (2015) , at 10.

Her final conclusion summarizing stare decisis will surely find its way into 1L outlines in every law school in America. “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”). As lawyers, we now have the fanciful option of quoting Stan Lee and Steve Ditko,”See Kimble v. Marvel Entertainment, 576 U. S. ____ (2015) , 18, citing S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962).”

Kagan has thus done the nation’s law students a favor by summarizing a boring principle with a memorable link to pop culture. It brings levity to what could be a excruciating read.


Alex is a lawyer and opinionated.

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