The Legal View: Retconning the Siegel Case

201204181950 The Legal View: Retconning the Siegel Case

Attorney Marc Toberoff

by Jeff Trexler

In my last post, we looked at the attorney-client privilege question addressed by yesterday’s Ninth Circuit ruling in favor of DC. But does a clear victory for DC in a this rather technical legal issue signal a greater loss for the Siegel and Shuster heirs?

As a preamble: here’s my comment from last time to bring you up to speed:
@Paul O’Brien My next post goes into some of the key legal implications of this letter. It does indeed go beyond the bare fact of an apparent conflict–WB argues that due to the transfer of future Superman copyright interests to a joint venture with Pacific, the court has specific legal grounds to nullify the termination and everything else since the Shuster estate’s 1992 agreement with DC and the terms (allegedly) agreed upon between DC and the Siegel heirs.As discussed in my recent posts here at The Beat, Warner Brothers (WB) has made the heirs’ lawyer, Marc Toberoff, a prime target in its attempt to foil the heirs’ termination of the transfer of the Superman copyright back in 1938. The not so hidden subtext: the WB’s argument was not frivolous–there is indeed a substantial chance that Toberoff’s alleged conflict of interest, along with the surprisingly weak brief filed in the Siegel appeal, could undo the Siegel heirs’ half-ownership of the Superman copyright.

Today’s Ninth Circuit opinion gave a clear signal that Toberoff’s conflict of interest, allegedly proven in the documents due to be entered into evidence in the District Court, could be fatal to the both the Siegels’ and Shusters’ claims. Perhaps the most telling passage in regard to the Superman dispute is the third paragraph of the panel’s opinion:

To pursue these goals, Toberoff created a joint venture between the Heirs and an entity he owned. Toberoff served as both a business advisor and an attorney for that venture. The ethical and professional concerns raised by Toberoff’s actions will likely occur to many readers, but they are not before this court.

When a court goes out of its way to note that many people would find behavior in a closely related case to be problematic, what they say may not be binding but it can be most revealing. In this passing observation, the court indicates that by having a substantial financial interest in the outcome of the heirs’ respective cases, Toberoff might be tempted to put personal gain over the best interest of his clients–a serious ethical breach.

Another couple passages pertinent to the Siegel case come in the opinion’s closing legal analysis. While addressing the core doctrinal points, the panel gives not so subtle jabs at the competence and character of Toberoff’s representation.

First, the panel notes that Toberoff might have been able to preserve attorney-client privilege in key parts of the disputed documents if he had made certain basic court filings–filings that he had failed to make.

Then, in response to Toberoff’s argument that he may have turned over without his clients’ knowledge or direction, the court does not stop by noting the presumption that the heirs consented to actions on their behalf. The judges also return to Toberoff’s evident conflict-of-interest in a telling footnote:

There is also evidence that Toberoff should himself be treated as a co-client. After all, Toberoff represented all of the Petitioners, including a joint venture between the Heirs and himself in which he had a controlling interest.

If the court in Pacific Pictures should decide that there was indeed a substantial conflict of interest, the consequences could go well beyond Toberoff’s removal as attorney for the Siegel and Shuster heirs. As we saw in when reviewing the appellate briefs, WB argues that Toberoff’s interference led the Siegel heirs to improperly reject a generous binding settlement. A finding against Toberoff on the conflict-of-interest issue would only reinforce WB’s effort to erase the impression that this is a dispute between a noble family and a greedy corporation, a reframing of the case that could exert a subtle but significant influence on the court’s decision on the legal issues.

What’s more, WB has claimed that Toberoff’s substantial financial interest has serious legal consequences for the validity of the Siegel and Shuster heirs’ attempts to terminate the copyright in various Superman-related properties. In Pacific Pictures, WB argues that Toberoff improperly interfered with both the Siegel settlement and a 1992 agreement with the Shuster estate. The company further asks the court to nullify the heirs’ termination claims on a number of grounds, such as

• Toberoff’s alleged illegal “trafficking” in future terminated copyrights,
• material misrepresentations allegedly made to the court regarding who held the Superman and Superman copyrights, and
• the explosive argument that the Shuster estate’s transfer of its termination interests to Toberoff’s Pacific Pictures left Shuster heir Mark Peavy with no ownership interest in the character–and thus no legal grounds for filing a valid termination claim.

Under normal circumstances, the question of whether documents provided to a government official are covered by attorney-client privilege is ordinarily a matter of little relevance to the comics community. However, as a result of today’s Ninth Circuit opinion, it may very well decide the fate of the both the Superboy and Superman copyrights.

Comments

  1. What I find gross is the argument DC makes.

    Siegel (and Shuster) signs a contract, selling Superman for $130 and that’s okay by them. It’s Legal so fuck you.

    Siegel’s heirs hire Toberoff to represent them, who might be trying to take advantage of them. Oh hey now, Toberoff can’t trick them like that, it’s just not right!

  2. It seems weird to me that there’s a problem with Toberoff standing to gain financially based on a positive outcome for the Siegels – I mean, don’t attorneys always stand to gain financially based on their client winning?

    As to the argument DC / Warner is making, well, I’ve seen the check and the contract. I think we all have at this point. I can agree that Siegel and Shuster were two naive guys who signed away more than they should have, and I agree that based on how successful Superman was, it would have been noble of DC / Warner to financially support the character’s creators, but the documentation seems to support the stance that Siegel and Shuster signed everything away.

    Still, it will be interesting to see how it all pans out.

  3. patrick ford says:

    Let’s give the heirs a little credit here for being sentient. Are we to assume comic book fans often barely (at best) aware of the facts of the case have a better understanding of what’s happening than the heirs?
    What the heirs have came as the result of a great deal of work and effort, not out of the goodness of Warner’s corporate heart. The stakes my be high, but there is no reason to assume the heirs are not aware of the risk involved. Toberoff deserves every penny he can collect. He works on contingency.
    Of course the heirs could go and hire an attorney to represent them, and pay hundreds of thousands of dollars in legal fees fighting Warner, but that would be assuming they have hundreds of thousands of dollars to spend fighting Warner, and they would assume the risk of having a judgment against them ordering them to pay Warner’s legal expenses.

  4. jaroslav hasek says:

    so whats the conflict of interest for toboroff having a potential financial stake in the intellectual property rights? he’s incentivized to get the biggest payout from WB, which works to the favor of both him and his clients. its how all sorts of businesses work. realtors, actor and athlete agents, private equity consultants. i’m missing where toberoff’s potential ownership stake could create perverse incentives for him with regards to his fiduciary responsibility to his clients.

    sounds like there’s way more potential problems with the quality of his representation, but the conflict of interest issue is a mystery to me.

  5. The basic problem is that holding out for more money when there’s a deal on the table is inevitably a risky strategy. You might lose. Then you get nothing. It’s always, to some extent, a gamble. If Toberoff decides he’s willing to run the risk, he has an incentive to talk the heirs into following suit, and play down any risks that might lead them to settle. That’s the conflict.

  6. patrick ford says:

    I would say again that the heirs understand the risks and rewards better than close to 100% of all people who have ever commented on the case.
    Tom Spurgeon called fan commentary on legal matters related to comics “nerd court.”
    Is it too much to assume the heirs aren’t morons?

  7. jaroslav hasek says:

    @paul o’brien – yeah sure, but isn’t that the risk youre going to run no matter who your business/legal counsel is? if i sell my house, i have to worry about a broker wanting to cash out now and telling me to sell for less than the house is worth vs wanting to keep it out on the market and make the broker do more work for more potential reward that he or she may not want to do. the only way to avoid that potential conflict of interest is to go at it alone. (right? are there other strategies?)

    having your legal/business counsel take an equity stake in the outcome would, i would think, incentivize them to think more about the long term gains and big picture, since they’ve now got more skin in the game.

    i could be missing something about this particular case tho. there’s a lot going on that i’m trying to keep track of, but may very well be totally missing.

  8. I side with the heirs and think they deserve a share in all the superman profits but Siegel and Shuster signed a contract. This is right up there with the Kirby case and the same deal. These men signed away their rights. Were they given a shitty deal? Absolutely. Still, they signed on the dotted line and because of that, these cases are just sad and hopeless and stand for nothing but a reminder on how terribly comic artists were treated and serve as a heads up to anyone else in the comics field that want to work on their own creation.

  9. Synsidar says:

    having your legal/business counsel take an equity stake in the outcome would, i would think, incentivize them to think more about the long term gains and big picture, since they’ve now got more skin in the game.

    The interests of the heirs aren’t the same as Toberoff’s. They might be more interested in a financial settlement, while he’s probably more interested in the business aspects of co-ownership of character copyrights. Unless the heirs have dreams of working in the publishing, merchandising, or film industries, having to deal with contracts and other matters involving the copyrights would just be nuisances.

    SRS

  10. Trexler says:

    To add to what Synsidar said, the situation in a case such as this is qualitatively different, say, from an attorney getting paid in stock from a tech client.

    In the latter instance, the attorney is often sitting on the other side of the glass from the folks most likely to drive a business decision–the attorney has an incentive to negotiate well, sure, but she isn’t likely to be the one individual spurring two other lone actors to drop a cool billion on Instagram. Even if the attorney should happen to be more of an insider, the matter is for the most part driven by a cut-and-dry business analysis.

    The heirs’ situation is different. There’s more going on in the Superman/Superboy lawsuits than maximizing profit for stakeholders. We’re dealing with two families’ desire to seek vindication for loved ones who long fought and lost. This desire, however noble and justified, can also lead to decisions that may not be financially realistic. In fact, it can lead to decisions that risk jeopardizing the legacy the original creators sought to secure.

    Consider the following possibility–I’m not saying that this is what happened, but it’s a scenario DC plainly wants the court to envision. DC, aware that the Siegel and Shuster heirs have colorable claims, enters into substantial settlement agreements with the respective parties, factoring in the value of the properties at issue, the value of avoiding a lawsuit, etc. The heirs reach tentative or firm agreements, themselves factoring in the not just economic concerns, but the signaling value of the settlement, the value of achieving finality & avoiding a legal dispute, and so forth.

    Then an attorney comes in offering to get the heirs something even more valuable: victory in court. A victory against the heartless bastards who abused their poor patriarchs for decades. Surely nothing that DC offers them could ever match what they truly deserved! All the families would have to do to make Siegel’s and Shuster’s dreams come true would be to trust him with every penny they might win.

    By taking this risk, the heirs could jeopardize both the money and the real vindication that could come with a major public settlement. Even if they won a partial victory in the lower court, they might be unaware–because most nonlawyers are–how fragile and fleeting such victories can be. The attorney has little to lose by shading the real risks and the potential cost–he risks little besides time and court fees, while standing to gain a majority stake in someone else’s legacy.

    This isn’t to say that the heirs are morons. It’s not moronic to be human, driven by considerations beyond mere profit and loss. And it’s precisely because such feelings are so fundamental to our experience that they are so easily hacked.

  11. I don’t think Toberoff’s time is no small expense. This case probably takes up a lot of it and the amount he could be making by taking on regular cases for money I’m sure is considerable.

  12. Michael P says:

    I understand the conflict of interest, but I don’t see how it has any bearing on the heirs’ right to terminate.

  13. Thunderfist says:

    “I side with the heirs and think they deserve a share in all the superman profits but Siegel and Shuster signed a contract.”

    This isn’t really on the table at all. Siegel and Shuster did sign a legally binding contract that has held up in court battles. However, the changes to the Copyright Act in 1976 allow an original copyright owner or certain heirs to terminate a grant of copyright.

    So S&S signed away the copyright of Superman which was to last 56 years per the copyright act in effect when they signed it. A deal’s a deal and that was legally binding for those 56 years. In 1976, the copyright act was adjusted to allow an additional 19 years to the copyright. A deal’s a deal and DC only paid for 56 years so the act also gave the original owners (i.e. S&S) a chance to essentially resell the additional 19 years.

    DC actually got 61 years because there is a five year window that the original owners or their heirs have to indicate that they want to do this. Neither Joe Shuster or Jerry Siegel gave any indication they were interested in doing this. It wasn’t until after they were dead and the window almost gone before Joanne and Laura Siegel decided to terminate the grant of copyright.

  14. @patrick, sentience isn’t the issue, legal savvy or competence is. The posthumous “letter from Lois” was played as a human interest story, but it has legal significance in that it supports the WB’s portrayal of events. Joanne Siegel’s letter essentially demanded Bewkes cede any and all claims, litigation, or right to Superman simply on her say so and finger-wagging attempt at shaming. While this might be genuine emotion (Deadline’s source remains unverified), it absolutely demonstrates a lack of legal sophistication. A CEO has a lot of latitude under the business judgment rule- in terms of his liability to the shareholders and the board of directors- but no way can he give up on a billion dollar IP just because a woman scolds him in a letter. The thought that she thinks her letter might have an effect (as she makes a series of demands at the end of it) is absurd.

    If she didn’t understand the legal landscape of how a corporation works or the extent of a CEO’s power or how to be effective without resorting to ex parte communication that makes demands while simultaneously insulting the party you’re attempting to bargain with- presumably making said communication outside of the advice of counsel- then is she really able to balance the pros and cons of certain strategies and their risks? All Toberoff had to do was play to their emotion and promise wins and she would have been blind to the advantages of the major settlement DC had promised her under her previous counsel. That kind of predatory manipulation of a client is something that gave the court enough pause to write dicta on the ethical issues at stake.

  15. @Michael P
    “I understand the conflict of interest, but I don’t see how it has any bearing on the heirs’ right to terminate.”

    The conflict of interest extends past just the Siegels (but note that Toberoff dragging out litigation means his likelihood of a stake in Superman increases while Joanne Siegel literally dies off and never sees a dime from his efforts- whereas under their previous counsel Joanne would have enjoyed millions before passing) but to a multitude of ways in which the termination may be invalid.

    One argument (mentioned at the end of the article) is that by assigning their interest to Toberoff, they removed the Shuster heir’s share, thus breaking the statutorily required conditions for a termination filing (where the termination right descends by statute, not assignment, and requires those beneficiaries to file the termination).

    Another argument is that the filing itself is the fruit of Toberoff’s tortious interference of contract / agreement. While you can’t sell your termination right per se (like you can’t sell your right to vote), you can enter into agreements not to use them, enforce them, or determine their scope. The WB argues that they already had such agreements in place and that “A deal’s a deal”… so even if the heirs retained the right to terminate, they were breaking preexisting agreements to do so.

    The conflict matters because it calls into question whether the clients actually wanted any of this to happen or actually did any of this. If Toberoff files the notice of termination for the heirs… but it comes out he files it for himself and not them, then the argument is that the termination itself is not valid. Particularly if the clients really didn’t want it. And even if they did (though, note, that Siegel never filed in life for fear of how it would disrupt pension agreements acknowledging there was some level of agreement between compensation and not exercising termination rights- his heirs did it shortly after he died) or do now, procedural issues may bar termination.

    So, like any good lawyerly argument (save Toberoff’s latest which, as Trexler points out, is narrowly obsessed with specific interpretations of work-for-hire and termination), you argue in the alternative along multiple threads and falls backs. They screwed up ethically, or procedurally, or statutorily, or as a matter of public policy, etc.

  16. So basically, the Siegel heirs have to pay for their attorney being a scumbag and trying to take advantage of them? How is that fair?

  17. Jeff Trexler says:

    @Jamie Coville That would be a more serious concern if Toberoff were an attorney whose practice lived & died on billable hours. There are other lawyers, though, whom one might liken to venture capitalists–they take high-risk bets aiming for the occasional big score. For such attorneys, absorbing time-sucks through the work of associates & paralegals is built into the business model.

    @Michael P My post above summarizes several of the key points. I also hope to write a post expanding on this important issue. In the meantime, you might want to read WB’s initial Pacific Pictures complaint for more detail.

    @Xian Do you believe that she actually wrote the letter herself?

  18. Jeff Trexler says:

    @Michael P And you might also want to read @Xian’s second response!

  19. They should have taken the contract. 3 million dollars and 500K a year with a % of profits is a lot. It is not like they need 5 cars and 3 houses. I have a feeling this is going to backfire on the families. Most comic book forums I’ve been on are siding with DC. It seems the younger crowd are in DC’s camp. People posting on blogs like this tend to be mixed. If DC wins, I can see Marc taking the fall in terms of social opinion. The families will look like victims, and no bodies going to change their mind on what they already think of Warner.

  20. @Jeff Trexler
    I’m really skeptical about that letter (as I hint at given Deadline’s unverified source).

  21. Thanks for the discussion guys, the conflict of interest thing makes more sense to me now, as does the termination of copyright issue.

  22. patrick ford says:

    The “generous” settlement offer did not come about out of the goodness of Warner’s heart.
    Toberoff’s focus on “work for hire” seems to me to be the only possible route to a favorable outcome.

  23. Thunderfist says:

    I fail to see how Toberoff’s focus on “work for hire” will make any difference on the outcome just as it failed in the Kirby case.

    I don’t see it affecting who owns the copyright of Action #1 but the Heirs will not be gaining any additional Superman stories created under the work for hire arrangement.

    Toberoff seems obsessed with the idea that working as an independent contractor versus working as an employee will be the difference. It is really all about control though.

    Did Siegel have the overriding control of the stories? Could he move the character from one company to another? Did he have final approval of what was published?

    If the answer is no, it won’t matter whether S&S were independent contractors paying a stable of artists and incurring their own expenses or were employees of DC working in office supplied by them.

  24. patrick ford says:

    The focus on work for hire is because it’s the only realistic argument the heirs can make.
    It may well fail, but what other possible argument could be made? Toberoff did have success with the argument in the Superman case, and it was that success which placed pressure of Warner to try and negotiate a settlement.
    I think it’s pretty obvious “The Law” has a great deal to do with what ever judge or court a case is in front off. If this were not the case you would not constantly see split high court ruling, rulings which are often the subject of harsh dissenting opinions. Does anyone think the four dissenting judges in the Bush vs Gore SCOTUS case felt they were wrong on legal merit?
    If the appeal in the Disney vs Kirby case fails Toberoff will still have made the best possible argument. The judges ruling was based almost entirely (“the case stands of falls”) on Lee’s testimony that he alone created every character without ever speaking to Kirby. This doesn’t remotely match Kirby’s long standing method of offering characters and concepts to publishers in the form of “pitch page” presentations. This goes all the way back to the ’40s an early example being the known pitch page for STARMAN ZERO from 1947. Kirby commonly recycled old characters such as “Kamandi of the Caves” the unsold samples date to 1958 and the idea was sold to DC in the early ’70s. Toberoff introduced several examples of characters created by Kirby in the ’60s which were offered to Marvel and rejected. Included were Kirby’s Spiderman pitch and five page story. Lee and Marvel could not produce the pitch page, or the five page story, but they did not dispute their existance, instead Lee claimed had been purchased by Marvel. A version of Captain America which was rejected and later saw print in for Topps with the name changed to Captain Glory. New versions of the Thor characters, and the characters which Kirby later sold to DC as The New Gods.

  25. patrick ford says:

    Toberoff’s concentration on work for is not based on with what happenes to characters after a publisher has the character.
    Toberoff is intent on showing characters and concepts are created out of contract on a freelance basis and offered to a publisher who is free to either reject (Superman was rejected several times), or purchase the work created with no contract saying it would be purchased.
    Basic core concepts are a key aspect of copyright law. Stan Lee has understood this since around 1968. Lee has claimed since that time all the seminal ideas were his. It’s also why Disney attorney James Quinn made sure to ask Lee follow up questions about Kirby’s Spiderman after Lee was closely questioned by Toberoff about the Kirby character.
    Declarations from Adams, Colan, Ayers, Sinnott, and Steranko, were sought by Toberoff at the very end of discovery, and apparently sought in an attempt to counter Lee’s claims he made sure “artists” were always paid for rejected pages. That issue became important when Lee was questioned by Toberoff about Kirby’s rejected Spiderman pages. The thought being; If Kirby brought a Spiderman character to Lee (a character where the published version retained the name, the teen orphan, the aunt and uncle, the powers, and a mechanical web shooting device), but had never been paid for the pages, then how could the character have been purchased by Marvel?
    Here is how Toberoff described what happened after he had finished questioning Lee about Kirby’s Spiderman.

    (3/28) letter to the judge by Toberoff.

    Toberoff: “I cross-examined Stan Lee at a deposition on December 8, 2010. After I
    indicated that I had no further questions, Mr. Lee’s attorney, Arthur Lieberman, requested
    a break even though the parties had just recently already taken a break. At this break, on
    my way to the restroom, I noticed Disney/Marvel’s lead counsel, James Quinn, intently
    speaking to Mr. Lee in a corner separate and apart from the other Marvel attorneys. Upon
    resumption of the deposition, Mr. Quinn asked Mr. Lee very specific questions to which
    Lee immediately responded without any hesitation or reflection.”
    MR. QUINN: You recall that Mr. Toberoff asked you some questions in connection with Spider-Man, and there was some testimony that you gave regarding the fact that you — the original pages that Kirby had drawn -Mr. Kirby had drawn with regard to Spider-Man, that you had rejected them?
    STAN LEE: Right.
    Q. Did Mr. Kirby get paid for those rejected pages?
    STAN LEE: Sure.
    Q. And did you have a practice at that time with regard to paying artists even when the pages were rejected by you or required large changes?
    STAN LEE: Any artists that drew anything that I had asked him or her to draw at my behest, I paid them for it. If it wasn’t good, we wouldn’t use it. But I asked them to draw it, so I did pay them.”

  26. @patrick ford. Do think the families will get a Judge as sympathetic to their argument than Larson (a man who now defends clients like them)? Because that what it will take for them to keep everything have, let alone gain more works. Even then, there are politics beyond public opinion that the Judges need to worry about.

  27. @patrick ford.

    Sorry typos, let me retry.

    Do you think the families will get a Judge as sympathetic to their argument as Larson (a man who now defends clients like them)? Because that is what it will take for them to keep everything they have, let alone gain more works. Even then, there are politics beyond public opinion that the Judges need to worry about, because they are aware of the back lash of restricting the requirements of “work for hire”.

    I won’t be surprised if the Siegels end up with black and white sections of AC1, a story to go with AC4, and nothing else.

    The Shusters maybe lucky if they even get that much if Warner has their way, I’m not sure how strong their case is against Shuster’s claims, but they have a few arguments going for them and it only takes one for Warner to win.

  28. Thunderfist says:

    Patrick, perhaps you misunderstood me. The ’70s lawsuit established that the original Superman story was not created under a work for hire. This was done before well before Toberoff even thought about becoming either a lawyer or a film mogul.

    That allowed the Siegels to terminate the grant of copyright. That is a hell of a lot of power just in itself.

    Just the threat of it, is probably why DC was so quick to keep raising the pension money while Siegel and Shuster were still alive.

    It was that alone that made DC attempt to negotiate a settlement in 2001 – before Toberoff was involved with the Siegels. There has no attempt by DC to negotiate a settlement once Toberoff got involved.

    Without Toberoff there was a possibility for a settlement. With Toberoff, this is going to be decided by the courts.

    So please, don’t feed my some cock and bull story that Toberoff is forcing DC to negotiate.

    Toberoff’s victories in this series of legal battles have little to do with work for hire. Action #1 was already established not to be work for hire way back so the victory there was more a case of dotting the ‘i’s and crossing the ‘t’s and nothing to do Toberoff. Toberoff also sued to get years of Superman stories written by Siegel to be terminated using his work for hire argument and failed. He got Action Comics #4 because he was able to show a script written before Siegel was in a work for hire situation. He got a few pages from Superman #1 that were originally intended for Action #1 – again created before Siegel was in a work for hire agreement.

    That really only leaves the first two weeks of the newpaper strip that Toberoff can claim victory getting some work terminated that was done while Siegel was under contract. And I suspect that DC will win this back in the appeal.

    As for the Kirby case, go back and read the actual court decision. It was not won solely because Lee claimed he created the characters. Right at the beginning of the decision, the judge states that this case was not about whether Jack or Stan created the characters but whether Jack was in a work for hire situation. It really came down to who was in control of the character, who had final say in the story and art. It was Marvel who control the stories and characters. As such, that

    Toberoff is making the same mistake here as he did with the Kirby trial. He will fail the same.

  29. @ Thunderfist
    Don’t be surprised if they win back Superman 1. They claim that evidence that the Judge used to provide those Superman pages specifically stated “according to legend”. They also claim that one of the Authors specifically debunks this “myth” in his memoirs.

    I’m not sure if you’ve read the complain but they also trying to reclaim their contributions to the AC comics. Pretty much they are trying to get the final products copyrighted as derivative works. I can’t imagine them not getting back AC 4 but losing some of the story elements.

    I’m not sure if there was a formal agreement, but I’m concerned that if there is not one, that DC can claim they were not aware that the authors rehashed a pre-made story, and find a way to exploit that. They are already claiming that in the lack of an agreement they own part of the story (and all of the illustrations under WFH).

  30. patrick ford says:

    Thunderfist. Right, it was under previous legal counsel that a settlement was proposed, apparently agreed upon, but not finalized. Since all that is a dispute in itself I’m not sure if I trust what Warner claims were the terms of the settlement.
    In any event while Warner says the previous counsel was respectable and Toberoff is “self styled” the fact Toberoff came in and won a summery judgment awarding portions of the Superman character and surrounding concepts to the heirs could very easily be seen as an indication the previous respected counsel made a tremendous error in reaching terms with Warner, and Toberoff by gaining a summery judgment provided far better representation. Obviously Warner is far more well disposed towards the respected counsel they were able to agree with as opposed to the “self styled” Toberoff who won a summery judgment against them. And of course Warner has also attacked the judgment of the judge who ruled in summery judgment against them.
    I see a lot of transparent bias (I’ll admit to my own) when I see a Toberoff summery judgment seen as likely to be over turned, while a Disney summery judgment is a slam dunk meaning everyone should just go home and hope Disney will be kind and generous.
    Sure Toberoff is engaged in a dangerous battle, being the subject of a “slap suit” himself I’d think he knows that better than anyone, and I think the people he represents are well aware of the power and resources of Disney and Warner. It’s like a legal HUNGER GAMES no one thinks the little guys have a chance, and they are probably right. It is just heartening to see someone stand up to the bullies.

  31. Someone’s objectives are only as honorable as the actions they take and intentions that drive them.

  32. patrick ford says:

    I agree, and one way to look at it is a counsel willing to settle for an “easy” quick payoff, might not serve the interests of the heirs as well as a counsel willing to take on a great deal of personal risk, and a long hard fight.
    Toberoff did win a summery judgment, so why is his summery judgment victory devalued, while the summery judgment against the Kirby heirs is seen as a crushing defeat?
    There is a logic to the thought, “Don’t fight a huge powerful corporation like Disney, Warner, or Monsanto,” but that’s a sad state of mind, even if it’s realistic.

  33. Patrick,it is not that I don’t agree with fighting the big corporations. I agree that regardless of what the heirs actually contributed to the works, they are entitled to what they are entitled to. I think the deal was good, but hey, I’m not a millionaire, so yes that could be biased. My real issues is that people (and in no way is this directed specifically at you) are trying to paint Marc as David fighting Goliath, when its more like “Lex Luthor” fighting “Darkseid” over who gets to control Superman’s fate (in this example, control and not kill). It is still an uphill battle for Lex, but if you know their personalities, you’ll understand the true nature of their actions and the face value of of how their ‘displayed’ motives.

    I think as far as the court proceedings went, that Warner actually got screwed (legally). Under the current verdict that most of the comics were WFH, the Authors really don’t deserve anything more than any other artist that worked on the comics as an employee after they were under contract. Is it cold? Yes! But that’s life. Some of Larson’s ruling are questionable, especially when you look at his career choice.

    If someone can explain to me, how a Judge can make a ruling based on a “legend” or grants 2 weeks of comics strips created after the rights were sold and the employee’s were hired; I’ll change my mind on those pieces of work. How could the authors have rights to initiate a syndication request without DC’s consent? Even if they discussed the possibility without DC’s knowledge, how is that different than showing initiative to an employer? Regardless of a syndication, which could not have been formed without DC’s consent, but have been formed with DC and other artists, any works that where created, published, and paid for while DC owned the rights and the Authors were “employees” should be Work for hire.

    To better show my perspective, if Siegel and Shuster had been swamped, and if DC had chosen 2 other ‘employees’ to do those strips but everything else was under the same conditions, do you think any Judge would have granted them the rights to those artists comics?

    If any other DC employed artists were to create work based off the black and white comics strips Siegel and Shuster had submitted, do you think Siegel would have been awarded AC 1 and AC 4 as opposed to specific elements limited to what they submitted?

    If the law changes what WFH is, I agree with giving the more rights, but if it does not, then I think they will lose some. I don’t think DC will get a slam dunk, but they will get a lot back. If a Judge treats the Authors Post-“contact & Right’s sales” work and Pre-“contact & Right’s sales” work as if they came from separate people (true black and white), you’ll see that they are not owed as much as they claimed or received.

  34. patrick ford says:

    The original settlement deal sounds good as it was described by Warner, however I’m not inclined to just take their word for it. As I understand it the deal was agreed on, but never finalized, and the devil of deals with companies like Warner is in the details of the contract. I’m sure everyone is familiar with horror stories about contracts involving movie studios? If I remember right the Tolkein heirs were told the LOTR movie made no money.
    As I said Toberoff came in and won a summery judgment. I think Larson’s ruling was the correct ruling, and only wish Larson had been the judge in the case where Disney sued the Kirby heirs. People and judges see things differently all the time. If there is any doubt about that take a look at The Supreme Court of the United States.

  35. Didn’t mean to ramble on so much, but last sentence of the first paragraph meant to say:

    “It is still an uphill battle for Lex, but if you know their personalities, you’ll understand the true nature of their actions and the face value of their ‘displayed’ motives.”

  36. Well Judges are people :) and people see things differently from one another. As such, Judges will see things differently from one another. The appeal process is partially based on this notion. Larson had clearly shown where his opinion lay in both his ruling and his subsequent career choice. There is plenty of room for variance here.

  37. Thunderfist says:

    Marc, granted DC might win back the few pages in Superman #1 and the story in Action Comics #4 but so what.

    There is really nothing of significance in those pages to Superman mythos. Action Comics #1 establishes the core of the character. The newspaper strip establishes the Kryptonian origin.

    But Action Comics #4 and Superman #1 were mostly meaningless victories.

    It is interesting to note that while we spend most our time discussing what the Siegels won in that court decision, we ignore what they failed to win. They were going after all of Siegel’s Superman work until 1943. This includes Action Comics #1-#61, Superman #1-#23, and all the Superman strips to 1943.

    Toberoff was quick to trumpet his minor victory here but, in reality, it was primarily a loss. Even with a favourable judge, Toberoff was unable to establish that Siegel was not in a work for hire arrangement.

    Normally, you don’t appeal your victories but Toberoff’s victory was so minor, that he feels he needs to go for broke and try again.

  38. Thunderfist, I agree that AC 1 and the 12 weeks are very important, but grabbing what they can from SM 1 and AC 4 doesn’t hurt either, since they have strong arguments on those. The less elements/works of Superman the families own, the less bargaining power that have, and there is a possibility of this impacting royalties. Its not just about the content of the works, its about the perception of success created by winning elements of the works back.

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  1. […] Not only did the law work against him on this score, but the ample settlement and DC’s retcon of Toberoff as a corporate carpetbagger substantially changed the rhetoric of the […]

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