Do comic company lawyers kill creative freedom?

Superman co-creator Jerry Siegel

Superman co-creator Jerry Siegel

Among the many thoughtful questions raised in my discussion with the Superman Homepage earlier this week was whether the Siegel lawsuit prompted changes to Superman’s uniform. This might seem like a small issue, but it reflects serious concerns about freedom and integrity in a corporate context.

It wouldn’t be responsible to downplay the importance of corporate attorneys in today’s creative climate–if they conclude that something should or should not be in a company material, it typically will or won’t be there.

Consider what happened in regard to Superboy. In the Siegel litigation, Superboy disappeared after a judge ruled that the character belonged to the Siegels. When a different judge vacated that ruling, the character re-appeared. Although correlation does not necessarily imply causation, in this context it’s reasonable to conclude that Superboy’s disappearance was most likely dictated by the loss of the copyright. His re-appearance — well, the return of the copyright allowed that, but it doesn’t necessarily follow that a lawyer would have ordered DC to put Superboy back in a book.

The reason: lawyers for the most part are not there to call story beats. That’s not their job. C-level executives, editorial, writers, artists, marketing–they’re out in front maximizing profit or living their creative dream. Meanwhile, the lawyers are doing what they can to help everyone else make things happen without fueling a lawsuit or going to jail.

What does that mean for red underwear outside of tights?

The answer may vary depending on the personalities involved.

What we know for sure is that DC’s attorneys cited content variations over the course of Superman’s history as evidence of the value of DC’s ongoing creative input. This was part of DC’s argument for reducing the financial impact of the heirs (now all but lost) co-ownership of 50% of the Superman material from Action #1. The lawyers would not have kept the Siegels from getting a payout on this score, but they probably would have succeeded in keeping the Siegels from getting a full 50% of the Superman universe today.

Beyond that, a savvy corporate lawyer reviewing content planned for release–and reviewing content planned for release is part of what today’s corporate lawyers should be doing–couldn’t have helped but spot ways in which new material resonated with the case.

For instance, some time ago an insider told me that a certain writer–who shall remain anonymous–had submitted a story in which the mysterious hand visible at the creation of the DC universe was actually that of Superman. Time Warner attorneys reportedly ordered that part of the story edited out, inasmuch as it could be cited as evidence that DC regarded all of its superhero material to be derivative work based on the Siegel and Shuster character.

A lawyer with the same mindset would likely see apparent connections consistent with the case. There’s a draft New 52 cover with Superboy wearing a black-and-white costume? “Hey,” the lawyer exclaims  after hours of tedious flyspecking, “that’s like the black-and-white strongman the judge said we own from the Action #1 promo ads!” Maybe it was just a coincidence; maybe it was the artist playing off of a funky part of the 2008 Siegel ruling. Either way, it’s something to note.

The same goes for the S-shield, which for a while was a central point of contention in the Siegel case. The shield has gone through a number of variations over the course of its history, including the period of time following the lawsuit. It’s questionable whether company attorneys asked for any specific changes after the Siegel filing or 2008 victory, since any savings would be minimal at best. However, the existence of occasional variations could have been cited to substantiate DC’s claim to its own creative contributions in determining how much the now lost Siegel share was worth.

This analysis of Superman material would not be not limited to comics–company lawyers doing their due diligence should look at everything connected to company property. One of DC’s writers, Grant Morrison, writes a chapter in Supergods that says the core DNA of the Superman character is all there on the Action #1 cover? “Wow,” the lawyer says, “that could help us!” Morrison goes on to say that Superman became this emergent character who inevitably transcended Siegel’s control? That could help too! Morrison might not have meant to do so–probably didn’t in fact, given that everything he said flowed naturally from scientific & literary ideas he’s been writing about since the 1990s–but that wouldn’t have stopped a corporate attorney from citing Morrison’s material in the profit-allocation phase of the trial had the Siegels kept their 2008 victory.

[A personal sidenote, in light of certain comments made following my earlier posts on this subject: I happen to agree with Morrison's understanding of Action #1--and I can assure you that I am not a DC mouthpiece, nor have I had any desire to reduce the Siegels' share of the property. To paraphrase Freud, sometimes Superman tossing a car is just Superman tossing a car.]

Is it possible that some lawyers might have tried to use the case to micro-manage Superman material? Sure, there are folks who go beyond the pale of what’s required in any number of organizations, and that’s not limited to lawyers. There was an argument to be made that stripping Superman of his shorts or changing the S-shield might have reduced the Siegels’ payout by a few dollars, but would the change have been worth it? At max the Siegels (before last week) would have had 50% of current Superman material, and most likely it would have been less. In that context it would have been much more business-savvy to make whatever choices maximized brand value as opposed to risking greater returns on minimal savings.

Normally, though, the fact that attorneys are trained to take this issue-and-argument-spotting approach to content does not mean that the lawyers are calling all the shots. Creatives change things; companies stay in business by keeping content fresh. This may have given DC’s lawyers some helpful arguments, but it doesn’t mean they were always pulling the strings.

Of course, so far we’ve just been talking about direct creative interference. Rights agreements, litigation strategies, personnel management–their effects are a matter for another post.

Comments

  1. There is one way that lawyers – or more to the point, the laws they work with – limit creative freedom: copyright itself. If the laws that were in effect when Superman was created still applied, then pretty much the whole franchise: Superman, logo, Clark Kent, Lois Lane, kryptonite, Superboy, Luthor (but not Supergirl) would be in the public domain now.

    If that were the case, DC could – and would – still exploit the character (with help from the trademarks to maintain a dominant position in doing so)… but so could others. Warner Bros would be compelled to produce the best and most interesting Superman stories, much like various studios are producing competing Sherlock Holmes adaptations. To tell stories reflecting his interpretation of the concept of the Superman, Grant Morrison wouldn’t need to get approval from the current administration of the company that bought the company that bought Superman from Siegel and Shuster, and he wouldn’t need to muddle his thoughts by filing the serial numbers off and repainting the characters (like Moore had to with Supreme).

    I’m a firm supporter of copyright. But the US Constitution specified that it was supposed to be for a limited duration (originally just 14 years) and that the whole point of it was to spur the creation of new creative works. 21st century copyright law – especially when applied retroactively – works against that. It limits others’ creative freedom to do new and interesting and innovative things with the character of Superman and to create new works honestly derived and extended from it. And it takes away the incentive for DC to put the effort into creating and promoting new and original characters that they would – for a limited time – have exclusive rights to.

  2. I think it would be interesting to look at lawsuits (or at least lawyers involved in disputes) between creators and publishers and changes made to the respective characters (and how they are published) around the same time. While we couldn’t prove causation, I suspect we’d see a lot of interesting correlation.

    But I could be wrong.

  3. Johnny Memeonic says:

    Edit the article title to just “Lawyers kill everything” and you’ll have achieved a piece of true enlightenment.

  4. Silly But True says:

    With the return of the (completely new) Nova series at Marvel, I’ve been reading up on the history of the Wolfman v. Marvel Entertainment case.

    My understanding is that the very legitimate questions of ownership — i.e. that Wolfman’s Star/Black Nova creation and fixing him in copyrightable form within his and Len Wein’s Super Adventures fanzine predated Marvel Comics — were essentially punted due to the case being resolved in bankruptacy court, rather than a typical venue as decided Siegel by a judge more experienced to handle such copyright issues as opposed to bankruptacy issues. The question that the bankruptacy court decided — that Marvel’s exploitation of Blade via the movie was sufficiently different from the bomber-wearing jacketeted, bandoliered, and afro-ed character created by Wolfman — didn’t really actually resolve ownership rights at all.

    Does anyone know if the lack of clarity over Wolfman’s original Richard Rider Nova is at the root of the new Sam Alexander Nova?

    I haven’t read any comprehensive analysis of that case — and very little appears to have appeared at the time — to the extent that Marvelman/Miracleman, Superman, or even the most recent Ghost Rider suit were covered.

    Can someone advise of the overall details of Wolfman’s case, and where the question of ownership lies currently with respect to Nova (and even Blade, since in Wolfman’s words was created at Warren not Marvel, but not necessarily cemented in published form), and how it might impact reasons why a publisher might want to change original details at this time.

    Silly but true.

  5. The Wolfman case was decided in the Federal District Court of the State of Delaware, which has no greater or lesser authority than any other federal district court. The federal courts are the venue where IP disputes are decided. The Wolfman case came under that specific federal court’s jurisdiction because it was overseeing Marvel’s bankruptcy reorganization, and Wolfman was disputing Marvel’s ownership of specific assets. Wolfman originally filed the case in California, withdrew it, and then refiled it in Delaware. After the Delaware filing, he tried to get it moved back to California, but the court refused.

    The claim put forward by Stephen Bissette and others that this was a “bankruptcy court” that lacked the proper expertise to decide an IP dispute is a red herring and completely false.

    The court didn’t “punt” on anything.

    While Wolfman was able to show that he had created versions of Nova, Skull the Slayer, and the Tomb of Dracula character Janus prior to writing stories featuring them for Marvel, the court found that the versions Marvel published were substantially revised and developed beyond Wolfman’s initial conceptions. As such, the court ruled they weren’t the same characters and determined them to be produced at Marvel’s instance and expense (the equivalent of work-made-for-hire under the 1909 copyright law, which governed the copyrights for this material).

    Wolfman did not lose on the matter of Blade because of differences between the movie version and the comics one. The differences between the movie and comics versions didn’t factor into the judge’s decision. The judge found that the comics versions of Blade (and Deacon Frost) were created at Marvel’s instance and expense and therefore Wolfman had no claim to ownership.

    The court’s decision can be read here.

  6. patrick ford says:

    Top of page 1.

    “This is a bankruptcy case. Marvel Entertainment Group, Inc. and certain
    subsidiaries, including Marvel Characters, Inc., filed petitions for relief under Chapter
    11 of the United States Bankruptcy Code on December 27, 1996. On November 11,
    1997, this court withdrew the reference from the bankruptcy court and took jurisdiction
    of the Marvel bankruptcy. This court confirmed a plan of reorganization for Marvel on
    July 31, 1998 and retains jurisdiction over matters related to the bankruptcy”

  7. I can’t tell if Patrick is attempting to dispute what I wrote or not. However, let me repeat something from my above comment:

    “The Wolfman case came under that specific federal court’s jurisdiction because it was overseeing Marvel’s bankruptcy reorganization, and Wolfman was disputing Marvel’s ownership of specific assets.”

    Again, I don’t know if Patrick is trying to highlight some perceived contradiction, but there isn’t any.

  8. patrick ford says:

    Just highlighting that it’s a little confusing as far a “case” vs, “court.” Proceedings concerning Marvel’s bankruptcy begun in the Delaware Federal Bankruptcy Court were taken over by the Delaware Federal Circuit Court. Wolfman filed in 1997 in the Bankruptcy Court before the jurisdiction was moved in Nov. 1997.
    One thing which is kind of interesting Judge Stephen Larson who awarded the summary judgment to Laura Siegel Larson (no relation) left the bench to enter private practice for a firm who deals with corporate litigation and IP cases. The judge who presided over the court ruling against Wolfman left the bench to go into private practice involving IP law.

  9. Silly But True says:

    Mr. Martin: Thanks! That’s the type of overall description I’ve been trying to find, and the court’s actual opinion had eluded my web-searches to date.

  10. I’ve always found the biggest argument against the “DC is changing Superman’s appearance/backstory because of the lawsuits” suggestion to be that DC changes EVERYONE’S appearance and backstory, ALL THE TIME.

    The death and return of Superboy are a lot likelier to be a result of litigation, though of course it would be just as accurate to note that DC kills off and brings back characters all the time, too.

    IANAL but DC owns the trademarks, and would continue to own them even if the Siegel AND Shuster suits had succeeded. I’m inclined to agree with the article — DC’s redesigns are based on the notion of maximizing the audience, not minimizing the amount they’d have to pay to the Siegel Estate. (Whether they’re actually doing a good job of that is a separate question, but sales have certainly been up since the New 52 reboot.)

  11. Jeff Trexler says:

    Re Blade, Nova, etc.–more than anything, the case illustrates the importance of a paper trail. The court was presented with a situation where it had ample material produced for Marvel, but little to no contractual documentation or pre-existing creative work substantially reproduced in print. Inasmuch as a mere idea isn’t copyrightable, the court had precious little basis for finding that the property belonged to Wolfman.

    As for jurisdiction, the case was withdrawn from the bankruptcy court and heard by the pertinent federal district court. This makes the court’s subject matter jurisdiction vis copyright rather straightforward. Even if the case had been handled by the district’s bankruptcy court, the copyright issue was arguably a core issue relative to Marvel’s property available to satisfy creditors–the U.S. bankruptcy court arguably would have had jurisdiction as well.

    @Thad Writing about this issue can be a rather interesting experience. When I did so prior to the launch of the New 52, it soon became evident that my chatting about possible correlations–some potentially useful, some just fun coincidences (at least for a reviewing lawyer)–was coming across as an argument for causation.

    My tl;dr was basically “could be, but in most instances probably not,” but even that can seem unsatisfying if it’s never happened to you.

    Personally, I’ve been on both the giving and receiving end of the dreaded legal no. In fact, as I mentioned in my Superman Homepage interviews, several years ago DC shut down a New York Comic-Con Superman case panel that I’d organized for MoCCA, on the grounds that discussion of the lawsuits had no place at a con.

    Legally this was nonsense, and as PR it could have been a censorship cluster!$#@! if I were the sort of person inclined to go on the attack. That’s never been the aim of these posts, tho, and in subsequent discussions I was assured that at least that kind of intervention would not happen again.

  12. Annie Savoy says:

    Has anyone debating the legalities of Superman’s trunks noticed that Superman still wears the not-Jim-Lee version of his suit on licensing materials and in the JMS graphic novels? No? OK, then.

  13. The red trunks were a dated look. Batman lost his too, a few times, as have several Marvel heroes like Sentry and Wolverine. Now fans are calling for Magneto to lose his.

  14. Matthew Southworth says:

    The trunks’ll be back, too. And maybe, just maybe, they’ll do us all a favor and get rid of all that dopey piping that makes it look like Superman gets his clothes at a surf shop.

  15. Matthew Southworth says:

    The trunks are a design element that’s useful, just like Batman’s yellow belt. Would a guy who hides in the shadows have a yellow belt? Hell no. When these swaths of color are removed from the costumes, they lose their dramatic impact and flow. Batman’s purple gloves–they were extraneous; I think you can go either way with the yellow oval (I prefer without, personally); but when the figure isn’t bisected by the colored trunks, the designs fall apart.

  16. Matthew, Superman and other guys who last their trunks have belts, that are the color of their old trunks, except, of the top of my head, Wolverine.

  17. Jeff Trexler says:

    See, that’s what happens when you get rid of the Comics Code–characters start dropping their drawers.

    @Annie I think that has as much to do with brand recognition & marketing psychology as anything else. Classic Superman is as integrated into our cultural iconography as the original Coke design. The new movie might help familiarize a new look and offset some of the intuitive that’s-not-Superman reactions.

    I imagine that the early 1960s Batman didn’t have as much as a problem on that score because he had become culturally marginal, an image associated more with a quickly receding past. Identifiable updates mapped on a familiar figure helped take him wide again.

  18. Matthew Southworth says:

    Marc–those belts are thinner, of course, than the wider field of the trunks. Frankly I think once the trunks became Speedos it threw off the design, too. The best design approach is the old one where they were almost boxer briefs (but without the legs), like what Darwyn Cooke used in New Frontier.

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