By Jeff Trexler
Perhaps it’s only fitting that double identity has been a central issue in the never-ending battle over the Superman copyright. As longtime readers of my posts may recall, the relation between the original and contemporary versions of Superman has been central to the Siegel lawsuits from the beginning. To set the stage for the posts that follow, let’s take a quick review of how the multiple versions of Superman have played a role in the Siegel lawsuits.
The central legal principle at play in both the Superman and Superboy lawsuits is the right of creators and their heirs to terminate a transfer of copyright after a specified period of years. However, what the creator and heirs win isn’t always clear. Copyrighted characters are rarely static between the time of sale and termination–appearances change and additional aspects of their creative universe emerge. This raises a perplexing question: to what extent do the creators and their heirs have an interest in new material derived from their recaptured works?
Superboy and Smallville
The Siegel heirs’ Superboy lawsuit gave an early indication of complex this issue can get. Jerry Siegel had claimed–and a New York state judge had agreed–that his creation of Superboy was neither work-for-hire derived from Superman nor a joint with with Joe Shuster, but wholly a product of his own independent proposal. In 2006 a federal court ruled in favor of the Siegel heirs in their attempt to reclaim Superboy, upholding the earlier determination that Superboy was “a separate and distinct entity” who was not “in reality Superman.”
The news that the Siegel heirs owned Superboy free and clear sent shockwaves through the comics community, and the heirs themselves tried to press their advantage. Court documents reveal that the Siegels’ lawyer, Marc Toberoff, and superagent Ari Emanuel had told Warner Brothers to stop producing episodes of Smallville, and the heirs sought to have the court declare it to be an illegal infringement on their Superboy copyright.
However, in 2007 the Siegel heirs suffered a stunning loss when Judge Larson vacated this decision. The judge set aside previous findings that Superboy was a separately copyrightable character apart from Superman, and the Siegels’ recapture of the Superboy copyright became null and void. Judge Larson chose not to reach a final determination of the issue, although he did lay a clear path for DC to establish that any differences between Superboy and Superman were “merely trivial.”
Superman Black & White
DC’s apparent victory proved to be shortlived, as Judge Larson’s landmark Superman rulings in 2008 and 2009 gave the Siegel heirs 50% of the copyright of the Superman material in Action Comics #1 and certain other stories, including his origin on the planet Krypton. However, the decision left unresolved the extent to which current Superman material–including Superboy–is derived from the original.
Heightened powers, new characters, alternate universes– the current DC universe has a host of elements not found in the material co-owned by the Siegels. Accordingly, DC asserts that the Siegels own far less than half of Superman today, since the company has made substantial changes and added its own original content since 1938. The Siegels, of course, claim that they should own 50% of all new Superman material–or, if the court finds otherwise, apportionment of the Superman copyright should weigh heavily toward giving the Siegels most of their 50% copyright claim, since the value of the Superman franchise “is largely attributable to the unique ‘Superman’ character and other elements created by Siegel and Shuster.” The heirs also seek to get a part of new material by claiming a 50% interest from licensing and other use of the S-shield trademark, which is arguably derived from the copyrighted S-symbol worn by Superman in the material that they co-own.
In addition to raising the issue of apportionment, Judge Larson’s 2008 ruling also made multiple versions of Superman the basis of a controversial finding that could prove to be the Achilles’ heel of the Siegel heirs’ victory. Because the Siegels’ lawyers failed to include early promotional ads for Action #1 in their filing to terminate Jerry Siegel’s transfer of Superman copyright, DC continues to own the copyright to the material that appears in those ads–including the iconic cover image of Superman smashing a car. In a most creative line of reasoning, Judge Larson ruled that because the ads were not in color and did not include the narrative content from the first story, the promotional ads merely gave DC the right “to exploit the image of a person with extraordinary strength who wears a black and white leotard and cape.”
As Judge Larson indicated in subsequent rulings, the 2008 Superman ruling has significant implications for the Superboy case. Even if the Siegels fail to gain the whole Superboy copyright, they could nonetheless gain a partial interest by establishing that Superboy was substantially derived from the original Superman material that the heirs now co-own with DC. To counter this claim, DC argues that Superboy is essentially derived from work-for-hire material wholly owned by the company. Moreover, DC argues that Smallville had no connection to Superboy but was instead a derivative work entirely based on Superman.
As these cases were unfolding, I noted that it was theoretically possible for DC and the judge to cite differences between current Superman material and the material co-owned by the Siegels as a basis for minimizing or even eliminating the Siegel heirs’ copyright interest in contemporary versions. In my next post, we’ll take a look at how this might have influenced the upcoming Superboy and Superman relaunch.
[Jeff Trexler is a lawyer and consultant and a comics fan who writes frequently about how legal matters pertain to comics.]