by Jeff Trexler
The most revealing development in the Siegel case since I last wrote for The Beat involves a check. Not the check issued to Siegel and Shuster in exchange for the Superman copyright, but one that DC has apparently* not written–payment to the Siegel family for Grant Morrison’s relaunch of Action #1.The Superman copyright dispute has for the most part been quiet in the past few months. Appellate briefing has been postponed until December 22, and DC’s ongoing lawsuit against Siegel and Shuster attorney Marc Toberoff involves a separate issue that will get its own post. The reappearance of the original check that paid for Superman was indeed a historic moment—if ever a check belonged in the Smithsonian, this is it—but from a legal standpoint it’s nothing new. An image of the check has been part of the public record for over 70 years.
The new Superman, however, is a far more intriguing issue—particularly Morrison’s version, which draws from core elements of the character originally appearing in the Superman material co-owned by the Siegels. Reduced powers, a social justice mission, and even specific images and story beats call back to original material whose copyright is now shared with the Siegels’ daughter and his widow’s estate.
Of course, the court decision awarding the Siegel heirs half of the copyright in Action #1 and other original material is on appeal, so to a certain extent it’s no surprise that DC has yet to account for the Siegel family’s share of the Action relaunch, let alone any other material derived from the Superman character in the DCNu.
Nonetheless, the Superman relaunch also represents a missed opportunity for DC to advance the PR strategy it has pursued since the appointment of Daniel Petrocelli as its outside counsel—namely, to shift public sentiment away from the heirs while attempting to drive a wedge between the heirs and Toberoff. The lawsuit filed against Toberoff tried to accomplish this by recasting DC & its corporate family as an enlightened company that was willing to give the Siegel and Shuster heirs a settlement worth millions of dollars until Toberoff (allegedly) scuttled the deal for his own personal gain.
To reinforce its benevolent image, DC could have announced that it was placing 50% of the proceeds from the Morrison relaunch in trust for the Siegel heirs pending the litigation’s final outcome. In fact, it could have generated considerable goodwill by giving 50% of the Action #1 proceeds to the Siegel family with no strings attached. DC could have taken either approach without conceding the legitimacy of the Siegel heirs’ legal claims—a trust would have had an express reference to the ongoing dispute, while an outright grant could have been presented as a gratuitous acknowledgment of Jerry Siegel’s acknowledged contribution to the Action relaunch, a la DC’s this-is-not-a-settlement stipend for Siegel and Shuster in 1976.
So if DC isn’t using the relaunch to promote itself as sympathetic to the Siegel legacy, why would DC let the material go to print? The fact that DC has made express reference to the character traits, story content and design of the original Superman material in dispute has significance beyond the relaunch, especially in light of management’s concession last summer that company lawyers do indeed vet new material prior to publication.
At the very least, the Action relaunch reinforces the argument that prompted me to return to writing about the Siegel case—namely, that DC’s lawyers are not relying on a claim that the current Superman is a wholly different character from the original. As I explained in a previous post, the notion that a court is likely to use the Gaiman decision to justify splitting Superman in two was grounded more in wishful thinking than the law, and DC’s lawyers would not be wise to bet the super-farmboy on this outcome.
But more generally, DC’s evident lack of payment for the Siegel material in the new Action #1 is what it is—a reflection of DC’s belief that it owes the Siegels nothing or far less than 50%. Morrison’s incorporation of the disputed original material in his new Action—and DC’s failure to pay for it—is consistent with the two-part DC strategy that we have discussed since the court awarded the Siegel heirs half the Superman copyright back in 2008.
On the one hand, DC is arguing that the Siegel heirs do not own any Superman material, or at best what they do own is insubstantial. Because the Siegel heirs failed to include the promotional ads for Action #1 in their filing to terminate the transfer of copyright, DC claims that the company owns the elements of the character that appeared in these ads–elements that, according to DC, represent the Superman’s core defining traits. Even if a court were to find that certain incidental aspects of the disputed content were not derivative of this material—e.g., the Daily Star or Krypton—the value of this material, and thus the money owed the Siegel family, would be relatively small.
In the alternative, should the lower court’s original narrow interpretation of the promotional ad material be upheld on appeal, DC has also argued that the disputed original material co-owned by the Siegel family would itself be of relatively little value. The strategy here pertains primarily to the responsibility of a co-owner to account for profits, and DC is arguing that the Siegel family’s share in post-termination material is far less than 50%. According to DC, the improvements and adaptations created by DC—including those by Morrison and other creators of the DCNu—are the primary source of the character’s ongoing commercial viability; without DC’s original contributions, the early Siegel and Shuster material would have little to no market value.**
Were we to allow for a bit more corporate calculation, it’s even possible to see the Morrison relaunch as a deliberate attempt to maximize the value of the original Siegel and Shuster material while it is still owned by DC—not just by generating profits from it directly, but by adding distinct DC-owned elements that could be later used as the basis of an infringement claim against the Siegel and Shuster heirs should they ever publish or license Superman stories themselves. Lois Lane’s boyfriend, the variations on the costume, the specific manifestations of Superman’s concern for social justice—virtually all aspects of the repurposed Superman arguably contain new elements that DC could claim as its own. Moreover, the success of Morrison’s Siegel-and-Shuster-inspired relaunch could help drive down the value of the heirs’ own attempt to revive the original version of the character.
Does such resonance with DC’s legal strategy make Morrison a complicit servant of the corporate Leviathan, Superman Inc.? When I started this series, my analysis was described as an attack on Morrison’s character. I disagree, and barring another five-month gap, I’ll explain why.
*My attempts to confirm whether or not DC made any payments to the Siegel family for the use of co-owned material in the relaunch were unsuccessful. If anyone has evidence that DC has secretly been compensating the Siegel heirs for their share of the Superman copyright, please feel free to pass it on!
**One could make a distinct contrast between Morrison’s stylized relaunch and Joe Casey’s more literal use of the 1938 version of the character in The Adventures of Superman 612. Morrison’s version has seen a substantial rise in sales and public interest; Casey’s version, which retained the look and feel of the Siegel and Shuster original, presumably did not generate a sustainable spike in demand.