The Legal View: The Once and Future Superman

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201106241843 The Legal View: The Once and Future Superman

by Jeff Trexler

DC has cited its changes and additions to the Super-verse as grounds for reducing the Siegel heirs’s share of Superman material produced since 1999. A recent Variety article takes this even further, reporting thatNeil Gaiman’s success in winning co-ownership of Medieval Spawn provides legal precedent for giving DC complete ownership of the contemporary Superman, limiting the Siegels’ interest to the far less lucrative 1938 version of the character.

Does DC have strong legal grounds for splitting Superman between The Man of Tomorrow and The Man of Yesterday? Click below to see if Gaiman v. McFarlane is legal kryptonite for creators’ rights–or whether that’s just another misconceived retcon.

It would indeed be ironic if Neil Gaiman–who likened the Siegels’ landmark 2008 courtroom victory to his own–were to provide the basis for gutting the heirs’ financial stake in modern Superman material. But that’s not likely to happen. In fact, DC has a strong incentive not to rely on Gaiman as precedent for splitting Superman in two–namely, its arguments in the Superboy case.  

Is Superboy Superman?

As I’ve noted previously, the most recent and resurrection of Superboy coincided with significant developments in the Siegel Superboy lawsuit. Perhaps, as some have argued, the events were completely unconnected, but one particularly salient aspect of the lawsuit appears to suggest otherwise: in 2005 DC did not merely lose co-ownership of Superboy. It lost the entire copyright.

This first Superboy termination ruling made the rather peculiar determination that Superboy and Superman were unrelated characters. Superboy was “not in reality Superman,” but was instead “a separate and distinct entity” created by Jerry Siegel apart from any Superman material.  Pursuant to this finding, the Siegel heirs were able to reclaim the character, and the judge ordered a trial to determine whether any Time Warner projects violated the Siegels’ copyright.  

DC’s ongoing exploitation of Superman became an immediate concern. The parties’ primary focus was Smallville, which DC steadfastly maintained had no connection to Superboy but was instead derived exclusively from Superman, as evidenced in part by the young Clark Kent’s not wearing the iconic Superman costume. The status of the character expressly named Superboy was a somewhat different matter–if DC had continued publishing comics with a character expressly named Superboy, there would have been a stronger basis for finding infringement.

But that’s not the end of this legal story. In a subsequent motion for review, DC was able to get the court to vacate this ruling and nullify the Siegels’ complete ownership of the Superboy copyright. According to DC, any apparent differences between Superman and his adolescent self were merely trivial variations on Superman’s distinctive traits. The judge left the issue open for further briefing, but even the Siegels conceded that Superboy was at most a separately copyrighted derivative work adapted from pre-existing Superman material.

Superboy, Superman and derivative works

The treatment of derivative works is crucial for understanding not just the Superboy copyright, but the Gaiman case and its relevance to Superman. A separately copyrightable derivative work does not give its owner an unbounded ownership interest–otherwise it would be too easy for a creator to postpone the end of a copyright term indefinitely by creating new works that include old material.  Rather, the copyright in such a work “”>covers only the additions, changes or other new material appearing for the first time in the work. It does not extend to any preexisting material and does not imply a copyright in that material.”

Whether the court ultimately decides with DC or the Siegels in the Superboy case, the outcome is likely to be favorable to DC. Even if the court were to find that new elements characteristic of Superboy are sufficient to make him a separately copyrightable character–and that’s not at all certain–the separate character copyright in Superboy would not extend to previously published elements owned by the co-owners of Superman, presently the Siegels and DC. At the very least, DC gets a financial stake in Superboy through the character’s expression of pre-existing Superman material–an ownership interest that DC would lose were the court to use the differences between Superboy and Superman to justify splitting them into two completely unrelated characters.

The derivative works issue creates even greater complications in the Superman case. The termination of the infamous 1938 sale of Superman to Detective Comics, Inc. gave the Siegels co-ownership of previously created Superman material, and the remaining Shuster heir stands to recapture the other half in 2013. However, DC has added a considerable number of new elements to the Superman mythos since 1938. Not only does this raise serious questions as to the value of the Siegel’s ownership share, but it raises the distinct possibility that as of 2013 DC will not be able to create any new Superman material without getting a license from any of the co-owners of the preexisting material from which the modern Super-verse is derived.  

This is the dilemma that the Gaiman case supposedly solves. According to the interpretation espoused in the Variety article and the student note on which it is based, the 2004 appellate court decision giving Gaiman co-ownership of Medieval Spawn established a radically new approach to derivative works, effectively erasing the copyright interest of the owner of the underlying preexisting material. Instead, the judge has the power to recognize a separately copyrighted derivative character as a property in which the author of the preexisting material has no ownership interest–which in the Superman case, means that the judge could give DC exclusive rights in the modern Superman while limiting the Siegel and Shuster heirs to the far less lucrative Superman material from 1938.
Gaiman 1658441c The Legal View: The Once and Future Superman
What the Gaiman case really means

Although this interpretation of the Gaiman case may be reassuring to Time Warner and other media conglomerates looking for ways to get around creators’ termination rights, it is not in fact what the court ruled. To see why, let’s take a closer look at what Neil Gaiman won.

The dispute over the ownership of Medieval Spawn arose from a situation that other writers and artists would do well to avoid–working together without a written agreement. In this instance, Gaiman wrote and Todd McFarlane drew a character now known as Medieval Spawn who proved to have substantial market value long after his first appearance in Spawn #9.  According to McFarlane, though, he owed Gaiman nothing for any subsequent use, since Medieval Spawn ostensibly had no copyrightable characteristics apart from those already present in McFarlane’s preexisting copyrighted character, Spawn. The court, in a 2004 opinion by noted conservative jurist Richard Posner, disagreed–it found that Medieval Spawn had differed from the original Spawn in several distinct ways, including visual appearance, manner of speaking, historic setting and alter ego, which was clearly not not twentieth-century CIA agent Al Simmons. Accordingly, the court affirmed that Medieval Spawn was a separately copyrightable derivative work co-owned by both of its creators.

In keeping with established copyright doctrine governing derivative works–and described in cases expressly cited by Posner as legal authority in his opinion–the Medieval Spawn copyright covered the distinct new elements not drawn from the preexisting copyrighted character, Spawn. Gaiman’s legal right to incorporate these elements in a new derivative work was implicit in his agreement with his co-creator McFarlane, who was also Spawn’s creator and the owner of the Spawn copyright.

According to the latest court filings a settlement is still being negotiated, but the various court rulings in the case establish that Gaiman’s co-ownership interest as the Medieval Spawn’s co-creator gives him a clear financial stake in any profits that Medieval Spawn generated. Because he and McFarlane had not specified otherwise in a written agreement, under the default rule for joint ownership the profits are to be divided equally. This extends not just to the direct exploitation of Medieval Spawn in comics, statues and other material, but to the character’s own separately copyrighted derivative works–principally Dark Ages Spawn, which, despite its distinct elements, was substantially similar to the preexisting material that Gaiman co-created.

Medieval Spawn’s legal status as a derivative work, however, makes the question of Gaiman’s right to use the character somewhat more complex, once again in no small measure due to the lack of a written agreement delineating any terms. The 50/50 split of the profits does not automatically give Gaiman an unfettered right to use Medieval Spawn, as if he were, like Jerry Siegel or Joe Shuster, the joint owner of a wholly original work.  Because Medieval Spawn is a derivative work, the separate copyright in the character extends only to such material as is new to the character. Any elements drawn from the pre-existing Spawn material remain the property of the initial creator–that is, Todd McFarlane–and as such arguably can be used only with McFarlane’s permission as a sublicensee. It is conceivable that a court could infer that Gaiman has an express or implicit license for ongoing independent use from the circumstances of the character’s co-creation, but such an inference is not required by law.

This may sound unusual, but it is actually a quite common legal problem, particularly in the software industry and other businesses that license works for specialized adaptation. For example, consider the following scenario based on an actual court ruling in the same appellate circuit as the Siegel lawsuits.  Company X licenses a copyrighted photo and substantially alters it for use in the company’s advertising.  After a specified period of time, the underlying license expires.  Even though the alterations may be sufficiently distinct as to make Company K the co-owner of a separately copyrightable derivative work, Company K legally cannot re-use the altered photo without getting a new license from the photographer who created the pre-existing image.

And this is where things get particularly interesting–because in the Superman case, DC is Company X.

What Gaiman means for Superman

As it stands, the Gaiman case DID NOT establish a clear precedent for depriving the Siegel and Shuster heirs of their rights in contemporary derivative works by arbitrarily splitting Superman into two separate characters. Moreover, Gaiman does not give judges the authority, as some have suggested, to use DC’s derivative Superman material as the basis for giving the company an unfettered right to create new Superman works as co-owner after Siegel and Shuster heirs recapture the entirety of the original copyright in 2013. The law on both fronts is well established, both in precedent and in the Copyright Act–copyright owners of preexisting material have exclusive rights to create or to authorize derivative works, and the former owner of a terminated copyright interest does not have the right to produce new post-termination derivative works without a license.

If DC’s lawyers are relying on the relaunch, changes in powers or any other variant in Superman’s characterization as the basis for establishing that the contemporary Super-verse has no intrinsic ties to the Siegel and Shuster material, it’s a strategy that has little chance of success. Such differences may reduce the amount of any payout to the heirs in apportioning post-termination profits, but they have littl chance of erasing the incontrovertible connections between the past and present Superman universe, from Clark Kent, Lois Lane, and the super-strong do-gooder from Krypton to recurring narrative themes that apparently will continue through the relaunch and beyond.  

Nonetheless, even if the parties do not settle and it looks like the Shuster heir will succeed in recapturing the remaining 50% of the original Siegel and Shuster Superman material in 2013, there are ways for DC to try to minimize the potential damage. Not only would DC continue to have the right to continue to sell copies of items created between 1938 and the 2013 termination date, the company would likely challenge any new works by the heirs that call to mind the Superman with which we are familiar, on the grounds that such material would infringe on the copyrighted  elements that DC will continue to own. There are arguments to counter such legal action, but the fight would no doubt be expensive.

Ultimately, though, perhaps the most effective way outside of settlement for DC to limit the damage from 2013 would be to persuade a higher court to overturn the Siegels’ landmark 2008 victory. It’s a strategy that worked with Superboy, and it could happen with Superman as well.

In my next post, I’ll explain how DC just might be able to win.

[Jeff Trexler is a lawyer and consultant and a comics fan who writes frequently about how legal matters pertain to comics.]

Comments

  1. Love Posner decisions. Epic.

  2. Jeff-

    Great stuff, as always. I think I understand the importance of the Gaiman case now.I wanted to get in quick before we erupted into an Athenian debate over argumentation (which I did enjoy, this feels like a class).

    If this is true:

    If DC’s lawyers are relying on the relaunch, changes in powers or any other variant in Superman’s characterization as the basis for establishing that the contemporary Super-verse has no intrinsic ties to the Siegel and Shuster material, it’s a strategy that has little chance of success.

    Why? Because the courts won’t go for it or because you feel there are too many ‘intrinsic’ qualities of the 1938 version that can’t be conned out? I know this is an IF, but still.

    And I think this story, which ran yesterday I think, goes a long way towards answering the question of whether or not this is something DC actively practices:

    http://www.jimshooter.com/2011/06/super-lad.html

    And I don’t mean to put a sort of evil soundtrack to that last statement — though it must be fairly obvious what side I am on, this kind of practice would seem like common sense to me.

  3. I really want to see what Neil Gaiman has to say about this… haven’t seen any comments yet on http://journal.neilgaiman.com/

    Maybe he’s tweeted something…

  4. Kate Fitzsimons says:

    Kon=El/Connor Kent Superboy really isn’t like Siegel and Shuster Superboy at all. Different character, name, abilities, history and personality.

    But Superman…? I really don’t see how they’re going to get out of that. The part that readers remember and care about is all there in the original, and unlikely to change any time soon.

    This should be interesting!

  5. Jeff Trexler says:

    For anyone interested in the legal run-up to the Posner opinion, here’s the original verdict sheet + subsequent material that sheds more light on what was at stake:

    http://goo.gl/K6qYd

    Also, the links seem to be broken for now, so here are a few of the main references:

    Posner opinion: http://en.wikisource.org/wiki/Gaiman_v._McFarlane/Opinion_of_the_Court
    2010 ruling: http://goo.gl/q8qyF
    Variety article: http://goo.gl/QkQRb

    You may notice when looking at the case docs that the court found other characters to be co-owned by Gaiman as well. I deliberately limited my observations in the post to Medieval Spawn, the character cited in arguments that Superman could be split in two. Angela, for example, is in a somewhat different position. One could argue that this character was not derived from pre-existing original Spawn material, thereby giving Gaiman an unfettered right of use as co-owner.

    @Brad re “it’s a strategy that has little chance of success. Why? Because the courts won’t go for it or because you feel there are too many ‘intrinsic’ qualities of the 1938 version that can’t be conned out?”

    The courts most likely wouldn’t go for it precisely because there are too many intrinsic qualities that can’t be retconned out. Clark Kent, the visual appearance and core traits of Superman, Lois Lane, the Daily Planet, Krypton–it’s hard to deny that the current character is derived from preexisting material when so much of it is essentially the same.

  6. Great series of posts on this issue. Nicely done.

  7. Synsidar says:

    The part that readers remember and care about is all there in the original, and unlikely to change any time soon.

    What would you say that the core of Superman is? His “defining characteristics” are, according to one article, such things as his costume, Clark Kent and his origin story, as described in the first editions of Action Comics.

    Those characteristics, though, aren’t what make him a superhero. His defining characteristics as a superhero would be his powers and his highly developed moral and ethical standards. Purely from a writing standpoint, it would be easy to take the powers and heroic personality and put them in a new package that had very little to do with the original.

    SRS

  8. @Brad: I think Jeff’s saying that any revisal of Superman that changed him enough to escape the original copyright would effectively make him unrecognisable as Superman, defeating the point of the exercise.

    Personally, I suspect that DC’s legal strategy here is the time-honoured “hope to god they run out of money”, with the fallback being “settle on the best terms available”.

  9. Great stuff Jeff. Thanks for your work on it. It seems to me that Warner should just do the right thing, pay a fair amount to the heirs based on what they won in 2008 and create new licensing deal for it going forward. Everyone wins. Seems like that would be cheaper than the ongoing legal battle and have a lower risk for each party. But, me = not a layer.

    I don’t remember but how did Joe Simon’s deal with Marvel on Cap turn out? Didn’t he win Cap back in someway but Marvel still gets to use him? Or did Simon lose.

    Oh, and the link “an actual court ruling” did not work.

  10. Jeff Trexler says:

    Here’s a doc with the case links, the original jury verdict in the Gaiman case and additional notes:

    http://goo.gl/nezN6

  11. Synsidar says:

    The courts most likely wouldn’t go for it precisely because there are too many intrinsic qualities that can’t be retconned out. Clark Kent, the visual appearance and core traits of Superman, Lois Lane, the Daily Planet, Krypton–it’s hard to deny that the current character is derived from preexisting material when so much of it is essentially the same.

    If someone were to ask for a redesign of Superman, the first question would be: What are his essential elements?

    Those might be his set of powers, which make him the strongest/greatest superhero on Earth, and his nobility. Nothing else, from a genre fiction perspective, is unique to him. A love interest certainly isn’t. There are the rumors that Morrison wants to write Superman as a weaker hero, although that might not be legally significant.

    The troubling aspect of the situation is, that as a genre character, the story possibilities for Superman can be exhausted like they are for any other character. His longevity as a character is due to his owners not trying to maximize his appeal with a single work that could reach millions of people, but confining him to comics which reach a steadily turning over audience of thousands monthly. That’s the reason for all the minor variations over the decades: luring readers with the suggestion that something new is being done with the hero.

    Superman’s worth as a trademarked property, recognizable icon, and merchandising tool might far exceed his worth as a fictional character, and those aspects can’t be readily duplicated. Time Warner probably would be better off with a settlement.

    SRS

  12. Wow, this really helped me understand the situation… but also reminded me how archaic copyright laws seem.

  13. Superman is a strange visitor from another planet. He has abilities far beyond mortal man. He chooses to use those abilities to help mankind rather than conquer it. That is Superman. If you make a comic book about that, you have made a comic book about Superman.

  14. >> Superman is a strange visitor from another planet. He has abilities far beyond mortal man. He chooses to use those abilities to help mankind rather than conquer it. That is Superman. If you make a comic book about that, you have made a comic book about Superman.>>

    Martian Manhunter, Silver Surfer, Captain Mar-Vell, Mr. Spock, the Silver Age Hawkman, Savage Dragon…

    I think perhaps both your distillation and Syn’s distill Superman to the point of unrecognizability. Because if all he is is the powers and the nobility, there’s nothing there to copyright or trademark. Powerful visitor from another planet who helps mankind isn’t identifiable enough for anyone to own, either.

    We recognize characters by their surface, by their trappings. James Bond isn’t merely “skilled secret agent with a license to kill,” because there are many like that — even in his own context, he’s one of a set of agents like that. Winnie the Pooh isn’t just a talking teddy bear. Tintin isn’t just an intrepid boy reporter.

    Their core gives them a role in the story, but the details tell us who they are, make us care about them. That’s what the parties are contesting over.

    If all that mattered was powerful noble hero or friendly powerful alien, DC wouldn’t need Superman, because they could create a dozen of those overnight. Heck, they probably already have more than a dozen of each already to hand.

    It’s the details that make a character distinctive, that make them individual characters instead of just ideas. Ideas aren’t copyrightable — only the specific concrete expression of ideas. Ideas taken form, with detail and specificity.

    That’s what they’re fighting over, because that’s what makes Superman Superman instead of just some random superhero.

  15. Synsidar says:

    I think perhaps both your distillation and Syn’s distill Superman to the point of unrecognizability. Because if all he is is the powers and the nobility, there’s nothing there to copyright or trademark. Powerful visitor from another planet who helps mankind isn’t identifiable enough for anyone to own, either. [. . .]

    It’s the details that make a character distinctive, that make them individual characters instead of just ideas. Ideas aren’t copyrightable — only the specific concrete expression of ideas. Ideas taken form, with detail and specificity.

    You’re making an apples-to-oranges comparison. The details in prose stories are what distinguish genre fiction characters from one another, so that private eyes, for example, aren’t interchangeable. Those details are generally missing in superhero comics stories. The readers of those react to context, visual effects, and mannerisms.

    The Squadron Supreme’s Hyperion, for example, is an obvious Superman analogue.

    The best example of details being unimportant in comics stories might be Marvel’s unlicensed version of Fu Manchu. He’s been appearing in Marvel comics for years, without his name or distinctive appearance, because Marvel doesn’t have the right to use them. In the recent SECRET AVENGERS arc in which villains tried to make Fu Manchu live again, he was drawn as a corpse, and given a made-up name, but he spoke in character and was identified as Shang-Chi’s father. Those cues were enough for fans, apparently.

    There’s no sense of wrongdoing if this quote from Brevoort is any indication:

    In the second major arc of Secret Avengers, beginning with issue #6, Shang-Chi returns, as does the Prince of Orphans from Iron Fist. Marvel Vice President Executive Editor Tom Brevoort described the story by writer Ed Brubaker as “a big globe-trotting chase as mysterious forces are attempting to resurrect Shang-Chi’s father-who-shall-not-be-named. And should they be successful in this, bad and terrible things will happen.

    In Bendis’s early NEW AVENGERS issues, he routinely used costumed characters without identifying them. There were complaints, but the practice continued. Comics readers demand far less in the way of details than prose readers do.

    There’s Flo, the Progressive Insurance fictional sales agent. She’s become a star in spite of never appearing in anything other than short commercials. She’s likable, viewers project qualities onto her — that’s all that’s needed nowadays.

    Details matter to readers only if they care about them; some readers might actually find them boring. If DC were to anoint a successor to Superman, he looked good, and a writer handled him well, Time Warner might find that Superman wasn’t quite as necessary to the DC universe as they thought.

    SRS

  16. Xenos says:

    Whoa.. That’s heavy, Doc.

    There’s a ton of back and forth and picking apart technicalities on this case. It certainly makes the head of a commoner not familiar with law. Though this article does a damn good job laying out the details. And it really is a fascinating case involving one of the industry’s biggest characters.

  17. Intriguing. I just went through a batch of old fanzine stuff, researching a different project. I found an article in Larry Ivie’s Monsters & Heroes No. 2, citing three different versions of the Superman character. The article states notable differences in the original(1), the radio and Fleischer Superman (2), and the serial and early TV Superman, which dovetails on the TV cartoon version(3).
    This article was written in 1967.
    Look how many times the character has changed since then (we’ll try to forget Blue Lightning Bolt Superman). Yet common sense tells us that they’re all interpretations of the same character.
    I know common sense is far from a legal argument, but if the value of the matter is in part determined in the court of popular opinion, as measured in sales, it’s surely a factor!

  18. Jeff- Again, I’m not a lawyer but… is the ongoing legal stuff, DC/Warner vs. heirs etc, covering copyright, trademark or both. (Sorry if you’ve already covered it and I just missed it or failed to process it.) Could you have the trademark on the costume, name, logo etc. but lose the copyright to the idea/story? (Keeping in mind that I just read the wiki pages on both trademark and copyright and don’t have a clue wtf is going on with either in this country.)

    Also, is there an Idiots Guide To version of why nothing seems to enter the public domain?

    Thanks!

  19. Shannon – the Idiot’s Guide to why nothing seems to enter the public domain can be traced to high-profile companies with soon-to-be-expiring copyrights (Disney, for one) successfully lobbying Congress to extend copyright protection. See this entry on the Sonny Bono Copyright Term Extension Act of 1998 (also known unofficially as the Disney Protection Act): http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

  20. Thanks Michael. That is just insane. 120 years? Efffing Mickey Mouse.

  21. >> The details in prose stories are what distinguish genre fiction characters from one another, so that private eyes, for example, aren’t interchangeable. Those details are generally missing in superhero comics stories.

    >> If DC were to anoint a successor to Superman, he looked good, and a writer handled him well, Time Warner might find that Superman wasn’t quite as necessary to the DC universe as they thought.>>

    I think those beliefs are an artifact of your peculiar worldview, Steve, and not anything DC or the courts or the Siegel and Shuster estates believe, or anything that would factor into the case or hold true in the real world. DC’s been trying to publish characters as popular as Superman since he became a hit. So far, they’ve arguably managed one other of that stature.

    And if DC could come up with a new character who looked good and readers liked as much as audiences worldwide embrace Superman, capable of bringing in billions in publishing and licensing income, they’d be delighted. They’d still want to own Superman, though. Having another one wouldn’t make them not care about Superman; they’ll take as many characters that popular as they can manage.

    What’s “necessary to the DCU” is not their litmus test. What makes the most profit is.

  22. You know, judging from the covers of the Superman and Supergirl titles. It doesn’t appear that they’re going to change all that much.

    I mean yeah, they’re getting collars, and maybe whoever designed the suits could claim they’re his or her trademarks–so he could recycle them for another character, but they both look like Superman and Supergirl–I don’t think that the whole distinct entities argument applies in this case.

    I understand that in this new DC Lois Lane is likely not to exist, and Superman’s love interest will be Wonder Woman. Okay, for now, but is that going to last? I doubt it.

    For the longest time, it appeared that Lois Lane wouldn’t appear in Smallville. Given Chloe Sullivan’s byline, a lot of people, myself included, believed she would become “Lois Lane,” but Erica Durrance did arrive in Smallville and turned out to be in my opinion the best Lois Lane. She and Clark are together. When the new Superman movie comes out, I’m pretty sure Lois Lane will be there.

    Don’t get me wrong. I support this new direction because I’m getting what I want–Barbara Gordon healed, and as a bonus she’s Batgirl again. So, my boycott is at an end, but I see this reboot a little differently. It’s a way to eliminate continuity for all the new digital download readers DC plans to gather. They’re recreating a universe that’s more friendly and more iconic for these chaps and chapettes that may not have picked up a comic book in their lives but still know that “Stately Wayne Manor” houses the Batcave. Batgirl is Barbara Gordon, or Yvonne Craig depending on who you ask. It’s a very rare, smart move on DC’s part.

    Ray

  23. Thunderfist says:

    Shannon, the lawsuit is about copyright not trademark with a caveat. DC can continue to own all the trademarks even if they lose the copyright in 2013. They could do this by putting the trademark onto another character – say Martian Manhunter becomes Superman – or by simply reprinting Superman comics created between 1938 and 2013.

    The caveat is that some of those trademarks that DC owns may contain copyrightable elements from the copyright that the heirs would own. An example would be the S-Shield logo which is based on S emblem on the artwork provided in Action Comics #1.

  24. Thanks for the clarification, Jeff. Makes sense.

    I completely disagree that strength/morals are what make Superman — there were (several) characters before him that did the same. Lois writes the Lovelorn column in 1938 so that could be changed, as could her status, but Clark Kent? That would be difficult. But certainly not impossible.

    I think Diana brings up a good point which is why this series is so important — history shows that public opinion is really the only way the Superman issue has ever been addressed. Aside from an early court ruling, the 1975 decision by DC to give Siegel and Shuster a pension and restore their names to the mast was driven entirely by public opinion and the media as the first Superman movie loomed. So even though we have no real idea what they are planning, I think it is great that so many people are asking questions. If we’re wrong, what’s to lose? Superman?

  25. Synsidar says:

    I completely disagree that strength/morals are what make Superman — there were (several) characters before him that did the same.

    His powers, morals, and status are what define him as a genre fiction character: He exists to fight criminals, be a savior, and be Earth’s premiere superhero. His qualities dictate the plots for stories, how decisions will be made, and how other will react to him. It would be fairly easy to make a flow chart that presented formulas for stories and decision points; if he makes the “wrong” decision at any point, the story ends prematurely, he’s no longer a superhero, and the series ends.

    It’s practically unimaginable for Superman or another classic superhero to be in a novel which has him living a normal 24-hour cycle and various things competing for his attention. Battles with villains occur, he teams up with other heroes — but they’re supporting material. The focus of the novel is on him as a person. Then an encounter comes which changes him forever — alters his priorities for years or for the rest of his life. That could be a dramatic battle, or it could be sitting in an important business meeting, seeing a news flash on the TV, and deciding that he’ll let someone else handle that emergency. The meeting is more important.

    That type of complete story could be told about most superheroes, but it would damage his value as a property. View the superhero as a person — his costume is no longer important. That’s only what he wears when he’s working. Rework Superman’s background, change his occupation, change his love life — he’d still be Superman. Take him out of the costume; he should still be Superman. Change his powers and/or his morals and/or his status — he becomes indistinguishable from n superheroes with the same qualities.

    SRS

  26. I was being unclear — of course, you’re right Synsidar (everytime I see your name I think of Sinistar) — he is a genre pulp hero and that’s the equation, he could not last in a 24-hour day (even Jack Bauer doesn’t go to the bathroom, right?). But what I am saying is that I don’t think that’s why he hit in 1938. Just my opinion.

  27. patrick ford says:

    Jeff, Do you subscribe to PACER and if so how valuable is it? For example The Justia Law site seems to have extensive coverage of the following:
    http://dockets.justia.com/docket/new-york/nysdce/1:2010cv00141/356975/
    but there is apparently more available if you subscribe to PACER.

  28. Jeff Trexler says:

    @Patrick Ford PACER is the electronic filing system for US courts. It’s more comprehensive than Justia, though some documents are omitted, sealed or delayed (e.g., testimony transcripts). There’s more information than Justia, but documents cost 8 cents a page.

    PACER is widely used as a resource for case material, either directly or via a search service such as Westlaw or Lexis/Nexis. For example, here’s a Lexis guide for docket research that provides some insight into how lawyers, not to mention journalists, get docket updates:

    http://law.lexisnexis.com/infopro/zimmermans/disp.aspx?z=1396

    Hope this helps.

  29. Jeff Trexler says:

    Here’s another legal research guide for folks inclined to dig deeper into cases, including several free or low-cost resources:

    http://libguides.law.ucla.edu/content.php?pid=34909&sid=256638

  30. Jeff,

    Thanks for the explanation.

    Isn’t another complicating factor for the heirs the fact the DC/WB will still own the copyright outside the United States? And they will retain the trademark also.

    That means, I think, that DC could go on publishing Superman in Europe, Asia and even Canada.

    Also, what is your take on the MOS film? WB won’t be able to make sequels so I’m surprised they are spending so much on it. Why not just do a cheap 100 million film to comply with th court order.

    Thanks

  31. Jeff Trexler says:

    First, a typo that we’ll be changing–the first line under “What the Gaiman case means for Superman” should read “The Gaiman case does not establish …” The context should make that evident, even if my backspace did not!

    @Dave Yep, the domestic boundary to the termination right does make it complicated. I believe I discussed this briefly in one of my 2008 Blog@Newsarama posts, which I believe also addressed the Siegels’ attempt to get at the trademark through its incorporation of the copyrighted S-shield.

    Part of my plan is to revisit these issues again later, including a discussion of the film and foreign rights. As you might imagine, the Siegel heirs are trying to address that.

    And this is as good a time as any to note another incidental point I’m going to make later. I use “the Siegel heirs,” but of course, Joanne Siegel, Jerry’s widow, passed away earlier this year. Their daughter, Laura Siegel Larson, is carrying on the case in her own capacity and as personal representative of Joanne’s estate.

  32. Thanks Jeff.

    I’ve read the foreign rights issue is going to be hard for the heirs
    to crack. Short of theem licensing the rights from WB.

    I still am perplexed that WB is spening somuch on MOS as they can’t make any follow-up films.

    Any idea what the strategy is with the film?

    Do you know what the heirs are asking for in royalties and profit sharing from WB? Or what WB has offered them?

    Given the lega situation I wonder if the heirs will find a company say Marvel/Disney who will exploit their rights short of a ful final resolution in Court. You know whatever company in 2013 after the termination tries to do a book or plan a film will find itslf under stiff legal challenge.

  33. Thunderfist says:

    I think WB strategy in regards to the film is a confidence on their part that they will either overturn the decision, defeat the Shuster termination, or enter into an agreement with the heirs.

    I don’t think anyone knows what the heirs are asking for and the indication with the lawsuit against their lawyer is that he is not allowing them to negotiate at this time.

    The courts did order some mandatory negotiation sessions but nothing came of them.

  34. I don’t see that working with the film. Presumably after the termination there will be legal challenges by both ides and everything Superman will come to a halt for the years it takes to settle.

    Basically they can’t make a sequel to the film even if it does well.

    The court ordered this film made. It wasn’t WB’s idea. The only surprising thing to me is that WB is putting 175 million into it. Given the situation I’d have expected them to make a cheap knock off 100 million Superman film.

  35. Thunderfist says:

    No, the court did NOT order the film to be made. What the court said was that if a film wasn’t made within a certain time period, the Siegels could bring an accounting action at that time to address the loss of revenune caused by a reversion of rights clause.

    DC Comics was paid $12 Million for Superman Returns. Assuming a 50/50 split, they will have to give the Siegels $6 million. If WB didn’t make a movie, the Siegels could sue for the revenue that might be generated by the movie. So it would probably cost DC another $6 million.

    If a deal is made, a deal is made and we won’t see any more legal challenges. Also, a legal challenge doesn’t have to bring things to a halt.

    When DC sued Fawcett over Captain Marvel, Fawcett kept publishing up to the point they lost and then they stopped.

  36. I’m not a lawyer but when the heirs terminate the deal in mid-2013 I don’t see how DC can simply keep using Lois, Clark, the name of Superman.

    I’m sure if DC tried that the heirs would get a court order barring DC from printing Superman.

    Same for the movie. Clark and Lois and the name Superman are in MOS but a few months later WB loses the rights to use that material. Even if they wanted to do a sequel they couldn’t because it’d can’t use the core characters from the first film.

  37. Thunderfist says:

    Dave, I am talking specifically about DC striking a new deal with the Siegel Heirs and Shuster Estate.

    The heirs are going to be extremely limited in their ability to market Superman on his own because of all the other rights that DC will still own including the foreign copyrights, elements added to the Superman mythos after Action Comics #1, and trademarks. It is unlikely they would ever get a better deal from Disney then they would get from DC/WB.

    Another thing to consider is that WB could make a sequel and release it everywhere but the U.S. The overseas box office is becoming more significant in generating revenue.

  38. Thunderfist says:

    One other thing regarding names. The heirs will own the U.S. copyright to Superman but not the trademarks. Copyright does not protect names. Trademarks protect names.

    Since DC owns the trademark to the name Superman, they will be able to keep putting out a comic called Superman even if it couldn’t contain new stories about Superman. They could reprint old stories.

    At the same time, DC could sue the Heirs if they if they tried to market something as Superman. Now, I suspect the court might allow something like “Siegel and Shuster’s Original Superman” but I would suspect they would have to win that right in court.

    DC also owns trademarks on Lois Lane but I can’t remember if they have one for Clark Kent.

  39. Thanks Thunderfist.

    Problem is Toberoff. Doesn’t he get a portion of the heir rights as payment. So there is another owner to mix things up.

    If the best deal the heirs can get is from WB then why have they not come together? I assume WB/DC is notoffering them a good deal.

    Jeff mentioned that WB/DC might continue th legal fight to et the 2008 ruling overturned. That tells me WB/DC may not want to make a deal.

    I don’t think WB expects to be making a sequel to MOS. It sounds like Cavill has not been optioned for sequels. That could be on his own initiative knowing the very small chance there will be a sequel and not wanting to tie himself to a long contract that probably will never happen.

  40. Thunderfist says:

    Toberoff is a definite wild card and he has his own film studio and is probably telling the heirs whether it is a good deal or not. That doesn’t mean that DC isn’t offering them a good deal. They may just want a fantastic deal.

    I don’t think this is a case of you make a deal or you continue the legal fight. Typically, you are keeping all options open. As I said before, I think DC is looking at a three prong approach where one of the three prongs will work. They will attempt to get the Siegel case overturned and the deal they came to in 2001 back in play OR they hope to defeat the Shuster Estate termination so that DC remain co-owners of the Superman copyright OR they make a deal with the heirs. The thing about taking a multi-prong approach is that if it looks like DC might win one of the first two prongs, that might make the heirs more eager to deal and get a better settlement than what the court gives them. Conversely, if things are going the Heirs way, they know that means DC will have to sweeten any deal.

  41. Whatever the deal is, if they even come up with one, it’s going to cost WB/DC to make Superman. Superman has been surpassed by Batman, Flash and GL in terms of comics sold and toys made.

    The reboot is dropping Superman to just 2 title. Batman goes up to 6, GL gets 5.

    You see where I am going. WB abd DC are not making a lot off of Superman now and the added fees they pay to the heirs are going to impact how WB and DC uses him. I suspect we’ll see much less stuff produced.

    Certainly films might come to a halt if WB has to pay out half the profits and a liscense fee to make a film. SR did poorly. It made money but only after the DVDs, toys and all the ancillary stuff was figured in.

    Whatever the settlement the character may no longer be financially viable.

  42. Manfred says:

    Dave you seem to be a bit confused.

    You said that Green Lantern comics sell more than Superman comics and that there are 6 titles for GL to prove that it is a “dead franchise”, but you don’t say that Superman’s reboot is by far the most interesting (Grant Morrison), that WB is doing everything possible to make a great Superman movie and that Green Lantern movie is the worst flop ever seen.

    You can’t judge the power of a brand or its success at cinema basing on comics sales chart. Batman was considered dead in 1998 and now it is a Triple A hollywood franchise, Iron Man comics sell far worse than Green Lantern comics, but you know very well the box office numbers…same thing about Captain America.

    I don’t say that everything will go well, but it’s clear that at WB/DC they are still more than interested in the franchise.

  43. Thanks Jeff, this kind of thing really fascinates the hell out of me.

  44. Micromos says:

    What’s important is the comic character. Not the TV or Movie character. The parties need to settle for the benefit of both and their fans. A Clark Kent Superboy is needed to keep young kids interested where they can pretend to be a hero. Young kids identify with heroes they can relate to, not adults who they may grow up to be like.

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