Today’s Superman Rulings Explained

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page 1 Todays Superman Rulings Explained

After a surprising victory in 2008, Siegel attorney Marc Toberoff decided to press for the rights to more Superman material.

Instead, he lost everything that the Siegel heirs and he himself had won.

Today the Ninth Circuit made public its latest rulings on the Siegel and Pacific Pictures cases. When the 2008 Superman opinion came down I wrote an explanatory Q&A post, and since there’s a lot of complex material to review we’ll follow that format once again. If you have additional questions, please feel free to post them in the comment section below.

In the simplest possible terms, what happened in the Siegel case?

The Siegels 2008 victory is all but officially null and void. The Siegel heirs will instead receive what they are owed under the 2001 settlement agreement.

In the simplest possible terms, what happened in the Pacific Pictures case?

Toberoff lost his attempt to quash DC’s lawsuit against him and his production company. According to DC, Toberoff unlawfully interfered with the settlement agreement between DC and the Siegel heirs. Based on what happens at trial, Toberoff could end up owing DC millions of dollars in damages and attorneys fees.

Do today’s cases create precedent that can be used against other creators?

No.

The Siegel case was issued as a memorandum disposition. A memo dispo is not to be cited as precedent – it is simply a ruling that applies to the case in question. The court does this when the law in the ruling is straightforward–ruling in a memo avoids adding precedential language that could be interpreted in unintended ways that make the law more complicated.

The Pacific Pictures case was issued in two parts. Toberoff lost in a memo dispo, which likewise means it is not a binding precedent. The court did, however, issue a precedential opinion in regard to a procedural matter–namely, whether the court had jurisdiction to hear Toberoff’s appeal in the Pacific Pictures case. He won that minor point, but it didn’t do him any good.

Is the Supreme Court likely to reverse either of these rulings?

No.

Although members of the Supreme Court have criticized the use of memo dispos, in practice the Court is far less likely to take a case that has been decided in this manner.

The reason? In most cases the law really is pretty straightforward. Without, for example, a circuit split on an important issue, the Court has little reason to stir up the dust by flipping well-established law.

If the 2001 Siegel settlement was so straightforward, why did Toberoff go forward with the Siegel copyright lawsuit?

Three reasons:

Personally, he saw an opportunity to get a percentage of the Superman material for himself and his production company. He persuaded the Siegel + Shuster heirs that they could win; they gave him a big cut of the property; he filed the lawsuits.

Strategically, it’s evident from filings in the Kirby lawsuit that Toberoff considered the Ninth Circuit–and particularly the more liberal judges–to be more friendly legal territory. 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 case.

Legally, the Siegel settlement was based on what’s called a term sheet, which as an agreement reached before the whole thing is written down in a detailed final contract. Based on the detail of the term sheet and the law of the applicable jurisdiction, it’s possible for a term sheet to be binding even if the parties did not go through with a detailed final contract. The Siegel’s previous attorney before Toberoff thought that the 2001 Siegel term sheet was sufficiently specific to be binding, and the Ninth Circuit agreed.

In the end, did Facebook and the Winklevii have any effect of the outcome?

Yes. As I discussed at greater length in this post, DC relied on the Facebook/Winklevoss twins case to argue that the term sheet in the Siegel – DC negotiations was binding. The court agreed–the crux of the judges’ Siegel ruling today is a discussion of the Facebook ruling and how it applies to the Siegel term sheet.

What next?

For the Siegel case, it’s all over but the lower court filings. With a binding settlement in place, the subsequent Siegel lawsuit is moot. We can expect the district court to follow the Ninth Circuit’s lead on this score and vacate the 2008 opinion.

Legally, that means the 2008 Siegel victory never existed. However, the 2001 settlement is binding, which means the Siegel estate and his daughter, Laura Larson, get a multimillion dollar payout.

In the Pacific Pictures case, we move to proceedings on the various claims by DC against Toberoff and Pacific Pictures. Daniel Petrocelli, Warner Brothers’ outside counsel, is out for blood — after 2008 Toberoff had the reputation of being a Hollywood dragon slayer, and this is a real opportunity to take Toberoff down.

If the Siegel heirs get a settlement worth millions of dollars, didn’t they actually win?

If they cared only for money, sure. But the Superman case was about so much more than that. As I said on The Beat last year, “the Siegel heirs have something to lose–they vindicated their father by winning a historic lawsuit in the lower court, and the appeal could take that away.”

It did.

 

Comments

  1. blacaucasian says:

    Can the Siegel’s sue Marc Toberoff for legal malpractice?

  2. patrick ford says:

    Isn’t this accurate, but pretty unclear?
    “After a surprising victory in 2008, Siegel attorney Marc Toberoff decided to press for the rights to more Superman material. Instead, he lost everything that the Siegel heirs and he himself had won.”

    Warner appealed the summary judgment ruling. It was Warner which pressed on with the appeal rather than accept the ruling, and until the appeal was settled Toberoff and the heirs had not really won anything except a ruling which was appealed. Did I miss some place where Warner agreed to accept Judge Larson’s summary judgment decision if Toberoff left it at that?

    The offer made by Warner prior to Toberoff taking over the case is still on the table, and perhaps binding, so that was not lost either.
    Also hasn’t the case been remanded to the lower court? That means the summary judgment is void, but the case itself is not dead.

  3. Johnny Memeonic says:

    Toberoff was only ever in it for himself, hoping for a sizeable piece of the ownership of those characters as payment. At least that’s my opinion. That’s why he likely did the legal version of betting it all on black by not settling and hoping he got the “correct” judge.

    And again I say beware any legal system where the same law can net different results depending on the judge.

  4. Thomas Wayne says:

    The last portion of the article reads….

    If the Siegel heirs get a settlement worth millions of dollars, didn’t they actually win?

    If they cared only for money, sure. But the Superman case was about so much more than that.

    Maybe I’m way off base here but does anyone really believe that the Siegels would be involved with all of this if it wasn’t (the vast majority of it anyway) about money?

    Who is going to go through repeated litigation hell just to get a court decision in their favor for the sake of a court decision in their favor if they don’t already have tons of money set aside – because if you don’t have an endless checkbook already set aside you can’t sue for just a “cause” or “belief”. The super rich might be able to do that and from what I gather that does not include the Siegel heirs. In the end, this is all about money. As it should be. There’s no need to pretend that they didn’t want money and it was all about “the principal” of what had happened to their Dad and so forth and so on….come on. Give us all a break. You know your father felt shafted financially when he was alive and after his passing you picked up the torches and kept his fire burning – hoping to get the compensation he deserved. And that’s okay to do that, just don’t act like their was a more important underlying purpose to make things just. Making things right = 10%. Financial possibilities = 90%. Probably more like 5%/95%.

    And again, there is nothing wrong with wanting the money you feel your family is owed – just don’t pretend its not about the money, its insulting.

    No matter what happens from here I hope both sides take as much legal and punitive action as they can against Mr. Toberoff. If he comes out of this with just his shoe laces and a stick of gum that might be to good for him.

  5. Jeff Trexler says:

    @blacaucasian – It’s possible – the court rulings so far have provided plenty of ammo. Question is, though, how battle weary Siegel’s daughter Laura Larson has become after going through years of toxic litigation.

    @Johnny Memeonic Getting paid in ownership interests has become trendy since the dot-com boom, tho Toberoff stands out for the way he has parlayed that practice in the IP realm. There have always been ethical issues, but they’re exacerbated when it looks like you’re putting your own interests before those of the clients.

    As for the judges – yup. That’s a part of the justice system many people don’t understand. Not because they’re dumb, but because no one really wants to admit that law can be so dependent on the human factor. But once you do–bam, you’re gaming jury selection, gambling on judge selection, tailoring arguments to court, you name it. This is one reason why I’ve been highlighting how fragile the 2008 victory really was.

    @Thomas Wayne In this case, the creators’ heirs gave up a multimillion dollar settlement, half of their interest in the property, and, in Joanne Siegel’s case, the final years of her life just in the off chance that they might add 50% of a few more million compared to a guaranteed tens of millions of dollars all to themselves? No, this was about so much more.

  6. While there may very well have been proposals in private, I don’t see where there’s any indication that DC was ever interested in pursuing a settlement based on the 2008 ruling. Instead they’ve appealed that ruling, argued over what exactly it includes (with ridiculous arguments based on running a black&white house ad with the character) and attacked the Siegel family’s chosen lawyer.

    And I believe that the Joanne Siegel specifically complained that the contract they got, and that she didn’t sign, included elements that did not conform to the “term sheet” that the current court has decided is binding. Hopefully, if the final settlement does following the terms of this ruling, someone will make sure those issues are addressed.

    And I haven’t seen it addressed, but I assume the recent Shuster decision means, unless that’s overturned on appeal, that they’re sticking with the $25,000 a year (and occasional bonuses) to Shuster’s sister for the duration of her life deal. It would be nice, if exceedingly unlikely, if they offered to match the Siegel deal for the Shuster heirs. And gave them both a multimillion dollar no-strings attached bonus with the release of the new Superman movie.

  7. Thomas Wayne says:

    Jeff,

    They didn’t give up anything….according to the article the 2001 ruling is still in place giving them millions….what this is all about is a opportunistic shit bag lawyer trying his best to manipulate the system and the Siegels…rightly or wrongly on their part….followed him. It was all about money and will continue to be so….

    Tell me…in your opinion….what the so much more this was about is…I would like to know your thought process. Thanks.

  8. Maverickman874 says:

    Hey Jeff, the payout from the 2001 settlement, is the dollar amount known ? Is their a figure or does DC have to make annual payments ?

  9. Thefreakytiki says:

    Great article but i do have one question:

    If the Seigel heirs are getting millions, does Toberoff still get a cut of that even though he lost the case?

    Thanks.

  10. patrick ford says:

    Jeff, Is correct their is nothing particularly unusual an attorney working on a contingency basis to be motivated by self interest. In fact it serves the client well when the attorney going up against a Time-Warner or a Phillip Morris is strongly motivated, because otherwise they aren’t going to expend the resources and take the risks needed to take on a powerful corporation.

  11. Jeff Trexler says:

    @Thomas Wayne – With 2008 gone, the Siegels lost the battle for history. One could say that we’ll always have that ruling regardless of its ongoing legal effect, but my sense from other cases is that the loss will overshadow the vacated victory.

    @Thefreakytiki – In Pacific Pictures, DC has asked the court to find that the all agreements between Siegel and Toberoff/Pacific Pictures are illegal and void. If
    DC wins – which is looking increasingly likely – Toberoff will not get a cut. If DC doesn’t win, I’d have to see the specific terms of the agreements – since the Siegels technically did not win any rights to Superman, it’s possible that Toberoff would not get a cut. Of course, I wouldn’t be surprised if Toberoff also has a contingency agreement that gives him a percentage of whatever amount Joanne and Laura would win.

    @Maverickman874 – I don’t have the agreement at hand at the moment, but as I recall DC has already set aside $20+ million for the Siegels, with annual guaranteed minimums to follow. As DC has noted, it’s possible, even probable that the Siegels’ attorney before Toberoff gets a 5% contingency fee under the settlement.

    @BobH As for alleged differences in the long-form agreement, it’s arguable that the facts don’t match the allegations. What we might have here is a failure of legalese to communicate. As for the Shuster situation — yes, that could have been handled much better. When two agreements are viewed side-to-side, the Siegels’ first attorney clearly earned his 5%.

    @Patrick Ford – As I mentioned in my post, the Siegel case was indeed sent back to the lower court for additional proceedings consistent with today’s ruling. As for the appeal, it’s worth noting that Laura Siegel Larson is the appellant, though of course DC was going to appeal as well once settlement negotiations broke down after the 2008 opinion. There was a moment after 2008 where Toberoff could have steered the Siegels toward accepting the best settlement DC put on the table – and judging from the 2001 agreement, one was indeed on the table. I’ll probably expand on this in a couple of interviews later – you might want to check out Monday night’s livestream on the Superman Homepage.

  12. Jeff — thanks for the ongoing, hovering coverage — you are the only person over the last few years who has made any kind of real sense of this, at least for me. You and The Beat were all over this today. Bravo.

    Hard to believe it’s actually over.

  13. Jeff Trexler says:

    @Brad – Thanks!
    And thanks to All in Color for a Dime + the late lamented Comics Buyers Guide for sparking my interest in this stuff many moons ago.

  14. Michael Grabois says:

    And Jeff, this is what, the third comics website you’ve been writing this up for by now? Thanks for being able to translate legalese into plain English.

    Let’s suppose for the sake of argument that the 2001 agreement was deemed not valid because it wasn’t signed. Given that this is likely the end of it, where do you think this was headed for a “final” resolution? What might have happened had Judge Larson not retired?

    And this is the first I can recall of The Spectre being involved in any of this litigation. Was there ever any indication that Spectre was original and not work for hire?

  15. Thunderfist says:

    While the news has always focused on the Superman aspect, I remember early on that the Siegels were pretty much going after every character that Jerry created while at DC. Superman is just more known than the Spectre and The Spectre is more well known than Slam Bradley. And, of course, most were created under what would appear to be work for hire arrangements but that would pretty much apply to the Kirby lawsuit too.

  16. patrick ford says:

    It was my understanding both Toberoff/Siegel-Larson and Time Warner appealed different portions of Judge Larson’s ruling. Toberoff felt Judge Larson didn’t go far enough, and Time Warner felt he went too far. I take it based on the new ruling Time Warner does not need to go ahead with their part of the appeal? It could be assumed that if Toberoff had been completely happy with Judge Larson’s summary judgment then Time Warner would have accepted it as well, but that is not a very likely assumption. So the idea Toberoff blew it by not taking what he had in hand isn’t very convincing, at least to me. He had nothing in hand, because Time Warner would have appealed just the same, and they would very likely have received a similar ruling in their favor to the one just sent down.
    As far as I’ve seen Warner’s best offer (a six page agreement which it compared to a somewhat analogous one page agreement in the Facebook case) was the same offer made before Toberoff entered the case, and as far as I can tell that is still the worst Siegel-Larson can do.
    Given the circumstances of the Tolkein heirs vs Warner case I’m not inclined to accept the Warner offer at “face value.” I think everyone here is familiar with the common horror stories concerning Hollywood accounting tricks.
    http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aiAEIATGLREU
    “July 15 (Bloomberg) — J.R.R. Tolkien sold movie rights to his “Lord of the Rings” novels 40 years ago for 7.5 percent of future receipts. Three films and $6 billion later, his heirs say they haven’t seen a dime from Time Warner Inc.

    The accounting methods used by New Line Cinema, the Time Warner unit that made the movies, will face a jury’s scrutiny in October, when the heirs’ lawsuit against the New York-based media company is set for trial in Los Angeles Superior Court.”

    “Usually it’s not outright thievery by the studios, but death by contract,” said Pierce O’Donnell, the Los Angeles- based lawyer who represented the late columnist Art Buchwald in a successful case against Viacom Inc.’s Paramount Pictures in 1988. “It’s an esoteric world where black doesn’t mean black, and white doesn’t necessarily mean white.”

  17. Jeff Trexler says:

    @Michael The post-Superman contracts made all work on certain properties work-for-hire (Superman, Slam Bradley, Spy, Radio Squad and Federal Men). In keeping with this, Spectre would be a separately purchased property. It’s the same principle that led the Siegel and the NY court to view Superboy as separate properties brought to DC.

    I vaguely recall noting in a post or perhaps one of my talks on the case that the lack of attention to the Spectre + other Siegel creations in the termination lawsuit illustrates how termination rights are likely only to be invoked for valuable perennial properties.

    Re the 2001 counterfactual hypothetical, I’ve thought a lot about that over the past few months. As my posts here and two other sites (!) indicate, the nullification of Larson’s 2008 opinion has been a substantial concern pretty much since the day it first came down. Some folks let it be known that they thought I was completely off my rocker for raising questions on this score, but I’d say subsequent developments have shown this concern to be warranted.

    Which leads to my counterfactual predictions:

    (1) If Judge Larson had not retired, it appears that he would have continued to double down on pressure for a settlement. Not that it would have worked once Warner Brothers brought in Petrocelli, but hey, he’d have tried. In the Superboy case, the tea leaves indicate he would have gravitated toward treating Superboy not as a wholly separate property but as a derivative work of the original Superman material, which is where I think it’s still likely to end up.

    (2) As for the appeal, if the settlement argument had failed my money was on a reversal of 2008. That’s not to say I was advocating for that outcome–my approach to this case has strictly been to write about it as a neutral court observer. In thinking through the strategy from both sides I could see where the Siegel attorneys could be encouraged by the panel draw–hence my posts mentioning that aspect of the strategy, which is something any savvy lawyer thinks about when litigating a case. That said, I kept running up against the promotional ad and joint work issues, not to mention how unlikely it seemed that the court would find all of Siegel’s Superman work not to be work for hire.

  18. Jeff, it’s been a while since I read the version of the contract offer that Joanne Siegel rejected that was made public, and I didn’t compare it directly with the “term sheet”, which I don’t think I’d even seen at the time, but I do recall thinking there were a few red flags in there that made me think “no wonder she fired her lawyers if they advised her to sign this”. And that’s in addition to the rather modest level of compensation DC was offering. I’ll have to pull out the available documents again sometime, when they won’t just make me sad.

  19. patrick ford says:

    From the sounds of the ruling it sounds as if the Time Warner appeal was part of the ruling.
    From the ruling (page 2):
    “Defendants Warner Brothers Entertainment, Inc. and DC Comics
    (collectively, “DC”) appeal the district judge’s grant of summary judgment to Plaintiff Laura Siegel Larson…”

    http://www-deadline-com.vimg.net/wp-content/uploads/2013/01/Warner-Bros-Superman-Jan-10__130110194138.pdf

  20. Jeff Trexler says:

    @Patrick I didn’t say that Time Warner didn’t appeal — as the case heading notes, Warner Brothers filed a cross-appeal. I simply noted that the named appellant on the case was the Siegel side. As any old school Star Wars fan will tell you, sometimes it’s worth noting who shot first.

  21. patrick ford says:

    Jeff, The STAR WARS analogy escapes me since I’ve never seen any of the films with the exception of the first one, once almost forty years ago.
    My point is there is a close to 100% possibility Toberoff’s appeal did nothing to harm Laura Siegel-Larson’s case. I’ve seen many people play up the idea that Toberoff had won a victory, that it was all over, and he went and got greedy and shot himself in the foot. That’s just complete nonsense unless a person thinks Time Warner would not have appealed (and they did). In fact having won a summary judgment from a rising (and very young) legal “star,” a good argument could be made Toberoff would have derelict if he hadn’t been aggressive at that point. It would have shown weakness, and not been a good position from which to pursue any possible negotiation.

  22. Actually, the lower court opinion’s copyright-related rulings can still be cited to; only the ruling with respect to the term sheet was reversed. I believe the proper citation to the opinion would be “reversed on other grounds”

  23. I also doubt that but for resolving the appeal on the term sheet question that the Ninth Circuit would have reversed the copyright aspects of the 2008 decision. I have never thought much of the promo ad arguments leveled at the 2008 decision (and nothing in this decision today says anything about the promo ads)

  24. Thunderfist says:

    MK, it doesn’t really matter about the promo ad at this point. The ruling says that 2001 agreement is valid and because of that, the other points are rendered moot and the court declined to address them.

  25. Jeff Trexler says:

    @MK – Actually, the US Supreme Court would disagree. As the Court noted earlier this week in the case of Already v Nike, a case becomes moot when the issues are no longer live. As a result, the federal courts have no jurisdiction to hear, let alone to rule on that case, since there is no case or controversy as required by Article 3 of the Constitution.

    In the Siegel case, after deciding that the 2001 settlement agreement was valid the Ninth Circuit declined to address the remaining issues since they were arguably moot. Inasmuch as the Siegels waived any termination claim in agreeing to the settlement, there was no live case for the courts to resolve. Accordingly, the district court had no jurisdiction to rule on any Siegel claim to the Superman copyright, which means the entire 2008 decision would have to be vacated.

    Think of it like SPOILER ALERT the end of the first Superman movie, where Superman erases Lois Lane’s death by making the earth spin backwards. Sure, Superman remembers what he did, but for all practical purposes it’s like Lois Lane’s death never happened.

    @MK and Patrick — I appreciate that others’ mileage may differ vis strategy, legal arguments and hypotheticals. What I do here is present the law and assess the facts in light of my understanding, nothing more. For instance, re the promo ad, a judge could easily draw a connection between the characteristics of the character on the ad image and the core characteristics of Superman as described in the 1940 Wonder Man decision. Add a basic discussion of signs and referents et voila, a credible opinion that DC owned a substantial amount, if not all of Superman prior to the Siegels’ specified termination date.

    If that doesn’t seem credible to you, ‘s OK, but it’s pretty much the same reasoning that Judge Larson used when vacating the Siegels’ Superboy victory.

  26. Man, will there be a quiz later? Great stuff. The end of Superman I analogy is perfect.

    Question: so TW honors the initial lucrative agreement with the Siegels…but then at the same time honors the Shuster ‘agreement’ made between Paul Levitz and Jean Peavy, which is MUCH less lucrative. Correct?

  27. blacaucasian says:

    It seems to me as a simple PR move, it would make sense for TW to increase payment to the Shuster’s to the level of the Siegel’s settlement.

  28. Jeff Trexler says:

    Legally DC would have no obligation to match the Shuster settlement with the Siegel settlement.

    According to the 10/17/12 Pacific Pictures summary judgment, Shuster’s nephew never had a legal basis for re-negotiating his mother’s 1992 settlement agreement waiving any termination claim. Twenty years ago the executor of Shuster’s estate–Peary’s mother–made a deal, and Peary doesn’t get to step in and try for a better one.

    Does DC have an ethical obligation to give Shuster’s nephew tens of millions of dollars over the next 20 years? Depends on your POV. Some might say of course, no question. Others could look at it from a different perspective — giving a windfall to someone who never had a legal right to file a claim could provide an incentive to any number of folks to file claims and launch PR campaigns in hopes of snagging a settlement. Should rights-holders have to bear that cost? Insurers? Judges having to wade through a rush of claims?

  29. Jeff — PLEASE write a narrative history potboiler about this case! I think I’d read it in one sitting.

  30. blacaucasian says:

    “Others could look at it from a different perspective — giving a windfall to someone who never had a legal right to file a claim could provide an incentive to any number of folks to file claims and launch PR campaigns in hopes of snagging a settlement. Should rights-holders have to bear that cost? Insurers? Judges having to wade through a rush of claims?”

    Definitely never looked at it from that standpoint.

  31. Not to veer off the legal overview, but the Shusters, as always, are the less visible party. It remains to be seen what DC’s public relationship with the families will be (if there is one), but the Shuster side is what we should be talking about in terms of public awareness. DC has acted before out of public pressure (and Neal Adams) — this seems like a perfect opportunity to do the same to at least balance the settlements.

  32. Jeff Trexler says:

    Playing the game of corporate social responsibility chess, there are couple of common techniques that could be used to enhance the brand in a situation such as this.

    One would be to make a settlement offer to Peary, on the condition that the amount is confidential and all his claims & complaints are dropped. The amount would most likely be less than the Siegels, but at this point anything could look good to a person who just lost a slam-dunk summary judgment. He might want to keep fighting, but chances are even he might now see the writing on the appellate wall.

    Another common approach is to make a conspicuous grant to a creator-assistance charity or two — say, the Hero Initiative for creator support and the CBLDF to fund a program to educate creators on copyright.

    On an somewhat related matter, Heidi graciously included my observation re comics law person of the year in her roundup, which I’ll copy here for the sake of thematic completion. I wrote this a month ago – it seems to have held up.

    Daniel Petrocelli, the lawyer for DC in the Superman lawsuits.
    – Not only has he shifted the momentum in this historic litigation, but his direct hits on creators’ rights crusader Marc Toberoff make him the hero of the multinational corporate beach. Toberoff’s loss in the Kirby case might have been seen as a circumstantial fluke if Petrocelli hadn’t succeeded in calling Toberoff’s ethics and business model into question. However, Petrocelli’s biggest influence will be on cases we might never see. Creators, heirs and lawyers heartened by the Siegels’ success in 2008 now have ample incentive to think twice about whether exercising termination rights is a never-ending battle that’s worth fighting.

  33. Thunderfist says:

    Brad, I think you will find many people less sympathetic to the Shuster side for a very simple reason. Shuster had no children so the fight is coming from his nephew not a daughter as in the case of the Siegels. Direct family, hey, carry on the good fight. Indirect family like a cousin, hey, get a real job and stop sponging off your uncle’s legacy. It may not seem like a big difference to some but to others it will be.

  34. Note that in 2005 DC did offer the Shuster heirs a comparable deal to the 2001 deal offered to the Siegels (which we’re now being asked to pretend was an accepted deal), as a contingency so if they lost the Siegel case they’d still have a clear rights to the character (though possibly non-exclusive rights), and would just have to pay half the revenue to the Siegels. The baseline in that offer was “6% of DC’s receipts”, which I guess means if the Siegels prevailed the split would be 50% Siegels (and yes, some large part of that Toberoff & company), 47% DC, and 3% Shusters. So if they turned around now and offered each estate 6%, they’d still have 88%, which is a lot better than under those contingency plans.

  35. Jeff Trexler says:

    Bob, your comment dovetails nicely w/ Brad’s re the ethics of offering Peary a substantial settlement to end the litigation, within the range of the Siegel settlement. The Shuster offer was a tactic, but the resonance with the Siegel settlement highlights the extent to which DC underpaid Shuster’s sister back in 1992. I don’t know if that matters to the powers that be, but within the broader context it takes us right back to 1938.

  36. Rich Harvey says:

    From time to time, I peek in on the “Superman lawsuit” posts, but I never follow them. It seems like the legalities of the case depend on whatever mood the sitting judge is feeling that day.

  37. Jeff, to be fair to DC (which is kind of a rarity for me), the 1992 deal with Shuster’s sister can be seen as an extension of the 1975 “good will gesture / bad PR avoidance” deal with Shuster, and the $25,000 plus bonuses was a considerable step up from the $5,000 per year survivor benefit called for in the 1975 deal, as was the agreement to allow the benefit to go to the sister, rather than Shuster’s brother, since she was expected to (and did) live longer. It could have and should have been a lot more generous, but that’s another matter. When it was signed, there wasn’t any consideration of multiple changes in copyright law which eventually mean the Shuster heirs had something of value to sell, which is why I think it’s absurdly bad law to say that 1992 contract somehow includes the copyright termination coming up now.

  38. demoncat4 says:

    sadly one should have figured that in the end due to their legal resources. that warners and dc would wind up with the rights to super man since . sigels did as the court pointed out a settlement for some over due compensation . in 2002 and the shuster estate gave up all claim for some money. even though the case for them was not about money it was about righting the wrong dc did to siegel and shuster by stealing super man and screwing them out of the money they should have had as his creators from the start. which the sigels had their part of the copyright and now sadly its gone . for toberoff could appeal but it would be moot.

  39. Totally agree that it is 1938 all over again, in lots of symbolic ways. I agree with you Thunderfist that the Shusters are often perceived this way, but that’s more a personal judgment, not the law, right? They remain very much out of the public eye and don’t trade on the name. When they did, it was directly with DC in private letters — without a lawyer — which DC turned into the binding agreement that was recently upheld.

    Anyone else notice that creators are not commenting? Unless I’m missing it. Makes sense, of course, but also speaks volumes.

  40. @ Jeff
    So does this mean the other rulings are negated regarding who wan entitled to specific elements of work? So pretty much if the Sup. court decided the contract was not valid (hypothetically), would they be back at war on a fresh slate or could the non-addressed rules still be there to appeal?

Trackbacks

  1. [...] over. DC retains the characters, but will honor a previous settlement agreement with the Siegels. For the best coverage, click over to Jeff Trexler at The Beat. Don’t trust the others; they aren’t [...]

  2. [...] 1/11/2013, 10:10 a.m.: Jeff Trexler at Comics Beat has a pretty detailed rundown of the decision and its overall [...]

  3. [...] Siegel attorney Marc Toberoff discussed the ruling with The Beat: [...]

  4. [...] Jeff Trexler, an attorney and law professor who previously served as a clerk in the 9th Circuit, told Wired that while “it’s entirely possible that the court would have reached the same outcome without the Facebook ruling… Facebook made it practically inevitable.” [...]

  5. [...] Jeff Trexler, an attorney and law professor who previously served as a clerk in the 9th Circuit, told Wired that while “it’s entirely possible that the court would have reached the same outcome without the Facebook ruling… Facebook made it practically inevitable.” [...]

  6. [...] Siegel profession Marc Toberoff discussed a statute with The Beat: [...]

  7. [...] Jeff Trexler, an attorney and law professor who previously served as a clerk in the 9th Circuit, told Wired that while “it’s entirely possible that the court would have reached the same outcome without the Facebook ruling… Facebook made it practically inevitable.” [...]

  8. [...] Jeff Trexler, an attorney and law professor who previously served as a clerk in the 9th Circuit, told Wired that while “it’s entirely possible that the court would have reached the same outcome without the Facebook ruling… Facebook made it practically inevitable.” [...]

  9. [...] Jeff Trexler, an attorney and law professor who previously served as a clerk in the 9th Circuit, told Wired that while ”it’s entirely possible that the court would have reached the same outcome without the Facebook ruling… Facebook made it practically inevitable.” [...]

  10. [...] He gets them. When Superman gets old and slows down, he can bask in the legacy he’s left behind. Decades of thorny litigation and shameful business practices that prevented Siegel, Shuster and their heirs from sharing in the billions that the idea of [...]

  11. [...] He gets them. When Superman gets old and slows down, he can bask in the legacy he’s left behind. Decades of thorny litigation and shameful business practices that prevented Siegel, Shuster and their heirs from sharing in the billions that the idea of [...]

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