The Copyright Battle of Steel

Brian Doherty | August 14, 2009

In one of the more interesting battles over (eternally extended, because under original 28-year copyright we'd all own the Man of Tomorrow, today) copyrights, a new victory for creators vs. corporations in the highly convoluted battle over the legal rights to Superman. The nub of this week's development:

Last year a Federal judge decided that Time Warner was no longer the sole proprietor of Superman, and that the heirs of Jerome Siegel (of Siegel and Shuster) are entitled to a share of the US copyright to the character. This week a court ruled again, giving the Siegel family a larger share of the intellectual copyright.....The court had awarded the Siegel family with many aspects of the Superman copyright, including the basis of the Superman character, his costume, his alter-ego reporter Clark Kent, Lois Lane, the Daily Planet newspaper, and the Clark/Superman and Lois love triangle storyline.

But the ruling did not give the family the full Superman copyright because DC Comics owns some of the important elements identified with the character, including his ability to fly, vision powers, the term Kryptonite, Lex Luthor, Jimmy Olsen, Perry White, and “expanded origins.”

....on Wednesday, Judge Stephen Larson awarded the Siegel family rights to more additional works, including the first two weeks of the daily Superman newspaper comicstrips, as well as the early Action Comics and Superman comicbooks. What this means is that the Siegels now control depictions of Superman’s origin story. Everything from the planet Krypton, his parents Jor-L and Lora, the launching of the infant Kal-L into space by his parents as Krypton is destroyed

The whole court case is really to determine how much money Warner Bros. and DC owe the Siegel Family from profits they collected from Superman since 1999. And to make matters worse, copyright law will five the Siegel family full ownership of Superman in 2013. This is the date that matters, because after 2013, the Siegels could bring the property to other movie and television studios. So if Warner Bros wants to produce a new Superman movie before they are forced to pay major bucks for the rights, they will need to go into production by 2011.

Some background on the meaning to the comic book industry of this battle.

My May 2001 Reason magazine article on the superhero's strange persistence, which will also appear in the forthcoming anthology, Best American Comic Book Criticism of the 21st Century, edited by Ben Schwartz.

Comments

Perry White|8.14.09 @ 3:21PM|#

Great Ceasar's Ghost!

Russ 2000|8.14.09 @ 3:23PM|#

A good reason to eventually kill all these lame characters in never-ending stories.

|8.14.09 @ 3:26PM|#

I know little about this case, but it seems awfully late in the day to be changing around who owns what.

Kyle Jordan|8.14.09 @ 3:36PM|#

Pro L,

It's simply a matter of greedy families trying to claim what's not rightfully theres. And unfortunately, they're winning.

Tim Cavanaugh|8.14.09 @ 3:40PM|#

This ruling doesn't seem to open a clear path for the Siegel estate to ramp up the level of creative output -- which, if you buy the public-interest argument for infinite copyright protection, should be the only concern of the court:

DC Comics owns some of the important elements identified with the character, including his ability to fly, vision powers, the term Kryptonite, Lex Luthor, Jimmy Olsen, Perry White, and "expanded origins."

I'm seeing a dark/edgy Superman 2.0 reboot: No flying; no xray vision; Clark Kent is a blogger because the Daily Planet has folded; instead of a Lex Luthor plot there are War-On-Terrorism-analogous situations that get written up in cultural think pieces; and so on. With various film stocks and shakycam to show that this is a more real, human, dark, edgy Superman.

dmoynihan|8.14.09 @ 3:43PM|#

Uhh, Siegel and Shuster were paid like $200 for the rights to Superman, along with the promise of future work. As Jews they faced a great many difficulties getting anywhere in the WASPY world of NY publishing of the 1930s.

Shuster ended up illustrating pornography in the '40s and '50s, as DC (National) made tens of millions (in real, 1950s dollars) off Superman.

I don't agree with perpetual copyright by any means. However, the termination provisions (wherein creators, or their families, could get out of bad deals) written into the 1976 and 1998 Copyright Act were among the few positives of those particular pieces of law.

/Of course, after the death of Sonny Bono, the same provisions no longer apply to musicians. Yay, Congress!

Kyle Jordan|8.14.09 @ 3:51PM|#

"I'm seeing a dark/edgy Superman 2.0 reboot: No flying; no xray vision; Clark Kent is a blogger because the Daily Planet has folded; instead of a Lex Luthor plot there are War-On-Terrorism-analogous situations that get written up in cultural think pieces; and so on. With various film stocks and shakycam to show that this is a more real, human, dark, edgy Superman."

You just described a good chunk of "Smallville" there.

Shannon Love|8.14.09 @ 3:56PM|#

I think we should draw a rather sharp line between the initial creation of fictional character or entity and its ongoing creative use.

Yes, Siegel and Shuster created Superman but he has evolved far beyond their original creation. They did none of that work. It was done by (at this point) thousand of other people working for and with many different businesses. If Superman had started and ended with their work, I would say their descendants have a right the general concept of Superman but after 70+ years of other people fleshing the character out, what public interest or individual justice is served by granting the descendants a portion of the value created by others?

As precedent, this decision looks dangerous. Up until the 60's a lot of intellectual property was transfered by verbal or one page contracts, ("Dude, I love your song, can I sing it in my gigs?" "Sure why not?") It wasn't until properties like comics and music became big business that we got real solid contracts. Heck, that is even true for software in some cases. Who knows what copyright booby traps lay hidden in the history of all kind of intellectual property?

This might make it very difficult for people to use the intellectual properties they own because their business partners or investors will be nervous that the courts will rule they don't actually have the rights they think they do.

D.R.M.|8.14.09 @ 3:58PM|#

Calling this "creators vs. corporations" is silly. Superman's creators have been dead for over a decade; they're not going to benefit no matter who wins the cases.

|8.14.09 @ 4:02PM|#

I think we should draw a rather sharp line between the initial creation of fictional character or entity and its ongoing creative use.

That's why good licensing agreements address so-called "derivative" works. I'm sure there's an enormous body of copyright law giving default rules for derivative works as well, but I'm no expert.

|8.14.09 @ 4:03PM|#

Recently saw Superman IV, and I would have no problem if they never did another Superman movie again.

:-/|8.14.09 @ 4:08PM|#

copyright law will five the Siegel family full ownership of Superman in 2013....they will need to go into production by 2011. and young Superman's crash landing on Earth.

Where's the Superproofreader?

dmoynihan|8.14.09 @ 4:12PM|#

It wasn't until properties like comics and music became big business that we got real solid contracts. Heck, that is even true for software in some cases. Who knows what copyright booby traps lay hidden in the history of all kind of intellectual property?

Actually, since the era of Dime Novels, contracts were issued which secured all rights for the publisher. You'll note FTFA, the creators first sued over rights in the '40s...

:-/|8.14.09 @ 4:48PM|#

copyright law will five the Siegel family

Still need to change "five" to "give."

|8.14.09 @ 5:04PM|#

Yes, the problem stems from Siegel and Shuster selling "all rights" to their creation. They should have had a lawyer review the contract.

A related story: David Morrell was a community college teacher when he published his first book, First Blood. When it was optioned for the movies, friends urged him to pay for a lawyer to review the contract. This cost him (IIRC) $500, which he grumbled about because he could ill afford it. The main thing the lawyer changed was adding a clause reserving the ancillary rights. "What are those?" Morrell asked. "The rights to use the character on T-shirts and lunchboxes and so on." Morrell's response was roughly: "Why in the world would anyone want a T-shirt or a lunchbox with a picture of a psychotic Vietnam veteran on it??" But the lawyer insisted and eventually Morrell was very, very glad he spent that $500.

dmoynihan|8.14.09 @ 5:08PM|#

Yes, the problem stems from Siegel and Shuster selling "all rights" to their creation. They should have had a lawyer review the contract.

They weren't even 20, and the children of immigrants in the '30s, and it was always done that way, but.. yeah. Dumb move there :)

Morrell, btw, taught at Iowa before First Blood was published...

Warty|8.14.09 @ 6:21PM|#

Much less cool than the copyright Riddle of Steel.

qwerty|8.14.09 @ 6:28PM|#

Copyrights last waaaay too long. It is absolutely incredible that grandchildren should get royalties from something grandpa did in the 1930's. Pretty soon we'll have to pay the descendents of the person who invented Santa Claus.

Franklin Harris|8.14.09 @ 7:17PM|#

Yes, the problem stems from Siegel and Shuster selling "all rights" to their creation. They should have had a lawyer review the contract.

According to Gerard Jones' book "Men Of Tomorrow: Geeks, Gangsters, and the Birth of the Comic Book," one of the two (I forget which) said they should get a lawyer, but the other talked him out of it. Bad move, and we've had to listen to the sob story ever since.

Meanwhile, Bob Kane ("Batman"), who wasn't much older than Siegel and Shuster, did get a lawyer and died a wealthy man.

|8.14.09 @ 8:57PM|#

They had a session on this at Comic-Con. According to them, the reason the Siegels (and Shusters) have a chance at getting the copyrights back is due to the increase in copyright terms after S&S transferred the copyright.

Remember, at the time Siegel and Shuster sold the copyright, they or their heirs would have been free to use the whole shebang within 56 years (along with anyone else). When congress passed the 1976 copyright act that extended the term beyond that, congress also included a provision allowing authors or their heirs to terminate copyright transfers made under the assumption of the shorter term. You can look in section 304c and 304d for this.

Franklin Harris|8.15.09 @ 4:34AM|#

They weren't even 20, and the children of immigrants in the '30s, and it was always done that way, but.. yeah. Dumb move there :)

Actually, Siegel and Shuster were in their mid 20s when they sold the Superman copyright. And they weren't newbies to the business, having sold newspaper strips before that.

Hacha Cha|8.15.09 @ 5:30AM|#

lets return to the copyright law our founders used, 14 year copyrights, with the option to extend them another 14 years to 28 years. so after either 14 or 28 years the work falls into the public domain.

|8.15.09 @ 10:08AM|#

50 years or the death of the creator, whichever is greater. Corporate owned copyright, 50 years. No fucking exceptions. No goddam extensions.

If you wish to knock it down a bit, I'm not gonna pitch a bitch.

Tim Cavanaugh|8.16.09 @ 5:54AM|#

I'm still stumped as to how owning this very thin protection around some early Superman works encourages the estate to do anything other than seek rent the next time a Superman property turns a profit. The public interest justification for creating the legal fiction of copyright is that it encourages cultural production.

There may be other, rights-based or remedy-for-damages reasons for granting this protection to the estate -- though in the case of rights I don't see why anybody but the creator should have them, and in the case of damages a lump sum of cash would be a cleaner and more direct reward.

Anyway, I suspect the makers of the greatest Superman film of all time just went ahead and ignored all copyrights, as great artists have license to ignore all man-made law.

MJ|8.16.09 @ 2:07PM|#

"What this means is that the Siegels now control depictions of Superman's origin story. Everything from the planet Krypton, his parents Jor-L and Lora, the launching of the infant Kal-L into space by his parents as Krypton is destroyed"

Which should not bother Time Warner very much as it's character is "Kal-El". The character identified as "Superman" in DC Comics technically is not Siegal & Schuster's character but a reboot.

"That corporations trafficking in icons of moral instruction can hide behind legal constructions rather than taking the point to seek out, acknowledge and then generously and publicly reward the creators that helped made those empires what they are should be an embarrassment to every person who has ever filed a tax return with income earned from the comics industry."

I am not for the creative talent getting screwed by a bad contract. On the other hand, when you've sold your rights to your creation for what you think was a fair price, then you cannot morally expect more renumeration if the people you sold it to make an empire of it. Business history is filled with people who originate ideas but could not make them work for lack of capital, marketing skill, or ambition. The Comics Reporter needs to get off his high horse, the issue is more complex and gray than he thinks it is.