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"Smallville," Big Stakes

by Joal Ryan
Apr 6, 2006, 7:25 PM PT

In the comics, Superboy died Wednesday. In the courts, a nearly 60-year battle over the superhero remains very much alive.

At stake: The future of Smallville. At least.

a d v e r t i s e m e n t

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A judge has left for a jury to decide whether the WB's show about Clark Kent's bucolic hometown infringes on the Superboy copyright held by the heirs of Superman cocreator Jerry Siegel.

If the Siegel camp is ultimately victorious, Time Warner, the WB's corporate parents, might have to seek license approval from the family before producing new episodes of the series, which is expected to make the jump next fall to the new network, the CW. A win also could affect the afterlife of shows already in the can.

The stage for this sticky situation was set when U.S. District Court Judge Ronald S.W. Lew ruled last month that Siegel's widow, Joanne Siegel, and daughter, Laura Siegel Larson, recaptured the Superboy character's copyright in November 2004.

In another blow to Time Warner, the Mar. 23 summary judgment, which was first reported Wednesday by Variety, rejected a motion by the conglomerate that essentially argued Smallville isn't about Superboy, and, thus, doesn't trespass on the Siegels' copyrighted material.

"I believe it's impossible to honestly trace the history of Smallville without accounting for its derivation from Superboy," intellectual property attorney Marc Toberoff, who represents the Siegels, said Wednesday.

A call seeking comment from Time Warner, which can appeal the summary judgment, was not returned Thursday.

In his ruling, Lew didn't hand the Smallville deed to the Siegels, but he wrote that he could find that "the main character in Smallville is in fact Superboy."

According to the WB, the main character of Smallville is Clark Kent. According to comic-book lore, Clark Kent is the mild-mannered secret identity of Superman. And he is the mild-mannered secret identity of Superman's teen-aged self, Superboy.

The difference is Time Warner owns Superman; the Siegels, per the court, own Superboy.

"The fight [is] about Superboy because it couldn't be about Superman," said Barry Freiman, a contributing editor to the fan site Superman Homepage.

And to understand the fight is to understand the history of comic books because, as artist Neal Adams said, "There is no more classic example of this--Superman is the first comic book superhero."

In 1938, Detective Comics, a predecessor of Warners-owned DC Comics, published the first issue of Action Comics featuring the first adventure of Superman, a man-sized alien of super strength as dreamed up in high school by buddies Siegel and Joe Shuster. For their creation, Siegel and Shuster were paid $130, or $10 a page.

Months later, in November 1938, Siegel pitched the publisher a new hero: Superboy.

"No character had been done as a teenager," said Adams, who lobbied on behalf of Siegel and Shuster in the 1970s. "It was a totally new idea then--and now. Who's going to do Captain America as a boy? Who's going to do Sub-Mariner as a boy?"

Different or no, the publisher passed.

But Superboy was an idea that would fly. The character debuted in the January/February 1945 issue of DC's More Fun Comics. At the time, Siegel wasn't in a position to pick up a copy at the corner drugstore--he serving overseas in the Army.


When Siegel returned from World War II, his Superman/Superboy battles began. In 1947, Siegel and Shuster sued National Comics Publications, then the name of DC's parent company. The judge "split the baby in half," as comic historian and writer Mark Evanier put it, finding that Superman was the property of National, and that Superboy was the property of Siegel, the character's sole creator.

"While you and I may not look at Superboy as a whole other character," Freiman said, "he really is a separate character in terms of ownership."

Siegel and Shuster settled with National for $94,000, per a retelling of the case in Lew's ruling--the partners got the money; National got both Superman and Superboy.

In 1973, Siegel and Shuster sued again, trying, but failing, to get back the Superman copyright. By then, the duo had seen Superman spawn radio shows, movie serials, animated serials, a live-action TV series and a Broadway show, It's a Bird...It's a Plane...It's Superman!

Adams, who first met the pair in the 1960s, once heard Shuster rave about the star-studded premiere of It's a Bird... When Adams asked Shuster what he thought of the show, Shuster replied, "Oh, I couldn't afford to go..."

Eventually, Adams helped secure credits, and even a pension for Siegel and Shuster. Adams said he went to Warners, which by the 1970s had gobbled up DC, and explained the situation: "It's Jerry Siegel and Joe Shuster--they created the biggest icon in the world, bigger than Sherlock Holmes...And all you have to do is pay them [what you would for] a decent secretary."

In the end, Siegel and Shuster didn't get rich, but they "got taken care of," Adams said. Where once Siegel had placed a "curse" on Superman: The Movie, it became his and Shuster's pleasure, Adams said, to see their names associated with the 1978 film. (To this day, the WB notes in its Smallville media materials that Siegel and Shuster are the creators of Superman; the residents of Smallville, however, are said to be "based on DC Comics characters.")

If Siegel made peace with Superman, Superboy remained a sore subject, according to Adams--the manner in which National launched the character while Siegel was away at war "kinda got stuck in his craw."

Siegel died in 1996, at age 81; Shuster, in 1992, at age 78.

In 2002, Siegel's widow and daughter put Time Warner on two-years' notice that they intended to terminate the 1948 Superboy copyright agreement. Per Lew's ruling, a 1976 law giving authors and their heirs the right to recapture copyrights of works sold before 1978 gave the family the in.

In 2004, the Siegels sued Time Warner, alleging Smallville infringed on that copyright with every episode produced after the family exerted its copyright control. As it stands now, the disputed episodes entail most of season four and all of the current fifth season. (Presumably, Superboy, a 1988-92 syndicated series, would be in the clear.) Time Warner's subsidiaries--DC Comics, Warner Bros. Entertainment, Warner Bros. Television and Warner Communications--were named as codefendants.

Smallville, which has eschewed the cape, but kept on such familiar Superman/Superboy associates as Lex Luthor, Lana Lang and Jonathan and Martha Kent, debuted on the WB in 2001.

That the Superboy battle is still being waged six decades after the first Siegel-Shuster lawsuit is "pretty amazing," Freiman said. That doesn't mean, however, that he's surprised.

"They're [the Siegels] fighting almost harder than Joe and Jerry fought," Freiman said. "Joe and Jerry were almost beaten down."

Evanier said he was only surprised that the current Siegel dispute had gotten this far. A jury trial could be in the offing by the end of the year, although no date has been set.

"This thing could get much bigger," Evanier said. "[And] it'll get bigger and bigger until the people at Time Warner make the Siegels a nice settlement."

Freiman wondered whether the Superboy copyright issue would come into play "anytime you have a young Clark Kent--which isn't just Smallville. [It could] affect anytime you have a Clark Kent flashback."

With Superboy being killed in the latest issue of the comic miniseries Infinite Crisis, on the stands Wednesday, Evanier said he wouldn't be surprised if the death had something to do with the ongoing legal battle--"a fortuitous way to build up and transfer heat to another property." Then again, he wouldn't be surprised if Superboy--an all-new, DNA-generated spawn of Superman and Lex Luthor known as Conner Kent--was killed simply for the bottom line.

"In comics these days," Evanier said, "you kill off characters as a sales gimmick."

Presumably, it's only the war over Superboy that won't die.

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