INSIDE THE SIEGEL/DC BATTLE FOR SUPERMAN

by Matt Brady

In October of last year, Newsarama reported that the battle for the rights to Superman had once again heated up, as Joanne Siegel (widow of Superman co-creator, Jerry Siegel), and Laura Siegel Larson (daughter of Jerry) had filed the appropriate paperwork for the termination of the transfer of copyright to Superboy.

What wasn’t exactly clear at that time, but has been made so recently, is that the Siegels, working with attorney Marc
Toberoff, have filed complaints against Warner Brothers, Time Warner and DC Comics in regards to their claims for both Superman and Superboy. The existence of the complaints, which were filed in October of 2004, was revealed by Robert Vosper, writing for Corporate Legal Times. In what was apparently originally meant to be a profile of DC’s General Counsel, Lillian Laserson, but quickly became a piece looking at Laserson and Warner Brothers' largest legal battle, Vosper outlined the Siegel’s challenge for the rights to Superman and Superboy as the company’s largest legal battle on the horizon.

Newsarama has obtained copies of both complaints filed by the Siegels, as well as the responses and counterclaims filed by Warner Brothers. We're going to lightly summarize the legal documents here (with Superboy coming tomorrow), but have also posted summaries of the Superman complaint, the response, and Warner Brothers/DC/Time Warner's Counterclaim.

We recommend that you read the documents in that order, but grab a cup of coffee - its a lot of reading, even with the legalses mostly boiled out.

Before looking at the complaints and what comes after, a quick profile of Toberoff is in order. While copyright attorney Arthur J. Levine (and others) formerly represented the Siegel’s interests in the battle for Superman’s rights, the move to Toberoff is seen by observers as an indication that the Siegels are completely serious about reclaiming 50% of the rights to Superman.

Known in Hollywood as a producer with several credits to his name (I Spy, My Favorite Martian, among others), and has a large slate of properties in development, such as Gentlemen Prefer Blondes, Guys and Dolls, Grand Hotel, Rififi, Little Caesar, Asphalt Jungle, Sanford & Son, Hart to Hart, Ironside, Police Woman, and Piranha. Toberoff’s company IP (Intellectual Property) Worldwide recently acquired the rights to Sergio Aragones and Mark Evanier’s Groo, the Wanderer. IP Worldwide also represents the estate of Rod Serling.

That’s the
Hollywood side. Legally, Toberoff is known as a relentless crusader for the rights of the creators, and has helped many reclaim rights and then turn them into movies or merchandise. As Vosper pointed out in his article, by working with Toberoff, the Siegels may very well be indicating that they are also looking for, or have found a home for Superman once - or if - they regain the rights.

Toberoff declined to speak to Newsarama.com in regards to this article as did Warner Brothers, or a representative from DC Comics.

The Superman complaint filed by Toberoff alleges that the defendants have refused to honor the termination notice, which became effective on
April 16, 1999. As long time Newsarama readers will recall, Newsarama broke the story of the Siegels’ battle for the rights to Superman later that year.

Recapping the legality of the Siegels’ action, under the Amendment made to the Copyright Act in 1976, original creators, or their heirs, have a five year window, during which, they can file a notice of termination of the transfer of copyright, that is, they can effectively end the transfer of the copyright that they originally made with a publisher or other corporation which would have been able to exploit the property in a way unavailable to the creator. The window for filing the termination notice opened after the 56th year of copyright, for Superman, this was 1994 – 1999. The Siegels filed their paperwork in 1997, and after an automatic two year wait, the termination became effective in 1999.

Under current Copyright law the copyright to Superman lasted for 28 years from its creation, that is, 28 years from its (alleged) date of registration on
April 18, 1938. Siegel and Superman co-creator Joe Shuster had transferred the copyright to National Periodical Publications (later, DC Comics) in 1938. Siegel and later Shuster had fully created the character and world of Superman prior to the transfer, therefore “Superman” was not a “work made for hire.”

The copyright for Superman was renewed for another 28 years by DC Comics in 1966. After that, the property would enter the public domain. While the 1976 amendment to the Copyright Act greatly extended the lives of copyrights (they now stand at life of the author plus 70 years), it added a final period of copyright extension of 19 years to properties created before 1978. Therefore, Superman’s copyright was up for renewal in: 1966 + 19 = 1994. Which is when Congress mandated that there should be a five year window open for creators to terminate the transfer of the copyright, and regain control of their property.

In 1998, Congress passed the Sonny Bono Amendment, or Copyright Extension Term of 1998, which added another 20 years to pre-1978 copyrights. The 1998 Amendment also allowed executors, rather than only direct descendants and/or widow(ers) to file paperwork to terminate the transfer of copyright. This last addition allowed for, as reported, Joe Shuster’s nephew, Mark Peary, to file notice for his uncle’s share of Superman. Peary filed his paperwork in November of 2003, and by law, the termination will go into effect in 2013 (the next point at which the copyright would be up for renewal, that is, 1994 + 19 = 2013). That is, in 2013, if upheld by the Court, neither Warner Brothers nor any of its companies will own the copyright to Superman.

As stated earlier, the complaint filed by the Siegels only covers their portion of the rights for which, they claim, they should have been in possession of since 1999. According to the complaint, the Siegels estimate that their share of the monies generated by the Superman rights since the effective date of the termination are in excess of $40 million.

The issues raised in the Siegels’ complaint are fairly well known, although in legal form, the issues move into forms that are perhaps more...official. The complaint offers several pieces of previously unknown information, including quotes from letters suggesting that Warner Brothers and DC Comics were fully ready to split the copyright of Superman 50/50, and more.

Specifically, the Siegels are asking the Court to clarify once and for all the ownership of the Superman copyright, the establishment of profit-sharing of Superman (with appropriate accounting), the ownership of the “S” shield; damages due to Time Warner preventing the Siegels the ability to use their portion of the Superman copyright in the marketplace; damages due to intentionally causing injury; a declaration that Time Warner has violated the Lanham Act, and damages due to their losses as they claim that the defendants have violated California Law by not including the Termination of the Transfer of Copyrights in its annual report.

The Siegels filed their complaint in October of last year, and the defendants answered in November with a response and a counterclaim. Both finally provide a fascinating look at DC’s strategy of legally claiming ownership of Superman, defending the challenges to Siegel’s work for hire status, and more. The response and counterclaim also outline events that have until now, not been revealed, including the Siegels filing to Terminate the Transfer of copyright for The Spectre, the negotiations and potential deals between DC and the Siegels, the claims made against Superboy, Smallville, and Superman; the importance of advertisements from 1938, and how something that appeared almost as a throwaway in Superman #1 has come to be a critical piece of DC’s counterclaims in regards to the ownership of Superboy.

While the complaint, response and counterclaim has been filed, no one even remotely expects a slam-dunk win for either side. Issues such as those named in the complaint will, if it goes to trial, possibly allow for an unprecedented referendum on issues of copyright.

As for the battle, as Vosper wrote: “anyone who decides to take legal action against DC Comics is not only taking on the publisher, but also the entire Time Warner media empire and its vast legal resources. Most likely, there would be few winners in such a battle.”

Vosper also quotes attorney Kenneth Levin (who represented Captain
America creator Joe Simon), as saying: “I would think it is in everyone’s interest to negotiate. I have been in trial for 20 years and have yet to see anyone win in court, even in cases where I have slaughtered the other side for millions of dollars. There always is a better solution.”

While Newsarama will look at the Superboy complaint tomorrow, Warner Brothers has moved that the two complaints be consolidated into one action due to the view that the actions involve many of the identical copyrights and call for a determination of the same of substantially identical questions of law as well as fact. The hearing to determine whether the two will be combined into one is scheduled for March 14th.

Again, the links for the three associated articles:

1) The Siegels' Superman complaint,

2) The Response

3) Warner Brothers/DC/Time Warner's Counterclaim

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