Well, it’s ten days late, but I am a slow reader. (Disclaimer: while I am an attorney licensed in Kentucky and Virginia, none of the following is intended or should be taken as legal advice. I don’t represent the Siegels, DC Comics, Warner Bros., or anyone connected with any of them.)
A federal judge wants to know whether Superboy (as originally conceived by the late Jerry Siegel) is sufficiently original, compared to Superman, and he wants the parties competing over Superboy to tell him their positions by the end of this month.
Judge Stephen Larson of the United States District Court for the Central District of California made the ruling at the end of July. (Trexfiles has a copy of the opinion itself, and also discusses the ruling from a very informed perspective.) The question of Superboy’s originality will go a long way towards determining the case’s other copyright issues, including whether Superboy was a “joint work” between Jerry Siegel and Joe Shuster, whether Siegel’s original Superboy proposal was published in More Fun Comics #101 (the character’s first public appearance) and subsequent comics, and whether Superboy is completely “derivative” of Superman.
In their lawsuit, plaintiffs Joanne Siegel and Laura Siegel Larson, Jerry Siegel’s widow and daughter, claim to have recovered Superboy’s copyright from Time Warner Inc., Warner Communications Inc., Warner Bros. Entertainment Inc., Warner Bros. Television Production Inc., and DC Comics Inc. (hereinafter just “defendants” or “DC”). However, the Judge needs to know whether Siegel’s “Superboy” contains anything sufficiently original, and therefore copyrightable, for the Siegels to have recovered.
That question appeared to have been answered in the affirmative in 1948, in a previous suit between Jerry Siegel and DC (then called “Detective Comics Inc.”). The referee in that case agreed with Siegel that Superboy was “separate and distinct” from Superman, and that Siegel was Superboy’s “sole originator.” The case was settled while it was on appeal, with DC paying Siegel and Shuster some $94,000.00 in exchange for the “sole and exclusive” right to Superboy.
However, a 1976 revision to the copyright laws allowed the Siegel family in 2002 to give DC a notice of termination of that agreement, which stated that any grant of rights Jerry Siegel made in 1948 would be undone as of November 17, 2004. The present suit seeks a determination that that notice was valid. (DC then filed a counterclaim seeking, among other things, to have the notice declared invalid.) The present case’s original judge (i.e., Judge Larson’s predecessor) issued a March 2006 opinion which relied heavily upon the 1948 opinion, and was therefore fairly favorable to the Siegel family. DC later asked the Court to reconsider that 2006 ruling.
Last month Judge Larson agreed, finding that the New York state court which issued the 1948 ruling lacked the jurisdiction to determine copyright issues, which were the purview of the federal courts: “Although the referee’s findings [from 1948] are relevant to some of the copyright issues in this case (most notably, whether Superboy was a work for hire), they are not wholly dispositive” (Opinion, p. 36). While the 1948 opinion may still have some bearing on the current suit, since the witnesses and evidence available in 1948 would be impossible to recreate today, its findings must await the application of federal law. Id. at p. 33.
Judge Larson will therefore determine four issues surrounding Superboy’s copyright:
- whether the work was so “derivative” of Superman that there’s nothing copyrightable about it;
- “[w]hether any of the copyrightable material in Siegel’s Superboy submissions was in fact later published” in More Fun #101 or subsequently (Opinion, p. 65);
- whether it was done as a “joint work” with Joe Shuster, whose rights to Superboy have since gone to DC; and
- whether Siegel created Superboy as part of his work-for-hire agreement.
Judge Larson answered the last issue himself — namely, that based on the details of Siegel’s employment contract with DC, Superboy was not work-for-hire. Determination of the other issues will depend on whether Superboy is found to be a “sufficiently original” work, and therefore whether the work includes any copyrightable material.
The Judge explained:
[T]he relevant question is how much, and to what extent, had the Superman character been fleshed out by the time Siegel submitted his Superboy material to Detective Comics. … [T]he character’s traits and attributes, as well as the character’s interaction with other characters (notably compatriots and villains), … help define the boundaries of the copyright to the character.
Opinion, pp. 70-71 (citations omitted).
Considering that Siegel made his first Superboy submission in late 1938, before Action Comics was even a year old, I see this as a positive sign for the Siegel family. At that point Superman was still battling social injustices and other evils one wouldn’t expect a younger Superboy to confront. Lois Lane, Clark’s newspaper job, and the planet Krypton were all established in Action #1, as were the Kents, Clark’s otherwise-unnamed foster parents.
Obviously, though, the Kents represent the main divergence between the Superman and Superboy settings. They could only be indirect influences, at best, on Superman; but for Superboy they would be important supporting characters. More to the point, the Kents’ interactions with young Clark would be clearly different than those between the adult Clark and his colleagues.
Without more of an idea what was in Siegel’s original Superboy submissions, though, we can’t evaluate how closely More Fun #101, or subsequent stories, might track them. The five-page MF #101 story deals largely with matters covered in the first pages of Action #1: the destruction of Krypton, feats of strength at the orphanage, and the (still otherwise unnamed) Kents’ adoption of Clark. Only the last page or so appears to present anything new: Clark saves a man from being crushed under a car, and from there decides to disguise himself as Superboy. Clark appears in costume only in the last panel. Accordingly, if the issue of “publication” hinges on More Fun #101, the Siegels might not have much of a case. (The Siegels claim that the original concept was published in subsequent stories. See their First Amended Supplemental Complaint at p. 13.)
Moreover, some familiar aspects of the pre-Crisis Superboy were introduced years after the initial round of litigation. Lana Lang’s first appearance was in Superboy #10 (Sept.-Oct. 1950), and her creation is credited (at least in Wikipedia) to Bill Finger and John Sikela. Krypto first appeared in Adventure Comics #210 (1955), in a story by Otto Binder and Curt Swan. Pete Ross first appeared in Superboy #90 (July 1961). That doesn’t mean that Siegel’s original proposal didn’t have a girlfriend, a pet, or a best friend, but it might not need them to be sufficiently original. In fact, a Lois-analogue too similar to the original might end up hurting the Siegel family’s claims.
Accordingly, the Kents’ influence on Superboy might be enough to distinguish the strip from the more grownup-oriented Superman. The Siegel family’s First Amended Supplemental Complaint states that Jerry Siegel’s original Superboy concept included “‘Superboy’s’ character, origins, family and social life as a youth growing up in a small-town in the rural American heartland” (p. 7). The Siegels’ Complaint doesn’t mention Lana, Pete, or Krypto, but it has a little more to say about the Kents:
[W]hile grappling with the challenges of growing up, “Superboy” must face the challenges and responsibilities of his extraordinary strength and developing powers and of concealing that he is very different from others; “Superboy” is raised in his small town by foster parents, the “Kents,” humble, moral people who are sensitive to their “son’s” uniqueness, keep his secret and gently guide him; after describing “Superboy’s” origins and his antics as a baby who is taught by the Kents to restrain or conceal his tremendous strength, Mr. Siegel’s “Superboy” series starts with the youth at age eleven or twelve, while he attends junior high school in the hometown where his crime fighting adventures take place; “Superboy” protects his small town and its inhabitants, including his classmates, from accidents and evil doers; “Superboy’s” central dilemma, while facing adolescence, school cliques, bullies and “bad guys” alike is to conceal his true self while using his great powers to help those in need.
Id. at pp. 7-8. The Complaint also mentions the “Smallville” TV show as one of the ways Superboy has been “exploited” over the years (p. 11) and states particularly that “Smallville” is “derivative” of the original Siegel concept (p. 12).
The Complaint does not mention the Kon-El Superboy specifically, although it does allude to the latest Superboy comic book having ended in 2002 with issue #100. This to me is one of the more ironic wrinkles in this story. As the issues have been framed for the court, the Siegels seem to claim, at least indirectly, that Kon-El is part of DC’s exploitation of “Superboy.” Fan speculation has connected the character’s death last year to this litigation, and the Siegels do claim that subsequent “Superboy” works — presumably including Kon-El –are “substantially similar” to the original submissions. However, since this suit focuses so clearly on the teenaged Clark Kent/Kal-El growing up in Smallville, it may well be that Kon-El is sufficiently original to have been copyrightable by DC as Karl Kesel and Tom Grummett’s work-for-hire creation, distinct from the original Superboy.
Still, Siegel’s “Superboy” needs only to be different in a way which is “more than merely trivial” and “render[s] the derivative work distinguishable from its prior work in any meaningful manner.” (Opinion, p. 66 (citation omitted)). Again, the less fleshed-out Superman was at the time, the more the Siegels benefit. Judge Larson quoted approvingly from Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2nd Cir. 1930): “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinctly” (quoted in the Opinion, p. 66). Specifically, the less the Superman stories had explored his childhood, the more room there would be for Siegel’s “Superboy” to have done so.
All this appears to leave the Siegels in a decent position. The question now is whether Siegel’s Superboy, from what the Judge can tell from the parties’ submissions, was meaningfully different from the adult Superman. Based on what I have read of the case — and I freely admit it’s not an exhaustive reading, nor is it exactly within my legal wheelhouse — the lack of “young Superman” stories early in the character’s publication history may allow “Superboy” to be different enough. I don’t think the mere presence of the Kents, and the rural-vs.-urban setting, will be sufficient by themselves. As the Nichols opinion reminds us, “the less developed the characters, the less they can be copyrighted.” However, one would think that Jerry Siegel’s original “Superboy” proposal, as a pitch to a publisher, might have given its unique elements more than just a cursory attempt at depth.
We fans tend to think of the Silver Age Superboy as prefiguring his older self in a number of ways, including a nosy double-L’ed love interest, younger versions of recurring villains, and the Legion of Super-Heroes as opposed to the Justice League. “Smallville” has taken a different approach, with the recent additions of Lois Lane and various Justice Leaguers explicitly tying its mythology to the “grownup” Superman. However, this lawsuit takes both the Superman and Superboy concepts back almost to the beginnings of “Superman,” paring away much of Superboy’s Silver Age trappings to get at the characters’ cores. It certainly casts the development of the Superboy comics in a new light. I’m eager to see what gets filed at the end of this month.