As a number of commenters have observed, the court decision recognizing the Siegels as co-owners of Superman raises serious questions about the future of the franchise. Do the Siegels own anything more than the exact panels in Action Comics #1? Can the Siegels exercise creative control over DC’s Superman comics? Can the Siegels sell Superman to Marvel? And if the Shuster estate regains its copyright interest in 2013, will DC lose Superman forever?
As we’ve noted elsewhere, the answer to these questions is a bit complex, since copyright is not the only aspect of intellectual property at issue in this case. Trademark makes the situation that even more complicated. What if DC uses trademark to keep the Siegels from doing anything with their copyright? Does trademark make the public domain meaningless? Is it true, as some claim, that the Siegel and Shuster heirs can get the Superman trademarks back in 2018 simply by holding on to their copyright?
To answer these and other related questions, let’s begin with what we know the Siegels’ won: half of the U.S. copyright interest in the Superman material in Action Comics #1, effective as of April 16, 1999. For legal references, unless otherwise noted see the relevant pages from the judge’s opinion cited in this post.
What DC still owns: Whatever else the Siegels may now have, their interest in Superman has a couple of immediately apparent limits. One is the geographic boundaries of the United States — because the law enabled the Siegels to reclaim only domestic copyright, DC can keep publishing new Superman material outside the U.S. without having to pay the Siegels any profits and without any concern that the Siegel and Shuster heirs will take it away.
Another limit: Superman material prepared from Action Comics #2 through April 16, 1999. So long as it was not modified after that date, DC can re-publish any of that material without owing the Siegels a dime. The same is true for movies, TV shows, etc.
Creative control: As the judge explains in the Siegel opinion, being a co-owner does not give the Siegels creative control over the Superman material published by DC. Each co-owner has the right to “exploit” (use, sell, etc.) the Superman material in which they share a copyright interest, although neither party can give an exclusive license without the other’s permission.
Profit sharing: DC has to account for and to share profits derived from any Superman material the Siegels co-own. The same is true for any profit the Siegels might make themselves — they would have to give an accounting to DC.
Action Comics #1: At the very least, the Siegels own half of the exact Superman material in Action Comics #1. DC would owe the Siegels profits from reprints of the story in whole or in part. In principle, the Siegels could also republish it themselves or sell it to another publisher, such as, yes, Marvel Comics, so long as they shared the profits with DC.
New stories: Beyond the exact material in Action Comics #1, the Siegels’ copyright interest also extends to new material derived from what they own. If the judge’s ruling stands and there is no settlement, DC would owe the Siegels half of the profits from any material derived from the Siegels’ co-owned work, whether in comics, TV, or movies. Likewise, in principle, the Siegels could create their own new stories derived from their copyrighted material or sell the right to new stories to another publisher or, say, film studio.
What this means, however, is far from clear. Superman today is far different from what you see in Action Comics #1, and DC Comics arguably has the entire copyright interest in distinct original material. For a couple of relatively easy examples, we can turn to All-Star Superman #10, which includes a panel picturing a Superman substantially similar to the Superman in Action Comics #1, and Adventures of Superman #612, which depicts a Superman expressly based on the Action Comics #1 version. How much of less literal extensions of the Superman character and mythos are the Siegels’ and how much are DC’s has yet to be resolved.
The Shuster estate: The Shuster estate stands to regain its 50% copyright interest in 2013. The Siegels’ lawyer claims that this means DC will be unable to publish any Superman material without licensing it from the creators’ families, but whether that will be the case (at least in the U.S.) depends on how the court resolves the limits of what constitutes a derivative work. DC is likely to argue that it has added so much original material to Superman beyond Action Comics #1 that it is a co-owner of any then-current derivative work. If a court agrees, that would enable DC to continue to publish new Superman material without having to obtain permission.
The public domain: The Superman material from 1938 enters the public domain in 2033, 95 years after publication. In principle, this would give the right to anyone to reprint or develop that material. Nonetheless, we cannot forget about …
Trademark: If you were looking for one word to explain why the Siegels didn’t sell Superman to Marvel last week, “trademark” is your best candidate. More on that in my next post.
April 9th, 2008 at 4:22 am
I for one really appreciate these posts. I like the law, but I’m not lawyer, and I’ve mostly read about Constitutional Law anyway…
As a lay person, I’ve mostly been concerned about what this all *means* for the character of Superman. And you’ve been laying that out succinctly in a way I think all of us can understand. Thanks.
April 9th, 2008 at 8:09 am
Thank you, Jeff. I’m not a lawyer but I’m enjoying the disection and analysis of the Superman ownership case. I appreciate that it has been broken down into relatively short, easily digestable chunks.
April 9th, 2008 at 9:23 am
Thanks, Jeff. The analysis on this case has been fascinating. It will be interesting to discover what this
ruling means for the future of Superman as
an property for DC Comics. In addition, this should serve as a wake-up call for
Time Warner and DC to ensure their other
long term properties have no ownership issues (i.e. Batman, Wonder Woman, Flash, Green Lantern, Black Lightning, etc).
April 9th, 2008 at 9:26 am
Can we expect to see anymore cases like this from other older characters in the upcoming years, say, for example: Batman, Captain America, Sub Mariner, Human Torch, etc. Will these characters enter the public domain in the foreseeable future. I know for one that i can’t wait to publish my own Superman stories in 2033!
Thanx for helping us stay informed in these matters!
April 9th, 2008 at 9:52 am
I quitely don’t understand clearly if DC is in jeopardy of losing Superman. I don’t know if what the Siegels are doing is right but it would be sad to lose 70 years of tradition and just because of the greed of SIegel and Shuster families.
April 9th, 2008 at 9:58 am
Thanks v much for these, they’re brilliant! i look forward to the next post.
April 9th, 2008 at 10:03 am
Awesome work, Jeff! Still a lot of questions in need resolving, but this is probably your best posting yet as far as boiling everything down to the essentials. Looking forward to your continued coverage!
April 9th, 2008 at 10:04 am
@Quetzal: It’s definitely premature to say DC’s in danger of losing Superman… The trademark DC holds, in additional to everything DC’s added to the Supes mythos over the years, are big factors in DC’s favor.
Even if Supes enters the PD in 2033, there’s no reason DC (assuming they’re still around) can’t keep publishing Superman stories. More likely, DC will just have to share some of their Superman profits with the Siegels (and the Shuster estate starting 2013). Or perhaps license the character from them depending on how all this plays out.
April 9th, 2008 at 10:35 am
I’m not sure I understand totally. When Superman becomes Public Domain in 2033, what does that mean exactly?? Anyone can use Superman in anything?? Like a TV ad for toilet paper or on the box of rat poison??
Since DC does have have the trademark I would think people would still have to go to DC first to go anything, right?
April 9th, 2008 at 10:55 am
Let me amend what I said in #8… I didn’t mean to suggest that DC would have to pay the Siegels (and Shuster estate) after Supes would enter the PD. I meant between now and the time Supes would go PD. I just worded my comments badly. Unless DC’s trademark affects Superman going PD, which Jeff’s post suggests it might.
My whole point is that I don’t think DC has to worry (much) about losing Superman entirely. I think it’s going to be more a question of much it will cost them to keep Supes, or how much they’ll have to share with the Siegels and Shuster estate.
April 9th, 2008 at 12:50 pm
Jeff-
Just echoing other folks comments: good job with this (and the earlier) posts.
It’ s easy enough to post one’s heartfelt feelings about a legal decision but it takes time and care to break down the facts into lay terms. Keep up the great work in helping the comic community have an *informed* opinion.
April 9th, 2008 at 1:29 pm
It never ceases to amaze me how there are people who consider the Siegels greedy because they’re staking their claim to what is legally theirs. It’s not like DC gives all of their Superman money to widows and orphans. Using that logic, how are the Siegels greedy and DC not greedy?
Every time a fan accuses the Siegels of being greedy, what they’re really saying is that the Siegels are threatening their ability to read Superman comics whenever they feel like it, so the Siegels are taking something away from them, ergo the Siegels are a threat, which makes the Siegels bad, which makes them “greedy.” The word to define that line of thinking is selfish, if not immature, if not ignorant. Pick one; they all fit.
April 9th, 2008 at 2:18 pm
A Superman based on Action #1, rather than one derived from the pallid knockoff that was the Ellsworth/Weisinger Superman the Marvelization of the Byrne/Ordway era, or worst of all the event-driven 90s Superman (remember how embarassed we all were when the general public’s one look at our world was the godawful Superman (2nd) #75?) would be a vast improvement (I’ll admit a soft spot for the Schwartz Superman…).
Superman has been irrelevant for generations. The original Superman, more demi-god than God, an engaged social crusader rather than a near-omnipotent being who refuses to get his hands dirty addressing problems like spousal abuse, war profiteering, political corruption, the execution of innocent people, and exploitation of slum tenants, is one I’d like to read about. I hope the Siegel’s give us that Superman. Even better, it would be great to see the revenues generated going to support the kinds of causes the REAL Superman championed.
April 9th, 2008 at 2:47 pm
We all have our opinions, Adam… I, for one, don’t really have any love for the Schwartz Supes. Very corny, IMO, and some pretty wretched dialogue too.
I’m not saying there wasn’t good stuff in there, I just look back at that stuff (even stuff I read/owned) and shake my head at how silly and outdated it seems.
I really liked the Byrne reboot when it started, and I stuck by it for a number of years. I eventually lost interest in the titles (around the time of the “Krisis of Krimson Kryptonite” I think). For awhile, at least, the books were great. I applauded the concept of a a more “realistic” (in comic book terms, at least) Supes. But then, I never did like all that Earth-2, multiverse stuff (and I’m not fond of seeing it come back now).
Anyhow, I agree with you that it would be a great thing to see more of the “enraged social crusader” Superman that you mentioned. Cosmic-level threats are fun sometimes, but there’s a lot more than can be done with the character to make him more “relevant” again.
Mostly, I’d just like to see him be more than the unofficial “DCU punching bag” — a device to show just how powerful other villains and heroes alike are — and truly put his full powers to use.
April 9th, 2008 at 4:00 pm
Presumably it’s not simply a case that DC can continue to publish as they wish outside the US, but rather the issue of whether the Siegels and Schusters have any rights abroad falls to be determined by local laws?
April 9th, 2008 at 4:33 pm
@nick: Good question. That’s basically the way it works, with a slight caveat. The Siegel case has no impact on DC’s copyright interests outside the U.S. They remain as they were. Whether a U.S. creator has any rights in a foreign country is going to be an issue to determine in each jurisdiction. Finding out where & how the Siegels could exercise termination rights abroad is a project that would involve time-consuming and presumably expensive research, presuming the legal team doesn’t have that info on file. Even so, I’m not sure exercising it would be cost effective, given the likely expense of each transaction.
@everyone: Thank *you* for all the comments and questions. They are tremendously helpful.
April 9th, 2008 at 5:52 pm
> When Superman becomes Public Domain in 2033
LOL. Every time Steamboat Willie (the Mickey Mouse equivalent of Action Comics #1) comes near to going PD, the copyright term gets extended. I wouldn’t expect Superman to ever become PD in the US barring a major paradigm shift in the US political system.
April 9th, 2008 at 5:57 pm
superman as a crusader would be a disaster. It would be an excuse for creators to shove their politics on Superman and everyone reading. It would marginalize the character. Let’s hope for some interesting stories, without all the baggage of the last 70 years. A “what if” look.
April 9th, 2008 at 6:38 pm
That’s a good point, Crusader. The character’s whole demeanor, and his ideals, could change with the whims of whomever is writing him. I hadn’t really considered that. Of course, if Supes should ever enter the PD who knows what could happen?
Still, I think Adam’s on to something when he talks about getting back to more of the original basics of the character. I’m not suggesting he shouldn’t fly and merely be able to leap 1/8 of a mile or anything like that.
I just mean, looking back at some of the early stories, it’s kind of fun to watch Supes scare the bejesus out of evil doers (who don’t know that Supes won’t kill them for their misdeeds), kicking the crap out of wife beaters, etc. Not to mention seeing a Supes who isn’t so watered-down and (IMO) wimped out as he’s been for (IMO again) such a long time.
April 9th, 2008 at 7:43 pm
Hmm…
I don’t see the Siegels and Shusters preventing DC from using Superman - they’ll just be getting some money from the use is all. IF they decided to look elsewhere, my guess is that DC/Time Warner would start offering big to make sure they keep him.
Superman as public domain would not affect DC’s ability to use him, it would just open up the possibility for other creators to do so. And, honestly, is this a bad thing? I mean, we still get Supes in the DCU, but we get other interpretations from various people over the years. Some may be good, some may be bad, but there are definitely some interesting possibilities.
April 9th, 2008 at 8:09 pm
When 2033 comes, I’m going to publish “Caped Crusader Comics” starring old-school Superman. He’ll appear in gay bathhouses to lecture their customers on proper condom use. (”Little does Lois know that I keep some extra in this little pocket in my cape!” Or does that allude too much to post-1938 continuity?)
Or in the Republican version, fly politicians and arms contractors to the Middle East to impress upon them the importance of giving our troops sufficient body armor.
Seriously, I’d like to see reboots of Flash and Green Lantern on the basis of their prototypes. That wouldn’t cause too much brand confusion, I think…
April 9th, 2008 at 8:46 pm
3rd year Vanderbilt law student here.
After reading the court’s opinion there are significant grounds for DC appeal:
#1. The Court’s discussion of the 1975 “grant” on page 52 and 53 is extremely shaky and relies notably on a judicial discretion standard that excuses procedural and technical flaws in the copyright termination notices. Given that the judge essentially acknowledges that the the Siegel’s screwed the pooch on this point but forgives them for it anyway it looks to me like DC has grounds for appeal.
2. There’s some real shady dealings going on in regards to the statute of limitations provisions in the opinion. The judge acknowledges in a footnote that a stricter construction of the rules would probably bar the Siegel’s claim. Furthermore he seems to discount DC’s repudiation of the claim as being ineffective because of a previous letter even though DC’s repudiation comports with all the technical requirements of the Copyright statute.
3. Additionally it appears that the Judge couches all his statute of limitations discussion in the context of Action Comics Vol. 1 with no discussion as to the scope of the termination claim (which DC has always contested). As a result when he disregards the statute of limitations claim as to the specific Action Comics Vol. 1 he also disregards the statute of limitations claim as to all other Superman properties since generated even though DC never implied it agreed with those termination claims by the Siegels.
April 9th, 2008 at 9:07 pm
“I quitely don’t understand clearly if DC is in jeopardy of losing Superman. I don’t know if what the Siegels are doing is right but it would be sad to lose 70 years of tradition and just because of the greed of SIegel and Shuster families. ”
What in the hell does “greed”, “tradition”, or “right” have to do anything? This lawsuit isn’t about greed, or tradition. It’s about copyright. “Right” doesn’t enter the equation. This is not a fucking criminal case, this is a civil suit which was brought about largely because of some inconsistent and vague laws and precedents.
Lawsuits are how civil matters are resolved in this country. How are these things supposed to be resolved? The Siegels aren’t fucking senators, they’re regular people. Regular people don’t get to create or amend laws, so we provide them with the ability to file suit in the legal system to rectify this.
“70 year of tradition” isn’t an adequate response to the question of how to rectify the numerous conflicting work-for-hire/trademark decisions on the Supes ownership case since the 40’s.
April 9th, 2008 at 9:35 pm
@Sirkickyass: Y’know, I’m happy in my current gig, but I wish I were teaching law at Vanderbilt this semester simply so I could call on “Mr. Kickyass.”
Seriously, you’ve identified what I think is the Achilles’ heel of the Siegel opinion. It’s a topic I’ve reserved for after the Superboy discussion, but I’ll chime in now to say that the technical aspect of termination is a big reason why relatively few people who have the right choose to exercise it. For example, IIRC Patry says somewhere the number of people who exercise their 203 rights is somewhere about 4%, although a greater degree of self-awareness and sophistication in contracting may also account for that.
If I were advising the Siegels, the technical termination issues would be one of several reasons I’d advise them to settle now that they’ve won a clear symbolic victory. Of course, any appeal would go to the Ninth Circuit, where equity has been known to push the limits of law on more than one occasion.
April 9th, 2008 at 11:12 pm
all this legal jargin is spinning my head, seriously im an australian so i dont understand anything that doesnt have the word beer or barby in it.
in 2033 when supes becomes public domain maybe we’ll finally see the end of the god awful adam kubert run on superman
April 10th, 2008 at 12:06 am
So if DC were to for example, change his costume and name, just call him KAL-EL, then The Siegels and Shuster estate would receive no money? Just a thought, it would be cruel, but as soon as the Siegels gained a victory with SUPERBOY, DC simply killed him, so I’m sure they’re cooking up something - FINAL CRISIS anyone???…
April 10th, 2008 at 5:14 am
It never ceases to amaze me how there are people who consider the Siegels have the legally Right to do this when they don’t did the make Superman HELL NO mr Siegel did and before he die he GAVE UP the ownership of Superman too DC.
I hate American because of people like the Siegels family they are the reason why our country sucks
April 10th, 2008 at 9:26 am
“It never ceases to amaze me how there are people who consider the Siegels have the legally Right to do this when they don’t did the make Superman HELL NO mr Siegel did and before he die he GAVE UP the ownership of Superman too DC.
I hate American because of people like the Siegels family they are the reason why our country sucks
”
Jesus, just..just stop posting. You aren’t adding anything to the discussion, and you are coming off as very ignorant.
April 10th, 2008 at 10:31 am
It would definitely be cool to see a more simpler version of Superman, maybe even one where he is the only superhero on Earth. No politics but definitely cooler stories with definite bad guys like rapists etc. And if he is the only one on Earth, then you can keep him at the original power level. I have a feeling though, it might seem tame in the modern comic book reading universe.
April 10th, 2008 at 12:58 pm
Why the fear of a political Superman? A political Superman is a Superman with a purpose, a Superman with personality, not a piece of whitebread with superpowers. If someone doesn’t like the politics Siegel and Shuster ascribed to the character, go create another character with different politics. Heck, I’d be interested in seeing left-wing Superman contrasted against a right-wing Batman — a vigilante who defends the property of the rich against common criminals from the economic dregs of society. It would make for a way more interesting point of tension between the characters than the vaguely defined “I don’t approve of his methods” that stood in for conflict between the two during the Byrne era.
But beyond that, I don’t think comics have an obligation to be all things to all people. I’m way more interested in reading a comic coming from a creator who has something to say than one that tries to express no opinions to keep everyone happy.
I don’t think that means Superman’s politics need to change with every creators– the Siegel’s could bring in creators who reflect Jerry Siegel’s left-leaning political views as expressed in the early Superman stories.
April 11th, 2008 at 3:18 am
La culpa es de DC por no haber tratado tan mal y de una forma tan miserable a los creadores de superman.
April 12th, 2008 at 11:17 am
Sure you can have a political Superman and cut your audience in half. I for one have no interest in seeing Superman fight global warming.
April 15th, 2008 at 3:03 pm
Looks like Stan Lee is thinking about licensing from the Seigels, at least according to this:
http://fakestanlee.blogspot.com/