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.