The Superman case is not the only legal action the Siegels have undertaken against DC. They are also suing for the rights to Superboy, relying on the same termination rights statute that led to their regaining the Superman material in Action Comics #1.
The Superboy case provides a potent illustration of how fragile a court victory can be. Two years ago, a court held that Superboy belonged to the Siegels. However, the case was subsequently reassigned to Judge Stephen G. Larson, the same judge who issued the recent Superman decision. In a controversial ruling last July, Judge Larson granted DC’s motion to reconsider the earlier decision, which meant that the previous decision to grant Superboy to the Siegels was no longer valid.
If the Siegels and DC do not settle, the Superboy trial is scheduled to take place after the Superman trial concludes. In this post, we’ll examine several key issues raised by the Superboy case — and how the Siegels’ regained rights in Superman could turn it upside down.
Work made for hire: In 1937 and again in September, 1938, Jerry Siegel and Joe Shuster signed employment agreements that also gave DC the right of first refusal in any new material developed outside the scope of their employment. In November 1938, Siegel proposed a Superboy series to Detective Comics. The company declined. Siegel tried again in 1940, this time submitting a “lengthy script,” but once his offer was refused. (4)
In his Superboy opinion, Judge Larson ruled that because Siegel created this material in conjunction with the right of first refusal provision in his previous contract, Siegel’s Superboy material was not work made for hire. This means, at least theoretically, that the Siegels might be able to exercise termination rights. (53)
The idea/expression dichotomy: After Siegel entered the Army in 1943, Detective Comics paid Shuster for drawing a Superboy story in More Fun Comics #101. The fact that Siegel proposed a Superboy character earlier, however, does not automatically mean that he has a copyright interest in this material. As Judge Larson observed, copyright does not apply to the idea of a work; it applies only to a concrete expression. Based on the information he had at hand, Judge Larson was unable to determine “[w]hether any of the copyrightable material in Siegel’s Superboy submissions was in fact later published.” (65)
Joint work: The Siegels argued that Superboy was entirely the creation of Jerry Siegel. However, the judge raised serious questions as to whether this was the case. (53-65) Even if we assume that the DC’s Superboy contained Siegel’s copyrighted material, there was substantial evidence that Superboy was a joint work created with Shuster, with Shuster drawing the Superboy pages either as Siegel’s co-creator or as an employee of Detective Comics. Either way, the most the Siegels could get would be a 50% co-ownership interest in the character.
Derivative work: All of the above could be irrelevant, however, if the judge ultimately concludes that Superboy is completely derivative of Superman, with no original copyrightable elements attributable to Siegel. According to DC, Superboy is wholly based on pre-existing elements; there is nothing distinct except the trivial difference in age. The Siegels counter that Superboy, while partially derivative of Superman, nonetheless has distinctly original elements sufficient for copyright protection. (66-72)
Back when Judge Larson issued his opinion, finding Superboy to be a trivial variation on Superman would have killed the Siegels’ claim. Because Superman was wholly owned by DC at the time, the company would have owned all of Superboy as well.
What next: The Superman ruling changes the game. If Superboy is wholly derivative of Superman, he is arguably co-owned by the Siegels, since they regained half the copyright interest in the Superman material in Action Comics #1. Thus DC’s previous arguments in the Superboy case may actually work against the company’s own interest. Whereas before the Superman ruling it benefited DC to claim that Superboy is completely derived from Superman, now DC’s own arguments provide a basis for finding that the Siegels by extension own half of Superboy.
Nonetheless, the Superman opinion also flips the Siegels’ arguments in the Superboy case. If the judge were to agree that Superboy is substantially distinct from Superman, applying the Siegels’ own arguments to recent Superman material could significantly lower their percentage of the profits. DC could argue that just as the Siegels contend Superboy is distinct from Superman, most if not all of the current Superman is new — after all, the character in Action #1 did not fly in space, live in alternate universes or turn electric blue.
Likewise recent Superboys: Action Comics #1 does not contain a youthful clone, nor does it envision a non-costumed teen who hangs around with Luthor and the nascent Justice League. Even if such characters are partially derived from Siegel’s work, the Siegels’ own arguments would seem to bolster the claim that a substantial portion of recent Superboy material is original to — and owned by — DC.