A certain DC Comics character is coming back from the great beyond, and if my inbox is any indication a lot of you are wondering how this could have happened.
The answer–or at least a possible explanation–below.
Seriously – there are spoilers here – if you haven’t read the latest Legion of 3 Worlds, or haven’t heard the buzz about who’s going to be in DC’s Adventure Comics, you may want to read no further.
We mean it.
Okay – so everyone left does want to hear about this?
The imminent return of Conner Kent–this generation’s Superboy–has raised questions as to whether DC and the heirs of Jerry Siegel have settled their dispute as to who owns the character.
A settlement is one possibility, though at present it seems a relatively less likely explanation. The court record in the Superboy lawsuit contains no reference to a finalized settlement. To the contrary, the parties stated last year that court-ordered mediation did not resolve the dispute. As things stand, the court record indicates that the resolution of the Superboy lawsuit will follow the court’s judgments in the Superman trials, the first of which began this past week. (More on that soon in another post!)
A more likely explanation as to why DC feels comfortable reviving Superboy–or at least the Conner Kent version–is that the company’s legal position regarding the character improved considerably after the 2007 court ruling that vacated a previous judgment awarding the rights to the Siegel heirs.
As I noted briefly in a Blog@ post in conjunction with the return of Superboy Prime,
Based on Judge Larson’s ruling in the Superboy case, DC might have concluded that the worst they’ll end up with is 50 percent of the character as a joint work. Since the main issue is profit allocation, they might have figured that it’s better to share money from successful characters than to kill them off or end their adolescence prematurely. Moreover, in light of the court’s recent decision to give the Siegels half of the Superman material in Action Comics #1, changing Superboy to Superman arguably does not accomplish all that much — either way DC faces the prospect of having to pay the Siegels something for the work.
This may seem opaque to some readers, given that we’re no longer in the midst of a series of blog posts on legal issues arising from the Siegel lawsuits. For those of you who are gluttons for legal punishment, here’s a somewhat more detailed overview.
In March 2006, a judge ruled in favor of the Siegel heirs in their attempt to regain the Superboy copyright. The basis of the judge’s decision was a set of findings from Siegel’s and Shuster’s 1947 lawsuit against DC. As part of the initial findings in the 1947 case, the court referee determined that
Siegel is the originator and sole owner of the comic strip feature SUPERBOY, and . . . that [DC is] perpetually enjoined and restrained from creating, publishing, selling or distributing any comic strip material of the nature now and heretofore sold under the title SUPERBOY.
This finding had been vacated in 1948 as part of the initial settlement between DC and Siegel and Shuster, but the judge in 2006 ruled that this finding was nonetheless determinative for purposes of the Siegel heirs’ decision to exercise their termination rights in the Superboy character.
The comprehensive nature of the 2006 ruling–that “any comic strip material of the nature now and heretofore sold under the title SUPERBOY” belonged exclusively to the Siegel heirs–arguably prohibited DC from publishing any material that featured a character named Superboy, whether a young Clark Kent or a derivative work featuring a character with the same name and similar powers.
Although it has been asserted that the judgment had nothing to do with the case–decided just a few before Conner Kent’s death in Infinite Crisis #6–there have also been other indications that the lawsuit was a factor at least in the decision to avoid references to Superboy after the judgment was issued.
However, in July 2007, after the Superboy case had been transferred to a different judge, the court granted DC’s motion to reconsider the 2006 ruling. As the court observed in the 2007 order, the 1947 lawsuit was not based on copyright–a federal issue–but the misappropriation of property under New York state law. Accordingly, it was inappropriate to view the referee’s findings as determinative of the Siegel heirs’ copyright claim.
Even better for DC, the 2007 order went on to indicate that DC owns at least 50% of the Superboy copyright. Because the original material in question was drawn by Joe Shuster–whose rights at this point remain vested in DC–Superboy would arguably be a joint work co-owned by DC and the Siegel heirs.
The judge did not issue a final determination on the co-ownership question, due to the as yet unresolved question of the extent to which Superboy constitutes a derivative work of Superman, an issue inextricably bound with the questions being considered in the upcoming second trial regarding the allocation of profits derived from the Superman material in Action Comics #1.
Here things get a bit complex, but at base there are reasonably secure grounds for DC lawyers to conclude that whatever else happens, the absolute prohibition on publishing any material under the Superboy title is unlikely to return. DC’s lawyers may have determined that the company appears likely to end up owning part if not all of the copyright in Superboy, and since a co-owner can exploit the property on its own without permission from any other co-owners, DC could safely publish its own Superboy material.
In keeping with the law of joint ownership of copyright, the company may have to allocate some profits to the Siegel heirs, but splitting profits can be better than having no profits at all. Moreover, keeping Superboy in use helps enable DC to to maintain any Superboy trademarks.
Of course, all this is speculation based on public documents–I don’t have a mole in DC legal, nor does it seem likely that they’ll be inviting me up for cocktails anytime soon. That said, there is at least some evidence that DC views the 2007 decision as grounds for concluding that “Superboy was returned to DC.”