The judge presiding over the Siegel Superman trials has set December 1, 2009 as the start date for the apportionment phase, with a pre-trial hearing scheduled for November 9. But that doesn’t mean the case will be dormant until then.
Citing the difficulties evident in determining the fair market value of the Superman properties, the judge has provided for the appointment of a special master/court-appointed expert to issue a report before the trial. The parties have until July 31 to make a joint stipulation as to who this master/expert should be.
As the court indicates, the appointment of a special master is appropriate in cases that involve accounting issues and other complex matters that could be difficult for a judge to resolve effectively.
In other news, Variety reports a statement from the Siegels’ lawyer, Marc Toberoff. Besides conceding the fair market value issue was always going to be a difficult one to win, Toberoff states that this phase pales before the larger accounting issues and particularly the imminent reversion of the remaining 50% of the Superman copyright to the Shuster heir in 2013. In addition, Toberoff asserts that “the Court pointedly ruled that if Warner Bros. does not start production on another Superman film by 2011, the Siegels will be able to sue to recover their damages.”
As I noted earlier, claims by the parties in a case should be read with care. DC/Warner Bros. celebrated a clear victory, but the opinion was actually more nuanced–the judge did not so much pronounce the movie licenses as clear fair market value deals as conclude, with evident frustration, that he did have enough information to rule otherwise.
Similarly, while the judge does indeed note that the plaintiffs “plaintiffs could bring an accounting action at that time to recoup the damages then realized for the Superman film agreement’s failure to contain a reversion clause,” technically that’s no so much a formal ruling as dicta. Whether such a lawsuit would succeed or be cost effective remains an open question, as is evident from the judge’s discussion of the “challenged” state of the Superman property and the relatively limited value of a shared copyright.
The judge also hedges the assertion that the remainder of the Superman copyright will revert to the Shuster estate in 2013. While the potential is there for a Siegel-Shuster partnership of considerable value, the judge also notes that “it is by no means a foregone conclusion that the Shuster estate will be
successful in terminating the grant to the Superman material published in Action Comics No. 1,” given the difficulty in “successfully navigating the formalistic and complex termination provisions in
the 1976 Copyright Act.”
As I indicated last night, the judge continues to exert pressure for a settlement in subtle but recognizable ways, but each side also continues to press its claims in what is at base an extremely complex set of circumstances. While the Siegels have an incentive to settle the case early to avoid the possibility of a judicially determined low valuation, they also have clear incentives not just to get judicial validation of their financial claim, but to use the appeals process to–at the very least–run out the clock until 2013. Likewise, Warner Bros. should be concerned that the next phase may not be lacking in data that the judge could use against it, even as it no doubt is equally convinced that an appeal could result in its favor.
If I had to make a prediction, I’d say that one thing is certain–anything could happen.