Over at the Beat, Jeff Trexler asks a very weird and interesting question: Is today’s Superman the same character that was created in 1938? And, if he isn’t, does that mean that the Siegel and Shuster heirs have no right to the character? It seems that the 2004 legal victory that gave Neil Gaiman ownership of Medieval Spawn may complicate matters in the ongoing battle over the ownership of the Man of Steel:
As it stands, the Gaiman case establish a clear precedent for depriving the Siegel and Shuster heirs of their rights in contemporary derivative works by arbitrarily splitting Superman into two separate characters. Moreover, Gaiman does not give judges the authority, as some have suggested, to use DC’s derivative Superman material as the basis for giving the company an unfettered right to create new Superman works as co-owner after Siegel and Shuster heirs recapture the entirety of the original copyright in 2013. The law on both fronts is well established, both in precedent and in the Copyright Act–copyright owners of preexisting material have exclusive rights to create or to authorize derivative works, and the former owner of a terminated copyright interest does not have the right to produce new post-termination derivative works without a license.
So… does the Gaiman/McFarlane decision essentially guarantee that everyone has to work together – under, I assume, a more financially rewarding and fair agreement than the one currently in place – in order to keep Superman as a commercially viable character? That might be a best case realistic scenario for everyone involved – if, admittedly, one that no-one particularly seems to want at this moment in time.
(Trexler also suggests a best worst-case scenario for DC, should it lose the lawsuit: “Not only would DC continue to have the right to continue to sell copies of items created between 1938 and the 2013 termination date, the company would likely challenge any new works by the heirs that call to mind the Superman with which we are familiar, on the grounds that such material would infringe on the copyrighted elements that DC will continue to own.” When it gets into such nitpicking, surely all but the most craven lawyers can see some form of settlement as the best option…?)