Over at The Beat, Jeff Trexler has a great look at the current standing of both the Jack Kirby and Jerry Siegel lawsuits surrounding ownership of their respective creations:
In the Siegel appeal, Toberoff uses similar arguments regarding work-for-hire that he used in the Kirby case. According to Toberoff, Jerry Siegel’s work was not actually work for hire. Instead, Siegel was an independent contractor selling his own property to DC. Indeed, the similarity in legal arguments is so pronounced at times that it feels as if you are reading Toberoff’s account of Jack Kirby’s work with Jerry Siegel cut and pasted into it, calling to mind DC’s infamous decision to put a different face on Kirby’s Superman.
The net effect of this reasoning is that the Ninth Circuit should see Jerry Siegel in a position analogous to that of Neil Gaiman in the Medieval Spawn case. Because Siegel was an independent creator offering original new elements to pre-existing copyrighted material, Siegel at the very least co-owned all of the original material contained in these derivative works, such as Lex Luthor, Toyman and Superman’s enhanced powers. Accordingly, Toberoff argues, the court should expand Siegel Larson’s copyright interest to include everything within the five-year termination window.
Maybe this will prove to be a winning strategy–I’ve seen courts do stranger things–but it’s a risky gambit.
I found Warner/DC’s decision to pursue an open court hearing for the Siegel/Superman case last week to be surprising and, perhaps somewhat naively, suggesting a new confidence that they could win the case without it getting too ugly. It’ll be interesting to see how both cases shake out… and what happens if either publisher ultimately loses ground in the ownership of such important characters.