As longtime DC comics readers may recall, this was not the first time that Siegel and Shuster had the power to remake reality with their words. For example, in Action Comics #447, a storyteller named Joseph Jerome can fashion reality, including Superman, with the power of his imagination. Likewise, Action #554 relates how two boys save the world by creating Superman through the force of their belief. Yet as we have already seen in this series, not all depictions of their imaginative power are so sanguine. The Siegel-and-Shuster Superman in Adventures of Superman #612 is depicted as a relic of a long-forgotten past; while the power of imagination may bring him to life, the realities of life today might also make him obsolete.
This tension between past and present is equally evident in the Siegel case. On the one hand, for many within the comics community the ruling was a symbolic victory in the struggle for creators’ rights, vindicating not just Siegel and Shuster, but legions of comic book artists and writers whose genius was exploited by corporate greed.
Yet much to the surprise of longtime industry watchers, the judgment also provoked a strong negative response. Some critics focused on the fact that the winner was not Siegel himself but his heirs, who were said to have gained an unearned windfall. Other observers went a step further, questioning the wisdom of a law that voids otherwise valid contracts, and accusing the Siegels themselves of exploiting Superman for their own financial gain.
As you may have noticed if you’ve been reading comment threads, the debate can get rather intense. In this, our last post of the series, we’ll examine how the creative vision of Siegel and Shuster helped give rise to both sides.
As yesterday’s interview with Joe Simon reminds us, the Siegels aren’t the family with a potential copyright case. The Shuster estate has filed to regain its share of Superman in 2013. Joe Simon has already negotiated a settlement for his co-creation of Captain America, and there are reports of smaller settlements arranged behind the scenes. With the Siegels’ newsworthy success, others have no doubt started looking into whether they might have a claim.
Some fans are understandably worried about the future of their favorite comics, but the likelihood is that relatively few viable termination claims will be filed and even fewer will have visible effects. Even if trademark law weren’t an issue — and it’s a big one — most creators simply have little prospect of earning substantial profits from their own versions of a character. Moreover, for creators already receiving royalties, the potential gain from a new settlement may not be enough to warrant an expensive and stressful lawsuit.
The biggest obstacle, however, is probably the law itself. Creators don’t have termination rights in work made for hire, while the procedural requirements for filing a valid termination are rigorous and arcane. Industry watchers are no doubt familiar with the failed lawsuits filed by Archie Comics artist Dan DeCarlo. Whatever the sympathy for his effort among fans and other artists, DeCarlo’s claims clearly did not fit within the current legal framework. In fact, had the judge in the Siegel case applied his expansive interpretation of derivative works to the pre-Action Comics house ads, the Siegels arguably would have lost.
Nonetheless, the fact that the Siegels and a few other creators or heirs may be able to gain from long-sold copyrights has caused a fair amount of controversy — and that will be the subject of the next, and last, post in this series.
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.
Superman is not the only news story pertaining to comics and copyright. Last week, an Animation World article by Mark Simon caused a bit of a stir. The subject: a proposal to amend the U.S. copyright law regarding so-called “orphan works,” material whose creator ostensibly cannot be identified or located.
According to Simon, Congress is poised to pass legislation that would essentially eviscerate copyright protection for illustrators, photographersand other creators. Blogger Meredith Patterson, in a widely acclaimed post linked on Boing Boing, ostensibly refuted Simon’s article by showing it to be “poorly researched,” “illogical” and “retardedly” insistent that artists write their representatives about the bill.
Since this is a pressing IP issue that has engaged both the animation and comics communities, let’s set aside our Siegel series for a moment to determine whether artists concerned about this issue are indeed over-reacting.
A number of fans are concerned about the impact of the Siegel decision on the future of Superman, and understandably so. Since the lawsuit became news a few years ago, properties implicated in the Siegel claims–Superboy and the Earth-2 Superman–have been killed. Moveover, the Siegels’ lead attorney asserts that the Siegel and Shuster heirs will take over the franchise in 2013, with some fans adding that this means the end of DC’s trademark rights in 2018.
How can Superman survive?
As I’ve hinted throughout this series, there are actually a number of reasons why DC is not likely to lose Superman, even after the Action #1 material enters the public domain in 2033. So some of us can sleep better at night, here’s an overview of why the death of Superman has been greatly exaggerated.
Marvel owning Superman–before the Siegel copyright decision, you would have assumed this could only be a dream, a hoax, or an imaginary story. Now it might actually happen. As we saw in my last post, under the law of jointly owned copyrights it is at least theoretically possible for the Siegels to sell their Superman rights to another publisher, since the law allows each co-owner to assign or license copyrighted property.
Yet the Siegels’ copyright interest in Action #1 does not give them an unfettered right to do whatever they want with the whole franchise. For example, in the previous post we noted that the judge left unresolved the question of how much of the current Superman universe derives from the material that the Siegels share. New characters are one problem–Lex Luthor, Zod and Bizarro are just a few of DC’s copyrighted story elements not found in the Siegel material.
However, this is not the greatest obstacle to what would be the sale of the century. As DC’s own lawyers have argued, trademark law arguably protects the distinguishing elements of the Superman properties in ways that can effectively prevent the distribution of competing Superman material. The Siegels, of course, disagree.
As a number of commenters have observed, the court decision recognizing the Siegels as co-owners of Superman raises serious questions about the future of the franchise. Do the Siegels own anything more than the exact panels in Action Comics #1? Can the Siegels exercise creative control over DC’s Superman comics? Can the Siegels sell Superman to Marvel? And if the Shuster estate regains its copyright interest in 2013, will DC lose Superman forever?
As we’ve noted elsewhere, the answer to these questions is a bit complex, since copyright is not the only aspect of intellectual property at issue in this case. Trademark makes the situation that even more complicated. What if DC uses trademark to keep the Siegels from doing anything with their copyright? Does trademark make the public domain meaningless? Is it true, as some claim, that the Siegel and Shuster heirs can get the Superman trademarks back in 2018 simply by holding on to their copyright?
To answer these and other related questions, let’s begin with what we know the Siegels’ won: half of the U.S. copyright interest in the Superman material in Action Comics #1, effective as of April 16, 1999. For legal references, unless otherwise noted see the relevant pages from the judge’s opinion cited in this post.
The latest court order in the Siegel case could be the beginning of the end. For years the prevailing assumption has been that this case would end in a settlement, not a trial. By imposing a sixty-day mediation period, the judge is pressing both sides to bring this dispute to its natural close.
You might notice that in Jones’ account the law was not the only concern shaping the outcome. This is not at all unusual. In a settlement negotiation, the law is merely one of several things that can influence what each party decides they can accept. The following are a few of the factors that are likely to play a role in determining whether negotiations succeed or break down.
The judge in the Siegel case has issued a new order pertaining to both the Superboy and Superman lawsuits. Click the link for a copy. I’ll have more to say when I finalize my Superboy post, which I began drafting last night.
–The parties are to spend the next 60 days negotiating a settlement.
–After the 60 days is up, the parties are to file a joint report on what happened.
–If they don’t settle, the trial in the Superman case is scheduled to begin on November 4, 2008.
–The court is setting aside ruling on the remaining issues in the Superboy case, along with setting the Superboy trial dates, until after the Superman trial is over.
This emphasis on settlement is consistent with contemporary court practice, particularly in the Ninth Circuit, which was an innovator in the field. On a personal note, the Circuit judge for whom I clerked, the Hon. D.W. Nelson, pioneered this judicial movement–click here for a guest blog post in which she talks about her experience as a leader in ADR–Alternative Dispute Resolution–as well as her work in spearheading women’s equality in the legal profession.
If you read the order (go ahead–it’s short), you’ll see that it highlights the two issues we’ve focused on as being unresolved: “1) Post-termination alterations to pre-termination derivative works and 2) Mixed use of trademarks and copyright.”
As I was re-reading the judge’s earlier rulings this past week, it became clear that the Superman ruling had changed the landscape considerably for the Superboy case, so much so that I’d decided to make that the subject of its own post. Again, it’s a fascinating issue not only for comics, but anyone whose work involves developing copyrighted and trademarked material.
In my last post I described the right of present-day creators to terminate transfers and licenses of their original non-work-for-hire material. The decision to start with the present was deliberate. The Siegel case is not merely relevant for Golden Age transactions; it’s a powerful reminder for lawyers and creators on both sides of copyright agreements that the story doesn’t end with a signed contract.
To see why this matters, consider Steven Grant’s most recent CBR column, in which he observes that he has “never met anyone who has ever signed away their rights in or control over what turned out to be a popular party who wasn’t bitter about it in their 40s.” One apparent reason for this sense of hopelessness: the perception that termination rights apply only to older creators. “For those of us who came into the business after 1977,” Grant states, “the [Siegel] case really means nothing but satisfaction, since we operate under a different set of rules. . . . Youthful indiscretion — or any other kind — is no longer redeemable.” A powerful sentiment to be sure, but as we saw here the law today is actually more forgiving of forty-something creators than they might think.
With that in mind, let’s turn now to the Siegel case itself.
Yesterday we observed that the copyright interest awarded to the Siegel heirs was not the same as what Siegel and Shuster would have if they’d created Superman today. The reason for this lies in the rather arcane set of rules that govern copyrighted material created and sold before 1978.
If you think I’m exaggerating with the word “arcane,” take a look at this chart on the length of copyright. And I do mean just “take a look,” because people who spend more than a few moments to trying to figure it out tend to wind up muttering to themselves incoherently or deciding to go to law school.
On March 1, 1938, Detective Comics paid Jerry Siegel and Joe Shuster one hundred and thirty dollars, reflecting their standard page rate, for the Superman story in Action Comics #1. Enclosed with the check: a contract assigning the company “exclusive right[s]” to Superman “to have and hold forever.” Not only did Siegel and Shuster sign the contract, but in September of that same year they signed an employment agreement acknowledging that the company owned Superman. (10)
That we are now talking about Siegel’s family gaining co-ownership of Superman is something of a miracle. Time and again, Siegel’s fight for the rights to the character ended in bitter disappointment. In a 1948 settlement, Siegel and Shuster once again acknowledged that Detective Comics “owned all rights to Superman.” (16) In 1974, a federal appeals court affirmed a lower court ruling that when Siegel and Shuster transferred “all their rights” to Superman “forever,” they signed away the possibility of getting him back. (17)
How could a court today possibly bring Siegel’s claim back from the dead?
To understand what happened, it will help if we first identify exactly what rights the court says Siegel’s heirs now possess. Since other experts have provided useful summaries of the entire court opinion, here I want to boil it down even further to just the core rulings:
The Siegels’ copyright interest: The Siegel family has regained the copyright to the Superman material in Action Comics #1, effective April 16, 1999. (56, 72)
House ads: The house ads published prior to Action Comics #1 merely give DC Comics a copyright interest in “the image of a person of extraordinary strength who wears a black and white leotard and cape.” (40)
Work-for-hire: No part of the Superman material in Action Comics #1 can be carved out as work for hire. (41-48 )
International rights: The Siegel’s regained copyright interest only extends to domestic U.S. rights. It does not include any rights gained under foreign laws, including rights to international profits. (65-66)
Accounting for profits: DC must account to the Siegels, as co-owners, for the profits from Superman material derived from Actions Comics #1–with the exception of derivative works prepared before April 16, 1999. The court does not resolve the question of what, if anything, the Siegels should be paid for pre-termination derivative works that have in some way been altered since April 16, 1999. (66-68)
Trademark: The Siegels cannot share in profits purely attributable to Superman trademark rights. However, the court does not determine whether they are entitled to profits from mixed trademark uses that include elements of the Siegels’ copyrighted material. (66-68)
Superman movies and TV shows: The court does not resolve the issue of Superman profits generated by Warner Brothers Entertainment and Time Warner, Inc. (71) The court ruling calls for “a trial on whether to include the profits generated by DC Comics’ corporate sibling’s [sic] exploitation of the Superman copyright.” (72)
As we can see from the above, what happened with the judge’s ruling may have been miraculous, but it wasn’t simply a case of restoring all the rights that Siegel signed away. Why that’s the case–and what this means for creators today–will be the subject of my next post.
Over the past week, there’s been a considerable amount of speculation as to what the Siegel decision means for the future of the Superman franchise. There’s also been some discussion as to how the Siegel family could regain fifty-percent share of the Superman copyright decades after Siegel and Shuster sold it to the company that we now know as DC Comics.
If you’re one of those confused by all this, don’t worry. You’re not alone. The law in this case is really complex — the history even more so — and that has understandably given rise to a tremendous amount of uncertainty.
In this post, we’re going to do what the law clerks most likely did when advising the judge: distill the whirl of claims and questions into a simple timeline. Our main focus for now: concerns that the ruling may spell the end of Superman.
April 16, 1999: The date that, according to the judge’s ruling, the Siegel heirs legally regained co-ownership of the Superman material in Action Comics #1. How is this possible if copyright lasts for life + 70 years? If, as some have explained, the Siegels got this right due to a change in copyright law back in 1976, why didn’t they claim it earlier? Does this mean that there can be no Superman comics, movies or merchandise without the Siegels’ permission? Can the Siegels really sell Superman to a rival publisher? Even if DC retains some creative control, will the Siegel payout make the Superman franchise unprofitable? And what does the ruling mean for aspects of the Superman mythos that weren’t in Action Comics #1?
2006: Superboy (Kon-El) dies in Infinite Crisis. Did DC kill him off because of the Siegels’ lawsuit? What does the most recent opinion mean for the future of the Superboy character?
The Siegel ruling is a model of clear legal reasoning, but because it’s written primarily for lawyers it leaves a number of basic concepts undefined. Among these: copyright and trademark.
Which one applies can make a huge difference in the protection your work receives. For example, the length of time for trademark protection is only ten years, but the trademark owner can keep renewing it indefinitely so long as the mark is being used in commerce. By contrast, copyright protection lasts for the life of the creator plus seventy years (in the case of works for hire, 95 to 120 years), but then that’s it–after the term expires, the material enters the public domain.
The various rules for copyright and trademark protection can get a bit confusing, but here’s a relatively simple way to distinguish between the two. Copyright protects original creative works, such as music, art, and writing. Trademark serves to identify and distinguish products in the marketplace.
Often the line between the two seems pretty obvious. For instance, this post is an original work of authorship protected by copyright; it isn’t a word, name or symbol being used to market goods or services. If you look on your computer, however, you’ll see a logo–an apple, “Vaio,” “Dell”–whose primary function is to tell you the brand.
But this is also where it gets a bit more complicated. Creative works don’t always fall neatly into one or the other category. Consider this original work of graphic design that DC registered as a trademark back in 1941:
Besides being a trademark, the graphic nonetheless also enjoys copyright protection as an original creative work. While trademark protection may seem like overkill, DC would have been foolish not to get it–not only were they using the image on covers at the time, but even after the copyright expires, the image will continue to have trademark protection so long as DC keeps the registration alive.
Here’s where the Siegel case gets particularly tricky. DC has an array of trademarks related to Superman, many of which include designs arguably derived from the copyrighted Superman material in Action Comics #1. The “S” symbol, the Superman character, his home planet and Lois Lane–these are but a few of the elements that the Siegels’ attorneys claim have been incorporated into trademarks used to identify or distinguish branded products.
Over the next few days we’ll have a lot more to say about copyright, trademark and what this means for the future of Superman. Until then, if you’re interested in finding registered trademarks for comic characters or companies, here’s the trademark search page for the U.S. Patent and Trademark Office.
Before we go to the text of the Siegel opinion, I want to call attention to an aspect of the case that is truly unusual. Not the awarding of copyright to the co-creator’s heirs–while this is indeed historic, it is nonetheless an outcome envisioned by the statute.
No, for me the most striking thing about this case is how many people are reading court documents without getting graded or paid. Despite all my years hanging with lawyers and law students, I’ve rarely encountered anyone whose idea of weekend entertainment was to knock back a seventy-two page ruling on the termination of transfers.
Yet over the past few days I’ve watched in amazement as the link to the opinion racked up dozens . . . then hundreds . . . now thousands of downloads.
Even more incredible: you’re actually reading it. Quoting favorite lines, citing page numbers, arguing over what passages mean–it’s a powerful reminder that Siegel and Shuster did not just create a character.
First, a huge thank you to JK Parkin and the entire Blog@ team for inviting me to post. I’ve enjoyed reading Newsarama in its various incarnations over the years, and I’m honored to have an opportunity to get slagged in my own comments thread!
Now to the business at hand. Pretty much everyone in the comics community knows that a judge has granted the Siegel family a copyright interest in Superman. What this means, however, is far from clear.
Over the next week I’ll be cross-posting here a series of follow-ups to my original FAQ over at UncivilSociety.org. Can DC still publish Superman stories? Will Superman soon be joining the Avengers? And just what gives a family the right to regain copyright if the original creators sold it in a legal contract? These are only a few of the issues we’ll be considering–if you have questions of your own don’t hesitate to let me know.
Just be nice. After all, I’m a lawyer, and you know how easy it is to hurt our feelings.
