Charities have realized that comics characters are an effective way to get money and attention, but for every authorized use — such as the Met’s superhero fashion exhibit or Diane von Furstenberg’s Wonder Woman collection — there are countless other examples of charities using comic-book icons without permission. Every so often, a publisher clamps down on one of these initiatives–and their reward is typically negative press. Just this month, for example, DC Comics was criticized for not giving the Heroes Initiative permission to include pictures of DC properties in The 3-Minute Sketchbook.

Singling out DC is a bit unfair — Marvel has had its own share of charitable controversy, and DC has allowed its characters to be used for other charitable projects — but the broader question raised by such incidents is not unreasonable. After all, if the money is going to a charity, why shouldn’t a publisher just let its characters help a good cause?

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Today the judge in the Siegel case is holding a status conference to set the “FINAL and DEFINITIVE schedule” for the trial. The judge’s all-caps emphasis may seem a bit unusual for a routine scheduling order, but it’s a visceral reaction to the twists and turns the case has taken since the calendar was originally set back in April.

A lot of it is legal wrangling that we’ll set aside for another time, but one issue is particularly relevant to readers of this site — because that issue arose from one of our most recent posts.

The post in question was from late August, and it revealed previously unknown artwork and scripts from the 1934 collaboration between Jerry Siegel and Russell Keaton. As Siegel lawyer Marc Toberoff explains in a court filing:

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The House of Representatives has adjourned–for now–and unless the Clerk was asleep at the keyboard the so-called orphan works bill did not pass.

That means the bill is dead and gone, right?

Not really.

If we’ve learned anything from reading comics, nothing is dead unless we see a corpse–and even then, chances are the deceased will eventually come back to life. Law is much the same way. Since there has been so much confusion about the state of the bill over the past few days, here’s a brief explanation of what happened this week and what it means for the future.

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The artistic community is buzzing over news that the Senate has passed its version of the orphan works bill.

And for good reason. The legislation will significantly change the incentive structure in copyright enforcement.

As I discussed in a previous post, the legislation’s stated aim is to clarify the status of so-called orphan works–old copyrighted material whose rights owners cannot be located. The typical example cited to justify the bill is something old with a personal or educational value, such as a family photograph or a historic archive.

But what matters most is not the ideal application but the actual language, and this is what has so many people concerned.

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In a comment on the Russell Keaton post, Denis Kitchen — whose contributions to the comics community are many and invaluable — expressed his dismay over the publication of copyrighted material with what he considered to be an inaccurate account of their discovery. In this post, I’d like to provide a more in-depth explanation of the documents’ backstory and the legality of republishing them.

Copyright: These documents are part of the official public court record for the Siegels’ Superman case. In fact, the lawyer who made them part of the public record was the Siegels’ lawyer, Marc Toberoff, who certified their authenticity and filed them with the court. U.S. law has long recognized that the First Amendment protects the reproduction of material placed on the public record in connection with a federal court proceeding.

In regard to co-ownership of the material by the Siegel and Keaton estates, Kitchen notes that the Siegels’ lawyer vetoed the publication of a book collecting the material. However, even if the documents had not been made part of the court record, the Keaton estate arguably has a legal basis for going forward with the collection. As the recent Superman court decision reiterates, joint owners of copyrighted material each have the right to exploit it independent of each other, though they are required to share the profits with the other co-owners.

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It’s relatively common knowledge that in 1934 Jerry Siegel approached other artists besides Joe Shuster to be his collaborator on Superman. One of these artists was Russell Keaton, who had been ghosting the Buck Rogers Sunday pages. Siegel and Keaton maintained a brief correspondence over the character, with Keaton eventually deciding “not to gamble on such a young and inexperienced writer.” Instead, a few years later Keaton launched his own newspaper strip, Flyin’ Jenny.

And now, in the words of Paul Harvey, the rest of the story.

In preparing the termination notice to regain the Superman copyright, the Siegel family found a box of old Superman material, catalogued its contents–and then, in a move, lost track of it. Fortunately, the material was re-discovered in April of last year.

Among the documents: photostats of the scripts and artwork of Siegel and Keaton’s Superman.

That’s right, Siegel and Keaton.

As Jerry Siegel would later explain, in 1934 Joe Shuster had become discouraged with the Superman newspaper strip and decided to let it go. His departure prompted Siegel to look for a replacement, so he sent an inquiry to Keaton. Which we have in these rediscovered documents in Siegel’s follow-up letter outlining the origin story and touting the prospect of selling the strip to the Bell Syndicate.

Based on the surviving artwork, it would appear that Keaton did indeed prepare a set of sample daily strips for the syndicate to review. Had Siegel and Keaton succeeded in selling the strip, the history of comics would no doubt have been far different. At the very least Russell Keaton, not Joe Shuster, would most likely be remembered today as Superman’s co-creator.

The material also provides a decidedly different take on Superman’s origin. In this version, the infant Superman arrives here from the future via a time machine, sent to 1935 by “the last man on earth.” The couple that discovers him: Sam and Molly Kent.

The story then takes a series of fascinating turns in regard to Superman’s childhood, which is the subject of the first extended storyline. Most poignant: in a nod to Siegel’s own immigrant parents, the boy speaks a language that Sam and Molly don’t understand, leading them to speculate that he came from “a foreign country.” The secret of his origin appears to lie in a cryptic “Mystery Note” found in the time capsule, but–as is all too common in immigrant families–when Clark Kent grows up he can no longer read the words.

What this material might mean for the Superman and Superboy lawsuits we’ll discuss in a later post. For now, these historic documents deserve to be read in keeping with Siegel’s original intent–not as the subject of a legal dispute, but as an astounding adventure.

For those who want to check out the original source material, here are the the Fox complaint, Warner Brothers’ response, the disputed legal documents and the judge’s order.

Arguably the most explosive sentence in the order: “It is particularly noteworthy that nothing on the face of the complaint or the documents supplied to the Court establishes that Gordon, the claimed source of Warner Brothers’ interest in ‘Watchmen,’ ever acquired any rights in ‘Watchmen.’”

As several reports state, Warner Brothers faced a similar situation before, when, in 2005, the same judge granted a preliminary injunction that would have kept The Dukes of Hazzard movie from being released, prompting the studio to agree to a multimillion dollar settlement. The plaintiff’s lawyer in the Hazzard case: Marc Toberoff, who is now representing the Siegel heirs.

The depiction of women in comics has received its fair share of criticism in recent years, most notably in Gail Simone’s Women in Refrigerators and Valerie D’Orazio’s Occasional Superheroine. Comics have likewise sparked some controversy in regard to images of heroic homosexuality. But as the latest documents released in the Jerry Siegel case illustrate, these issues have a long history.

The documents in question: correspondence between Detective Comics and Jerry Siegel from 1939 through 1947, entered into evidence as part of DC’s attempt to establish that all the work done by Siegel & Shuster during that time was work for hire. The case still has a while to percolate — the judge has postponed the hearing on unresolved trademark/copyright issues until September 15 — but the material itself is a gold mine for folks interested in the comics history.

Even apart from the gender issues there’s a lot of amazing stuff here — the recurring savage criticism of Joe Shuster’s art; an early critique of Wayne Boring as an artist unsuitable for Superman; the hiring of Winsor McCay, Jr., as Superman ghost-artist-in-training; the insinuation that Superman was not significantly more popular than Zatara, Pep Morgan and Tex Thomson; and the prohibition on depictions of a flying Clark Kent are just a few of the historical moments in the mix.

Yet it is the sex stuff that really stands out, providing a rare insiders’ perspective on the comics writing culture of the past. One of the true highlights of the newly released correspondence is the black-and-white sketch of Lois Lane included in this post. The artist was Siegel’s and Shuster’s editor, Whitney Ellsworth, who was attempting to get the duo to make Lois Lane less curvaceous.

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There’s a rising concern in some quarters that Comic-Con International has sold out in ways that go beyond the lack of on-site registration. What once had been an educational community seems to have morphed into a PR-palooza, with the celebration of an art form giving way to corporate hype and celebutards.

For an event such as Comic-Con, complaints like this aren’t just idle chatter. San Diego Comic Convention is a tax-exempt educational charity and, as Blog@ reported last year, leading charity watchdogs have raised serious questions as to whether Comic-Con continues to deserve its 501(c)(3) status.

Does rampant marketing compromise Comic-Con’s charitable mission? A quick legal overview after the jump:

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When we last left our discussion of the dispute over the copyrights to Superman and Superboy, the judge had ordered the Siegels, DC and Time Warner to engage in settlement negotiations. Originally the mediation was to last 60 days, but scheduling conflicts pushed the deadline for the parties’ joint progress report back to the end of June.

As Newsarama readers have noted, DC Comics Executive Editor Dan DiDio made an offhand comment this weekend at Wizard World Chicago that has led some to wonder whether the Superboy lawsuit has been settled. Here’s the scoop from the “DCU Crisis” panel:

DiDio also paused to point out the special nature of Legion of Three Worlds. “We’ve got Geoff, we’ve got George, we’ve got SuperBOY Prime (yes, we can say that again).”

This could reasonably be taken as a sign that the Superboy lawsuit is over — after all, it was the Siegel family’s initially successful (but later vacated) attempt to reclaim the character that apparently led DC to take the name off the market.

However, DiDio’s reference to Superboy is not the only piece of evidence to emerge this weekend. On Friday, the Siegels and Time Warner filed their joint progress report in the Superboy and Superman lawsuits. This report states that the parties have not reached a settlement, despite four mediation sessions attended by their lawyers and DC President and Publisher Paul Levitz.

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In what Heidi MacDonald aptly described as “shaman’s magic,” several weeks ago Grant Morrison portrayed the young Siegel and Shuster changing the world in a comic released on the very same day that a federal judge issued his historic ruling in the Superman case.

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.

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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.

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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, photographers and 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.

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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.

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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.

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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.

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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.

The thing about settlement negotiations, though, is that they’re highly unpredictable. If you haven’t ever seen one in action, you might want to read this description of the events leading to the Siegel and Shuster payment arrangement in 1975, excerpted from Gerard Jones’ must-read history, Men of Tomorrow: Geeks, Gangsters and the Birth of the Comic Book.

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.

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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 order in a nutshell:

–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.

Note: Cross-posted from here.

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.

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