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.

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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?

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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.

They created a community.

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.