Making Sense of Superman’s Legal Kryptonite

For some while now we’ve reported about the ongoing legal woes surrounding the Superman property. Warner Bros could lose ownership rights to a significant part of the early Superman universe in a schism that would see many of the most fundamental aspects of the character’s mythology revert back to the estates of Superman creators Jerry Siegel & Joe Shuster, if a settlement cannot be reached by 2013.
And the battle is heating up as the opposing parties dig in their heels; the Siegel & Shuster estates on the one hand, and DC Comics on the other.
Even Doomsday couldn’t do a better job of tearing the Man of Steel apart.
It all began back in 2008 and 2009 when a series of rulings were handed down by U.S. District Judge Stephen Larson. Larson “ruled that Siegel’s heirs had successfully reclaimed their share of the copyright to Action Comics No. 1, which marked Superman’s 1938 debut; Action Comics No. 4; and other early depictions of the character and storyline. (Shuster’s heirs are on a separate timeline that begins in 2013). Larson was acting on a provision of the 1976 Copyright Act that allows authors to regain the copyrights to their creations after a certain period of time, subject to a series of intricate conditions.”
Like most legal battles over properties of this stature, it’s a complicated matter, but Variety has detailed the original ruling as follows:
In a recent article published in the Columbia Journal of the Law & the Arts, Anthony Cheng writes that 7th Circuit Court of Appeals Judge Richard Posner’s decision in Neil Gaiman’s suit against Todd McFarlane “could provide the rationale for both parties to continue legally exploiting” Superman. Posner determined that Gaiman’s “Medieval Spawn” was “sufficiently distinct” to justify a separate character copyright from the original Spawn.
Along this line of reasoning, one way to settle the Superman dispute would be to “split the character in two — a 1938 Superman and a Modern Superman — and allow both sides to create new works based on their versions,” Cheng writes.
Moreover, because both sides would independently be exploiting their respective versions of the Man of Steel, they wouldn’t have to go through the tricky work of accounting for each others’ profits. They’d own what they own. One downside, though, Cheng writes, is that DC would have the more valuable version of the character, given the length of time it has been transforming Man of Steel projects into popular culture.
The other, more obvious, option is that all parties come together. But that’s no easy feat. The heirs’ attorney, Marc Toberoff, is appealing Larson’s decision to the 9th Circuit to get a more definitive ruling on who owns what, while DC is proceeding with its suit against Toberoff, charging that he has poisoned their relationship with the Siegels and Shusters.
Amid all the acrimony, it’s easy to forget the original intent of the “rights termination” clause of the Copyright Act: to give authors another opportunity to share in the rewards of their creations, not to parcel them out in bits and pieces.
Larson’s point wasn’t to parcel out the rights but to compel everyone to come to the same table for potentially mutual benefit. As he wrote in one ruling, Superman is an “aggregate whole,” not “a red cape here, a particular villain there.”
What does that mean for Zack Snyder’s new Superman reboot? Shortly after the director was hired to helm Man of Steel, there was speculation that one of the main reasons he’d landed the gig was that Warner Bros believed he’d be able to complete the film so that the studio could release it with minimal turnaround time. And while this shouldn’t be a problem, the fate of future films, not to mention the character’s larger integrity, is obviously being called into question.
In 2013, DC could move forward with the Superman projects it has already made, but under the Copyright Act, the company could not create new “derivative” works based on Action Comics No. 1 and other properties held by the heirs. More sequels though, would add up to more legal roadblocks.
If it sounds messy, it is. Ironically, the whole reason for splitting the rights in the first place was to give each side critical components of the Superman mythos, and encourage both sides to work together.
Our take on all of this is that the property is simply too well-established, and too important, to be divided into multiple variations. To do so would negate decades of established history and water down Superman’s value. And by value we also mean monetary value. Fan interest would likely wane. If the heirs owned important parts of the character, but not the trademark, this would pose a significant limitation on marketing and merchandising. Moreover, their reclamation of the copyright applies only to the United States, so international rights would remain in the hands of DC.
A fragmented Superman serves no one.