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September 1, 1999
By Matt Brady
Contributing Editor for AnotherUniverse.com (now defunct)
Look up in the sky! It's a bird, it's a plane, it's a Copyright Custody Battle! For more than 60 years, Superman could not be stopped, not even by Kryptonite. But now the last son of Krypton, an orphan rocketed to Earth, is torn between the family of one of his creators and publisher DC Comics in a super-battle over his copyright.
DC Comics stands to lose half the rights to Superman due to documents filed in the U.S. Copyright Office by heirs of the late Superman creator Jerry Siegel. His wife, Joanne (the first model for Lois Lane) and daughter, Laura Siegel Larson, revoked the transfer of copyright Siegel and his co-creator, the late Joe Shuster, granted DC Comics in 1938. The price back then: a mere $130. Under the law, Siegel's heirs have been entitled to half of the revenue from Superman starting April 16, 1999, says Michael Lovitz, an attorney with Akin, Gump, Strauss, Hauer & Feld specializing in copyright law, who has been following the case for some time.
Further, the termination means that DC Comics no longer holds the exclusive rights to produce Superman comics and related merchandise. This means that the Siegels could create their own Superman comic book or even television series or movie to compete with DC's publications and series, as the Siegels and DC now co-own the Superman copyright. However, if the Siegels were to produce their own Superman comic book or movie, they would have to pay DC Comics one-half of the revenue it generated as well. Merchandising Superman has been extremely lucrative over the years. The image of the Man of Steel has appeared on everything from pajamas to American Express ads. Toys, movies, animated and live-action TV series: all have borne Superman's likeness.
Superman has emerged from his humble roots based in the science fiction imaginings and scratchbooks of two young boys in Cleveland, Ohio (writer Jerry Siegel and artist Joe Shuster) to become a multi-billion dollar pop icon, perhaps the most successfully marketed fictional character.
History Of An Icon
Superman was created by Siegel and Shuster in the early '30s and went through a number of incarnations before the two finally sold the character to DC Comics (then Detective Comics) in 1938 for a reported $130, which included the copyright and a contract to supply DC with future Superman stories. Siegel and Shuster made a good living as comic creators in the early '40s, but were increasingly convinced that DC owed them more money, as the publisher had fully exploited the character and spinoffs such as Superboy and Starman, and was making millions on Superman comics and other merchandise.
Siegel and Shuster sued DC in 1948 over issues related to Superboy, and DC settled with the creators for a reported $120,000 apiece, less than two years' salary for the two at the time. The case cost Siegel and Shuster their contracts with DC as well as the creator credit in Superman comic books where it had appeared since 1938.
In the ensuing years, Siegel and Shuster continued to try to get a larger piece of the millions of dollars' worth of profits Superman was generating for DC, but both fell upon hard times. Shuster, suffering from vision problems, was reduced to working as a messenger boy in New York City.
Shuster was so down on his luck that a comics industry tale has it that he once delivered a message to the offices of DC Comics, where he was recognized and asked up to the then-president's office. The legend goes that Shuster was thinking he was going to finally be recognized and welcomed back, but was stunned when the then-president of DC Comics told him that he never wanted to see Shuster in the offices again. Although it's probably just an outrageous embellishment, the tale illustrates the precipitous fall of Shuster's fortune.
Siegel's fortunes were similar. DC gave Siegel a nominal amount of work in the late '50s, but dismissed him when he reportedly made comments about wanting to be better treated. Later, Joanne traveled to DC's offices and asked the then-publisher if he wanted to read the headline 'Creator of Superman Starves to Death' in the New York papers, according to comics historian Mark Evanier, who related the story in Siegel's 1996 obituary.
While Siegel continued to fight for a piece of the Superman fortune, he tried to get media attention in support of his cause, going so far as to send out 400 press releases in 1975 to major media outlets, according to Philip Yeh, founder of Cartoonists Across America & The World, who interviewed Siegel at the time. "No one in the media knew who he was. I figured he would have about a hundred interviews lined up, but he told me I was the only one who responded and interviewed him. He had ceased to exist among the comic book community, and that's a shame on the entire industry."
It wasn't until 1978, thanks to the efforts of Neal Adams and other prominent comic creators as well as pressure from DC's new corporate parent Warner Brothers, that the publisher relented, giving both creators a yearly stipend which began at $20,000 and increased with time until their deaths. "They got some money toward the end of their lives," Yeh says. "But it wasn't anything like they would've seen if they would've been given credit for creating Superman and paid all along in a situation such as Charles Schultz or the Teenage Mutant Ninja Turtles' creators, Kevin Eastman and Peter Laird who have all become multi-millionaires thanks to their creations." With Shuster's death in 1992 and Siegel's death in 1996, it seemed that the legal battles over the ownership and control of the Last Son of Krypton were over. But that may be changing.
AnotherUniverse.com obtained documents filed with the Copyright Office in Washington, D.C. on April 3, 1997. In them, Siegel's wife, Joanne, and daughter, Laura Siegel Larson, terminated the transfer of renewal copyright "to the extent of author Jerome Siegel's share in the ownership of the renewal of the copyrights made in a certain agreement between Jerome Siegel and Joe Shuster and Detective Comics, Inc. [DC] executed on or about December 4, 1937 [The date Siegel and Shuster began work for DC Comics - Superman wasn't officially a DC Copyright until April 18, 1938 when the first issue of Action Comics was published]"
What this means in plain English is this: The Copyright Act of the United States recognizes that over their lifetimes and the years after their deaths, creators and their heirs have different bargaining positions.
"When the Copyright Act was changed over the last 20-some years to put the U.S. in line with the European and world copyright community, part of that alignment included an extension of the terms of protection for the copyright," says Lovitz.
"Originally, the copyright term was 56 years - 28 which was granted automatically, renewable for a second 28-year period. In the late '70s, the term of copyright protection was extended to put us in line with the Berne Convention, which increased the term to the lifetime of the creator plus 50 years, which came into play in '78," Lovitz said.
The Berne Convention, an international copyright treaty that has been adopted by more than 70 countries in Europe and around the world, has been in effect for more than 100 years. It is designed to protect authors' and creators' rights as well as their works.
"Recently, the Sonny Bono Amendment added another 20 years making copyright length life plus 70 years, to put us again in line with the Berne Convention and the European Community," said Lovitz. "Each time there is an extension of the term of copyright protection; the Copyright Act provides the original authors or their heirs the opportunity to profit from their works during these extensions. If there were grants of rights by those authors, those rights need to be 'taken back' by the author first. The right of reversion section of the Copyright Act gives authors the ability to do just that."
In recognition of the weak bargaining positions authors have early in their careers, the Copyright Act provides for a termination of any grant of transfer of copyright. For grants of transfer of copyright made prior to Jan. 1, 1978, termination may be effected at any time during a 5-year period which begins at the end of the 56 years from the date the copyright was originally secured. In the case of Superman, that period began in 1994 (1938 + 56 years). Also according to the statute, parties have to give a 2-year notice of the termination, which is why the papers were filed in 1997 with the Copyright Office.
"Superman was originally developed and created by Joe Shuster and Jerry Siegel and then brought to DC," Lovitz says. "All rights were assigned over to DC, and there was subsequent litigation that confirmed the assignment with some additional nuances. Now that there's a term extension which changes the Copyright Act, the author, or in this case, the author's heirs have terminated that transfer so that the Siegel half of the rights to Superman are being taken back by the Siegel family."
The Superman Family
According to the documents filed with the Copyright Office, the termination of transfer applies not only to Superman himself, but to: "each and every work (in any medium whatsoever, whenever created) that includes or embodies any character, story element, or indicia reasonably associated with Superman or the Superman stories, such as, without limitation, Superman, Clark Kent, Lois Lane, Perry White, Jimmy Olsen, Superboy, Supergirl, Lana Lang, Lex Luthor, Mr. Mxyzptlk, Ma and Pa Kent, Steel, the planet Krypton, Kryptonite, Metropolis, Smallville, or the Daily Planet."
The documents then go on to list every Superman-related work ever created, from unpublished Superman stories written by Siegel in 1933 to Action Comics #1 through #734 to Superman: The Movie and Superman: The Animated Series as well as soundtracks, clothing and other Superman-styled merchandise. Even R.E.M.'s song with the line "I am Superman," which was recently used by Lotus in an ad campaign and the Spin Doctors' "Pocketful of Kryptonite" are included.
As you can imagine, the documents themselves, three in total, one for each of the agreements between Siegel, Shuster and DC (1938, 1948 and 1978) are massive, each coming in at more than 500 pages.
As for the tricky question about the copyright on Superman material and products created between 1938 and April 16, 1999, DC still owns the copyright on the materials produced, but since they are derivative materials of the original work and constitute an exploitation of the original work, any future revenues made from those works (Action Comics Archives, The Dominus Effect trade paperback, etc.) would need to be split with the Siegels.
Further, DC and Time Warner must share revenues from other Superman projects with the Siegels 50/50. This fact may have very well had a chilling effect on the Tim Burton/Nicolas Cage Superman movie that was never produced but was supposed to have been released in 2000, as well as future deals for Superman licensed products from DC and Time Warner. However, if the Siegels wish to produce a lithograph or sculpture, they would be completely within their rights to do so, according to Lovitz, and would need no permission from DC or Time Warner. However, the 50/50 ownership would require the Siegels to share revenues with DC.
An absolute worst-case scenario for DC would occur if the Siegels chose to license other creators to produce a comic book and other merchandise based on Superman and the related characters that would compete with the products produced by DC.
Something important to remember regarding the issue is that the termination of transfer of copyright does not and should not go to trial in order to take effect. The Copyright Office processed the reversion and it became effective April of this year, flowing automatically from the provisions laid out by the copyright statute.
As for where the matter currently stands, neither side was willing to comment on the matter as of Tuesday, Aug. 31, suggesting that negotiations between the parties are ongoing, and may have been ongoing since the documents were filed in 1997.
"The notices of termination were valid and effective," says Arthur Levine, counsel for Joanne Siegel and Laura Siegel Larson. "Certain legal consequences flow from there, and that's all I can say about the matter." When reached for comment, DC Publisher Paul Levitz said only, "We have a long and happy and complex relationship with the Siegel family."
Ideally, DC would like that long and happy relationship to continue. But judging from both sides' silence, unless both parties signed a gag order regarding the arrangement, it can be safely assumed that the Siegels and DC are still in negotiations, (and may well have been in negotiations since the papers were filed in 1997) over the matter and are trying to reach a compromise.
"The Siegels filed the appropriate documents with the Copyright Office and served notice on all of the parties that might be affected by this reversion and termination of rights," Lovitz says. "They're obligated to give advance warning, which the filing did. Unless something is done in terms of a lawsuit to try and stop this, it's just a matter of the termination occurring on the date that was noticed, specifically, April 16, 1999 so as of that date, there is an obligation for DC to share in the revenue generated by Superman with the Siegels."
For DC Comics, the best-case scenario is that the Siegels are willing to reach a compromise for a yearly or one-time settlement that would be considered a perpetual license for the use of Superman in comics or on licensed merchandise.
On the other hand, if no compromise can be reached, DC could find itself in a medium-case scenario, forking over 50% of every dollar they make on anything having to do with Superman worldwide for the remainder of the copyright term, which extends until 2033.
(As an aside, 2033 will bring a whole new set of headaches for DC and Time Warner which will make this look like a gnat - that year, the copyright on Superman expires, and under current law, cannot be renewed. Action Comics #1 goes into the public domain, and anyone can create derivative works based on it, but would have limited rights to use the "Superman" name and all related trademarks, as DC will presumably still own the trademark on the name and all other related trademarks.)
Despite the ramifications of the Siegel's termination of copyright, Lovitz doesn't believe this will open the floodgates for Golden and Silver Age creators trying to regain the copyrights of characters they created, but it will probably have a few creators dusting off decades-old contracts.
While this means legal wrangling for Superman, it doesn't mean that you'll soon see Stan Lee doing the same thing. Along with Jack Kirby, Lee created Spider-Man, the Fantastic Four and the rest of the Marvel Universe under a work-for-hire contract. By the letter of the law, the company hiring the writer under such a contract is considered the sole author of the work and therefore, the copyright to any character is in the company's name. Superman is different.
"It is a possibility that you could have anyone in the Silver Age or Golden Age coming back and challenging ownership in the copyright," Lovitz says. "Take Martin Nodell for example - if he created Green Lantern and then brought it to DC, he'd be in a similar situation concerning the original Green Lantern and all work that has come from it. However, if Nodell was working for DC at the time, and as part of his employment and daily work ritual was to come up with a variety of new characters, one of which just happened to be Green Lantern, then under the work-for-hire doctrine, he would not have individual ownership, rather, the company would've had initial ownership in the copyright."
As for the man with the S, what will the future hold? Only time and a cadre of lawyers can say for sure. It may be that Superman's biggest concern all along hasn't been Kryptonite, but rather the Copyright Act itself, which may have the power to bring the Man of Steel down.
"It would be nice to see something turn out well for Jerry Siegel, even now after his death," Yeh says. "Both his and Joe's memories deserve far better than what they're getting."
© 1999 AnotherUniverse.com
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