Superman Returns

“After seventy years, Jerome Siegel’s heirs regain what he granted so long ago…” With those words, Federal District Judge Stephen G. Larson opened the closing paragraph of his voluminous 75 page opinion granting partial summary judgment in favor of the widow and daughter of Superman co-creator, Jerry Siegel.

In recent years, copyright law has earned the dubious reputation of existing only for the benefit of large media corporations. This reputation is due in part to the many situations where Constitutionally mandated protections for “authors” are enforced on behalf of a corporate assignee rather than the actual creator of the work.  However, certain provisions of the U.S. Copyright Act contradict its pro corporate reputation. These are the “Termination of Transfer” provisions of 17 U.S.C. § 203, and 304. Now, It seems only fitting that one of these provisions should finally be enforced over the particular copyright that is arguably the reason we have these provisions at all.

A previous article in The Brand, “Who Owns Superman?,” covered, in detail, the background, legal context, and status of the battle between the Siegel heirs and various Time-Warner subsidiaries as of the summer of 2006, which was the time of the release of the big-budget motion picture, Superman Returns. The next installment in this motion-picture franchise, Superman: Man of Steel, is in pre-production and scheduled for release in 2011. Superman is, and has always been, extremely valuable intellectual property. But, all that Superman is, and ever will be, in the overlapping worlds of trademark, copyright, and popular culture, springs from the original character and story first presented in 1938 as Action Comics Vol.1.

Writer Jerry Siegel and Artist Joe Shuster developed the Superman character while attending high school together during the 1930s.  They produced the material which ultimately appeared as “Action Comics Vol. 1″ prior to being contracted by DC Comics, but signed away all existing and future rights in the story and character of Superman as part of a larger comic production deal. They received only $130 dollars for all rights to Superman. And then, to put it simply, they spent the rest of their lives trying to get Superman back.

In the mid 1970′s, as Warner Bros. was filming a multi-million dollar movie of the Superman Story (The first of the Christopher Reeve movies), it came to light that the creators of the character were both severely destitute, in poor health, and struggling. In fact, Shuster was legally blind and completely unable to work as an illustrator. At this same time, Congress was drafting the overhaul of the 1909 Copyright Act.  These events combined to create the impetus for Congress to include in U.S. copyright law a safety net for authors that would allow them, or their heirs, the opportunity to retrieve all rights in a given property after a specified number of years by terminating, and thereby reversing, the original transfer.

In a further effort to save authors, like Siegel and Shuster, from themselves, the right to terminate transfer was specifically drafted to be a right that could not be sold, assigned, or otherwise bargained away.  This characteristic of the right to terminate transfer was based on lessons learned from prior battles over the Superman copyright. Siegel had attempted to regain the copyright on behalf of himself and Shuster at the time of its renewal (28 years), but the court ruled that a transfer of all rights in a property included the renewal term. As a result, Congress ensured that there could be no such judicial interpretation of the right to terminate transfer. The right remains with the author, no matter what.

These provisions are certainly not pro corporate, but some would argue that they are not pro author either. Only properties that have been successfully developed will be likely to induce retrieval by their original authors.  This can create a disincentive for an assignee corporation to invest in and develop such a property if the reward for successful development is the loss of that property. Alternatively, the corporation may decline purchasing the property altogether or offer a reduced amount because of the risk of retrieval. In spite of the wrongs committed against Siegel and Shuster, other authors may be unable to obtain full value for a property they cannot fully and permanently release.

Termination of transfer is unique to U.S. copyright law and only applies to domestic rights.  Therefore, foreign exploitation of the copyright in question can continue unabated as if no termination occurred.  Termination of transfer does not give the copyright holder rights to profits from exploitation of the copyright prior to the effective date of termination, nor does it entitle the copyright holder any rights to profits from derivative works created prior to the effective date. Under Judge Larson’s decision, the Superman copyright termination is effective as of April 16, 1999, and from that point forward, the Siegels own half of the Superman copyright in the U.S., with DC Comics, a Time-Warner subsidiary, owning the other half.

What remains to be decided in this case is exactly how much of the domestic non-comic book revenues, incurred since 1999, are actually owed to the Siegels. Normally a co-owner of a copyright is only due 50% of the license fees paid to the other co-owner.  However, Judge Larson has already stated that the license deals here are “sweetheart deals” between DC Comics and other Time-Warner subsidiaries and therefore rules of equity require an accounting of the actual profits by the licensees and not merely a payment of half of the nominal licensing fees.

If settlement is not reached between the Siegels and Time-Warner, a trial on the remaining factual issues will need to be held.  Notice of termination for the other half of the Superman copyright has been given by the estate of artist Joe Shuster, and could take effect in 2013.

Superman is set to fly into the public domain in 2033.

Judge Larson’s Opinion

Who Owns Superman?