Warner Bros. access to the iconic Superman comic book character is currently a matter of heated legal debate.  Last Friday, Warner Bros., who wholly owns DC Comics, filed a brief before the 9th Circuit Court of Appeals explaining why the estate of co-creator Jerry Siegel shouldn’t be allowed to execute a copyright termination notice on the studio’s rights to the iconic hero.

Seigel’s heirs and Warner Bros. have been fighting over this for over five years now. In 2008, a federal judge in California handed Siegel’s heirs a victory by determining that the termination was valid, only with regard to the first editions of the Action Comics that first told Superman’s story. The later works were deemed to be “work for hire”, and that meant that the Superman myth would be torn in half.  Siegel (and his co-author Joe Shuster) would reclaim many of Superman’s defining characteristics, including his costume, Clark Kent and the origin story, while Warner (as successor to DC Comics) would keep other elements, such as Kryptonite, Lex Luthor, and some of the special abilities Superman has, such as flight (Superman originally just jumped, like the Hulk does) and heat vision.

The Siegel estate appealed, giving both parties a chance to resubmit their big arguments to a higher court.

Last Friday, Warner Bros filed an appeal with the 9th District Court to reverse earlier rulings in the case and put everything out in open court in a trial. “This long-running dispute should be brought to an end,” Warner Bros wrote in a dense 117-page appeal (read it here) filed Friday with the 9th Circuit Court.  According to the studio, the two sides had come to an agreement on “every essential term for a re-grant of rights” when in 2001, the estate was approached by an “intellectual property entrepreneur” — attorney Marc Toberoff — who dangled the prospect of more money. The Siegels fired their law firm at the time, hiring Toberoff, and allegedly contracting agent Ari Emanuel to sell Superman rights.

Warner Bros. claims that when the Siegel family walked away from the negotiating table in 2001, that a deal had been struck – but the family asserted there was no deal without a long form [contract], and the district court agreed.  Warner in its brief is trying to claim that this is just how the entertainment industry rolls, and that a deal’s a deal, even though it’s not set down on paper and signed.  Warners asks that the 9th Circuit bring this long-running dispute to an end by enforcing the alleged 2001 deal – a deal for which they don’t have a piece of paper that defines exactly what that deal is.

The Siegel estate is predictably pulling in the opposite direction.  They asked the justices to determine that the lower court judge had erred by not allowing for the recapture of rights in later Superman comics.  According to the appellant, Siegel and Shuster created later comic books in the Superman series “on spec,” at their own expense, without any commitment or engagement by DC. The co-creators are said to have sold rights to the work for $10/page, under the same terms of the initial comic.

The estate thinks this doesn’t meet the definition of  “work for hire” because the Warner subsidiaries can’t meet the burdens of the “instance and expense” test, which has previously been defined as a determination that “the motivating factor in producing the work was the employer who induced the creation” and the employer had the right to “direct and supervise the manner in which the writer performs his work.” Instead, Siegel and Shuster purportedly wrote the Superman stories before any relationship with the comic book publisher, and after their deal, were “entitled solely to a contingent profit participation while shouldering the entire cost and financial risk of the strips’ creation.”

The Siegel family wants the 9th Circuit to uphold the essence of the Copyright Act’s termination provisions. This would open the door for them to enjoy the fruits of a longer term copyright.

Much of Warners’ own appellate brief is focused on the question of the 2001 negotiations, but the studio does speak to Siegels’ attempts to expand the scope of its recaptured rights. Warners thinks that the appellant is misapplying the instance-and-expense test and gives an alternative story about what happened in the 1930s/1940s when the first Superman comics were created.  They claim that DC possessed complete and total control over the creation of new Superman stories and elements, and that they threatened to take it away from Seigel and Shuster if the work didn’t improve.

A lot depends on the original working relationship Seigel and Shuster had with DC Comics, and Superman had been turned down by other publishers before DC picked him up as a character – and that working relationship seems to be at the core of the dispute.  Whatever happens, the Superman movie currently in development will be unaffected, as will probably be the case with any sequels that may arise from it should it do well in the box office.

– 30 –