Reconciling Copyright Laws With “Truth, Justice, and the American Way”
In 1614 the Dutch bought Manhattan from the Lenape Indians for $24. In 1920 the Yankees bought Babe Ruth from the Red Sox for $125,000. And in 1938, DC Comics bought the rights to Superman from Jerry Siegel and Joe Shuster for $130. It is unclear if the two Jewish boys from Cleveland consulted with a lawyer before they signed away the rights to America’s greatest pop culture icon, its most recognizable merchandising brand, and valuable pieces of intellectual property. Maybe if they had, the copyright battle that resulted from the sale wouldn’t still be going on today. Last week the legal saga saw a major development, when a decisive ruling by a federal court in California ensured that DC Comics, and its parent company, Warner Brothers, would retain the rights to their most lucrative franchise.
The decision marked the end of a conflict dating back to 1999, when Joe Shuster’s nephew and heir to his estate attempted to collect 50% of the Superman copyright that was due to expire in 2013. The claim was based on the terms of the Sonny Bono Copyright Term Extension Act, which allowed copyright agreements to be terminated under provisions that permitted creators of works before 1978 to reclaim their rights. Warner Bros. responded with evidence of a termination agreement they formed with Shuster’s sister in 1992, using original documents to prove that the family had relinquished their ability to reclaim any copyrights in exchange for annual pensions from Warner Bros. The family argued such an agreement would replace all previous contracts Warner Bros. formed with Shuster, therefore invalidating prior decisions which allowed them to retain their chain of title. The court disagreed, and determined the family waived their terminations rights, citing a 2008 decision involving the estate of John Steinbeck; a similar agreement made by the author’s widow in 1994 superseded older contracts and eliminated termination rights.
The significance of this case must be understood in conjunction with a 2008 decision regarding the Superman copyright. In Siegel v. Warner Bros. Entertainment, the US District Court for the Central District of California awarded the Siegel estate half the Superman copyright. Consequently, a favorable decision for the Shuster estate would have put the entire copyright back in the control of the families, severely compromising Warner Bros.’ ownership and exclusive control of Superman’s $1 billion commercial market.
The Siegel decision was based on the Copyright Act of 1976, which extended the length of copyright protection from 28 years, with an option to renew for an additional 28, to 75 years. It also broadened the power of authors to reclaim rights to their creation, based on the previous term of 56 years. This empowered creators who previously relinquished their rights with limited bargaining power, just as Siegel and Shuster had in 1938. The Siegel family was granted rights to all concepts of Superman featured in Action Comics #1, including Clark Kent, Lois Lane, and Superman’s red cape and blue tights. It did not extend ownership to other ideas, such as Superman’s power of flight, and Kryptonite, which developed later on when DC contracted the pair to supply a steady stream of material (the law provides that no termination rights are offered to works originally created as works for hire).
Consequently, a favorable ruling for the Shuster estate would have left Warner Bros. and DC Comics in a dire state. The companies would forfeit their stake in the Superman copyright, prohibiting them from licensing their most ubiquitous character without establishing a hefty financial agreement with the families. Essentially Superman would be split into two distinct franchises: One character reflecting the creators’ original invention in the thirties, and another model representing DC’s evolved, modernized Superman, the one beloved by current generations and older ones alike. This divide would be particularly problematic, considering that Warner Bros. is set to release Man of Steel, their highly anticipated reboot of the Superman franchise, next June. Conveniently the film contains many of the elements retained by the Siegels, so if the Shusters were awarded their share of the copyright as well, the studio would owe excessive damages for copyright infringement. Of course, the court’s recent decision means none of these things will happen. At least for now, the Siegel family will retain half the copyright, with Warner Bros. and DC, not the Shuster estate, maintaining the other.
But the story isn’t over just quite yet. Next month, the 9th Circuit will hear Warner Bros.’ appeal of the 2008 ruling in favor of the Siegels. In the meantime, each family’s case illuminates deficiencies in American copyright law, and raises questions about the court’s role in settling termination disputes. Mark Zaid, a Washington DC “super” lawyer who bears the secret identity of a comic book enthusiast, explains the legal issues surrounding Superman only has Congress to thank: “[The Copyright Act of 1976] gave authors — and their heirs, which was really significant — the right to reclaim a character by terminating their transfer of rights after a certain period of time.” It seems then, that the crux of the problem is legislative, with lawmakers vacillating between the interests of creators of intellectual property, and the large corporations that profit from it. One can easily sympathize with the deceased creators and their families, left with little bargaining power and at the mercy of a corporate empire. At the same time, it is troubling to imagine what would become of Superman if he were removed from the hands of DC Comics, the instrument that launched him into the Parthenon of Superherodom. Laws must allow a degree of breathing space, so companies can retain their most valued copyrights without engaging in expensive legal battles, or constructing contracts that withhold any privileges from creators and their estates. At the rate our legislatures move, it is unlikely the public domain will see the return of any intellectual property of Superman’s caliber.