Friday, October 1, 2010

The New Superman Movie Copyfight Race

Nikki Finke’s Deadline Hollywood recently ran a short piece on the new Superman film that Warner Bros is attempting to put together, with “Batman Begins” and “The Dark Knight” director Christopher Nolan in as a producer and story creator. The piece consisted mostly of a list of potential directors for the new project; but buried at the bottom of the piece was a simple sentence that was loaded down with meaning:

Warner Bros and Legendary have to get the picture made by 2012, because the studio stands to lose certain rights to the iconic character in 2013 after a judge ruled favorably on behalf of the heirs of Superman creator Jerry Siegel.
That is a reference to a 2009 court decision in which the heirs of one of Superman’s creators were awarded the full copyright to the character as of 2013:
Attorney Marc Toberoff, who represents heirs Joanne Siegel and Laura Siegel Larson, told Daily Variety that the judge had erred in not considering comparable licensing deals for bestselling novels penned by Tom Clancy and Michael Crichton and popular musicals such as "My Fair Lady."

Toberoff, who has specialized in copyright claims, admitted that proving a sweetheart deal within a vertically integrated conglom was a challenge. "This was always going to be tough to prove," he added.

Toberoff also asserted in a written statement that the Siegel heirs and the heirs of co-creator Joe Shuster will own the entire Superman copyright in 2013.

"This trial was only an interim step in the multifaceted accounting case which remains, in that it only concerned the secondary issue of whether DC Comics, or DC Comics and Warner Bros., would have to account to the Siegels," he said. "To put this in further perspective, the entire accounting action pales in comparison to the fact that in 2013, the Siegels, along with the estate of Joe Shuster, will own the entire original copyright to Superman, and neither DC Comics nor Warner Bros. will be able to exploit any new Superman works without a license from the Siegels and Shusters."

Toberoff also asseted that Larson found that Warner Bros. should have paid three to four times the amount actually paid for the Superman film rights and that he had found it "inequitable" that DC transferred the Superman film rights to Warner Bros. without the standard term providing for reversion for lack of ongoing exploitation.

"The Court pointedly ruled that if Warner Bros. does not start production on another Superman film by 2011, the Siegels will be able to sue to recover their damages," Toberoff added. "The Siegels look forward to the remainder of the case, which will determine how much defendants owe them for their exploitations of Superman."
So Warner Bros is in a race against time to get their big-budget tentpole film made in time that they won’t have to pay any fees to the heirs of the character’s creators.

I’m no lawyer, but that sounds a bit sleazy to me.

It also sounds complicated. Part of the problem is that Siegel and Shuster created the character called Superman, including the "S" chest insignia, the Clark Kent alter ego, and the blue tights and red cape, before they actually sold the first story to National Allied Publications.
The ruling specifically upheld the Siegels’ copyright in the Superman material published in Detective Comics’ Action Comics Vol. 1. The extent to which later iterations of the character are derived from that original was not determined by the judge.

In an unusually detailed narrative, the judge’s 72-page order described how Mr. Siegel and Mr. Shuster, as teenagers at Glenville High School in Cleveland, became friends and collaborators on their school newspaper in 1932. They worked together on a short story, “The Reign of the Superman,” in which their famous character first appeared not as hero, but villain.

By 1937, the pair were offering publishers comic strips in which the classic Superman elements — cape, logo and Clark Kent alter-ego — were already set. When Detective Comics bought 13 pages of work for its new Action Comics series the next year, the company sent Mr. Siegel a check for $130, and received in return a release from both creators granting the company rights to Superman “to have and hold forever,” the order noted.
Siegel and Shuster then set to work creating new stories with the character that they created. Back then, Superman couldn't fly, and the "distant planet" from which he hailed wasn't yet named "Krypton." And there was no "kryptonite" to weaken him.

And Superman's concerns were much more local, and working class. For instance, in the second issue of Action Comics, Superman kidnapped a munitions manufacturer and took him to the front lines of some war (this was in 1938 -- what was going on around that time?) to show him how "war for profit" harms the soldier:


Of course, DC's Superman would later become a much more enthusiastic supporter of war when the United States entered World War II. But that's probably a subject for another post.

Siegel and Shuster's Superman also took on a shady coal mine owner whose callous disregard for the safety of his workers in the pursuit of profits led to unsafe working conditions:


In other words, Siegel and Shuster drew upon their working-class roots to create a hero to the oppressed and exploited. And then, they themselves were exploited when their own wish-fulfillment fantasy creation was taken "to have and hold forever" from them for a mere $130. Okay, actually, they did get a little more than that.
In the late 1940s, a referee in a New York court upheld Detective Comics’ copyright, prompting Mr. Siegel and Mr. Shuster to drop their claim in exchange for $94,000. More than 30 years later, DC Comics (the successor to Detective Comics) gave the creators each a $20,000-per-year annuity that was later increased to $30,000. In 1997, however, Mrs. Siegel and her daughter served copyright termination notices under provisions of a 1976 law that permits heirs, under certain circumstances, to recover rights to creations.
DC gave them some money after news reports surfaced about the "pauper-like conditions" in which the creators were living, around the time of the announcement of the first Superman film. Given the amount of money that DC and Time Warner have made off of merchandising alone (comics don't really make any money anymore anyway), it was probably the least they could do.

Actually, the least they could do was nothing. And that was probably what they were legally obligated to do. Nothing, I mean.
In 1975 after news reports of their pauper-like existences, Warner Communications gave Siegel and Shuster lifetime pensions of $20,000 per year and health care benefits. Jay Emmett, then executive vice president of Warner Bros., was quoted in the New York Times as stating, "There is no legal obligation, but I sure feel there is a moral obligation on our part." Heidi MacDonald, writing for Publisher's Weekly, noted that in addition to this pension "Warner agreed that Siegel and Shuster would henceforth be credited as creators of Superman on all comics, TV shows and films".

The year after this settlement, 1976, the copyright term was extended again, this time for another 19 years for a total of 75 years. However, this time a clause was inserted into the extension to allow authors to reclaim their work, reflecting the arguments Siegel and Shuster had made in 1973. The new act took effect in 1978 and allowed a reclamation window in a period based on the previous copyright term of 56 years. This meant the copyright on Superman could be reclaimed between 1994 to 1999, based on the initial publication date of 1938. Jerry Siegel having died in January 1996, his wife and daughter filed a copyright termination notice in 1999. Although Joe Shuster died in July 1992, no termination was filed at this time by his estate.
And today, among other things, Superman is helping to sell Hostess Cupcakes, as part of a promotion to "Win $1 million on Halloween night."

Oh, and also, in case you forgot, Time Warner is racing against time to get Superman's new movie made.
The court battle is ongoing, and on Wednesday, Judge Stephen Larson awarded the Siegel family rights to more additional works, including the first two weeks of the daily Superman newspaper comicstrips, as well as the early Action Comics and Superman comicbooks. What this means is that the Siegels now control depictions of Superman’s origin story. Everything from the planet Krypton, his parents Jor-L and Lora, the launching of the infant Kal-L into space by his parents as Krypton is destroyed and young Superman’s crash landing on Earth.

The whole court case is really to determine how much money Warner Bros. and DC owe the Siegel Family from profits they collected from Superman since 1999. And to make matters worse, copyright law will give the Siegel family full ownership of Superman in 2013. This is the date that matters, because after 2013, the Siegels could bring the property to other movie and television studios. So if Warner Bros wants to produce a new Superman movie before they are forced to pay major bucks for the rights, they will need to go into production by 2011.

As I've said, this sounds a bit sleazy to me. And I am unwilling to give Time Warner the benefit of the doubt on this because, as I've already written, they have a history of let's say zealously protecting their copyrights.

And when they lose their cases? Well, they behave petulantly. One example:


That grinning, insane little cretin with the "crazy spittle" dripping from his lower lip is -- wait for it... Superboy! At the end of the reprehensible mini series "Infinite Crisis." This was supposedly a sequel to "Crisis on Infinite Earths," but was in fact nothing more than an "eff you" to the heirs of Jerry Siegel, who at the time of its creation were engaged in a copyright lawsuit against Time Warner. And while the series was being published, those heirs won the court case giving them back the copyright to the character.

You see, when DC loses a copyright case, they take the character in question and turn him into a murdering psychopath, lock him away in a prison on Oa, and make him so crazy that he stares madly in the distance with and insane smile and then, for some reason, mutilates his own chest by using his finger to carve a bloody S into it.

And Superboy hasn't been seen since. DC and Time Warner would have to give the Siegels $ if they use him. So not only do they not use the character, they turned him into a deranged killer.

That's Superboy we're talking about.

He's probably so rotten, he's actually rooting for Time Warner to get its new Superman movie finished "on time."

*The scans from Action Comics #2 and #3 are from a book called The Superman Chronicles volume 1. It is definitely worth your time, if you're into comic books. The scan from Infinite Crisis #7 was taken from the Infinite Crisis collected edition, and is definitely not worth your time, whether you are into comics or not.

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