Judge won't throw out Warner Bros.' lawsuit

A federal judge is refusing to throw out Warner Bros.’ suit against the attorney for the heirs to the creators of “Superman,” who are poised to reclaim rights to the Man of Steel in 2013.

Marc Toberoff had sought to strike Warner Bros.’ unit DC Comics suit against him under California’s anti-SLAPP statute, which was designed to curb lawsuits with the intent of intimidating the opposition by delay and legal expense.

U.S. District Judge Otis Wright said that Toberoff had failed to show that his role as the attorney for the heirs to co-creators Jerome Siegel and Joseph Shuster was protected under the anti-SLAPP law. He cited a business agreement Toberoff made with the Shuster heirs, which Wright said was “not an agreement for the provision of legal services, but one concerning the exploitation of Joe Shuster’s creations.”

DC Comics, represented by Dan Petrocelli, sued Toberoff in May 2010, claiming that earlier in the decade he interfered with their relationships with Siegel’s and Shuster’s heirs to coax them out of settling with the studio and instead enter into an agreement with his own production ventures to exploit the “Superman” franchise.

Toberoff, who had no comment, has characterized the suit as “frivolous” and a way to pressure his clients into settling the case and selling back the rights at a reduced price. A provison of the Copyright Act allows creators and their heirs to recapture their creations under certain circumstances. Toberoff successfully recaptured portions of the “Superman” storyline for the Siegel heirs in two U.S. District Court decisions in 2008 and 2009, and the Shuster estate is seeking to recapture its rights in 2013.

In his filings, Toberoff said that for at least the past five years, he has only been on retainer with the Siegel heirs and Shuster’s executor.

Toberoff’s attorneys noted that he did not consult with the Siegels — and had yet to meet with them — when they dropped their attorneys at Gang, Tyre, Ramer & Brown and formally called off negotiations with DC Comics in September 2002. Only the next month, they said, did they contact him for representation. Two companies of his companies, IP Worldwide and Pacific Pictures, had agreements with the heirs but they have either been terminated or expired, Toberoff’s filings noted.

Wright did not rule on whether Warner Bros. was likely to prevail on the merits of its suit, only whether it was covered by the anti-SLAPP statute. But he wrote that it gave the court “great pause” that a settlement agreement with the Shusters came undone.

He also ruled that Toberoff has to turn over a letter written by Laura Siegel Larson, Siegel’s daughter, to her half brother. Warner Bros. believes the letter supports their claim that Toberoff “tortiously interfered” with their settlement with the Siegels.

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