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Superman judge bounds into copyright fray

Stephen Larson had unique approach to DC Comics case

The chatter over Warner Bros.’ decision to assign Zack Snyder the next “Superman” movie has all but obscured the urgency in the studio’s efforts to put a project in motion.

The studio risks losing many of the rights to the character by 2013, when control over a big part of the Man of Steel mythology stands to go to the heirs of its two co-creators, Jerry Siegel and Joseph Shuster.

That’s largely due to a series of federal court decisions rendered in 2008 and 2009 by Judge Stephen Larson, who, in painstaking detail, parceled out which parts of the Superman lore belonged to the heirs and which were in the hands of Warner Bros. unit DC Comics.

The case is not over — the studio is challenging the Shusters’ claim to the rights — but Larson won’t be part of any future ruling.

That’s because he retired from the bench last year.

The problem wasn’t the work but the pay: He’s only 45, but as the father of seven kids, he found the salary — almost $170,000 — made things too tight, certainly compared to the private sector.

He’s now a partner at Girardi & Keese, plunging into the same, convoluted world of intellectual property law that he once was tasked with sussing out.

The Man of Steel cases, Larson says, brought up “really fascinating and interesting issues.” That’s not just talk; his interest is apparent in his almost novel-like opinions, illustrated with panels from the original “Superman” comics.

Legal blogger William Patry wrote at the time, “If there was a Pulitzer Prize for judicial opinions, Judge Larson would win (with supporting awards for his hard-working clerks).”

Larson certainly knew what was at stake. The final line of his 2008 ruling is climatic in its approach: “After 70 years, Jerome Siegel’s heirs regain what he granted so long ago — the copyright in the Superman material that was published in Action Comics Vol. 1.”

But even though he’s off the bench, he’s not ready to say much.

“I knew you were going to ask about this,” Larson told me the other day. “Because the case is still ongoing, I probably should refrain from commenting on that in particular. Even though we completed our trial, there is another phase of it that is ongoing, and I wouldn’t want to be seen as weighing in on it in a way.”

Fair enough.

But it’s hard reading through the Superman decisions and not coming away with the sense that they represent a call to cooperate. Because they split up key parts of the storyline, characters and even superpowers, they set up a scenario where it would be hard for the heirs or studio execs to proceed with a project on their own.

Since Larson left the bench, the war over the rights has only escalated. Last May, DC Comics filed a suit that targets the attorney for the heirs, Marc Toberoff, charging that he soured settlement talks in an effort to gain a substantial stake in the rights for himself. In response, Toberoff filed a vigorous denial and charged that the studio was using legal action in an attempt to slap down his clients’ efforts to pursue their rightful claims to the character.

Larson does offer praise for the attorneys who came before him in the “Superman” case. He also says he’s grateful for his overall experience on the bench, even if it had its irksome moments.

“The biggest frustration, I suppose, was when it was clear that lawyers had not sat down and tried to work out disputes and resolve issues, whether they are procedural issues or even legal issues, before they rush into court,” he says. “I really believe that reasonable minds can sit down and work out most issues.

“Now sometimes you know, it is a difference of opinion. It’s a difference of the interpretation of the law, and you need a judge to make that call, just like there are times when you need a jury to make a factual call.”He’s getting that experience now, having just petitioned the Supreme Court to take a case that would decide whether damages for digital copyright infringement should be calculated by album or each individual song. He’s representing musicians and songwriters Anne Bryant and Ellen Bernfeld, responsible for the albums “Songs for Dogs (and the People Who Love Them)” and “Songs for Cats (and the People Who Love Them).” And naturally, they argue for the song-by-song calculation. He writes in his writ of certiorari that the case “presents a copyright issue of considerable importance in the modern era of digital music on the Internet.” He’s also asking that the high court step in to resolve conflicting opinions from the circuit courts.

He admits that the “Superman” case was among those that inspired him to pursue such copyright matters — which can take nerves of steel to fully grasp. He sees it another way.

“It did give me the opportunity to read the entire opus of ‘Superman’ comicbooks — which was one of the side benefits.”

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