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Can Superman be split in two?

Warner, DC, heirs should work together

Warner Bros. is hoping that Zack Snyder can do for “Superman” what Christopher Nolan did for “Batman.” But the studio’s real-life tangle over the rights to the Man of Steel risks resembling another Nolan narrative: “Inception.”

The way things are going, less than a year after Snyder’s “Man of Steel” is released in 2012 the rights to a significant part of the early Superman lore will revert back to the heirs of creators Jerry Siegel and Joe Shuster.

The Siegel and Shuster estates could wind up owning some parts of the Superman story while DC Comics owns others. The estates could get Superman’s blue leotard, red cape and boots, plus an ability to leap tall buildings while DC retains villains like Lex Luthor plus Superman’s ability to fly.

The question is: Could each party proceed with a subsequent project without the other’s involvement?

In theory, come 2013 auds could see two parallel versions of the Man of Steel ramp up. In practice, that looks pretty unworkable.

Setting this potential scenario in motion were a series of rulings in 2008 and 2009 by U.S. District Judge Stephen Larson, who ruled that Siegel’s heirs had successfully reclaimed their share of the copyright to Action Comics No. 1, which marked Superman’s 1938 debut; Action Comics No. 4; and other early depictions of the character and storyline. (Shuster’s heirs are on a separate timeline that begins in 2013). Larson was acting on a provision of the 1976 Copyright Act that allows authors to regain the copyrights to their creations after a certain period of time, subject to a series of intricate conditions.

Among those conditions is that the works can’t have been made “for hire,” since those are exempt from such “rights termination,” and it’s a reason underlying Larson’s ruling that the Siegel heirs don’t own the Man of Steel outright; he found that Siegel’s work as an employee of DC from 1938-43, as the character’s mythology was still being established, remained under the ownership of the publisher.

While the “Superman” creators’ heirs stand to hold important rights to the character, they don’t have the trademarks, which would pose a significant limitation on marketing and merchandising. And their reclamation of the copyright applies only to the U.S., so international rights would remain in the hands of DC.

For its part, come 2013, DC could still exploit the Superman projects it’s already made, but under the Copyright Act, the company could not create new “derivative” works based on Action Comics No. 1 and other properties held by the heirs. Presumably, more sequels would mean more legal land mines.

This is where things get a bit bizarre.

In a recent article published in the Columbia Journal of the Law & the Arts, Anthony Cheng writes that 7th Circuit Court of Appeals Judge Richard Posner’s decision in Neil Gaiman’s suit against Todd McFarlane “could provide the rationale for both parties to continue legally exploiting” Superman. Posner determined that Gaiman’s “Medieval Spawn” was “sufficiently distinct” to justify a separate character copyright from the original Spawn.

Along this line of reasoning, one way to settle the Superman dispute would be to “split the character in two — a 1938 Superman and a Modern Superman — and allow both sides to create new works based on their versions,” Cheng writes.

Moreover, because both sides would independently be exploiting their respective versions of the Man of Steel, they wouldn’t have to go through the tricky work of accounting for each others’ profits. They’d own what they own. One downside, though, Cheng writes, is that DC would have the more valuable version of the character, given the length of time it has been transforming Man of Steel projects into popular culture.

The other, more obvious, option is that all parties come together. But that’s no easy feat. The heirs’ attorney, Marc Toberoff, is appealing Larson’s decision to the 9th Circuit to get a more definitive ruling on who owns what, while DC is proceeding with its suit against Toberoff, charging that he has poisoned their relationship with the Siegels and Shusters.

Amid all the acrimony, it’s easy to forget the original intent of the “rights termination” clause of the Copyright Act: to give authors another opportunity to share in the rewards of their creations, not to parcel them out in bits and pieces.

Larson’s point wasn’t to parcel out the rights but to compel everyone to come to the same table for potentially mutual benefit. As he wrote in one ruling, Superman is an “aggregate whole,” not “a red cape here, a particular villain there.”

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