Depending on whether you believe DC Comics (a unit of Warner Bros.) or the heirs to the creators of Superman, their long battle over the rights to the Man of Steel is either nearing a conclusion or just entering another phase.
The former is apt to believe that everything is winding down, with recent court decisions making it clear that it controls the rights. The latter is appealing those decisions but also looking toward some unresolved questions about the rights.
U.S. District Judge Otis Wright is looking at who owns the rights to promotions that appeared in two separate publications weeks before the April 18, 1938 debut of Superman in Action Comics No. 1. The ad promotions — which appeared in More Fun Comics and Detective Comics — included a black-and-white image of the cover of Action Comics, in which the Man of Steel is using his superhuman strength to hold up a vehicle. At least technically, this was the first published appearance of Superman, not Action Comics.
When the heirs to Superman co-creator Jerome Siegel in 1997 invoked a provision of the Copyright Act allowing them to reclaim rights to the character, a process known as copyright termination, they did not list the publications in which the ads appeared. DC Comics argued that because of this, it retained the ads, dangling the prospect that it still had a hold on some of the early rights. U.S. District Judge Stephen Larson ruled in 2008 that the Siegels had recaptured the rights to Action Comics No. 1 and other key early Superman works, but he said the ads were not included.
So last year, Siegel’s daughter, Laura Siegel Larson, filed a termination notice for the ads. Not surprisingly, DC Comics said that it owns them, and will still own them after termination date next year. They rely on a 9th Circuit Court of Appeals decision from January that largely reversed Larson’s decision, ruling that even though the Siegels filed notices of termination for the Superman works in 1997, they signed a binding agreement in 2001that gave DC Comics the rights. DC says that the 2001 agreement are broad grants that cover the ads, as well as rights to Superboy, the rights to which are the subject of a related dispute.
In recently filed court documents, the attorney for the Siegel heirs, Marc Toberoff, suggests that DC Comics is reversing its logic over the ownership of the ads. Where once DC argued that it had always owned the rights to the ads, it is now arguing that the Siegels signed away rights to them in the 2001 agreement.
For its part, DC argues that the Siegels took advantage of their termination right in 1997 and “made a deal with DC in 2001,” but that Siegel’s daughter “cannot re-trade on it now.” The company claims that even though she filed a termination notice for the ads last year, the 2001 agreement still covers those works. Its attorney, Daniel Petrocelli, argues that case law allows for an agreement that “revokes and replaces” all prior copyright grants and, in doing so, bars future termination claims. But Toberoff says that the 2001 agreement doesn’t “expressly” revoke and replace those rights.
The ads depict a person with extraordinary strength who wears a black-and-white leotard and a cape, with the “S’ logo only vaguely visible, so there’s some question as to what, if anything, could be done with the rights. The litigation over the ads is not about doing anything with a limited version of the character, but for the leverage that may ultimately lead to some kind of final resolution.