A Siegel Superman copyright decision FAQ

UPDATE: I am expanding this FAQ in posts on Blog@Newsarama.com. Worried that Superman will have to be replaced by Madame Fatal? Want to know why Neil Gaiman isn't calling his lawyer to nab the rights to Sandman? I'll be addressing those issues and more in posts at Blog@ and covering related comics & IP themes here on Uncivil Society. Feel free to let me know your own questions and concerns.

I want to take a moment to address a few of the questions and objections raised in response to the decision awarding copyright in Action Comics #1 to Siegel heirs. This is a quick initial draft highlighting a few of main issues--if you have other questions or something seems unclear (or, gulp, wrong), feel free to comment or to contact me directly.

Q: Why are the Siegels pursuing this? Didn't Siegel and Shuster sign a contract assigning the rights to DC?

A: Yes, they did sign away all their rights in that infamous $130 contract seventy years ago. But in 1976, Congress enabled creators and their heirs to terminate the assignment of copyright executed before January 1, 1978, unless the copyright was in a work made for hire. To learn why Congress did this, read pp. 62-63 of the ruling; in brief, it was a way for creators and their heirs to re-negotiate when the value of their work was more apparent.

Q: Do the Siegels now own Superman?

A: Not completely. This decision only grants them a copyright interest in the Superman material that Siegel and Shuster created before they were employed at DC--namely, the material that appeared in Action Comics #1.

Even in regard to the Siegels' interest in Action Comics #1 and works derived from it, the Siegel heirs are at best co-owners with DC (the Shuster situation is explained in brief here). Each holder of copyright interest must account to the other for any profits gained from exploiting the copyright, and no partial copyright holder can transfer exclusive rights without consent of the others holding a copyright interest. In addition, as the court rules (pp. 63-66), under the law the Siegel heirs regain an interest only domestic--not foreign--profits.

But wait, there's more! A number of elements in the Superman "universe" (see pp. 13-14) did not appear in the first issue of Action Comics. Kryptonite, Lex Luthor, Metropolis, Beppo the Super-Monkey--none of these appear in the issue. Superman could not fly, nor does he have super-breath, heat vision or a Fortress of Solitude with an interplanetary zoo and the Bottle City of Kandor. The extent to which the Siegels' profit distribution will be affected by subsequent additions to the original material is yet unresolved.

Q: Do the Siegels have creative control over Superman comics?

A: No. The court explains, quoting an earlier case, that "each co-owner has an independent right to use or license the use of the copyright. . . . A co-owner of a copyright must account to other co-owners for any profits he earns from licensing or use of the copyright." (p. 66)

Q: What about Superboy?

A: That's a separate case, although procedurally it is consolidated with the Superman case for discovery and pre-trial purposes. The question of the Siegels' rights to Superboy is as of yet unresolved.

Q: Don't the Superman trademarks make the copyright issue irrelevant?

A: The Siegels conceded that they have no legal right to profits "purely attributable to [Superman's] trademark rights." However, they claim to be "entitled to profits from mixed trademark uses to the extent such exploit recaptured copyright elements (e.g., the 'Superman costume')." The court explains that the issue of mixed copyright/trademark accounting wasn't part of the current motion. Like other aspects of this case it's a rather complex issue that will need to be addressed in more documents filed by each side.

Q: Will the Siegels get profits from the Superman movies and merchandise?

A: That depends on a few things, one of which is the ultimate resolution of the mixed copyright/trademark issue.

In addition, there's also the issue of when a derivative work was created--the Siegels correctly conceded that they don't have an interest in profits attributable to the exploitation of pre-termination works (e.g., works created before April 16, 1999, the effective date of the termination notice). However, the court ruling does not resolve the issue of accounting for profits from pre-termination derivative works "altered so as to become post-termination derivative works." (p.67), such as, say, a special edition DVD.

Another open issue: the licensing agreements among DC, Warner Brothers Entertainment and Time Warner. As the court summarizes, "[w]hether the license fees paid represents the fair market value therefor, or whether the license for the works between the related entities was a 'sweetheart deal' are questions of fact that are not answered" in this ruling. [p.71]

Q: Why is the court even issuing a ruling now? I thought there was going to be a trial.

A: The issues in this ruling were raised as part of what are called "summary judgment" motions. If a court grants a motion for summary judgment, that means the issue is resolved without a trial.

Q: Can DC/Time Warner/Warner Brothers appeal the judge's ruling?

A: Yes, if they choose. And the federal appeals court might reverse it, although there's good reason to think it won't be flipped. This isn't over.

Q: What next?

A: More documents prepared and answered; more rulings; possibly a trial; perhaps an appeal. Ditto (except the appeal) in Superboy. The most likely final outcome in both cases: a settlement.

Q: If there are so many unresolved questions, why does this ruling matter?

A: This is a formal declaration by a U.S. court that the Siegels have regained copyright interest in Superman. However limited, it is a historic ruling, in itself a vindication of the family's and fellow creators' decades-long struggle to receive legal recognition of Siegel and Shuster's role in creating the character. Even if the Siegels settle with DC & co., they will do so with the satisfaction of knowing that a court had finally recognized Jerry's work.

The outcome strikes a chord with our fundamental sense of justice--as Journalista posted as I was writing this paragraph, "[s]ometimes the good guys do in fact win." That people feel this way is not surprising. Siegel and Shuster's creation generated an immense amount of wealth; it only seems fair that for them to benefit. Although some may object that it's too late--Siegel and Shuster have passed on--we should note that many creators work in part to provide a legacy for their families.

Last but not least, in a world where people all too often feel like cogs in a corporate machine, this ruling serves as a potent affirmation of the human spirit.