Copyright, trademark and the death of Superman

Since the Siegel decision became public knowledge, one of the recurring fear in the comics community has been the possibility that DC Comics would not be able to publish Superman comics. Related concerns: the end of any movies and merch related to Superman.

As I indicated in last night's FAQ, DC & co. aren't "doomed," as one commenter put it. The situation just gets a bit more complicated. For the immediate future, this means ongoing litigation and negotiations in regard to profit sharing in reference to works derived from the Action #1 copyright.

As for the profit breakdown, what this entails isn't clear. The most direct candidates for inclusion are things like recent Action #1 reprints or direct artistic references to the material in that book, such as these panels in Grant Morrison's All Star Superman #10.

The situation gets far more complex when deciding what constitutes a derivative work from Action #1. Given how much of the current character is distinct from the material in that story, the amount that the Siegels should receive from new material (i.e., from April 16, 1999 onward) is open to debate.

Making this more difficult is the relation of the Action Comics #1 material to Superman trademarks. Superman trademarks include elements from the relevant copyrighted material, from aspects of Superman's uniform to certain characters to the logo, which reflects the classic Ira Schnapp design "based on Joe Shuster's concept." This is cutting-edge unresolved intellectual property law, with ramifications far beyond the comic book community. Anyone looking for an easy and immediate answer will, alas, be disappointed.

Which brings me to the assertion in the New York Times article that should the Shuster heirs regain their 50% interest in 2013,

That would give heirs of the two creators control over use of their lucrative character until until at least 2033. . . . "Time Warner couldn't exploit any new Superman-derived works without a license from the Siegels and Shusters."

Well, maybe, sort of. Keep in mind, the person being quoted above is the Siegels' lawyer, not exactly an unbiased source. In reality, the situation is far more complicated. Even if the cases didn't settle and the Shusters prevailed, the termination only applies to domestic U.S. copyright. The retention of trademark and foreign copyright by DC & co., as you can imagine, creates a far more complex situation, as does the fact that so much of the current character does not appear in the Action Comics #1 material. I'm not saying it would be easy, but there are things that Time Warner could do without a license, just as there are opportunities the creators' families couldn't exploit without dealing with Time Warner.

So is this the death of Superman? No, not at all. Instead of worrying about DC folding up, expect a settlement with both the Siegel and Shuster families, albeit perhaps one that is more favorable to them in terms of finances and the creators' recognition than might have otherwise been obtained.