Superman in black and white

One of the most clever passages in the Superman ruling concerns the effect of early DC comics house ads on the Siegels' ability to regain a copyright interest in Action Comics #1 (Update: the New York Times talks to the principals here). The law's rather complex, but in a nutshell, the judge notes that the Siegel heirs might not have a claim in elements appearing in these ads, which DC reports as being published before Action Comics #1 was published on April 18, 1938.

Here, for example, is Superman's reported first appearance in a comic book, the inside back cover of More Fun Comics #31, which DC's copyright registration states as having been published on April 5, 1938:

Now you might think that's a slam dunk for Time Warner--after all, this is the iconic cover that introduced Superman to the world.

But here's where thinking like a lawyer can actually be a good thing. The judge refuses to characterize the image on the basis of what came later; instead, he takes it as it was back when it appeared, allegedly before Action #1 hit the stands. Nothing is there regarding the character--his origin, mission, associates, abilities, even his name. Beyond that, the image is in black and white, and the "S" on the character's chest is blurred. All of which leads to what is in this context a pyrrhic victory for Time Warner:

"The Court thus concludes that defendants may continue to exploit the image of a person with extraordinary strength who wears a black and white leotard and cape."