|"Action Comics" #1: copyright DC Comics and the heirs of Jerry Siegel|
When news broke last week of a federal judge's ruling that the heirs of Superman co-creator Jerry Siegel â€" who more than 70 years ago sold the rights to the character he created with Joe Shuster to Detective Comics (now DC Comics) â€" are entitled to a share of the Superman copyright, the internet really did seem to break in half.
Reactions in the fan community have been wildly split, ranging from pronounced elation on behalf of the Siegels, who've been involved in litigation for a decade, to shocking displays of corporate idolatry in support of DC parent Time Warner, an entity that's profited immensely on its initial investment of just $130, which is what Siegel & Shuster were paid for their copyrights. But regardless on which side of Superman's cape one falls, the truth is that a landmark decision has been made, one whose enormity will not be fully understood for some time to come.
Questions are being asked, and in the infamously nebulous realm of intellectual property law, straightforward answers can be hard to come by. To learn more about the Siegel decision and what it means for Superman and other creative works developed under similar circumstances, CBR News spoke with Brendan McFeely, an attorney at Kane Kessler, PC, in New York City. McFeely is an intellectual property specialist active in the comics field, representing a medium-sized comic book publisher, independent filmmakers and animation studios. He speaks regularly at Comic-Con International in San Diego, on the Breaking Into Hollywood panel, giving advice to young creators seeking to protect their work during the occasionally treacherous pitching process.
In the simplest terms, copyright is an author's right to control his art. In the terminology of US copyright law, every time a work of creative expression is created and is "fixed in a tangible medium of expression," the author of said work becomes the sole and exclusive owner of all right, title and interest to the work, and is allowed to control the exploitation of that work.
Regarding Superman, the question of ownership of those rights is what has been at issue. "The problem arose when, in 1938, Siegel and Shuster assigned the rights to Detective Comics as a work made for hire," Brendan McFeely told CBR News. "This gave Detective Comics the right to completely control the character, and made Detective Comics -- and its successors in interest â€" very, very rich."
In 1976, the US Congress amended the copyright law to allow the creators of works-for-hire to reclaim their rights under very strict conditions. Chief among these requirements is that the registered copyright in question â€" in this case, Superman â€" be due for renewal. The rights to the Superman character as embodied in "Action Comics" #1 were due for renewal in the 1970s.
"The parties appeared to have agreed to allow DC to continue as the exclusive owner of the rights at that time," McFeely said. "But copyright law changed again in 1997, when Sonny Bono, then a Congressman, pushed through an amendment to the Copyright Act changing the conditions under which the heirs and estates of the original creators could attempt again to recapture their original rights."
Changes in copyright law and the duration of rights were such that the original copyright transfer between Siegel & Shuster and Detective Comics was terminated in 1999. As such, the Siegel family's contention was that under the updated US Copyright Act, they had the right to recapture US rights to the character depicted in "Action Comics" #1. In the recent federal decision, "The court unequivocally found that [the Siegels] have that right and in fact now have recaptured the rights to Superman as set forth in 'Action Comics' #1," McFeely said.
To put it as plainly as possible: the Siegels and DC are now joint owners of the Superman copyright, and have been since 1999.
Going forward, McFeely said, either party will be permitted to exploit the copyright as it sees fit, but will be obligated to share the proceeds of such exploitation equally with the other party.
Consequently, a painfully expensive process must now commence: the retroactive sharing of profits. "The court clearly ordered DC â€" and crucially, Time Warner and all affiliates â€" to make an accounting of profits earned in the US from the copyright to 'Action Comics' #1," McFeely explained.
Despite the Court's explicit ruling, several factors remain in play. "[DC] does not need to account for profits earned outside the US," McFeely said. "[The Siegels] have only recaptured these rights within the United States. The court also found unequivocally that DC retains all rights outside the United States. I suspect that Siegels' lawyers will find a way to appeal this."
McFeely continued, "It's a bit up in the air currently exactly what this means: the Court also found that major elements of the Superman mythos were created long after the original material published in 'Action' #1. Lex Luthor, Myxyzptlk, Titano, kryptonite, Kandor, Brainiac, the Phantom Zone and Zod, just for starters, were all created after 'Action' #1. But the key elements of Superman, his abilities, his appearance, his dual identities and his basic abilities were all present in that comic, so its very likely that DC and Time Warner will have to cough up a very, very large amount of money to the Siegels."
The implications of the Siegel ruling are massive, and repercussions are certain to be vast. "This is a ringing endorsement for the right of a creator or his heirs to recapture copyright that was previously negotiated away before the creator could know the 'real value' of a property," McFeely remarked. "Look for copyright recapture on properties dating from the same era [as 'Action Comics' #1], as the recapture is available based on the anniversary of the earliest copyright date."
McFeely noted that pending additional research, the Siegel ruling means most of the Marvel Comics stable of characters and intellectual property are "safe" for now, but that the Siegel ruling will likely affect the rights to Captain America (first published in 1941) in the near future.
Additionally, the question of Joe Shuster's share of Superman will need to be answered in the coming years. "[Joe Shuster's] estate recently put DC on notice that it was going to try to make a similar claim," McFeely explained. "As the Shuster claim comes through his estate rather than his direct heirs, there may be some differences in the situation that do not break the estate's way."
In his practice, Brendan McFeely represents both creative artists and companies who might hire them in a work-for-hire capacity. When asked what course he would advise his clients take when confronted with a scenario similar to that of the young Jerry Siegel and Joe Shuster, McFeely said, "Representing a creative artist, I would caution my client in very clear terms that signing a work-for-hire agreement constitutes a complete giveaway of rights in their work, and that such a giveaway is extremely hard to take back. Obviously there are economic considerations to take into account, as well as disparity in negotiating power between the parties â€" a young, relatively unproven creator is more likely to eat terms like this in exchange for cash-on-the-barrelhead. In the end, it can only be the artist's decision."
Time Warner is expected to appeal the Court's decision.
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