Tuesday, September 25, 2007


Up! Up! And away!!

A piece of legal history written on planet Earth may set a precedent about the copyright ownership of a dead author's work.

Superboy was a “joint work” between Jerry Siegel and Joe Shuster. However, fast forward to a world dominated by the dastardly legal profession. A chunk of rock has recently been thrown at the Man in Tights, not in the form of deadly Kryptonite... but the American copyright code; itself influenced by European copyright law... and there’s a first.

In 1948, in a previous suit between Jerry Siegel and DC (then called “Detective Comics Inc.”) it was found that Superboy was “separate and distinct” from Superman.

Siegel was found to be its “sole originator.”

The case was settled with DC paying the authors for the “sole and exclusive” rights.

Many believe the pair, who died in some poverty it is said, were ripped off. However, following the authors' deaths, a 1976 revision to the copyright laws allowed the Siegel family in 2002 to give a notice of termination of that agreement. Any grant of rights Jerry Siegel made in 1948 would be undone in 2004. However, DC filed a counterclaim and the present Superboy suit (no pun on earth intended) seeks a determination on this.

The 1948 ruling lacked the jurisdiction to determine copyright issues; purview of the federal courts; the court's then findings were deemed to be relevant to some of the copyright issues (most notably, whether Superboy was a work for hire).

Four issues now surround the Superboy copyright:

was the work “derivative”? (In other words, if it was based on Superman there is nothing copyrightable about it);
if any of the copyrightable material in Siegel’s Superboy submissions was in fact later published;
whether it was done as a “joint work” with Joe Shuster, whose rights to Superboy have since gone to DC; and
whether Siegel created Superboy as part of his work-for-hire agreement.

The Judge ruled that Siegel’s employment contract with DC – Superboy - was not a work-for-hire (commissioned), and so the claim rests on whether it is “sufficiently original” and, therefore, includes copyrightable material. Put simply, to what extent had the Superman character been fleshed out to form Superboy?

By the time Siegel submitted his Superboy material to Detective Comics he did so with all the character’s (new) traits and attributes as well as the character’s interaction with other (new) characters.

When co-writer Shuster, one of Superboy’s creators, died without an heir, DC became the de facto owner of his portion; which pitted the conglomerate against Jerry Siegal’s heirs for interest in the franchise.

Originally the copyright code only allowed rights to be held to the first legal date that a work ‘reconverts’ to its author. In Superboy’s case that date has passed... Now truth, justice, and the American way of doings things, look set to be challenged in Superboy versus Superbaddy.

But all things equal under the same sun – whatever its colour – the case centres around what legal Lex Luthors term "copyright reversion deadline”.

Imagine if you will.... a courtroom.

Imagine, if you will... a jury.

In fact, imagine further, if you will... a judge (usually black) and attorney (usually white after all this is Hollywood).

Jerry Siegel pitched an idea about the early life of Superman, the later (or should that be earlier?) Superboy. And here I must approach the bench... because the chicken and the egg of it is... which came first?"

Siegel made his original Superboy submission in late 1938, before Action Comics was a year old, later known as DC Inc, by then the planet Krypton had exploded and spread throughout a galaxy and...

Well, you know the rest.

But what you may not know is that many light years away, on planet Earth, an earthling author had established the early days of Superman as a boy, and the Kents, then unnamed, and a host of pre-characters good and bad later entering into the Superman comic books too. It's almost as if Superman had flown round the earth several times and whoosh!!! created a copyright paradox.

Siegal's work was not part of any “work for hire” agreement. In other words specifically commissioned by DC Inc. The Federal government allowed all contemporary contracts to be terminated on “end dates”. The Siegel family is exercising a legal right to terminate the contract at its end date. (Superman’s copyright enters the public domain at 2013, which may make this a fruitless task.)

The subject is not the man, but the boy; not Jerry but Clark, or Con-El, or Kale-El, or - bloody ‘el how confusing. Anyway, you know what American lawyers are like, Superboy v Superman is a modern day challenge to the whole concept of copyright and trademark, a ‘front running case’, and one that will change our concept of copy and our rights to it.

But this is not just about reversion rights right…?

In fact, the real question being posed in similar cases - across America! - is can someone own a trademark of something that they do not in fact own the copyright to?

Many see it as a “greed” on the side of the Siegal family versus the corporate greed of a major American conglomerate - DC Comics.

Whilst DC Inc claims the character was derived from an existing character - one that the creator signed the rights away to, his surviving family argues that Superboy, with all that alien teen angst, was totally unique, and that the author's ‘fleshing out’ of Superman, an existing character, was enough to make Superboy truly “original”.

But surely younger characters are simply extensions of the adult characters, my super hearing hears you say.

Not so... When Superman/Superboy were written 'back story’ was a new concept — and the “spin-offs” that followed a writer's ‘fleshing’ were unknown. (I always wrote a detailed back story to my characters at the BBC. Mostly this history never made it to the screen but acted as a character ‘bible’, a blueprint for the character's motivation. I should also mention at this point that I sued the BBC for copyright theft, and lost. Oops!)

Taking a man, and turning him into a boy in character terms was a radical idea back then. Jerry’s pitch allowed elements of his creation to be carried over into the later Superman comics (as did mine at the Beeb. So Superman’s character was a derivative of Jerry’s Superboy creation; and not a part of any character bible he was employed to write which did not exist... then. (An important point.I once wrote a whole monologue at the BBC for a series.... It ended up in another episode that I wasn’t paid or credited for!)

All the two super heroes had in common was that they were both extraterrestrial, wore a costume, shared a name, and went on to wear eyeglasses.

Many claim that the Siegal family is bringing the case through “pure greed”. If so, it is a greed that is matched by DC's; it has not surrendered the rights which formed the original legal agreement.

In addition, regardless of the 1976 revisions to copyright law, where would Superboy be without his S-emblem: if not just a red cloak flying across the vacuum of copyright ‘space’?

But space is not truly a vacuum a lawyer will argue. DC will still have the Superman trademarks. Won’t it?

Actually the Superman Trademark itself may also be subject to later legal challenge. Superboy is being used to actually settle the rights to Superman and the trademark itself; a front running case that will mold future copyright law and trademark ownership. The question now is whether Siegel’s Superboy and the lack of “young Superman” stories early in the character’s publication history of “Superman” may allow “Superboy” to be different enough, proving that even on Planet Krypton schizophrenia may be a problem, caused not by a red sun but by its legal profession.

Apparently the creators were put on a small stipend with paid health care until they died, out of “respect”. As one blogger Thomas Strand states (and here in my edited quote): “…the creators of Superman were literally in the poor house, living in poverty without health care, etc. Corporate America keeps raking in the money, and these guys who CREATED Superman get to die penniless. How is that fair? Finally the US copyright code is giving their families the legal ability to regain the copyrights and return them to the families that created Superman.”

In 2013 the Superman copyright will be transferred back to the families, whatever the eventual outcome, and Superman may not be available for anyone – and that’s a shame Mr Luthor

So, is it a bird? Is it a plane? No... essentially it's a lawsuit.

[Author’s note. I have attempted to deliver a potted history of the case, but due to the exigencies of time - spent with my young daughter mostly - I may not have done it justice. See Grumpy Old Fan, and Thomas Strand, mentioned above, for theirs and other specialist views linked.]

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