UPDATE: There’s been another development in the Superman copyright litigation case. Actually, this is a carnival sideshow to that case and a disgusting exercise by DC Comics and its big Hollywood studio Warner Bros to continue to trample the rights of the Superman rights-holders, the estates of co-creators Jerome Siegel and Joseph Shuster. When DC and WB couldn’t weasel out of paying the families of Siegel and Shuster what is rightfully owed and reverting copyright back to them, they decided to go after their archnemesis, Superman copyright lawyer Marc Toberoff, who’s been a longtime thorn in Warner Bros’ side because he represents showbiz rights-holders and wins their cases against the studio. The result was that, a year ago, Warner Bros and DC Comics decided to sue Toberoff alleging he had a role as a financial participant in the Superman rights fight with the studio and therefore a conflict of interest repping his clients. Today, a U.S. District Court judge denied an appeal of a magistrate’s ruling which held that “the defendants waived privilege on numerous attorney-client communications stolen from their counsel’s law firm by producing such documents to the United States Attorney’s Office investigating the theft pursuant to a Grand Jury subpoena and a confidentiality agreement.” Forget all the legal mumbo-jumbo, let’s examine what’s really at work here. And it’s that DC Comics and Warner Bros are basing their entire case against Toberoff on stolen documents from his office. That’s right: stolen documents. In my view the Time Warner subsidiaries should be ashamed of themselves.
The idea was that the studio and publisher hired attorney Daniel Petrocelli to come up with a new strategy to prevent the studio from possibly losing a portion of the copyright to Superman in 2013 as a court has previously ruled. So Warner Bros’ new outside counsel obliged by filing a lawsuit last May obviously to put Toberoff in a position where he might have to resign as the Siegel and Shuster attorney. It was a hardball tactic by Petrocelli and the studio’s general counsel John Rogovin (hiding behind DC Comics), especially because it hinges on those documents stolen from Toberoff’s office by a Toberoff employee.
Warner Bros claims the documents mysteriously “arrived” on its doorstep and that the employee was a lawyer in Toberoff’s firm and a “whistleblower.” Toberoff has indicated that something much more nefarious may have happened and accused DC/WB of “unethical thug tactics.”
“Warner Bros, DC Comics, and Mr. Pertocelli disingenously claim that I have a financial interest in the lawsuits when they know full well that the only interest I have is a contingent legal fee. And the last time I checked, a lawyer working on a contigent fee basis is legal in the State of California. The goal here is to muddy the waters and avoid litigating on the merits,” Toberoff has told me. “The purpose is to defame me or potentially conflict me out of the case and thereby pressure my clients to sell back the Superman and Superboy copyrights they’ve recaptured at a distress sales price.”
But here’s what really disgusts me: Petrocelli’s tactic belies the fact that, when he defended Disney against the Slesinger family’s Winnie The Pooh underpaid royalty claims, he was able to get the entire case thrown out of court by alleging that the Slesingers were basing some of their documentation on paperwork “stolen” from a dumpster on the Disney lot.
Warner Bros should not be pursuing this strategy. Shame on them. DC and WB have to be careful, very careful, not to piss off the Superman fans who are steadfastly in the Shuster and Siegal corners. Bad enough those fans are now uncertain that studio choice Zack Snyder is the right director to reboot Superman even with the iconic Chris Nolan producing the movie. Besides, the clock is ticking. In 2013, the Jerome Siegel heirs along with the estate of co-creator Joe Shuster will own a portion of the original copyright to Superman — “and neither DC Comics nor Warner Bros will be able to exploit any new Superman works without a license from the Siegels and Shusters.” The heirs of Siegel have already been awarded half the copyright for Superman. And in 2013 the heirs of co-creator Joe Shuster get the remaining half. After that, neither DC Comics nor Warner Bros will be able to use Superman without a financial agreement with the heirs. There are also stipulations on what parts of the origins story can be used in future Superman movies and which require re-negotiations with the creators’ heirs or estates.
At issue is the future generation of Superman movies, television programs, and comics would be placed at risk. The lawsuit asks the Court to confirm DC’s ownership of Superman rights, put an end to Toberoff’s activity allegedly interfering with the rights, and clear the way for all new Superman productions in the future. DC claims it filed this lawsuit only after exhaustive attempts to resolve these matters failed.
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