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Letter From Lois Lane To Time Warner Boss
Warner Bros/DC Comics Sues ‘Superman’ Copyright Lawyer
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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Not that I condone the “trampling of rights” by big studios on “the little people,” but, it was the short-sightedness of Siegal & Shuster to sell the rights in the first which started all these problems. No one knew Superman would turn into what it did back then, if the comic and character flopped and no movies, TV, books, comics ever saw the light of day it obviously wouldn’t be an issue. But after WB invested money to make it a success (after countless new creative minds like John Byrne and Richard Donner contributed) all of a sudden shiftless heirs want to get a piece. The lesson is: don’t sell for the quick easy buck then, like children, decide to weasel in the back door.
I’m another Superman fan who is not on the side of the Siegel/Schuster estates. Sure, DC/Warners has made some mistakes in dealing with them in the past, but they have gone a long way to repair that relationship as well, starting with the pensions they issued all the way back in 1974. It was my understanding that things between the estates and DC were pretty smooth until Toberoff showed up. And not all of both families are behind the decision to follow Toberoff. Jerry Siegel’s son Michael actively tried to talk his half-sister, who controls the estate, out of dealing with the guy even though he would also win a portion of whatever settlement Toberoff would be able to extort out of DC/Warners.
WB had a deal worked out with the families before Toberoff came in and mucked it all up. He tried to do add clauses in AFTER the fact and the WB backed out of it. Now he’s trying to backdoor his way into a huge pay day by getting a piece of the Superman pie.
The fact of the matter is that the Siegel and Shuster legally and willfully signed away Superman. No one forced them. They were adults. They sued many times over the years and got paid settlements many times over the years. Now the families have their hands out wanting a big pay day.
It’s all about money. Period. That’s all they want.
@ Nangman, Nick Hucik & Tiberius:
What the Siegel and Shuster estates are doing is totally legal according to the Copyright Office, EVEN IF THEY ORIGINALLY SIGNED A CONTRACT BACK IN THE DAY.
What happened was this – back in 1976, when the Copyright laws were changed to address such issues as “work for hire” and a longer term of ownership, there was a belief this would screw creators who negotiated deals PRIOR to 1976. So a compromise was reached. The companies – in this case DC and Warners – would have ownership of the property for the first 56 years of the life of the copyright, thereby able to profit from their original investment. At the 56 year mark, the creators could reclaim the copyrights so that they or their heirs could profit from their creation under the concept that when the creation was initially made – in this case, SUPERMAN – that the creators were not in the best bargaining position to negotiate the best deal they could.
With extremely few exceptions since the 1976 law came into effect, no writer or artist working for a major company has ever been in a position to negotiate a fair deal between themselves and the companies. Most creators usually were recruited by Marvel or DC when they were in their late teens or early 20s, looking for their first break. It’s only been recently that older more established talent is being sought, and I’m certain the contracts this latest crop of established talent is getting is better than what was issued before.
Absolutely this is about money, and the families of the estates are well entitled to it, much like your heirs would be entitled to anything any of you left behind. If you feel their families are not entitled to the rights of what their fathers/husbands created, why should any of your family members be entitled to what was yours? Same thing.
DC and Warners are fighting a losing battle on a clock that’s legally running out on them, as will other companies such as Marvel and Disney. DC and Warners have been/were making payments to the creators of other characters such as Green Lantern over the years, and with the continued exploitation across multi-media platforms of the DC Library, you can bet other lawyers will be joining Toberoff in helping the families of these creators recover what was once theirs.
Regardless of how this suit turns out, the Siegel and Schuster estates will have no choice but to return rights to the Superman character to DC/TW. If they had the audacity to license the comic rights to any other company than DC there would be immense uproar and Supes would go from being a billion dollar hero to a zero. Very few would accept a change of this magnitude.
Come 2013, the Siegal and Shuster families will own the copyright to the contents of Action Comics #1.They will not however, “own” the Superman property which will still remain with WB.The suggestion that the families will be able to shop Superman around is bogus, because WB will retain all trademarks to the character and all the supporting elements that have been added on to Superman over the years.Imagine if Superman were licensed by Marvel but that character could not fly,had no X-Ray vision,did not have kryptonite as a weakness,not powered by a yellow sun/de powered by a red sun,
no Lex Luthor as a foe,and could not be called Superman, (trademarked by WB) you wouldn’t have a recognizable Superman.The legal rulings so far, are not meant to give the families control of Superman,instead the ruling to me, seems to reenforce WB’s hold on the character but force it give a fair share of the profits to the families.
Sorry, but Jerry Siegel did create Luthor as Superman’s foe. He just didn’t have the name Lex in those early appearances. From that perspective, DC and Warners would not have the ability to proceed with most of the iconic elements of the property.
DC/National Periodical/Warner Bros/ et al’s behaviour in this stupidly prolonged battle has always been reprehensible. They’ve spent a large fortune at this point to avoid being fair. There is enough money to go around. Imagine if the relationship had been such that Richard Donner had been able to have Superman’s creators make an appearance in SUPERMAN: THE MOVIE, as Stan Lee has done in nearly every Marvel film? The gain from having the creators at their side, it seems to me, far outweighs the cost both in legal fees & public perception, for DC Comics. Too bad short-sighted greed is the only hand at the wheel.
Filmlover wrote – “DC does not own the most iconic elements to the Superman franchise because those were created by Siegel and Shuster in the first place.”
Not exactly. Let’s assume a best-case scenario for the heirs, and that in 2013 they own 100% of the US copyright to Action # 1 and the related newspaper strips. Even then, DC would own and control:
1. All Superman trademarks – including the logo, the S-shield and the rest.
2. The US coprights to ancillary characters – Lex Luthor, Lana Lang, both sets of Superman’s parents, *all* of his villains and supporting cast beyond Lois Lane.
3. All International copyrights.
What this means is that DC will require a license to continue to use the elements of Superman specific to Action # 1 and related – Clark Kent, Krypton and Lois, most importantly. But they can still use everything created after those 1938 stories, because it’s their intellectual property.
What the heirs will control is those early 1938 comic books and Superman – as depicted in those stories. They would be able to create material/products based on Superman as he existed in 1938 – but *only* within the US, and without infringing on the remaining copyrights owned by DC, such as the Daily Planet, Jimmy Olsen, Lex Luthor and so on.
Meaning no films, cartoons or the like that include could be shown overseas, and they’d be limited to a Superman the jumps between buildings and fights gangsters, in that old-fashioned uniform.
Which also means, of course, that a mutually-beneficial settlement is in order – because without Lois and Clark, DC doesn’t own enough of the IP to best capitalize on it. And without DC’s copyrights and trademarks, the heirs’ might as well be selling bootlegs fo the Fleischer cartoons, which are in the public domain.
The copyright they are due to own is MOST valuable, financially, when utilized as an exclusive license, which can be sold back to Warner Bros.
If Disney gets to keep its Mickey copyrights until the Apocalypse, so too should the heirs to the fellows who had this one, long-lived and lucrative idea. Unless of course they sold it, fair and square. Otherwise, it’s theirs.
Do you actually know what their idea was? Go read a reprint of “Action Comics” #1 and see for yourself. The Superman we all know and love was NOT created by Siegel and Shuster, but, rather, by literally thousands of writers, artists, and editors over the course of nearly 75 years. Superman is and always has been a collaborative project, all facilitated by the publishing company. If you have any doubts about this, educate yourself on what exactly the heirs stand to gain the rights to. It’s not much—but just enough to turn the screws on DC/WB.
@Jorge:
I know someone personally who worked on the Superman comics for the better part of two decades, and he took great issue with your comments, as he most certainly believes that the SUPERMAN we all know and love was most certainly created by Siegel & Shuster and he was just one of the many dozens of creators who were privileged to work on such an iconic property. (He had a good laugh over your description of the “thousands” of creators who worked on the book, as he knew everyone who ever worked on the books for over the past four decades.)
He would also take issue with your statement that the character we all know and love was the result of both DC’s and Warner’s careful stewardship of the character, when he could cite you chapter and verse the many times that those in charge didn’t have a clue what to do with the character because they didn’t understand the nature of what the true essence of the character was. (This would account for those times when sales slipped on the books.)
filmlover: yes, I’m sure everything you say is true. I’m sure you have a friend who knows all of the thousands of people who contributed to the evolution of Superman in comics, radio shows, TV programs, cartoons, movies, and other media since 1938. Right. Your posts make it pretty clear that you’re a shill for the plaintiffs.
So DC wins a round. Good. They are playing to win. Same as Toberoff. Since Toberoff is a notorious greedy lawyer getting his sorry ass off this case would be sanity to a potential settlement.
A good place to review the entire history of this case as well as the history of the Superman Creators/heirs and Warner/DC is http://ohdannyboy.blogspot.com/
It would takes weeks to pour over all of the history in any detail but after reading some of the comments here, it is evident that there are some who are well versed on the case and some who are simply commenting based on the limited information given here.
The Heirs estates have been adequately compensated time and again by Warner/DC. Whatever wrongs DC did (or did not do) to Jerry Siegel and Joe Shuster, DC has made recompense to them over and over again since the 1970s. We are talking in the millions of dollars! Legal agreements have been signed and money accepted over and over again during the last 40 years only to have the agreements nulled by the families and new suits filed. The heirs have indeed shared in the success of the creators efforts in a way the creators never could have dreamed.
What is at issue here is who will control the future of Superman? If both parties end up with pieces of the Superman property, but neither one with enough to go forward without stepping on the other, then Superman is effectively dead. If the heirs and Toberoff end up with everything it is still dead because DC will always own those iconic parts of the Superman mythos that people associate with the property including all trademarks associated with the character.
What worries me most is what happens when Warners tires of all of this Superman mess and decides to move on. There is a point where no matter how valuable a property is, it can bury itself in litigation.
I’ve never known a time without Superman. Maybe Superman was an icon of the 20th century and like that century his time has passed. I sure hope not…
The families own action comics #1, and only action comics #1, so let’s clear some things up.
The heirs own:
Superman/Clark Kent and his Kryptonian origins
Superman being bulletproof
Super strength
Leaping tall buildings in a single bound.
A reporter named Lois
The classic costume
Sorry I’m not excited about possibly never seeing Superman’s classic villians, or the rest of The Daily Planet crew. I’m not excited about Superman never flying again, or Lois having a different last name.
Sorry, but I don’t want a majority of Superman’s world to disappear.
Settle the thing and move on. As some previous posters have remarked, Warners has a gajillion dollars. What’s a few tens of millions for a property that has been in production in one form or another for 30 plus years? Too much posturing on both sides.
While I am at it, why pay an actor with an obviously previously broken nose to play Superman when Brandon Routh, who did an impeccable job in Superman Returns was already under contract? I do not understand why $200m gross in America, $391m total worldwide plus untallied DVD and merchandise sales is considered a failure and a disappointment. And why Zack Snyder, more often a failure than a success to direct it? I cringed when I heard he was going to direct. Starting production with an unfinished script always spells trouble, even with Christopher Nolan on board.
After this thing grosses Waterworld type returns, maybe Warners will see the errors they have made. But probably not….
As a writer I would certainly like anything my work earns after I’m gone to go to my heirs. Time Warner ought to work out a deal if they want to keep the icon intact. Chipping away the components of the Superman myth will weaken the overall presentation but a CLEVER writer can make the most of what’s left and be truly inventive. That said, wouldn’t this court battle make a terrific movie?