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Warner Bros got big judicial boost today in the case about who really owns the rights to Superman. First, the Court of Appeals Ninth Circuit unanimously rejected an attempt by Marc Toberoff, the lawyer for the estates of Superman’s co-creators, to use attorney-client privilege to keep documents pertinent to the long-ongoing copyright case secret. Then, while noting it wasn’t a matter before the court in this instance, Judge Diarmuid O’Scannlain took the rare step of specifically noting the “ethical and professional concerns raised by Toberoff’s actions” in playing the role of both lawyer and business adviser for the estates of Superman creators Joe Shuster and Jerry Siegel.
Related: Warner Bros/DC Comics Sues Superman Copyright Lawyer
Toberoff has wanted to deny the studio legal use of material that Warner Bros claims clearly shows there was a competing joint venture between the heirs and Toberoff’s Pacific Pictures to eventually produce a new Superman movie among other things. Toberoff had cited attorney-client privilege on documents that had been stolen from his office in 2006 by former associate David Michaels and given to Warner Bros. In 2010, in the midst of his battles with the studio, Toberoff granted a “selective waiver” of the confidentiality privilege to the U.S. Attorney’s Office’s investigation of Michaels’ theft. O’Scannlain, writing the 16-page opinion for the three-judge panel, said, “given that Congress has declined broadly to adopt a new privilege to protect disclosures of attorney-client privileged materials to the government, we will not do so here.”
Related: WB Vendetta Against Superman Copyright Lawyer Relying On Stolen Files
Today’s ruling made Warner Bros — which owns longtime Superman publisher DC Comics and is behind next year’s Zack Snyder-directed Man Of Steel – leap over a tall building in a single bound. “We are extremely pleased that the 9th Circuit unanimously found in our favor,” the studio said in a statement. “The ruling means that defendant Marc Toberoff must now turn over critical evidence in the pending litigation against him and others.” Toberoff said “we are disappointed in today’s decision which holds that such cooperation with law enforcement by the victims of a privacy crime, itself waives privilege as to stolen documents. However, nothing in this ruling or the documents at issue will affect the merits of this case. We are considering our options as to the ruling, and will continue to vigorously defend our clients’ rights.”
Warner Bros has long said that Toberoff has attempted to scuttle a deal they’d struck previously with the heirs over rights to Superman. A source close to the studio told Deadline that “a huge trove of evidence is going to emerge based on today’s ruling, and if our deal with the heirs gets upheld, they will get a big check from us but they will have gotten nothing from their relationship with Toberoff but seven years of litigation.”
In 2008, the estate of Superman co-creator Siegel recaptured half of the original Superman rights through the courts. The estate of co-creator Shuster is scheduled to be rewarded the same in 2013.
Deadline's Dominic Patten - tip him here.
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Howard Stern beat down by Sirius. Siegals by Warner Bros. Contracts mean nothing. Corporate America wins again!
So the industry violates copyrights and steals intellectual property (according to one side) but sues people for downloading films. Nice.
There’s no violation or theft of intellectual property. Everything was licensed legally and money changed hands. Decades later, the estates decided they weren’t getting enough money and want a bigger cut. It’s fine to fight out how much money the estates are entitled to, but there is absolutely no copyright violation or stealing of intellectual property involved.
I’m not defending WB…there’s plenty to attack them for in this situation…but make sure your attacks are grounded in fact.
So I guess jurists in this country are as easily bought and sold as politicians.
Attorney-client privilege is defeated by cooperating with law enforcement when the privileged documents are STOLEN??!! Are you kidding me? I predict a rash of thefts in law offices in the near future. What’s the downside?
Really wish Toberoff had the resources to take this issue to the Supreme Court. That is a lousy piece of law, and if it stands, then there essentially is no more attorney-client privilege in this country.
Exactly. This will lead to black bag jobs identical to how Nixon’s Plumbers broke into the Watergate and before that burglarized the psychiatrist who was seeing Daniel Ellsberg after he leaked the Pentagon Papers. The studios can now all hire their own Pellicanos to do this dirty work. Most law offices have lousy security especially at 4 in the morning.
Attorney-Client privilege was not designed to protect crooks from taking advantage of their clients for their own person ends.
Now go after Arbend.
Warner Bros. certainly doesn’t deserve any defense in regards to their ethical actions on how they treated the Siegels, but the fact that people are actually defending Toberoff, a man who is clearly taking advantage of the Siegels is completely mind boggling to me.
I’m not defending Toberoff by a long stretch. I just hate to see bad facts used to make bad law. This is the Ninth Circuit deciding this thing — one of the 11 second-highest courts in the land. Only one body can overrule them on a really bad precedent decided based on who they thought should win, not the rule of law they’re creating.
No matter how you look at it, paint it, tell it – Warner Bros. are the white collar criminals here. Period. Dragging out a case for over 30 – say it again – THIRTY YEARS.
You know, to quote Ripley in ALIEN II: “Yes, monsters do exist.”
They’re sitting in the excutive offices of Warners, and in the legal wing of Warners.
I respect intellectual prop but this is part of a bigger problem. Lawyers look for a remote next-of-kin and then ‘protect’ an estate on their behalf. It is not the same as going to the estate and paying a license fee for the rights, they sometimes want to ‘partner’ in the work. Nice source of revenue if you can get it, which is why most of the Sherlock Holmes stuff coming out lately is all done out of the US
The problem is not that the documents were stolen, the problem is that the information was essential to whether or not the plaintiffs have a valid claim given the interests of the lawyer pushing their case. you can’t keep that stuff secret. It’s akin to a criminal prosecutor hiding evidence that an alleged murderer was hired by the prosecutor’s brother.
Great decision today! Always good to see an Atty beat down! I love America!
This still doesn’t change the fact that the two families want to reclaim what the law would say is rightfully theirs.This being the rights to Superman.Last I checked they haven’t signed away their rights to Superman, which is what Warner Bros themselves said.They complained as how the two families walked out on a meeting before signing on the dotted line thus granting Dc comics and aka Warner Bros decades of control over Superman.
Warner Bros doesn’t want either family to own anything when it comes to Superman.Nothing.Even though technically due to several changes in the copyright law it grants the heirs(families)rights and a time period when they can terminate the original deal and reclaim what is rightfully theirs.2013 many other heirs,artist and famous musically artist who wrote famous songs but the studio owns the rights to them, well they will be able to get those rights back.As long as they took the proper measure two years or earlier before 2013 which is just around the corner.
This is do to the change in the copyright law.All Warner Bros is trying to do here is stall the family from making any move in hopes of first getting rid of their current copyright attorney then seeing if they can convince them to sign away their rights to Superman for a fat paycheck for life.Will the Siegels and Shuster families sell away all their rights to Superman like Joe Simon who created Captain America only to try to take Marvel comics back in court then realized his mistake.
The heirs to the Siegels and Shusters don’t own much of the copyright. They have Action Comics #1 and that’s about it. No Lex Luthor, no Brainiac, and so many of the things developed in the Superman mythos. Kryptonite wasn’t invented until later either, so that’s not part of the awarded copyright.
WB holds the rights on so many of the characters created after the initial idea. This also hasn’t been tied up for 30 years. Until the late 90s there was no legal way to reclaim the copyright when Congress granted the possibility by extending the copyright length.
WB has been willing to grant extra money to the Siegels for years, the problem is that this attorney has been wanting to do a side deal on a film that he controls and is thus trying to prevent a final profit sharing deal from going through. The families have reached a deal, but the attorney is trying to scuttle it for his own interest.
Let’s look at the total history, way before the Toberoff issue surfaced. I mean way back in the day.
I have personal knowledge to share in this regard. My late uncle was a close social friend of one
of DC’s original owners. His name was Harry Donnenfeld and he was one of the two guys, the other
being S. J. Leibowtiz, who actually bought the original Superman as what is legally termed, a
“work for hire” from Siegel and Shuster–a pair of hick naifs from Cleveland thrilled to get the
$130 bucks. The strip was originally aimed at daily comics but repasted to make up for a
comic book–then a new format in 1938. Nobody had any idea what it would become–not even
as a monthly comic sold at a dime.
Donnenfeld told my uncle it was not until a few months later that they realized they had a
tiger by the tail. Superman eventually made these guys fabulously wealthy for that time.
They then hired the kids to draw the monthly adventures as paid free-lancers will presumably
no equity in the ownership of the characters of Supreman, Lois Lane, Perry White, etc. The sad
truth is that S&S were at the time pretty average examples of the common abuse of comics
publishers of young cartoonists. They continued to raise their page rate and despite
repeated pleas for them to be included in some way in the ownership, DC (National Comics)
refused, citing the advice of lawyers (according to what my uncle was given to understand)
that by agreeing to that it would open the floodgates of ownership to every artist and
writer who sold anything to a comics publisher.
In their view these kids were a dime a dozen. A handful of them had real art talent, in some
cases genius, like Will Eisner, for example, but most were pedestrian. A lot of the writing
was formulaic and nothing that a hundred other guys couldn’t do. But what separated
Superman and their creators from the pack was the sheer magnitude and originality
of their creation–and that was so utterly outside the realm of ordinary comics, that absolute
justice demanded that the legal system recognize their uniqueness by awarding them
a stake in the rights. This later happened with Superboy, and eventually Warners, spurred
by embarrassment and a shame on you campaign by the cartoonists groups, came up with
a chump change settlement of $20,000 a year or so for each guy a a pension. What an
utter insult that was.
The point is that from the ancient crude days of a pair of hustling comic publishers in
the 1930′s to the Warners ownership till today there has been consistent hardass resistance
to doing the right thing for S&S’s heirs and what is just.
The families should continue the fight till the end. The kids were treated shabbily back
in the 1930s and the present suits reek of the same fear of president. Warners may well
claim much of the Superman cast is new, and hence not applicable–that is true. But
who cares rat shit about a long line of villains. There is only one Superman. Without him
without that international icon, the franchise is worth garbage and they know it.
Keep at it Siegels–time’s on your side.
e