Attorney Marc Toberoff learned today that he won’t be penalized as DC Comics and Warner Bros desired him to be in their grinding Superman copyright legal battle. In a short but acerbic order (read it here) issued Friday Judge Otis Wright, II denied a motion for sanctions against the Man of Steel heirs’ lawyer by the Warner subsidiary. In a motion first filed last fall and reactivated earlier this year, Warner alleged that Toberoff and his companies suppressed evidence in the discovery process in the long ongoing case. Judge Wright says forget about it. “The Court comes away from this investigation with the view that DC’s Motion for Evidentiary Sanctions is really just a rehashing of the tortured course of discovery in these Superman matters. Now with the benefit of hindsight (and relatively newfound possession of a multitude of documents to which DC may not have been entitled but for the theft of those documents from Toberoff’s office and their subsequent disclosure to Warner Brothers), DC seeks to open a widereaching inquiry into attorney and Defendant Marc Toberoff’s prior privilege assertions and privilege-logging practices,” he wrote Friday.
DC Comics waited too long to file its copyright interference suit in the battle over who owns Superman, says the lawyer of the estates of Man of Steel co-creators Jerry Siegel and Joe Shuster. In another round in the multi-front fight between Warner Bros and the estates, attorney Marc Toberoff on Monday cited statute of limitation laws and asked the federal court to dismiss (read it here) the suit DC’s corporate owners filed against him almost three years ago. This move comes less than a month after the 9th Circuit Court of Appeals essentially handed WB full rights to Superman in a related copyright case — a big deal for the studio, whose reboot Man Of Steel flies into theaters June 14. In its May 14, 2010 suit, DC Comics claimed Toberoff meddled with the 1992 copyright agreement the company had reached with the two estates. It also alleges Toberoff drafted overriding agreements with the estates in 2001 and 2003 to recapture DC’s Superman copyright interests and to position himself and his companies to secure a controlling financial interest in the families’ claims.
The long ongoing copyright case over who owns the rights to Superman just got very personal. Attorneys for Warner Bros (which owns DC Comics) late Wednesday night claimed Superman heirs attorney Marc Toberoff has “systematically suppressed relevant evidence” and filed a motion (read it here) against the lawyer and the estates of the superhero’s co-creators. The filing seeks terminating sanctions and an evidentiary hearing for November 12. But this morning, Deadline was given a letter (original here) in response from Laura Siegel Larson — the daughter of Superman co-creator Jerry Siegel and Joanne Siegel, who served as the original model for Lois Lane. Larson, herself a retired award-winning journalist now suffering from multiple sclerosis, says she will never give up “fighting for what’s right”. She charges that Warner Bros has spent $35 million on corporate attorneys who now include Daniel Petrocelli, Matthew Kline and Cassandra Seto of O’Melveny & Myers. Here it is edited (and follows one written by her late mother directly to Time Warner chief Jeff Bewkes):
October 11, 2012
Dear Superman Fans Everywhere,
My father, Jerry Siegel, co-created Superman as the “champion of the oppressed … sworn to devote his existence to helping those in need!” But sadly his dying wish, for his family to regain his rightful share of Superman, has become a cautionary tale for writers and artists everywhere.
My family’s David and Goliath struggle against Warner Bros, the media conglomerate, goes back to April 1997, when my mom and I exercised our clear right under the Copyright Act to achieve my dad’s dream of recovering his copyrights. In April 1999, my dad’s half of the original Superman rights reverted to us, entitling our family to a significant share of Superman profits, which Warner/DC Comics refused to pay. For over thirteen years they have fought us at every turn, in and out of court, aiming to make recovery of the money they owe us so impossibly difficult that we would give up and settle for peanuts.
We refused to be intimidated despite my elderly mom’s heart condition and my multiple sclerosis. In 2008 the U.S. District Court ruled that my mom and I had successfully recaptured my father’s Superman copyrights and were entitled to Superman profits since April 1999.
Angered and alarmed by this defeat, Warner Bros resorted to a despicable old trick: diverting attention from the legal merits of our case by personally attacking our long-time lawyer, Marc Toberoff. Through DC, the media giant filed a lawsuit against Mr. Toberoff, my family and the Estate of Superman’s co-creator Joe Shuster, falsely claiming “unfair competition” and that Toberoff interfered with an out of court offer that Warner tried to push on my mom and me in early 2002 – an offer full of studio accounting traps that we refused to sign before we even knew Mr. Toberoff.
Warner Bros possesses documents stolen from my attorney’s office which mysteriously ended up on the desks of three top Warner executives. Warner claims it has no evidence whatsoever as to when these large packages arrived. According to Warner, the thief also included a cowardly anonymous letter that vilifies our attorney and mischaracterizes the privileged attorney-client communications enclosed. In a disgraceful violation of my privacy, Warner’s lawyers attached this nasty anonymous letter to a publicly filed complaint and leaked it to the media.
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.
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.”
Captain America co-creator Joe Simon has died. The legendary Simon, who collaborated with Jack Kirby on other characters as well, died Wednesday night in New York City after a brief illness. He was 98. Athough Simon was a successful …
BURBANK, Calif. — Warner Bros. Consumer Products (WBCP), with DC Entertainment, announced today that it has extended its successful relationship with leading worldwide toy manufacturer, Mattel, Inc. The new multi-year agreement allows Mattel to continue as master toy licensee for the complete universe of DC Comics characters. Under the terms of this strategic alliance, Mattel is granted unprecedented access to the complete breadth and scope of the DC Comics vault of characters, which includes more than a thousand world-famous DC Comics Super Heroes and DC Comics Super Villains, such as Superman, Batman, Green Lantern, Wonder Woman and The Joker. Further, the agreement includes popular characters such as The Flash, Aquaman, Shazam!, Green Arrow and Hawkman.
Ruling on behalf of Warner Bros., a federal judge on Tuesday rejected copyright lawyer Marc Toberoff’s claims that his actions as lawyer for heirs of the co-creators of Superman were protected against legal interference. In so doing the judge allowed Warner Bros.’ lawsuit against Toberoff to move forward. The judge also granted Warner Bros access to a July 2003 letter from Laura Siegel to her late brother Michael. Warner Bros. outside counsel Daniel Petrocelli is seeking to undo Toberoff’s relationship with the heirs of Jerome Siegel and Joseph Shuster by accusing the attorney of interfering as a competing business owner in agreements the studio and DC had made with the heirs.
Petrocelli was hired to come up with a strategy to prevent the studio from possibly losing a portion of the copyright to Superman in 2013 as a court has previously ruled. Petrocelli filed the current lawsuit last May to put Toberoff in a position where he might have to resign as the attorney for the Siegels and Shusters. On Tuesday, U.S. District Judge Otis Wright found that the studio’s argument “makes sense.” He ruled that because Toberoff had established business arrangements through his own company Pacific Pictures with heirs of Siegel and Shuster, he was not protected under California’s anti-SLAAP (strategic lawsuit against public participation) statute that protects rights owners against legal intimidation. Wright rejected Toberoff’s anti-SLAPP argument, ruling that he was acting in his capacity as a businessman, not a lawyer, through Pacific Pictures — specifically concerning exploitation of Joe Shuster’s creations.
UPDATE: Jeff Bewkes Admits ‘Green Lantern’ Not As Bright As Expected As Time Warner Beats 2Q Estimates
UPDATE, 9:30 AM: CEO Jeff Bewkes tried to stick to his optimistic story for Time Warner, but analysts forced him to play defense as well in this morning’s quarterly earnings call. In response to a question, Bewkes acknowledged that Green Lantern “did not live up to expectations” — although he wouldn’t say whether Warner Bros has ruled out a sequel. Despite the film’s disappointing performance, the CEO says that he’s “not concerned” about the studio’s effort to capitalize on DC Comics superheroes: “DC will be a major contributor,” with new films on tap featuring Batman and Superman.
Bewkes also said that TNT and TBS’ ratings suffered because “we had some bad programming choices in series we acquired over the last few years.” The problem may have been exacerbated by the fact that some of the shows were also available on digital platforms. As streaming services such as Netflix and Hulu become more popular, “hit shows win, and mediocre stuff loses.” Turner hopes to fix the problem by adding reruns of popular series including The Mentalist and Hawaii Five-0. One hit “can have a significant impact,” Bewkes says. He urged analysts to keep an eye on Time Warner’s upcoming initiatives involving Flixster, the movie site it recently bought, and the entertainment industry’s UltraViolet program that enables consumers who buy a home video to access it on almost any kind of device. Beginning with Warners’ Green Lantern the “vast majority” of its releases will work with UltraViolet, Bewkes says. He adds that a beta version of Flixster that will be “deeply integrated” with UltraViolet will be released this week. Beginning this fall, consumers also will be able to bring DVDs they already own to retailers who will be able to make them available from the broadband cloud. All in all, investors seemed unimpressed with today’s news even though the financial numbers beat analyst estimates: Time Warner shares are down about 2.2% in mid-day trading.
PREVIOUS, 4:42 AM: The entertainment giant ended 2Q with net income of $638M, up 13.5% vs the period last year, on revenues of $7B, up 10.2%. Earnings at 60 cents a share handily beat the Street’s forecast of 56 cents. Analysts also anticipated revenues of $6.8B.
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.
DC Comics will release Justice League Issue 1 digitally on Aug. 31, kick-starting an initiative in which the company will renumber its entire line of superhero comics from No. 1 and launch them day-and-date with their print debuts. Justice League marks the first collaboration between DC Entertainment chief creative officer …