Warner Bros may have won the larger legal war over who owns the rights to Superman but they seem to be losing their battle against the lawyer who sought to retain the copyright for the heirs of the hero’s creators. Today attorney Marc Toberoff was freed from paying attorney fees for the case (read order here) and had two tortious interference claims against him knocked out by a U.S. District judge (read order here). The court denied WB and its subsidiary DC Comics the $500,000 in attorney’s fees that they wanted as a pound of flesh from Toberoff for the long running case. And Judge Otis Wright made it very clear he believed the action by WB and DC was personal against the lawyer who represented the estates of Superman co-creators Jerry Siegel and Joe Shuster. “What is surprising is DC’s motivation in seeking attorneys’ fees solely against one Defendant. DC’s entire Motion smacks of animus toward Toberoff,” wrote the judge in today’s order. “Punishing Toberoff and Pacific Pictures with a $500,000 attorneys’-fees award would send a clear message to copyright defendants that litigating a claim with good-faith supported defenses is wrong. That is undoubtedly not a message this Court wants to send to Toberoff or others,” he added in the 12-page order.
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.”
Freelance journalist Dominic Patten is a Deadline contributor
In a strategic move in the copyright battle between Warner Bros and the heirs to Superman’s creators, the studio has filed an appeal to reverse earlier rulings in the case and put everything out in open court in a trial. “This long-running dispute should be brought to an end,” Warner Bros wrote in a dense 117-page appeal (read it here) filed Friday with the 9th Circuit Court. In typical Hollywood legalities, the move actually resolves nothing — expect to see a response from the heirs and then another back from Warner Bros, and all off it to end up one way or another in the Appellate Court sometime in the late summer or early fall.
Through the courts, the estate of Superman co-creator Jerry Siegel recaptured half of the original Superman rights in 2008, with the estate of co-creator Joe Shuster to do the same in 2013. Warner Bros, which owns longtime Superman publisher DC Comics, disagrees with those decisions. “This case is about the ownership of copyright in the earliest comics that introduced elements of the iconic Superman character and story,” the appeal from Warners lawyer Daniel Petrocelli states. “The case presents an unusually broad array of doctrinal, factual, and procedural issues. But much of the case reduces to a familiar proposition: a deal is a deal.”
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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.
EXCLUSIVE: An insider just told me that DC Entertainment at Warner Bros is “in the throes of turning the comic book industry on its head” with a massive publishing relaunch. “DC Comics – The New 52” (see exclusive video below) is a bold renumbering of all of DC’s superhero comics (52 all-new #1 issues). And the industry-changing move is to now offer comics for sale digitally on the very same day as physically. “The New 52” kicks off at midnight tonight in comic shops across the nation. Now, some details may have leaked out to the comic book pundits. But I can tell you exclusively that the first printing of Justice League #1 has officially sold out today in advance of tomorrow’s on-sale date, and DC is rushing back to press for a second printing. (Yes, I know: these things almost always sell out. And in the not-so-old days sold way more.) Over 200,000 physical copies of JL1, along with tens of thousands of digital copies, are expected to be sold worldwide. I understand that Justice League #1 has a particular connection to DC Entertainment President Diane Nelson’s exec team, as its writer is DCE’s Chief Creative Officer Geoff Johns and its artist is DCE’s Co-Publisher Jim Lee, two of the biggest creators in the industry. The pair will be signing at Midtown Comics in NYC’s Times Square tonight. Insiders are calling it “the beginning of the biggest comic industry publishing event in nearly a decade”. I’m told that “DC Comics – The New 52” will continue launching throughout September, with new #1 titles for Action Comics, Batman, Detective, Flash, Green Lantern, Superman, and Wonder Woman releasing in-store and online every Wednesday. Here’s the video teaser:
(See the cover art bigger after the jump.)
Warner Bros today released a first photo of British actor Henry Cavill as Superman in Man of Steel, the franchise reboot that’s being directed by Zack Snyder and produced by Christopher Nolan. Cavill stars with Amy Adams, Diane Lane, Kevin Costner, Michael Shannon, Antje Traue, Julia Ormond, Russell Crowe, Chris Meloni, …