Warner Bros. So Distraught Over Losing Superman Rights, It Personally Sues The Lawyer Who Won

from the getting-a-bit-personal dept

Wed, May 19th 2010 6:33am — Mike Masnick

We've covered the ongoing fight over copyright termination rights lately, as it's quickly becoming a big deal. While the whole concept shows part of how messed up copyright law has become, one element included to help artists (rather than just big companies) when copyright terms were extended, were opportunities for the original artists or their estates to "terminate" the assignment of copyright to a company. The details are highly technical and a bit of a mess, and the entertainment industry has worked hard for years to try to bury termination rights (most famously when the RIAA had a Congressional staffer -- who was hired just months later to a high-paying RIAA job -- slip some text into a bill in the middle of the night that took termination rights away from musicians, until musicians freaked out and Congress backtracked). Even so, the big entertainment industry companies have been fighting against every attempt at artists or their estates reclaiming their copyrights for years. The most famous case was the case over Superman's rights -- which concluded last year with the estate of Jerry Siegel winning back certain rights (while letting Warner retain other Superman-related rights).

The lawyer who represented the Siegel estate, Marc Toberoff, has been pushing content creators and their estates to understand (and make use of) termination rights for a long time. And it's no surprise that we're now seeing new efforts under way from musicians and others, including comic book artist Jack Kirby. Kirby, not surprisingly, is also represented by Toberoff, who isn't just representing these artists in helping them get back their copyrights, but he's apparently set up his own production studio to help make use of those copyrights once he helps the artists get them back.

Apparently, Warner Bros. (a frequent target of Toberoff) has had enough and has decided to sue Toberoff personally, claiming that... well... basically that he's a jerk and a savvy business person, which I didn't quite realize was illegal. Specifically, they seem to be claiming that Toberoff "manipulated" the creators of Superman, having them hand over a large percentage of the rights to the character if he was able to successfully manage the termination. Part of Warner's complaint is that Siegel and Shuster had apparently signed agreements promising not to exercise their termination rights, but as I'm sure Warner's lawyers know (they must know this, right?), you cannot contractually give up your termination rights, or all entertainment industry companies would require that in their standard contract.

Frankly, reading through the complaint -- which you can read below -- it looks like Warner is attempting to retry the Superman termination rights case that it already lost:

While I still think there are all sorts of problems with termination rights in copyright law, and have no doubt that Toberoff had plenty of reasons beyond helping artists get back their copyrights in agreeing to represent these artists, it is somewhat amusing to see Hollywood flail around so desperately to try to keep absolutely monopolistic control over these rights. Of course, if the copyright law that was in place when Superman was created was still in place, the character of Superman would no longer be covered by copyright at all today, but would, instead, be in the public domain. So, forgive me for feeling little sympathy for anyone involved in this tug of war over who gets to exploit the creation for more money.

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Filed Under: copyright, hollywood, marc toberoff, movies, superman, termination rights
Companies: warner bros.

35 Comments

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Anonymous Coward, 19 May 2010 @ 7:21am

big media fighting against someone who helps creators?
i am shocked and outraged
beaches and shores
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Anonymous Anti-Coward, 19 May 2010 @ 7:27am

Never Quit, Never Surrender!
I can't wait for AC (aka TAM) to post. His bitterness and disappointment always make me smile. While many here dislike him/her, I see it as a positive thing. It shows me that those of us against the current copyright laws are indeed having an impact. The copyright maximialists are helpless and they know it. The only recourse they really have is to curse the heavens in disgust and post about it on blogs like this one. How can that not put a huge smile on the faces of everyone? :-D
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Mike, 19 May 2010 @ 7:31am

"(most famously when the RIAA had a Congressional staffer -- who was hired just months later to a high-paying RIAA job -- slip some text into a bill in the middle of the night that took termination rights away from musicians, until musicians freaked out and Congress backtracked). "

A link for this would have been nice-- Id like to learn more about that and it sounds like an existing story.
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Anonymous Coward, 19 May 2010 @ 7:33am

Question
Mike, you said: "While I still think there are all sorts of problems with termination rights in copyright law..."

I can think of numerous cases where you've railed that heirs shouldn't have right in the intelectual property created by their ancestors. Yeah, it sucks that Superman isn't in the public domain and we all hate big media controlling our cultural icons, but I think you need to pick a side here. WB purchased the rights. They'll expire eventually (hopefully, unless Congress changes the laws again). At that point the public benefits. What good does it serve to allow heirs to terminate contractual rights?
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Joel (profile), 19 May 2010 @ 7:51am

What a joke...
Hopefully the Siegel estate tries to get a movie done something to redeem the crap that was Superman:Returns...Anyway why is Warner Brothers wasting their time and is anyone going to take this seriously??
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JEDIDIAH, 19 May 2010 @ 7:51am

Re: Question
Allowing artists to regain control of their work puts the talent back in control. The law is ultimately about encouraging the talent to create. They are the ones that should be encouraged and the ones to derive most benefit from the law.

The public and the talent should come first.

It is also useful to reduce the size and power of entrenched cartels. Monopoly ant hills need to be knocked over.
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A Dan (profile), 19 May 2010 @ 7:56am

Re: Re: Question
I don't think that's accurate. We're not fans of retroactively changing copyright, which is what termination rights did (along with the associated extensions).

The reason the story is interesting isn't that we think one side is right. It's just extremely amusing to see the tables turned.
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yourrealname (profile), 19 May 2010 @ 8:01am

One thing
Um, you do realize that Jack Kirby died in 1994 right? I suppose you mean the estate of Jack Kirby when you mention him up there? Also, the article that his name links to up there says he was one of the co-creators of Spider-Man, (the other being Stan Lee) but that's not true, Jack Kirby wasn't the original artist for Spider-Man, that was Steve Ditko. I think you got his credits mixed up with Stan Lee's. Kirby was the original artist for the Fantastic Four though, which you didn't list. Yes I'm a comics nerd, welcome to the internet.
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Comboman (profile), 19 May 2010 @ 8:13am

Re: Re: Question
Siegel died in 1996 and hadn't even worked on Superman comics since 1946. How exactly would his heirs be considered "talent"? There's no denying that the creation of the Superman character was a milestone in comics, but the majority of the value in the franchise was built by many talented people working for DC from 1946 to the present (not to mention fans), none of whom are even represented in this law suit between greedy corporations, greedy heirs and greedy lawyers.
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Josef, 19 May 2010 @ 8:46am

Did I read that right?
I'm not sure i read that court document correctly.

If I read page 2, lines 8 - 17 it would seem to be saying that the creators of Superman never once sought to terminate the copyright.

Page 13, lines 16 - 23 clearly states that the creators went to court and fought for their copyrights back in 1947.

Warner Bros. makes an excellent point about having a lot to do with the development of Superman in to the icon he is today, but it's clear that the creators of Superman did step in to reclaim their character within 9 years of their agreement with DC Comics.

The claim that the creators were paid millions of dollars for their work (in adjusted dollars) is a bit of a stretch. It would appear that this lawsuit is just sour grapes. Warner Bros should hope that the judge doesn't actually read that document.
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Jimr (profile), 19 May 2010 @ 8:52am

Logic
By Warner Bros Logic that if a lawyer get their client off then the lawyer is fair game to go after?

IE: OJ was found not guilty so then by Warner Bros logic the victims family could also sue OJ's lawyer in a wrongful death suit because OJ's lawyers got him off?
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ChurchHatesTucker (profile), 19 May 2010 @ 8:52am

Re: Re: Question
"The public and the talent should come first."

Half right.
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NAMELESS ONE, 19 May 2010 @ 9:11am

The good the bad and the warner brothers
why?
Cause then they the hollywood morons will go for real crazy crap , stuff the public won't tolerate and then enter the politicians that will be forced to say ENOUGH.

LOOK at britain now, on verge of repealing the digital economy act. what OBAMA needs to understand is ACTA only benefits largely his own country and that the rest fo the world can and will do fine without the US of A.

NOW on the reverse its illegal in canada for a plaintiff for suing a defendants lawyer. Again why? Cause if there is risk to defend people no one defends you and the rule of law is not only destroyed but then you get a breakdown.

AND jsut what has warner brothers done with superman in the last 5 years.....
Smallville? funny and sad. IT needs a migration fast to add batman and then head right into justice league stuff and if who ever owns batman can't see the audience value in that , then they too should lose rights.

SEE this is further proof that current copyrights are stifling innovation of NEW works and it only creates GREEDY LAZY big label COPYRIGHT TROLLS

COPYRIGHT TROLLS like PATENT TROLLS hoard them and use them to snuff you me and everyone out of enjoyment of whatever.

THIS HAS TO END IF YOU WANT TO SEE THE ECONOMY RECOVER
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NAMELESS ONE, 19 May 2010 @ 9:14am

Canada 50 year copyright
how about some knowledge about time frames on superman
cause my bet is a lot of the works are older then 50 years.
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Stuart, 19 May 2010 @ 9:25am

Re: Question
Superman, Batman, Mickey Fucking Mouse. These will NEVER enter public domain. Congress ALWAYS changes the law before this happens. You are being ripped off by corporations, politicians and shit heads who have created nothing. Call back when you hear the popping sound that indicates removal of your head from your ass.
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Anonymous Coward, 19 May 2010 @ 9:37am

Re: Re: Question
The only way I can use Superman, the 1939 version, is to do a parody of him. But I love Superman. I want to deify him. Thanks to modern-day copyright laws, I am not allowed to deify the 1939 version of Superman, you know, for profit.

Superman is a part of our shared culture and culture isn't supposed to work this way.
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Anonymous Coward, 19 May 2010 @ 9:56am

Re: The good the bad and the warner brothers
Hey...you forgot to press caps lock a few times back there.
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Mike Masnick (profile), 19 May 2010 @ 10:08am

Re: Question
I can think of numerous cases where you've railed that heirs shouldn't have right in the intelectual property created by their ancestors. Yeah, it sucks that Superman isn't in the public domain and we all hate big media controlling our cultural icons, but I think you need to pick a side here. WB purchased the rights. They'll expire eventually (hopefully, unless Congress changes the laws again). At that point the public benefits. What good does it serve to allow heirs to terminate contractual rights?

Hence my statement that I am not in favor of termination rights.

I'm not sure what contradiction you're seeing in my stance?
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david_sp (profile), 19 May 2010 @ 10:20am

I cann't help but wonder...
I've read through the alleged facts in the lawsuit and I cannot help but wonder if the lawsuit against Marc Toberoff is really, in part, to the benefit of the Shuster and Siegel heirs. It appears that he came on the scene to obtain as much of the rights to Superman that he could, by making promises that he could not fulfill. He now has more rights than either of the Siegel or Shuster heirs, which ihmo is unconscionable.

While I don't think that any of the parties in this suit are squeaky clean, I hope that someone like Toberoff would be stopped from taking unfair advantage of people. I found it very interesting that the suit specifically only seeks attorney fees from Toberoff and none of the other parties.
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NAMELESS.ONE, 19 May 2010 @ 11:14am

@16 - make superman films in canada ( 50 year copyright over for superman)
in canada you can do it, you could make a film based on that 1939 character as three is only 50 year copyright, but get some funds up front cause they will sue yo anyways however baseless like they did with the CONAN crap
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NAMELESS.ONE, 19 May 2010 @ 11:15am

@17
JUST FOR YOU TAM,
and when you do that in writing it to show emphasis , or did you forget highschool?
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Anonymous Coward, 19 May 2010 @ 11:29am

Re: @16 - make superman films in canada ( 50 year copyright over for superman)
I don't think it works that way. The Superman from 1939 won't enter the public domain until 2033. That's if copyright doesn't get extended again in the next 20 years.
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Anonymous Coward, 19 May 2010 @ 11:31am

Re: Re: @16 - make superman films in canada ( 50 year copyright over for superman)
Other fun stuff: http://goodcomics.comicbookresources.com/2008/03/30/superman-copyright-faq/
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Ccomp5950 (profile), 19 May 2010 @ 11:54am

Re:
http://www.austinchronicle.com/gyrobase/Issue/story?oid=oid%3A78379

The Satellite Home Viewer Improvement act of 1999, staffer added a "Technical Correction" which pretty much redefined work for hire.
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Josef, 19 May 2010 @ 12:23pm

Re: Re: Re: Question
Comboman,

I partially agree with you. A lot of the Superman character was developed by other writers and talent at DC after 1946, but it was in 1947 that Siegel and Shuster tried to reclaim their work. If it had been granted to them then none of this would have been an issue, but the character was already popular enough at the time that DC didn't want to let go.

It's the act of denying the creator his work that entitles the heirs to be compensated. That's a moral judgement btw as I have no idea if it's legal. There is so much dirty dealing by corporations when it comes to copyrights that it's more than likely that this was a case of a company bullying an artist back in '47.
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david_sp (profile), 19 May 2010 @ 3:13pm

I cann't help but wonder...
I've read through the alleged facts in the lawsuit and I cannot help but wonder if the lawsuit against Marc Toberoff is really, in part, to the benefit of the Shuster and Siegel heirs. It appears that he came on the scene to obtain as much of the rights to Superman that he could, by making promises that he could not fulfill. He now has more rights than either of the Siegel or Shuster heirs, which ihmo is unconscionable.

While I don't think that any of the parties in this suit are squeaky clean, I hope that someone like Toberoff would be stopped from taking unfair advantage of people. I found it very interesting that the suit specifically only seeks attorney fees from Toberoff and none of the other parties.
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Robert Warfield, 19 May 2010 @ 6:42pm

Toberoff lawsuit
They should have fried Toberoff with their laser eyes while they still had the rights
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techflaws.org (profile), 20 May 2010 @ 2:02am

So does this mean Superman is finally allowed to fly in "Smallville" (starting to watch S8 this week, but only when I'm bored)?
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John Duncan Yoyo (profile), 20 May 2010 @ 4:47am

Re: Re: Re: Question
The Comics fanboy part of me has no problem with created franchise characters, Superman, Batman, and Mickey Mouse... staying in a special category of corporate ownership as long as they are continued to be used with some frequency by the corporate ownership and the creator/heirs get some sort of continuing compensation. I think that the distribution of said payments would be a nightmare.

Newer comics are less likely to be reprinted due to similar contractual obligations that were created after Seigel and Shuster were granted compensation when Superman: the Motion Picture embarrassed Time Warner into paying S&S something for their creation.

Mickey could have been endangered but Superman and Batman had been continuously produced since their creation.
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Billco (profile), 20 May 2010 @ 9:30pm

Copyright itself is obsolete
I'm not convinced that copyright itself has any merit in today's world. There are millions of "ideas people", dime a dozen, and they all think they're god's gift to humankind. What the world needs is less ideas and more action. It's great that someone invented Superman, but the concept of Superman is old and worn out. Ultimately what drives the content isn't the Superman name, it's the writers, artists, film directors and fans. They're the ones putting real hard work into it. Why should Siegel and Shuster's legacies be skimming benefits when they personally have contributed very little, if anything, to the franchise ?

I think copyright should be modest, maybe 5 years, after which it falls into the public domain. There is no sense in locking ideas away behind a paywall long after the novelty has worn off. There is no competitive edge when the enemy is your own community.
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oort van jeugen, 20 May 2010 @ 11:22pm

Ja isk rein la biern ta? akal ig la riinnes ;)
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Thomas Wrobel, 21 May 2010 @ 6:59am

Life, no less, no more.
"I think copyright should be modest, maybe 5 years, after which it falls into the public domain. There is no sense in locking ideas away behind a paywall long after the novelty has worn off. "

If the novelty wore off, people wouldn't still write about the character would they?

No, copyright should last as long as the author lives...no less, or more, imho.

Under your proposal, any hollywood studio wanting to make a film of a book wouldn't have to pay the author.
They would just wait 5 years.
(and given the time it takes to make a film anyway, thats hardly anything lost to them).
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Nick Kral, 21 May 2010 @ 4:18pm

Actually, Nameless one, copyright in Canada is the duration of the creator's life PLUS 50 years
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Hans Christian Vang, 22 May 2010 @ 12:05pm

Copyright
Who's created the Superman that we know today? Who's invested billions of dollars in the brand and made it a household name?

Not Jerry Siegel. He created an alien who could jump further than a normal human being and who was stronger. Everything that happened to shape and create the mythology of Superman as we know the character today, was done on DC and Warner Brothers' dime - if the fucking creator doesnt like the deal he's given when selling his work, he shouldnt accept it.

Sorry, but if you're going to get something out there, it's gonna happen through a strong corporation - not drawing in your room, in 1935. No fame, no nothing would've come from that - DC is why Siegel and Shuster are known names today, and I agree that DC could've given them a bone, it would've been the right thing to do, but no way will I sympathise with Siegels frail attempt to get the rights to a character, after their employer spent millions building the brand.

Stan Lee gets a million a year from Marvel - wondering why Siegel and Shuster never got a similar deal. That irks me, but what the hell.

You create something, you sell it, the owner owns it. Period. Whether that owner is a legal entity like a corporation or a human being doesnt fucking matter. You don't have a human right to fuck around with other peoples intellectual property. Licence it from the owner or come up with an original thought and fuck around with that instead.

oy vey!
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Jared Welch, 2 Apr 2013 @ 10:54am

I think
Siegel and Shuster's Heirs should indefinitely make money off any Superman product DC/WB produced. But the character as presented in Acton Comics No.1 should enter the Public Domain.
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