We've been covering the looming boatload of copyright termination cases because it's going to make for an interesting spectacle in the copyright realm. As you may or may not know, current copyright law in the US allows the original creator of a work the right to reclaim the copyright at a certain point -- a right that cannot be waived. There was, however, one exception put into copyright law at the urging of certain industries: if a work was declared a "work for hire," then it would not be subject to termination rights. We've already seen one big battle over termination rights with Superman and a second battle has been focused on the heirs of famed comicbook artist Jack Kriby, who sent out a flurry of copyright termination notices back in 2009.
However, in the first lawsuit concerning the Kirby family's attempt to reclaim the rights to the Incredible Hulk and the X-Men, Marvel has prevailed. As Marvel (now owned by Disney) had argued, the judge found that Kirby was merely a Marvel workerbee and, thus, the characters he created were done under a work-for-hire basis. Of course, this case is far from over and Kirby's heirs intend to appeal. No matter what, this case will be watched closely, because an awful lot of artists can reclaim their works in 2013... and these legal disputes will determine what's really allowed.
We've been following the various legal battles over copyright termination rights with great interest, as it's a pretty big meteor heading towards various content companies -- especially record labels (why do you think Bronfman wants to sell Warner Music?) and movie studios. If you're unfamiliar with the deal, it's a bit complex and down in the weeds, but a (greatly) simplified version is that current copyright law lets the original creators of works have a termination right in those works, meaning that after a certain period of time, they can "reclaim" those works, and basically take back the copyright if they originally had assigned it to someone else (such as a big company). This right cannot be negotiated away. There is a big exception, however, which is that it doesn't apply to "works for hire" (and a few other exceptions which we won't get into). Of course, the exceptions were decided somewhat randomly, basically by whose lobbyists were the loudest at the time.
For years, the record labels regretted not having label musicians included as "works-for-hire," eventually leading to the famous case of a staffer sneaking language into an unrelated bill in the middle of the night, which extended such rules to musicians. That plan almost worked until musicians found out about it, freaked out, and had the law very quickly rolled back. I tend to think that termination rights are silly and really don't make that much sense to me. However, they're a symptom of the real problem: which is that copyright law is too damn long. Thus given the existing length of copyright, then I can see that termination rights are better than no such rights, because at least it gets the copyright back to the artist (or the artist's heirs), and if someone has to have such unnecessary monopoly protections, it might as well be the artist.
The issue is that an awful lot of these terminations are about to come due, and the entertainment industry is, to put it mildly, freaking out. The big case to follow has been the one trying to terminate the rights to Superman by the heirs of Superman's creators Jerry Siegel and Joe Shuster. In 2009, the court sided with the estate of Jerry Siegel, deciding that Superman wasn't a work for hire, and thus the termination rights existed. However, the court did a bit of Solomonic baby-splicing, in that it made it clear that the terminations could only cover certain parts of Superman. However, that's apparently presenting something of a problem for the heirs (and the lawyer, Marc Toberoff, who many consider to be the main driving force behind these terminations, and who had set up a business to exploit such "reclaimed" rights). So, they're appealing, to try to get even more rights. As THREsq explains:
Throughout years of legal maneuvers (including Warners' still-pending lawsuit against the heirs' lawyer Marc Toberoff for allegedly interfering with contracts), it has never been determined whether the Shusters and Siegels can take back other key elements of the Superman mythology, such as Lex Luthor and Kryptonite.
That makes it difficult for Toberoff and his clients to peddle Superman rights to another studio (and pressure Warners into a settlement). So he's now appealing the limited grant of rights to the 9th Circuit, hoping that the appeals court will finally determine who owns what.
"It's cutting to the chase," Toberoff us, adding "it is widely recognized that Judge Larson's rulings on summary judgment largely favored the Siegels in upholding the validity of their termination as to Action Comics No.1, containing the core Superman format and characters."
Of course, the better question is why Superman isn't in the public domain by now.
Earlier this year, we wrote about the odd decision of Warner Bros. studio to personally sue Marc Toberoff, the lawyer who successfully represented the heirs of the creators of Superman to win back some of their copyright, by using copyright's termination rules. Toberoff is making a career of this, and has been helping numerous other content creators start the process of reclaiming rights using the termination process -- which makes him somewhat... disliked in the entertainment industry. Still, to sue him personally seemed quite extreme. As we noted at the time, the lawsuit seemed to be based on the idea that Toberoff is a jerk and a savvy business person. As we noted at the time, that doesn't appear to be illegal.
Not surprisingly, Toberoff agrees, and he's filed to dismiss the lawsuit under California's anti-SLAPP law (one of the most comprehensive anti-SLAPP state laws), claiming that the entire lawsuit is just an attempt to shut him up. Matthew Belloni, at the link above, isn't convinced this is a real SLAPP situation, but notes that it could make the case a lot more interesting, as Warner Bros., will likely have to prove its case much faster than planned. And, if Toberoff wins, he could also win legal fees and open up a stronger case for Toberoff to file a countersuit for "malicious prosecution." If this goes according to Toberoff's plan, Warner Bros. might regret this particular lawsuit even more than they regret losing some of the rights to Superman...
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.
