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Faster Than a Speeding Bullet! DePaul Journal of Art, Technology & Intellectual Property Law Volume 20 Issue 2 Spring 2010 Article 6 Faster than a Speeding Bullet! More Powerful than a Locomotive! Worth the Paper He's Drawn On? An Examination of the Practical & Economic Implications of the Recent District Court Decisions Involving the Superman Copyright M. Brian Bacher Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation M. B. Bacher, Faster than a Speeding Bullet! More Powerful than a Locomotive! Worth the Paper He's Drawn On? An Examination of the Practical & Economic Implications of the Recent District Court Decisions Involving the Superman Copyright, 20 DePaul J. Art, Tech. & Intell. Prop. L. 393 (2010) Available at: https://via.library.depaul.edu/jatip/vol20/iss2/6 This Seminar Articles is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Bacher: Faster than a Speeding Bullet! More Powerful than a Locomotive! W FASTER THAN A SPEEDING BULLET! MORE POWERFUL THAN A LOCOMOTIVE! WORTH THE PAPER HE'S DRAWN ON? AN EXAMINATION OF THE PRACTICAL & ECONOMIC IMPLICATIONS OF THE RECENT DISTRICT COURT DECISIONS INVOLVING THE SUPERMAN COPYRIGHT "After seventy years, Jerome Siegel's heirs regain what he granted so long ago - the copyright in the Superman material that was published in Action Comics, Vol. 1."1 With these words, Judge Stephen G. Larson, writing for the United States District Court for the Central District of California, announced a decisive and hard-fought victory for the daughter and widow of one of the co-creators of perhaps the most well-know comic book character ever created. However, as the subsequent eighteen-plus months of continuing proceedings have illustrated, the scope of that victory, and the extent to which the Siegel Heirs are entitled to financial recovery, is anything but clear. This paper will examine the relevant decisions, and the legal basis for the Siegel Heirs' victory and corresponding claims for economic recovery. While an authoritative accounting of the proper amount of such recovery is beyond the scope of this paper, it will attempt to explain how any recovery must be considered in light of competing rights of the defendants, including those arising under federal trademark law, and those stemming from validly obtained copyrights in derivative works. This paper will show that, due to the specific circumstances surrounding the exploitation of the Superman material over the last seven decades, and the limited nature of the reclaimed copyright, the Siegel Heirs are unlikely to actually recognize significantly more than a moral victory. Section I will outline some of the unique history of Superman's creation, and the decades of litigation and negotiation that lead up to the case at hand. Section II will address the extent of the Superman copyright actually reclaimed by the Siegel Heirs, and its relationship to the valid copyrights still held by DC Comics, 1. Siegel v. Warner Bros. Entm't, 542 F. Supp. 2d 1098, 1145 (C.D. Cal. 2008) [hereinafter Siegel 1]. Published by Via Sapientiae, 2016 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 20, Iss. 2 [2016], Art. 6 394 DEPA UL J ART, TECH. & IP LA W [Vol. XX:2 including derivative works created while DC Comics owned the Superman material. Section III will examine the overlap of federal copyright and trademark laws, and how trademark law may effectively limit much of the Siegel Heirs' ability to commercially exploit their newly reclaimed copyrights. Finally, Section IV will present a summary and conclusion. I. SECRET ORIGIN: CREATION AND LITIGATION The story of how the Superman character came to be entails nearly as much drama as the character's own fictional origin. The subsequent negotiations and litigation over the ownership in the character, spanning more than half a century, were as pitched and hard-fought as any battle the Man of Steel ever faced. This section will briefly summarize both points. A. The Creation of "Superman" In 1932, Jerome Siegel and Joseph Shuster were teenagers in Cleveland, Ohio; Siegel was an aspiring writer and Shuster was an aspiring artist.2 Recognizing a shared appreciation for science fiction and comics, the two began collaborating on projects, including, in January 1933, an independently published short story titled, The Reign of the Superman. They would go on to develop a heroic comic book version of "Superman" in the form of "a strong (but not extraordinarily so) human, similar to Flash Gordon or Tarzan, who combated crime."4 Following a failed attempt at publication, they continued to tinker with the character and the format, ultimately arriving at a newspaper comic strip version of "a character who is sent as an infant to Earth aboard a space ship from an unnamed distant planet (that had been destroyed by old age) who, upon becoming an adult, uses his superhuman powers (gained from the fact that his alien heritage made him millions of years more evolved than ordinary humans) to perform daring feats for the public good."5 This new Superman character's powers and 2. Id. at 1102. 3. Id. 4. Id. at 1103. 5. Id. at 1103-04. There is some ambiguity regarding the exact date of the https://via.library.depaul.edu/jatip/vol20/iss2/6 2 Bacher: Faster than a Speeding Bullet! More Powerful than a Locomotive! W 2010] SUPERMAN & COPYRIGHT abilities were much more extraordinary and fantastic than the original "strong man" design, and included "[s]uperhuman strength; the ability to leap 1/8th of a mile, hurdle a twenty-story building, and run faster than an express train; and nothing less than a bursting shell could penetrate his skin."6 Shuster then conceived of the costume for Siegel's superhero: "a cape and tight-fitting leotard with briefs, an 'S'emblazoned on an inverted triangular crest on his chest, and boots as footwear."7 Superman's alter ego, mild-mannered Clark Kent, was depicted "in a nondescript suit, wearing black-rimmed glasses, combed black hair, and sporting a fedora."8 Siegel and Shuster shopped the character for a number of years to numerous publishers but were unsuccessful until December 4, 1937, when they entered into an agreement with Detective Comics, agreeing to furnish some of their existing comic strips for the next two years, and further agreeing "that all of these products and work done by [them] for [Detective Comics] during said period of employment shall be and become the sole and exclusive property of [Detective Comics,] and [that Detective Comics] shall be deemed the sole creator thereof. ."' In response to Detective Comics' desire to publish the Superman strip in comic book form, on or around February 16, 1938, the pair re-formatted and resubmitted their Superman material to accommodate the comic book layout.1" On March 1, 1938, prior to the printing of the first issue of Action Comics, Detective Comics sent Siegel a check for $130 (representing the per-page rate for the thirteen-page Superman comic book story) and enclosed with it a written agreement that assigned to Detective Comics "all [the] good will attached ...and exclusive right[s]" to Superman "to have and hold forever."" new Superman's creation (sometime in 1934-35), as well as the substantiality of the contributions of a third person, illustrator Russel Keaton. See Siegel v. Warner Bros. Entm't, 658 F. Supp. 2d 1036, 1042-43 (C.D. Cal. 2009) [hereinafter Siegel III]. 6. Siegel I, 542 F. Supp. 2d at 1104. 7. Id. 8. Id. 9. Id.at 1105-06. 10. Id. at 1106-07. 11. Id. Published by Via Sapientiae, 2016 3 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 20, Iss. 2 [2016], Art. 6 DEPAUL J. ART, TECH. & IP LAW [Vol. XX:2 Siegel and Shuster signed and returned the agreement to Detective Comics, and this world-wide grant in ownership rights was later confirmed in a September 22, 1938, employment agreement in which Siegel and Shuster acknowledged that Detective Comics 12 was "the exclusive owner[ ]" of Superman. The first full Superman story was published by Detective Comics on April 18, 1938, as part of Action Comics, Vol. 1.'3 The Superman character has evolved in subsequent works since that initial depiction, including "decades of new material to further define, update, and develop the character (such as his origins, his relationships, and his powers and weaknesses) in an ongoing flow of new exploits and supporting characters, resulting in the creation of an entire fictional Superman 'universe.' B. Subsequent Litigation Over the ensuing years, Siegel and Shuster continued to produce new Superman material for Detective Comics, but as Superman's popularity grew, Siegel and Shuster's relationship with the publisher deteriorated, prompting multiple lawsuits.15 In 1947, Siegel and Shuster brought an action against Detective Comics' successor in interest, "seeking, among other things, to annul and rescind their previous agreements with Detective Comics assigning their ownership rights in Superman as void for lack of mutuality and consideration." 6 The parties eventually settled this suit and signed a stipulation in May of 1948, "whereby in exchange for the payment of over $94,000 to Siegel and Shuster, the parties reiterated the referee's earlier finding that Detective Comics owned all rights to Superman. 1' 7 In 1969, Siegel and Shuster again filed suit, this time in federal court, "seeking a declaration that they, not Detective Comics' successor (National Periodical Publications, Inc.), were the owners of the renewal rights to the 12.
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