COPYRIGHT AND KRYPTONITE: THE FAILINGS OF INTELLECTUAL PROPERTY LAW THROUGH THE EYES OF SUPERMAN Jesse J. Krueger* INTRODUCTION ....................................................................... 229 HISTORY .................................................................................... 230 I. Up, Up and Away!: The Creation of Superman ........ 230 II. Faster than a Speeding Bullet, More Powerful than a Locomotive, Able to Adequately Resolve the Tension Between the Rights of the Publisher and the Author?: History of the Copyright Act ......... 232 III. It’s a Bird! It’s a Plane! It’s a Lawsuit!: History of the Litigation ............................................ 236 ANALYSIS ................................................................................. 241 I. The Man of Tomorrow: The Future of Superman? ........................................................... 241 II. This Looks Like a Job for Superman!: Copyright Law as Kryptonite .............................. 243 CONCLUSION ........................................................................... 248 INTRODUCTION Comic books began as ten-cent guilty pleasures, lining the shelves of gas stations and supermarkets and tempting children with garish colors, fantastical settings, and sometimes-questionable content. While early comic books were primarily horror anthologies, westerns, and funny books, the industry changed dramatically with the publica- tion of Action Comics #1 in 1938, featuring the first appearance of Superman. Superheroes were suddenly the new norm in what has be- come affectionately known as the "Golden Age" of comics. Super- man's first appearance paved the way for other heroes, the likes of * J.D. 2012, Duquesne University School of Law; M.B.A. 2011, Salem Inter- national University; B.A. English and French, Washington & Jefferson College, 2009. 229 230 Duquesne Business Law Journal Vol. 14:2 which the world had never seen before: the mythology-based Wonder Woman; the dark knight detective, Batman; the otherworldly Green Lantern and other notable characters who today form the bedrock of a multi-billion dollar, multi-platform industry. Stories featuring Super- man, Batman, and others appear not only in graphic narratives, but in literature, television, film, and video games; superheroes have spawned an entire subculture, generating billions of dollars a year— all brought about, arguably, by the introduction of Superman. So it shocks the conscience of many to hear that Superman’s crea- tors, Jerry Siegel and Joe Shuster, originally received only $130 for the ownership rights of a character that today is worth billions.1 This Comment will examine the history of the litigation surrounding Su- perman in conjunction with an analysis of ever-evolving American copyright law. Specifically, it will seek to illuminate the inadequacy of current copyright law in regards to graphic characters, and explain how various provisions of the different iterations of the Copyright Act work counter to each other and undermine the intent of American laws regarding certain types of intellectual property. HISTORY I. Up, Up and Away!: The Creation of Superman The story of Superman begins, fittingly, in a newspaper office in the early 1930s.2 The newspaper office was that of Glenville High School 1. It is difficult to accurately estimate the true worth of the Superman character or the revenue brought in by DC Comics due to its ownership by Time-Warner, who does not report revenue for its subsidiaries independently. However, the immense value of the character cannot be disputed; a rare copy of Superman’s first appear- ance recently surfaced and was sold for $1,500,000 dollars-- a fairly significant gain over its original price of 10 cents. CNN Wire Staff, rare comic of Superman debut fetches $1.5 million, http://articles.cnn.com/2010-03-30/entertainment/superman. comic_1_action-comics-comic-book-superman-book?_s=PM:SHOWBIZ (last ac- cessed September 21, 2011.). According to BoxOffice Mojo.com, the Superman character has achieved an ad- justed gross of $1,192,909,700 solely through his five feature films. Box Office Mojo, http://www.boxofficemojo.com/franchises/chart/?id=superman.htm (last ac- cessed September 19, 2011). To accurately value the character, one would also have to consider his print revenue, revenue from merchandising, advertising, televi- sion licenses, video game licenses and many other revenue streams. 2. Siegel v. Warner Bros. Entm’t, 542 F. Supp. 2d 1098, 1102 (C.D. Cal 2008) [hereinafter Siegel I]. See also Daniels, Les, Superman: The Complete History: The 2012 Copyright and Kryptonite 231 in Cleveland, Ohio, wherein students Jerome Siegel and Joseph Shus- ter (“Creators”), after bonding over a shared love of comic books and science fiction, began discussing their own creation.3 The two created the first Superman, although it bore virtually no resemblance to the Superman we know today; the original version was a bald villain with mind-control powers, a far cry from the icon he was to become.4 However, the pair later re-tooled Superman into his second iteration, a muscular hero dressed in street clothes along the lines of popular cha- racters like Flash Gordon and Tarzan.5 Though they received an offer for publication that was later rescinded, the pair continued to change the character and the format in which they told his story, eventually settling on the most common graphic narrative of the day, the news- paper comic script. Siegel drafted several scripts for a new Superman character, which would evolve to become the now-familiar symbol of truth, justice, and the American way.6 This version of the character was an alien, sent to Earth as an infant from an unnamed planet facing destruction.7 He had superhuman powers including strength, the ability to leap 1/8th of a mile, hurdle over a 20 story building, and run faster than an express train—all of this in addition to an alter-ego, Clark Kent.8 Shuster then set about illustrating the character, designing the first versions of the now fam- ous cape and Superman symbol; he also originated distinctive designs for the Clark Kent persona, namely his signature curl and eyeglasses.9 While the pair was initially unable to find a publisher for their Su- perman scripts, they did achieve some success with other comic strip Life and Times of the Man in Steel (2d ed., Chronicle Books 2004) (providing a more complete account of Superman’s creation). 3. Siegel I, at 1102. 4. Id. This version of Superman appeared in a short story, as opposed to a graphic narrative. Id. 5. Id. at 1103. 6. Siegel I, 542 F. Supp. 2d at 1103. “Truth, justice and the American way” is popular catchphrase describing Superman’s goals and philosophies. The phrase was actually coined by the 1948 Superman radio show, but gained its popularity with the television series which ran in the 1950s. Lundegaard, Erik, New York Times, Edito- rials, International Herald Tribune, Truth, justice and (fill in the blank), http://www.nytimes.com/2006/06/30/opinion/30iht-ederik.2093103.html (last ac- cessed Nov. 4, 2011). 7. Siegel I, 542 F. Supp. 2d at 1104. 8. Id. 9. Id. 232 Duquesne Business Law Journal Vol. 14:2 properties, most notably “Slam Bradley” and “The Spy,”10 both of which were acquired by Detective Comics in 1937. Building on the success of those two properties, Siegel and Shuster finalized a deal with Detective Comics to provide additional strips for the next two years.11 As part of this deal, Siegel and Shuster also agreed to various work-for-hire provisions requiring any new or additional features created by Siegel and Shuster to be submitted to Detective Comics, which would then have to a sixty-day option to publish the material.12 When Detective Comics later decided to publish a new series, Ac- tion Comics, they proposed publishing a revised version of Siegel and Shuster’s Superman strip as the leading.13 Siegel and Shuster received a check for $130 dollars, the standard pay for a 13-page story, and signed an agreement assigning to Detective Comics “all [the] good will attached … and exclusive right[s]” to the Superman character “to have and to hold forever.”14 Subsequently, under the careful direction of Detective Comics, Superman became a pop culture phenomenon, the subject of hundreds of merchandising licenses, and a veritable cash-cow for Detective Comics.15 II. Faster than a Speeding Bullet, More Powerful than a Lo- comotive, Able to Adequately Resolve the Tension Between the Rights of the Publisher and the Author?: History of the Copyright Act Congress first addressed the issue of intellectual property rights as far back as 1790, preserving the provisions of the original Statute of 10. Id. at 1106. 11. Siegel I, 542 F. Supp. 2d at 1106. 12. Id. The work-for-hire provisions mandated that all products and work done by Siegel and Shuster for Detective Comics during their employment “shall be and become the sole and exclusive property of [Detective Comics] and [that Detective Comics] shall be deemed the sole creator thereof. Id. 13. Id. The required revisions were primarily for the sake of formatting. Detec- tive Comic’s publishing format required eight panels per page and 13 pages per story. Siegel and Shuster’s original strip was altered to accommodate those re- quirements although the substance of the story was unchanged. Id. at 1106-7. 14. Siegel I, 542 F. Supp. 2d at 1107. 15. Id. at 1111. Superman was licensed to feature in a “variety of media, includ- ing but not limited to radio, novels, live theatrical productions, merchandise