Who Owns Superman - Part VI

(Note: All references to DC may also refer to its parent companies, Warner Bros. or Time Warner. Due to the complications of corporate ownership, I will attempt to simplify things by referring to DC only unless necessary.)

This is my final post on the battle for Superman. Part I, II, III, IV, and V can be found by clicking on the numbers.

After settlement talks broke down between the Siegel heirs and DC, the Siegel heirs went to court to reclaim ownership of Superman. Initially, they met with success in their attempts. In 2008, a California federal district court ruled they had reclaimed Siegel’s copyright interest in Superman and were a co-owner.[1] Later, the court limited the ruling to only apply to

(1) Action Comics No. 1 (subject to the limitations set forth in the Court's previous Order); (2) Action Comics No. 4; (3) Superman No. 1, pages three through six, and (4) the initial two weeks' worth of Superman daily newspaper strips. Ownership in the remainder of the Superman material at issue that was published from 1938 to 1943 remains solely with defendants.[2]

            The family’s victory, however, would be short-lived. DC appealed the district court’s ruling to the Ninth Circuit, and in 2013 the Ninth Circuit ruled the 2001 agreement, discussed in the last post, was binding on the Siegel heirs, and therefore, DC retained ownership over Superman.[3] The court found, as a matter of California contract law, there was sufficient, definite terms outlining substantive payments to Siegel’s heirs for there to be an agreed-upon contract.[4] The case was remanded to the district court, which upheld the ruling.[5] After the Ninth Circuit sent the case back to the district court, the Siegel heirs argued for the first time that Joanne Siegel had rescinded the 2001 agreement in written letters to DC, and DC did not object to the rescission.[6] The district court and the Ninth Circuit both rejected the newly raised argument because Joanne Siegel had passed away, and if the court allowed the Siegel heirs to raise these claims now the litigation would start all over again.[7]

            As I mentioned in my last post, Shuster passed away in 1992, and he left behind his sister and brother as heirs. In 1992, they signed an agreement once again granting all of Shuster’s rights in Superman to DC. After another change in the law allowed Shuster’s estate to seek termination of the transfer of copyright, his family sought to do so, and in 2012, the Ninth Circuit ruled the 1992 agreement between DC and Shuster’s heirs gave DC ownership of Shuster’s interest in Superman.[8]

In the last post, you may have noticed I mentioned the Siegel heirs’ attorney, Marc Toberoff. Running alongside the dispute between the Siegel heirs and DC, was another dispute between DC and Toberoff. During the litigation, documents were taken from Toberoff’s office and anonymously delivered to DC.[9] These documents reportedly showed Toberoff approached the heirs while they were negotiating with DC, and offered to buy their rights to Superman.[10] Shortly after the Siegel heirs stopped negotiating with DC, they signed an agreement with Toberoff to market and exploit their rights to Superman.[11] DC sued Toberoff and the related business entities involved in the deal for interfering with contractual relations between DC and the Siegel and Shuster heirs, amongst other claims.[12]  A court ruled DC waited too long to bring the interference with contractual relations claims and was barred by statute of limitations.[13]

            The first litigation involving the ownership of Superman occurred in 1947 and was resolved via a settlement. After another round of litigation, it looked like the ownership of Superman was settled in 1974. However, a change in the law gave Siegel and Shuster’s heirs another chance to reclaim their creation. In 2016, it appears as if the dispute has finally been resolved. DC owns the rights to Superman. Along the way, however, Siegel and Shuster, and their heirs, received substantive payments from DC.

 Most people would agree Siegel and Shuster made a bad business deal when they initially transferred their rights to Superman for $130 in 1938. However, that was not the end of the story. They continued working on, and getting paid for, Superman stories for a decade thereafter. During their lifetimes, they sued DC twice. After the first lawsuit, they received a settlement payment. After the second, DC decided to pay them a bonus and annual payments, which were extended to their heirs. Their heirs and estates sued DC again after they passed away.  

Personally, I’ve wavered in my thoughts on this issue. I used to believe, as many do, that Siegel and Shuster were screwed over by DC. I’ve also thought DC was always within their legal rights in everything they did. The true answer lies somewhere in the middle. DC could have, and should have, responded to and treated Siegel and Shuster better during their lifetimes when they fell on hard times, even though DC had no legal obligation to do so. Also, even though they made a bad deal initially, Siegel and Shuster had plenty of opportunities to remedy the situation. Eventually, after years of litigation, I hope both sides realize that Superman would not have enjoyed as much success as he did, and would not be as valuable as he is, without the other side. Barring any changes in the law, it appears the battle over the rights to Superman has ended.

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[1] Siegel, 542 F. Supp.2d at 1145.

[2] Siegel v. Warner Bros. Ent., Inc., 658 F.Supp.2d 1036, 1095 (C.D. Cal. 2009); 504 F. App’x 586.

[3] Larson v. Warner Bros. Ent., Inc., No. 11-55863, at page 3, (9th Cir. Jan. 10, 2013).

[4] Id. at 4-5.

[5] Larson v. Warner Bros. Ent., Inc., No. 2:04-cv-08776, at page 2, (C.D. Cal. April 18, 2013).

[6] Larson v. Warner Bros. Ent., Inc., No. 13-56243 at page 6 (9th Cir. Feb. 10, 2016).

[7] Id.

[8] DC Comics v. Pacific Pictures Corp., No. 10-3633, at  13 (C.D. Cal. Oct. 17, 2012).

[9] Pac. Pictures Corp. v. U.S. Dist. Court for Cent. Dist. Of Cal., L.A., 679 F.3d 1121, 1123-24 (9^th Cir. 2012).

[10] DC Comics v. Pac. Pictures Corp., 938 F.Supp.2d 941, 946. (C.D. Cal. 2013).

[11] Id. at 953.

[12] Id. at 947.

[13] Id. at 955.

Who Owns Superman? - Part V

 This is the fifth in my series of posts on the fight over the rights to Superman. You can find the previous posts here, here, here, and here.   

(Note: All references to DC may also refer to its parent companies, Warner Bros. or Time Warner. Due to the complications of corporate ownership, I will attempt to simplify things by referring to DC only unless necessary.)

The battle for Superman got interesting in the 2000s. As I mentioned in the last post, after Siegel and Shuster lost their lawsuit in the 1970s it looked as if the question of who owned Superman was answered. However, changes to the Copyright Act allowing authors to terminate previous transfers of copyright ownership gave Siegel's heirs – and after another change in the law, Shuster’s estate – another opportunity to attempt to regain control of Superman.

            In 1997, Siegel’s heirs, his widow and daughter, sent notices of termination to DC in an attempt to terminate the transfer of numerous works relating to Superman.[1] The termination date was listed as April 16, 1999.[2] As a court noted, “A flurry of settlement discussions between the parties quickly ensued, but just as quickly fizzled out. Nearly two years then passed without much discussion between the parties.”[3]

            The day before the termination date DC sent a letter to Siegel’s attorney denying “‘the validity and scope’ of the termination notices.”[4] The parties then reentered into settlement negotiations and signed an agreement to delay taking action on the termination notices as long as the agreement was in effect and the parties were attempting to resolve the matter.[5]

            In October 2001, the attorney for the Siegel heirs sent a letter to DC setting forth an outline of a settlement agreement the parties had reached. Terms of the settlement, which also included rights to Superboy, called for the Siegel heirs to receive “a $2 million advance, a $1 million non-recoupable signing bonus, forgiveness of a previous $250,000 advance, a guarantee of $500,000 per year for 10 years, a 6% royalty of gross revenues, and various other royalties.”[6]

A week later, DC’s general counsel sent back “‘a more fulsome outline’” of what DC believed they had agreed to and stated they were also working on a more detailed draft of the agreement.[7] In February 2002, DC’s outside counsel sent over a 56-page draft agreement for the Siegel heirs to review.[8] This prompted Siegel’s widow to write a letter to Time Warner’s chief operating officer in May 2002 in which she said she felt “‘stabbed in the back’” by “‘new, outrageous demands.’”[9] She concluded by stating that after four years of negotiating, the parties had failed to reach a deal, and it was unlikely there would ever be a deal based on the contract sent to them.[10] Siegel’s letter prompted Time Warner’s CEO to respond that they didn’t expect the agreement to be the final one and negotiations would continue on it, the company felt the main points previously agreed to were in the agreement, and DC still believed an agreement could be reached based upon the previously agreed to negotiations.[11]

            The Siegel heirs rejected a redrafted agreement submitted to them by their attorneys in September 2002, fired their attorneys, and sent a letter to DC’s president and publisher ending all negotiations with DC and its parent companies over the rights to Superman.[12] In October 2004, the Siegel heirs filed a lawsuit seeking to enforce their termination rights to Superman with help from their new attorney, Marc Toberoff.[13]

            In our next post, we’ll discuss the most recent lawsuits over the rights to Superman.

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[1] Siegel v. Warner Bros. Ent., Inc., 542 F.Supp.2d 1098, 1114 (C.D. Cal. 2008).

[2] Id.

[3] Id.

[4] Id.

[5] Id. at 1115.

[6] Larson v. Warner Bros. Ent., Inc., No. 2:04-cv-08776, at page 9, (C.D. Cal. April 18, 2013).

[7] Siegel, 542 F. Supp.2d at 1114.

[8] Id.

[9] Id.

[10] Id. at 1115-16.

[11] Id. at 1116.

[12] Id.

[13] Id.

Who Owns Superman? - Part IV

    This is the fourth in my series of posts on the fight over the rights to Superman. You can find the previous posts here, here, and here.     

           After the lawsuits discussed in the previous post, it appeared the litigation over the rights to Superman had ended. However, two notable events subsequently occurred: 1) DC’s parent company entered into agreements with Siegel and Shuster to pay them for the remainder of their lives, and 2) U.S. Copyright law changed allowing those who transferred the rights to their copyrights to terminate the transaction after a set amount of time passed (the timing varies depending on when the work was created and assigned).[1]

Following the ’70s litigation, the New York Times featured a story depicting the current living conditions of the creators of Superman.[2] The story described them as nearly destitute and struggling to get by while their creation had earned millions for DC.[3]  In the article, an executive vice president of Warner Communications, the parent company of DC, said that even though Warner did not have a legal obligation to do anything for Siegel and Shuster, there was a moral obligation, and he said the company intended to provide them with an annual stipend.[4]

Following the article, and other ones like it, on Dec. 23, 1975, DC entered into another agreement with Siegel and Shuster.[5] Once again, Siegel and Shuster acknowledged that DC owned all rights to Superman.[6] In return, DC paid them “modest annual payments for the remainder of their lives; provided them medical insurance under the plan for its employees; and credited them as the ‘creators of Superman.’”[7] The agreement gave each a lump sum of $17,500 and annual stipends of $20,000.[8] It was later raised to $30,000 per year, and they also received a $15,000 bonus after the success of Superman: The Movie.[9]

The agreement stated that DC/WB was under no legal obligation to provide them with these payments. However, they were doing so because of their past contributions to the company and their current circumstances.[10] The agreement also stated DC would stop making the payments if either Siegel or Shuster, or someone on their behalf, asserted any rights to Superman.[11]

The agreement also provided Siegel’s spouse with monthly payments for her life if Siegel died before Dec. 31, 1985. During the term of the agreement, DC “increased the amount of the annual payments, and on at least two occasions paid the pair special bonuses.”[12] DC later amended the agreement with Siegel providing that his wife would continue to get his benefits if he predeceased her at any time.[13]

After Shuster died in 1992, DC increased the annual payments made to his sister to $25,000 per year, which she shared with her brother, and it paid all of Shuster’s outstanding debt.[14] Shuster’s sister and brother entered an agreement on October 2, 1992 confirming the above and regranting all of “Shuster’s rights to DC and vowed never to assert a claim to such rights.”[15] DC also paid her bonuses from time to time over the next few years ranging from $10,000 to $25,000.[16]

 All told, DC paid the Siegels and Shusters more than $4 million under the 1975 agreement, as a later court found.[17]

During the same time as the 1975 agreement was being signed, Congress was revamping the Copyright Act. In 1976, a new Copyright Act was passed. Notably, it extended the duration of copyright terms and eliminated the copyright renewal term. Most important to our discussion here, it also gave artists the ability to terminate any previous transfers of their rights to their creations executed before January 1, 1978,[18] which was later extended to heirs in the ’90s.[19] However, the termination provision would not apply to works made for hire.[20]

Had the Second Circuit upheld the decision that Superman was a work made for hire, the litigation between the DC and Superman’s creators would have ended. However, the court’s ruling that Superman was created by Siegel and Shuster and the change in copyright law opened the door for more litigation. We’ll discuss these attempts to terminate the transfer of Superman’s rights in the next post.

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[1] See 17 U.S.C. §304(c).

[2] Mary Breasted, Superman’s Creators, Nearly Destitute, Invoke His Spirit, N.Y. TIMES, Nov. 22, 1975, http://www.nytimes.com/1975/11/22/archives/supermans-creators-nearly-destitute-invoke-his-spirit.html?_r=0 (last visited December 12, 2016).

[3] Id.

[4] Id.

[5] Siegel v. Warner Bros. Entertainment, Inc., 542 F.Supp.2d 1098, 1113 (C.D. Cal. 2008).

[6] Id.

[7] Id.

[8] DC Comics v. Pacific Pictures Corp., No. 10-3633, at  2 (C.D. Cal. Oct. 17, 2012); Bruce Lambert, Joseph Shuster, Cartoonist, Dies; Co-Creator of Superman Was 78, N.Y. Times, Aug. 3, 1992, http://www.nytimes.com/1992/08/03/arts/joseph-shuster-cartoonist-dies-co-creator-of-superman-was-78.html (last visited December 13, 2016).

[9] Bruce Lambert, Joseph Shuster, Cartoonist, Dies; Co-Creator of Superman Was 78, N.Y. Times, Aug. 3, 1992, http://www.nytimes.com/1992/08/03/arts/joseph-shuster-cartoonist-dies-co-creator-of-superman-was-78.html (last visited December 13, 2016).

[10] Siegel, 542 F. Supp.2d at 1113.

[11] Id.

[12] Id.

[13] Id.

[14] DC Comics v. Pacific Pictures Corp., No. 10-3633, at  3.

[15] Id. at 4.

[16] Id. at 5.

[17] Id. at 3.

[18] See 17 U.S.C. §304(c).

[19] See 17 U.S.C. §304(d).

[20] Id.

Who Owns Superman? - Part III

            This is the third in my series of posts on the fight over the rights to Superman. You can find posts one and two here and here.

            In the late 1960s and mid-1970s, Siegel and Shuster and Detective Comics again went to court over the ownership rights of Superman. At issue between the parties were the copyright renewal rights to Superman. Before I dive in to the cases, I need to provide a brief overview of relevant copyright law at the time.

            At the time of Superman’s creation and at the time of the litigation, U.S. copyright law was governed by the Copyright Act of 1909. Unlike today where the full term of copyright protection is granted upon completion of a work, the original term of copyright protection was for 28 years from the date of publication.[1] The term of protection could be extended for an additional 28 years if a notice of renewal was filed with the copyright office.[2] The applicability of the work for hire doctrine also was different than today (see here for my previous discussion of the work made for hire doctrine). Even though the work for hire doctrine was mentioned in the Copyright Act, there was no guidance provided.[3] Instead, courts applied various tests to determine whether an employee-employer relationship existed thereby making something a work made for hire.

            After agreeing to settle the previous case over Superman and granting the rights to DC, Siegel and Shuster used the expiration of Superman’s initial copyright term and upcoming copyright renewal term in another attempt to regain control of the character they created. They filed their case in federal court in New York in 1969 seeking a declaration that they did not transfer the copyright renewal rights to DC.[4]

            DC argued Siegel and Shuster had assigned the renewal rights to DC in the various agreements they had signed over the years and while settling the previous lawsuit.[5] DC also argued Superman was a work for hire and ownership of the character belonged to DC.[6]

            The court ruled Siegel and Shuster were prevented from arguing many of their claims because of the previous settlement agreement.[7] It also ruled the language of the settlement agreement seemed to clearly state that Siegel and Shuster had transferred all ownership rights to DC, including the renewal rights.[8] Furthermore, the court ruled Superman was a work for hire because DC had instructed Siegel and Shuster on the revision and expansion of the Superman story published in Action Comics #1.[9]   

             On appeal, the Second Circuit court of appeals found the lower court had properly ruled that Siegel and Shuster were barred from relitigating the ownership of Superman due to the state court judgment in the 1948 case, and it found the lower court was correct in finding that the judgment and other agreements between the parties had transferred the copyright renewal rights to DC.[10] However, the Second Circuit did overturn the lower courts finding that Superman was a work for hire.[11]

At the time, it appeared the fight over Superman was over. Siegel and Shuster could not regain Superman through his renewal rights. However, a change in copyright law in 1976 will give them, and their heirs, another opportunity to try and take back Superman, which we’ll begin discussing next time.

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[1] See Copyright Act of 1909, § 23, http://www.copyright.gov/history/1909act.pdf (last visisted Nov. 11, 2016).

[2] Id.

[3] Id.

[4] Siegel v. Time Warner, Inc., 496 F.Supp.2d 1111, 1119 (C.D. Cal. 2007).

[5] Siegel v. National Periodical Publications, Inc., 364 F.Supp. 1032, 1035 (S.D.N.Y. 1973).

[6] Id.

[7] Id. at 1036.

[8] Id. at 1037

[9] Id. at 1036.

[10] Siegel v. National Periodical Publicatoins, Inc., 508 F.2d 909, 912-14 (2nd Cir. 1974).

[11] Id. at 914.

Who Owns Superman? - Part II

            In this second part of my Who Owns Superman? series (you can find the first post here), I am going to briefly discuss the first lawsuit over the ownership rights to Superman.

            Before I get to the lawsuit, I need to summarize another related dispute between Siegel and Shuster and Detective Comics brewing at around the same time. As I mentioned in the previous post, Siegel and Shuster signed an agreement giving DC a right of first refusal to new stories they developed.[1] Around December 1938 and in December 1940, Siegel submitted detailed pitches for a Superboy comic.[2] In both cases, DC declined to publish it.[3] However, in 1944 while Siegel was stationed abroad during WWII, DC published a Superboy comic strip without his knowledge or consent.[4] It also obtained a copyright registration in all materials in the magazine containing the Superboy strip.[5]

            In 1947, Siegel and Shuster filed a lawsuit in New York against National Periodical Publications, the successor of DC. At issue in the case was whether the original agreement assigning Superman to DC was valid and whether DC violated Siegel’s rights by publishing Superboy comics.[6]

            In the case, Siegel and Shuster argued their previous agreements with DC should be “void for lack of mutuality and consideration.”[7] In effect, they argued the compensation DC gave them for Superman was inadequate, and it rendered the agreement void. They also raised a whole host of arguments relating to DC’s publication of Superboy without Siegel’s knowledge or consent, and its attribution of the character to him.[8]  

            The court found the original assignment of the rights to Superman to DC “was valid and supported by consideration, and that, therefore, Detective was the exclusive owner of ‘all’ the rights to Superman.”[9] The court also found that Superboy was Siegel’s creation and a distinct work for Superman, and due to DC’s failure to exercise its right of first refusal, Superboy belonged to Siegel.[10] Therefore, DC had “acted illegally.”[11]

            Both sides filed an appeal, but while it was pending, they reached an agreement on a settlement in 1948.[12] Siegel and Shuster received a payment of over $94,000.[13] DC was again declared the sole owner of the rights to Superman, and it also received all ownership rights to Superboy.[14]

            Even though the parties settled the dispute, this would not be the last time they’d battle over Superman in court. I’ll discuss the next set of cases in part 3.

---

[1] Siegel v. Time Warner, Inc., 496 F.Supp.2d 1111, 1114 (C.D. Cal. 2007).

[2] Id. at 1114-15.

[3] Id.

[4] Id. at 1115.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 1115-16.

[9] Id. at 1116.

[10] Id.

[11] Id.

[12] Id. at 1118.

[13] Id.

[14] Id.

Who owns Superman? - Part I

            I’m going try and discuss a delicate topic in the comic book community. Namely, I want to talk about the ownership of Superman. Over the years, my thoughts on this topic have shifted back and forth, between being outraged at Siegel and Shuster’s lack of compensation for their creation to thinking DC really didn’t do much wrong. To this day, I’m still not sure exactly where I stand. About a decade ago, I thought it was appalling how DC treated Superman’s creators and the sad financial state they were reduced to in their later years. I was even inspired to write an article calling for changes to copyright law to prevent an injustice like this from happening again. Fortunately, the paper was never published. It was written well, but I later realized I had a fundamental, factual error in it that would’ve been a major embarrassment. (This topic on changing copyright law might be revisited at a later date.) These days, I think I fall somewhere in-between feeling pity for Siegel and Shuster and anger at DC. Both sides have reasons why they are in the right and why they are in the wrong, and at this point, there is not really an outcome fair to either side. But, let’s start at the beginning before we come to our final analysis.

            Most people who’ve been around comics long enough know the story. Jerry Siegel came up with the basic idea of the Superman story in 1933, and he and Joseph Shuster created several weeks’ worth of material for a possible comic strip.[1] They shopped the story for a number of years without finding a publisher.[2] Eventually, they started working on some comic strips for Detective Comics, and, in 1938 it decided to finally publish Siegel and Shuster’s Superman story in its new book, Action Comics.[3] The two had already signed employment agreements stating DC owned all rights to the creations they made during their term of employment. On March 1, 1938, DC also had them execute an agreement giving all rights in the Superman strips to DC.[4] For the assignment of their rights to Superman, Siegel and Shuster received $130 as compensation from DC.[5]

            In September 1938, they again executed another employment agreement with DC.[6] The agreement was to run for five years, and they were to be paid $10 per page for their work on Superman, in addition to being paid for their work on other comic strips at a lower rate.[7] It also reiterated that DC was the owner of all rights in the Superman strips, and it gave DC a right of first refusal to future creations from Siegel and Shuster.[8] By 1947, Siegel and Shuster’s total compensation for the Superman strip was greater than $400,000.[9]        

            In the next post, I’ll discuss the first lawsuit over the rights to Superman.

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[1] Siegel v. Time Warner, Inc., 496 F.Supp.2d 1111, 1113 (C.D. Cal. 2007).

[2] Id.

[3] Id. at 1114.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Siegel v. National Periodical Publications, Inc., 508 F.2d 909, 911 (2nd Cir. 1974).

Comics Startup 101 - The Infringement of Others' Intellectual Property - Part III, Copyright

Comics Startup 101: Legal and Business Tips for the Independent Comics Creator

Part 9: The Infringement of Others' Intellectual Property - Part III, Copyright

           This post is part of a series that grew out of my Comics Startup 101 panel I presented with comics creators at various comic book conventions around the Midwest. You can find the first post discussing doing a clearance search here, the second post discussing choosing a business entity here, the third post discussing contracts (part I) here, the fourth post discussing contracts (part II) here, the fifth post discussing an overview of intellectual property here, the sixth post discussing ways to protect your intellectual property here, the seventh post discussing infringement of the right of publicity here, and the eighth post discussing the infringement of another's trademark rights here. Today, we'll discuss copyright infringement lawsuits involving Superman.

           As always, I must disclaim that this is not meant to be an in-depth guide, nor is it meant to be complete legal advice. Any information provided in these posts is general in nature and should not be relied upon as legal advice. Meaningful legal advice cannot be given without a full understanding of all relevant facts relating to an individual’s situation. As such, you should consult with an attorney for specific legal advice that you might need.

The Infringement of Others’ Intellectual Property – Part III, Copyright

In the last two posts, we discussed DC being sued for right of publicity and trademarkinfringement. The final set of cases we’ll discuss in the Comics Startup 101 series also involve DC Comics. However, this time they are the ones doing the suing.

The first case is a precursor to the Captain Marvel case I discussed previously. In Detective Comics, Inc. v. Bruns Publications, Inc., et al., DC sued Bruns because it believed its Wonder Man character infringed on DC’s Superman copyrights.[1]  The court found that Wonder Man did infringe on DC’s copyrights due to the fact they are both “a man of miraculous strength and speed[,]” the “antics” of both characters are “closely similar[,]”  each hides their identity “beneath ordinary clothing” and when removed stands in “skintight acrobatic costume[,]” each is shown crushing a gun in his hand, each is “termed the champion of the oppressed[,]”  each is pictured stopping bullets, each are “endowed with sufficient strength to rip open a steel door[,]” and “[e]ach is described as being the strongest man in the world and each as battling against ‘evil and injustice.’”[2] Of particular note in this case is the court’s statement that even though Superman might be derivative of a Hercules, or other “heroes of literature and mythology[,]” since the Superman comics “embody an original arrangement of incidents and a pictorial and literary form” they are subject to copyright protection.[3] The court stated, “So far as the pictorial representations and verbal descriptions of ‘Superman’ are not a mere delineation of a benevolent Hercules, but embody an arrangement of incidents and literary expressions original with the author, they are proper subjects of copyright and susceptible of infringement because of the monopoly afforded by the act.”[4]  After winning this case and establishing their copyright interests in protecting Superman, and proving that a comic book character can be subject to copyright protection, DC initiated the lawsuit against Fawcett over Captain Marvel.

After their two successful attempts protecting their Superman copyrights in the ’40s and ’50s, DC tried again to sue under this theory in the ’80s. They believed the television show The Greatest American Hero infringed on their copyrights to Superman.[5] Part of what appears to have prompted the dispute was that after the success of Superman: The Movie, ABC sought to license Superboy for a television series.[6] After failing to secure a license, ABC created a television series about a normal guy who becomes a superhero.[7] The television series “contain[ed] several visual effects and lines that inevitably call Superman to mind, sometimes by way of brief imitation, sometimes by mention of Superman or another character from the Superman works, and sometimes by humorous parodying or ironic twisting of well-known Superman phrases.”[8] The character also had powers similar to Superman’s.[9] However, the court found that the lead character in The Greatest American Hero did not infringe DC’s right to Superman because the way he looks and acts “marks him as a different, non-infringing character who simply has some of the superhuman traits popularized by the Superman character and now widely shared within the superhero genre.”[10]

Our lesson from the Wonder Man and The Greatest American Hero cases: any similarities to an existing character could leave you susceptible to an infringement lawsuit. Personally, I believe that over the years courts have become more adept at analyzing the differences and similarities between characters in a way that promotes creation, which partially explains the different outcomes DC obtained in the Wonder Man and Captain Marvel cases and the result in The Greatest American Hero case.

The end?

This post brings to an end my initial series of Comics Startup 101 posts. I hope you enjoyed reading them as much I enjoyed writing them. Fear not, there will still be plenty of useful posts in the future dealing with similar topics.   

Do not let anything contained in these posts frighten you from making your works. The intent is not to frighten you, but to educate you about possible problems that could arise. None of the things we discussed should scare you away from making the comic book you want to make. Even though I barely scratched the surface of the issues you will need to be aware of as you start your business, I believe I have given you a great base of knowledge with which to proceed forward.

As you start your career making comics, keep in mind the topics and lessons we discussed. If you choose to start another type of business, the lessons learned here should still prove useful. These issues are universal to most businesses, and understanding them and learning from them will help keep you and your business out of trouble.

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[1] Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432, 433 (2^nd Cir. 1940).

[2] Id.

[3] Id.

[4] Id. at 433-34.

[5] Warner Bros., Inc. v. American Broadcasting Companies, Inc., 720 F.2d 231, 238 (2^nd Cir. 1983).

[6] Id. at 236.

[7] Id.

[8] Id. at 237.

[9]Id.

[10] Id. at 243.