Heirs Of Superman Creators Appeal To Try To Get The Half Of The Baby The Judge Didn't Give Them

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.

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