Finally...Superman to get his "dues"

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March 30, 2008


He's a superhero to rights holders -- but Kryptonite to studios.

Last week, attorney Marc Toberoff won a potentially costly "Superman" victory against Warner Bros. for co-creator Jerome Siegel's heirs. The federal ruling, which gives the heirs a stake in rights sold 71 years ago, could put a serious crimp on future plans for one of the studio's most enduring -- and lucrative -- franchises, especially if co-creator Max Shuster's heirs follow suit in five years, when they are eligible to do so.

As it is, the studio has at least two Superman projects in development -- a follow-up to Bryan Singer's "Superman Returns" and "Justice League" -- and it may end up paying tens of millions from the domestic haul of "Superman Returns" to Siegel's heirs under the ruling, which applies to domestic monies for Superman projects since 1999.

The case is Toberoff's latest -- and potentially most damaging -- claim against the studio. The dedicated copyright crusader has pursued claims involving "Wild Wild West," "Dukes of Hazzard," "It's Alive," "Smallville" and, reportedly, the upcoming "Get Smart."

He has gone after other studios, including Sony, but his most high-profile cases -- and victories -- have involved Warners. The studio paid "Moonrunners" producer Robert B. Clark a $17.5 million settlement in a case about similarities between that 1974 movie and the bigscreen "The Dukes of Hazzard." And a federal judge ruled earlier in the Siegels' favor over "Smallville," although that was challenged and the case still being resolved.

The studio declined to comment on the latest ruling in favor of their legal nemesis, issuing only a statement noting that, "substantial issues relating to the accounting of profits were ruled in our favor."

Among these issues: international profits, trademark-related revs and profits stemming from Superman fare produced before 1999, when Siegel's heirs terminated the earlier copyright arrangement under a 1976 law.

To the Siegels, Toberoff's legal maneuvers are nothing short of heroic. The family had been destitute for years after Siegel sold rights to his Man of Steel to Detective Comics for $130. DC Comics had started to pony up more monies after Warners made successful movies based on the character, but Siegel had long wished to redress the fact he had gotten so little from his creation; he died in 1996.

Toberoff has set up a production company, Intellectual Properties Worldwide, to develop films around these and other titles. And he has built up a sideline business producing bigscreen adaptations of the projects whose copyright claims he pursues. He has a producing credit on "Fantasy Island," a Sony project for Eddie Murphy, as well as "Sanford and Son."

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Warner Bros. and DC Comics have lost a little more control over the Man of Steel.

In an ongoing Federal court battle over Superman, Judge Stephen Larson ruled Wednesday that the family of the superhero's co-creator, Jerry Siegel, has "successfully recaptured" rights to additional works, including the first two weeks of the daily Superman newspaper comic-strips, as well as portions of early Action Comics and Superman comic-books.

The ruling is based on the court's finding that these were not "works-made-for-hire" under the Copyright Act.

This means the Siegels -- repped by Marc Toberoff of Toberoff & Associates -- now control depictions of Superman's origins from the planet Krypton, his parents Jor-El and Lora, Superman as the infant Kal-El, the launching of the infant Superman into space by his parents as Krypton explodes and his landing on Earth in a fiery crash.

The first Superman story was published in 1938 in Action Comics No. 1. For $130, Jerry Siegel and co-creator Joel Schuster signed a release in favor of DC's predecessor, Detective Comics, and a 1974 court decision ruled they signed away their copyrights forever.

In 2008, the same court order ruled on summary judgment that the Siegels had successfully recaptured (as of 1999) Siegel's copyright in Action Comics No. 1, giving them rights to the Superman character, including his costume, his alter-ego as reporter Clark Kent, the feisty reporter Lois Lane, their jobs at the Daily Planet newspaper working for a gruff editor, and the love triangle among Clark/Superman and Lois.

While ownership of the Man of Steel is one point of all this legal activity, the real issue is money and how much Warner Bros. and DC owe the Siegels from profits they collected from Superman since 1999, when the heirs' recapture of Siegel's copyright became effective.

DC owns other elements like Superman's ability to fly, the term kryptonite, the Lex Luthor and Jimmy Olsen characters, Superman's powers and expanded origins.

In a statement, Warner Bros. and DC said, "Warner and DC Comics are pleased that the court has affirmed that the vast majority of key elements associated with the Superman character that were developed after Action Comics No. 1 are not part of the copyrights that the plaintiffs have recaptured and therefore remain solely owned by DC Comics."

The Schuster estate originally did not participate with the Siegels' case because Schuster has no spouse or children. But his estate later won a ruling of a recapture identical to the Siegels, which will be effective in 2013. At that point, the Siegels and Schusters will own the entire copyright to Action Comics No. 1. That will give them the chance to set up Superman pics, TV shows and other projects at another studio.

If they want to get a new "Superman" or even "Justice League" pic featuring the superhero, Warner Bros. and DC will be forced to go into production by 2011.