Superboy Crashes into Building

The authors of Superman – Jerome Siegel and Joseph Schuster -- are legendary for both their creative offspring, and for fights with their publishers, disputes that span many decades. One suit was brought in 1947. The Second Circuit issued an opinion in 1974, Siegel v. National Periodical Publications, Inc., 508 F.2d 909 (2d Cir. 1974). An opinion in the most recent dispute, over the character Superboy, brought by Siegel’s heirs, was decided on July 27, 2007, Siegel v. Time Warner Inc., 2007 WL 2172822 (C.D. Cal. 2007). The opinion, by Judge Larson, is a remarkable one in many respects, wholly aside from being 30 pages long.

One remarkable factor is that the opinion came on a motion for reconsideration of an opinion by another judge, a motion that was granted and which resulted in important changes favorably to defendants. Another remarkable factor was the court’s willingness to take on very complicated questions of collateral estoppel raised in prior settlement agreements and court opinions, and to then interweave those issues with equally thorny questions of copyright law. The opinion is a tour de force and cannot be adequately captured in the small space of a blog, even one as verbose as this one frequently is.

There were really two cases in one: a claim that a termination of transfer under Section 304(c) was effective, and if so, an infringement claim asserting that the television series Smallville infringed Superboy post termination. The opinion does not address this last claim, for which there is a pending summary judgment motion. There is also a joint authorship issue.

In brief, the court held that Superboy was not a work for hire under the 1909 Act (a result reached after an extensive review of case law on the issue), but that Superboy was a joint work between Siegel and Schuster. On the joint authorship issue, it should be pointed out that the 1909 Act case law departs significantly from the statutory provision in the 1976 Act in a determinative way: unlike the 1976 Act which deliberately rejects earlier Second Circuit case law, under the 1909 Act, it was OK if a work was created with an expectation that it would later be joined with others’ contributions. This was important because Siegel alone had submitted literary material to defendants’ predecessors. Since defendants had a grant from Schusters’ heirs for Schuster’s later-created artwork, they were off the hook for infringement, and were subject at most to an accounting since Schusters’ heirs did not seek to terminate under Section 304(c). (There is also a good discussion of issues involving derivative works).

Judge Larson’s opinion is a major win for defendants, and for us too given its extremely thorough and lucid review of very difficult issues. Bravo to Judge Larson and to the excellent work done by defendants' counsel, the legendary Roger Zissu.