Super Superman opinion

On August 3, 2007, I did a post about an opinion by Judge Stephen Larson of the Central District of California. Called “Superboy crashes into building,” the post reviewed an opinion that covered part of a decades old effort by the creators of the Superman character Joseph Schuster and Jerome Siegel, and later by their heirs to recapture or assert rights. As I noted in that post:

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.

Judge Larson has now topped that earlier effort, in a 71 and a half page opinion issued Wednesday. A copy of the opinion is available here. Let me give you the concluding paragraph first:

After seventy years, Jerome Siegel’s heirs regain what he granted so long ago – the copyright in the Superman material that was published in Action Comics Vol. 1. What remains is an apportionment of profits, guided in some measure by the rulings contained in this Order, and a trial on whether to include the profits generated by DC Comics’ corporate sibling’s exploitation of the Superman copyright.
(HT to Vincent Cox)

If it was impossible to capture Judge Larson’s earlier effort, this is even more true with his opinion Wednesday, so I won’t even try, but I will say it is a brilliant opinion that must have taken an extraordinary amount of time. It is very readable (and with great pictures!), which is very high praise given the extreme complexity of the facts and the legal issues at stake, If there was a Pulitzer Prize for judicial opinions, Judge Larson would win (with supporting awards for his hard-working clerks.).

The dramatic sounding nature of the final paragraph of the opinion has to be put in context though. The opinion doesn’t cover Shuster’s interests, which are not subject to Section 304(c) termination, but rather a future 304(d) termination. Nor does the opinion reach the work for hire question for anything after the (justly famous and important) Action Comics Vol. 1 published on April 18, 1938 – the collateral estoppel applied on work for hire only covers Action Comics Vol. 1. Finally, there are very thorny issues of apportionment. All of these issues are likely to be the subject of subsequent motions and possibly trial.

Instead of going into the intricacies of these issues and many others – like foreign profits, trademark rights and ownership of pre-termination derivative works, I will focus on something else, how the opinion comes at a propitious time for lovers of comic book history. The March 31st New Yorker has a wonderful review by Louis Menand of David Hajdu’s just published “Ten Cent Plague: The Great Comic Book Scare and How it Changed America.”Mr. Hajdu’s book (which I proudly own) is a cultural look at the threat comic books were believed to pose to polite society, in particular contributing to juvenile delinquency, a moral panic, aided by German psychiatrist Frederick Wertham. This era was covered once before in Amy Nyberg’s 1998 book, “Seal of Approval: The History of the Comics Code.”

Regrettably perhaps out of political correctness, neither book nor the New Yorker review addresses an extremely important part of the Kulturkampf, presented by comics, caused in no small part by the dominance of comic book creators by lower class Jews. The Newark Jewish Museum had an exhibit in 2007 called “Masters of American Comics.” And there are some articles available on the web, here, and here. The subject is also covered in Paul Buhle’s 2004 book “From the Lower East Side to Hollywood: Jews in American Popular Culture.” Famous examples in comics from the early days include Will Eisner, whose background is described by wikipedia way:

Eisner was born in Brooklyn, New York, the son of Jewish immigrants — his father was a former painter, marginally successful entrepreneur, and one-time manufacturer in Manhattan's Seventh Avenue garment district.

Jerry Iger (whose great-nephew Robert Iger became CEO and President of The Walt Disney Company), Jacob Kurtzberg, known as Jack Kirby who was the co-creator of such enduring characters and popular culture icons as the Fantastic Four, the X-Men, the Hulk, Captain America, of whom wikipedia notes

Born to Jewish Austrian parents in New York City, he grew up on Suffolk Street in New York's Lower East Side, attending elementary school at P.S. 20. His father, Benjamin, a garment-factory worker, at P.S. 20. His father, Benjamin, a garment-factory worker, was a Conservative Jew, and Jacob attended Hebrew school. Jacob's one sibling, a brother five years younger, predeceased him. After a rough-and-tumble childhood with much fighting among the kind of kid gangs he would render more heroically in his future comics."

Robert Kahn, who changed his name to Bob Kane, known to aficionados as the creator of Batman, as well as Mad Magazine publisher Harvey Kurtzman.The Jewish influence on comics was hardly limited to the early days: contemporary and subversive Jewish comic book creators include Harvey Pekar (from Cleveland) and Art Spiegelman. Shuster and Siegel were typical of the early era, albeit not from the Lower East Side of Manhattan, but like Harvey Pekar, from Cleveland. As wikipedia notes, Jerry Siegel was

The son of Jewish immigrants from Lithuania, Siegel was the youngest of six children. His father Mitchell was a sign painter who opened a haberdashery and encouraged his son's artistic inclinations. Tragically, Mitchell Siegel was shot and killed in his store by a thief when Jerry Siegel was still in junior high school.

Of his partner in crime, Joseph Shuster, wikipedia notes:

Joseph Shuster was born in Toronto, Ontario, the son of Jewish immigrants. His father Julius, an immigrant from Rotterdam, South Holland, the Netherlands, and his mother Ida, who had come from Kiev in Ukraine, were barely able to make ends meet.

As a youngster, Shuster worked as a newspaper boy for the Toronto Daily Star and, as a hobby, he liked to sketch.Nor of course did either of them personally ever make any money to speak of off of their famous creations. But there have been a number of efforts over the years to come to an agreement, most noticeably in 2001 to 2002 settlement negotiations. Judge Larson’s previous opinion on Superboy (which effects claims on Smallville) and his opinion this Wednesday continue a process of clarifying and in some respects substantially whittling down bases for recovery. The case should though be settled; 70 years of strife is more than enough; with Passover coming next month, we should say dayenu, One opportunity was regrettably lost in 2001-2002; for the good of all, it would be constructive to avoid what looks like years of future torment for all.