Friday, March 28, 2008

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.


Anonymous said...

If you are interested in the history of Jews in the comics industry, you should check out Arie Kaplan's site,, where he has written a lengthy treatment of the subject, and also his book, "Masters of the Comic Book Universe Revealed!" which contains some well done biographical sketches of the principal creators.

William Patry said...

Thanks, Anon, I had looked at Arie's site, and got some of the links in the post from it. I should have linked to his book though.

Anonymous said...

I forgot to mention that Arie's articles about Jews and comics are conveniently hidden behind the "Reform Judiasim" tab on his site.

Marc Tyler Nobleman said...

Touching ending to a clarifying post, which I now need to go back and reread. (My grasp of copyright law is no stronger than my ability to cook or ski.) I wrote a book on Siegel and Shuster coming out this summer. Since it's the first aimed at young people, I only touched on the litigation. I fear it's too late for me to make a change based on this latest news...

Anonymous said...

A shame Jerry Sigel didn't live to see this day. Does the ruling affect DC's ability to continue churning out Superman clones, or even further adventures of existing characters with a strong resemblance to Superman?

By the way “Masters of American Comics,” an excellent exhibit, was a joint venture of The Newark Museum in Newark and the Jewish Museum in NYC.

Anonymous said...

Interesting post!

K. S. La Boca said...

Don't forget the 2005 book "Men Of Tomorrow: Geek, Gangsters, and the Birth of the Comic Book" by Gerald Jones. It covers the genesis of National Periodical Publications, the precursor to DC Comics. Jones vividly captures the milieu and focuses on all the early players working in near sweatshops to churn out pages and meet deadlines. It is a swift read and less than four bits on Amazon.

Anonymous said...

After I read the NY Times article I immediately thought, "I hope Patry covers this".

I am not a copyright lawyer ... I'm not a lawyer at all. I'm just an eclectic technologist who enjoys this stuff.

My frustration with the NY Times article was that it did not seem to provide a summary of the issues.

Reading the NY Times article it seemed simple. The heirs terminated the transfer as the law provides. What's to litigate about?

Now, thanks to this post, I've been able to read the decision and know why they NY Times did not provide that summary.

All that said, what a surprise it was for ME to note the court's citations of Patry in the decision. It is interesting how it all comes together.

A "thank you" seems inadequate here. But, Thank You.

Unknown said...

"Robert Kahn, who changed his name to Bob Kane, known to aficionados as the creator of Batman"

Much of the character of Batman was actually created by Bill Finger, who wrote the first story, and created Batman's alter ego Bruce Wayne, along with his tragic back story. In addition, Finger was responsible for much of the look of Batman, suggesting changes to Kane's original proposals. Unfortunately, Kane's contract with the publisher prevented Finger from being officially recognized for his contributions, although they are widely known by comic book afficionados.

Michael said...

I'm just a comics fan who has been following this and the Superboy stories, so pretty much all I know of copyright law has come from reading those legal rulings and discussions about them.

Nice to read about it from someone who literally wrote the book about copyright law!

To your knowledge, is there case law covering copyright recovery via the 1976 and 1998 laws passed by Congress? Does this case set a precedent?

And speaking of a "propitious time for lovers of comic book history", the ruling comes just a couple weeks shy of the 70th anniversary of the publication of Action Comics #1 in April 1938.

(PS... it's "Shuster", not "Schuster", as was misspelled a couple of times.)

Oh, and here's your Zebra Batman story, I think.

William Patry said...

K.S., thanks for the tip. I have already ordered the book.

Brad,I had forgotten all about the Bill Ginger issue, which you correctly point out. My wife clerked for a judge who had a Batman case once, and they did a lot of research on it, almost all of which I have forgotten, even though I have lots of Batman comic books as a result, including some ealy originals like the one that has a zebra-themed Batman on the cover. I recall Kane never truly gave Finger the considerable credit he was due. And Kane certainly was an exception in doing well for himself financially too.

Michael, the zebra story is a cool one. I also have a rainbow colored Batman. Thanks too for the reminder about the anniversary. There have been many cases about terminations of transfers and work for hire under the 1909 Act, two of the big topics in the case, but few on how you handle the mind-bogglingly difficult termination issues as occur with characters. The opinion, while aware of them and deciding the question in this case, didn't even hint at the difficulties. But in terms of precedent, by upholding the notices here, if future termination notices were as well done as these (and they were done by a real expert, Arthur J. Levine), the case is important for other creators.

In the posting, I didn't mean to in any way take away from the significance of the ruling but anticipating that popular press accounts would be simplified, wanted to let more careful folks know that its a long and winding road, and a very expensive one. It was also a prayer for peace, not war, expressed in the hope that realistic assessments of future recoveries could be balanced off against the costs of future litigation and time. How great would it be for the heirs to enjoy a well-deserved and fair settlement now, rather than to pass the suit on to their heirs in the hope of getting more, especially if this is a contingency case in which the lawyers' fees may take a very chunk of any recovery? What we need now is a superhero to get the parties together and end the litigation once and forever.

William Patry said...

Two historical, non-Superman related items from the Sunday New York Times. From the Book Review section, there is a review by Douglas Wolk of Nancy Goldstein 's just published book on Zelda Marvin Jackson a/k/a Jackie Ormes, called "Jackie Ormes: The First African American Cartoonist."

In the Arts and Leisure section, there is a wonderful article (with pictures) about Al Jaffee, who has been drawing by hand the Mad Fold-in

Dr. Jeff McLaughlin said...

Hi, for more on the Jewish origins and possible meaning check out Danny Fingeroth's book 'Disguised as Clark Kent" which came out last year.

M. C. Valada said...

Hi, Bill:

I met Joanne Siegel at the memorial for her husband at Warner Bros. in 1996. It occurred just about the time my article "Truth, Justice, and the American Way" appeared in Los Angeles Lawyer Magazine. The article about how comic book creators had been treated over the years had a highlight about the Superman situation, which would soon be reaching that magic moment when the termination right of the 1976 Act kicked in. Mrs. Siegel's son-in-law and Mr. Shuster's nephew both contacted me after the article appeared. Paul Levitz and I have had a few hearty discussions about my theory as well. I am looking forward to the rest of the story and I applaud Joanne Siegel's fortitude.

BTW, Bob Kane's good fortune is probably due to the fact that his father worked in a press room and knew that there were better deals to be had than the one foisted upon Siegel and Shuster.

William Moulten Marsten's deal was so good that DC has kept Wonder Woman in constant publication to avoid a reversion of rights to the family. Marsten was an inventor of the lie detector and, one extrapolates, a far more sophisticated licenser that Siegel and Shuster were.

Over the years I've been involved with this industry, since I first started gathering information for Congressional hearings on work for hire when I worked with Chuck Ossola, I've come to learn that most of the Golden and Silver Age creators had none of the knowledge or negotiating skills necessary to preserve their own interests in their works. Fortunately, the climate of the late 1980s changed a lot about the business and newer creators have almost always maintained financial interests in their works.

Paul Levitz has single-handedly done much to rectify many of the financial inequities and those credit issues (such as for Bill Finger) for DC's large stable of talent from the earliest days of comics. Would that Marvel's empire have someone of equal conscience at the head of its organization.

Unknown said...

m.c. valada sez...
Paul Levitz has single-handedly done much to rectify many of the financial inequities and those credit issues (such as for Bill Finger) for DC's large stable of talent from the earliest days of comics. Would that Marvel's empire have someone of equal conscience at the head of its organization.

The recent Spider-Man 3 film and new Spider-Man cartoon have a "created by Stan Lee & Steve Ditko" credit. Hopefully, Ditko is now getting some cash as a result.
The FF film & cartoon both have a "created by Stan Lee & Jack Kirby" credit, thus some money for his estate.
When Batman, in ANY form, has a "created by Bill Finger & Bob Kane" credit, THEN and only then, will DC have "balanced the books."
(Not to say DC hasn't done the right thing when they could. Example: In the 1980s, they had Jack Kirby redesign his Fourth World characters for licensed products so the King [and now his estate] could collect royalties on the characters, a matter which his previous contract didn't cover!)

Amy said...

Bill, Thanks for sending me the opinion. It certainly lived up to its billing in your post. What a thorough and thoughtful explication of so many complex copyright issues. It's possible to teach so many issues just from this case: work for hire, duration, termination and renewal, licensing, statute of limitations, etc.

Amy Cohen

Aparna Mudi said...

im very thankful to you for giving me reference to a lot of cases of copyright issues. i'm a student of NIFT (NATIONAL INSTT. OF FASHION TECHNOLOGY), India. and studying intellectual property rights which includes studying copyrighting laws too.. ur blog has added to my understanding of the subject. i sincerely am very thankful for ur blog to have popped up on the first page of my google search.

mbilinsky said...

Here is a link to the actual court decision

In case anyone is interested.

mbilinsky said...

Here is the actual decision, in case anyone is interested.