Litigation, Golden Age Style – Part 2

In part 1 of this series I discussed DC’s efforts to protect its Superman copyright by initiating litigation.  In 1948, DC found itself on the receiving end of court proceedings by Jerry Siegel and Joe Shuster over the creation and copyright of Superman and Superboy.  While the courts at that time sided with DC over the copyright of Superman, DC lost it’s battle over the copyright of Superboy, leading to a settlement with Siegel and Shuster which should have put an end to the dispute (The parties also litigated in the early 1970’s after expiration of the initial copyright period but DC won that round).  That is, until Congress passed the 1976 Copyright Act that allowed creators to take back certain copyrighted works under certain conditions.

Superboy #1

This all came to a head a few years back when the wife and daughter of Jerry Siegel initiated a law suit in California after negotiations with DC fell apart.  There have been several opinions issued by the Court since that time.  Interestingly, the trial Judge, Hon. Stephen G. Larson, was meticulous in his factual description of the dispute, going all the way back to the Golden Age to set the stage for the current litigation.  While I could paraphrase Judge Larson’s findings of fact in this post, I decided that reprinting it here (with some of the legal citations omitted) was worth the read, and a great history lesson.  Interestingly, Judge Larson has been involved as the trial judge over the dispute concerning Superboy and the dispute concerning Superman.  In this post, I’m going to reprint Judge Larson’s findings regarding the Superboy dispute.  In part 3, I will reprint his findings in the Superman case.  It’s also interesting to note that Judge Larson in his findings relied on the affidavits of several well known comics professionals, publications and fanzines.

Here’s Judge Larson’s findings from his order of July 27, 2007:

This case is the latest chapter in the continuing saga over who owns the copyright to “Superboy,” the youthful persona of the iconic comic book super hero “Superman,” spanning from the golden age of print media comics to the present-day revolution in digital media. Like the entire spectrum of graphics media technology, the law governing ownership rights to copyrights has changed dramatically, and it is precisely these changes in the law that bring this case to this Court.

Although the story of how Superman and later Superboy came into being has become the stuff of legend among comic book fans, the Court will recite it once more for those unfamiliar with the tale.

Jerome Siegel and Joseph Shuster are Superman’s creators. In 1933, Siegel conceived of the idea of a comic strip featuring a character who is sent to Earth from a distant planet and, with superhuman powers, performs daring feats for the public good. Siegel named his character “Superman.” Siegel discussed his idea with Shuster, an artist, and together they crafted a comic strip consisting of several weeks worth of material (both dialogue and artwork, some of the latter being completely “inked in” and ready for publication, and some consisting of no more than black-and-white pencil drawings) suitable for newspaper syndication embodying that idea. The two shopped the character around for a number of years to numerous publishers but were unsuccessful in having it published. In the meantime, Siegel and Shuster penned other comic book strips at their artist studio in Cleveland, Ohio, and sold them for publication, most notably “Slam Bradley” and “The Spy” to Nicholson Publishing Co., who purchased their material for resale to Detective Comics. When Nicholson folded shop in 1937, Detective Comics acquired some of its magazine properties, including the comic book strips penned by Siegel and Shuster.

The two entered into an agreement with Detective Comics on December 4, 1937, whereby they agreed to furnish some of the existing comic strips for the next two years and further agreed “that all of these products and work done by [them] for [Detective Comics] during said period of employment shall be and become the sole and exclusive property of [Detective Comics] and [Detective Comics] shall be deemed the sole creator thereof….” The agreement further provided that any new or additional features by Siegel and Shuster were to be submitted first to Detective Comics, who was given the initial option (to be exercised within sixty days after submission) to publish the material. Soon thereafter Detective Comics became interested in publishing Siegel and Shuster’s now well-traveled Superman idea (but in an expanded 13-page comic book format), the interest eventually culminating with Superman’s release in April, 1938, in the first volume of Action Comics, a new comic magazine issued by Detective Comics. The Superman comic strip became an instant success and Superman’s popularity continues to endure to this day as his depiction has been transferred to varying media formats.

On March 1, 1938, before Superman’s publication, Siegel and Shuster assigned to Detective Comics “all [the] good will attached … and exclusive right[s]” to Superman in exchange for $130. This assignment in ownership rights was later confirmed in a September, 22, 1938, employment agreement in which Siegel and Shuster acknowledged that Detective Comics was “the exclusive owners” of not only the other comic strips they had penned earlier for Nicholson (and continued to pen for Detective Comics) but Superman as well; that they would continue to supply the art work and storyline (or in the parlance of the trade, the “continuity”) for said comics at varying per page rates depending upon the comic in question (Superman being paid at the highest rate offered of $10 per page) for the next five years; that Detective Comics had the “right to reasonably supervise the editorial matter” of those existing comic strips; that Siegel and Shuster would not furnish “any art or copy … containing the … characters or continuity thereof or in any wise similar” to said comic strips to a third party; and Detective Comics would have the right of first refusal (to be exercised within a six week period after the comic’s submission) with respect to any future comic strip creations conceived by Siegel or Shuster:

In the event you shall do or make any other art work or continuity suitable for use as comics or comic strips, you shall first give us the right to first refusal thereof by submitting said copy and continuity ideas to us. We shall have the right to exercise that option for six weeks after submission to us at a price no greater than offered to you by any other party.
Not long thereafter, on November 30, 1938, Siegel pitched the idea to Detective Comics of serializing a comic concerning the exploits of Superman as a young man. Siegel called his character “Superboy.” As Siegel explained the synopsis for the new comic strip:
Superboy … would relate the adventures of Superman as a youth…. I’d like the strip to have a large number of pages, such as 13 so that I could develop it as well as Superman…. Tho the strip would feature super-strength, it would be very much different from the Superman strip inasmuch as Superboy would be a child and the type of adventures very much different. There’d be lots of humor, action, and the characters would be mainly children of about 12-years rather than adults. Also, inasmuch as this strip will probably be used as a newspaper feature, I should think that you would want to own all rights to it by having it first appear in your magazine.

Detective Comics, by a letter dated December 2, 1938, effectively declined to publish Siegel’s proposed Superboy comic. Siegel later re-pitched the idea in December, 1940, through the submission of a lengthy script containing the storyline and dialogue for the proposed comic strip’s first release or releases that fleshed out in greater detail the outlines of the Superboy story arch. Detective Comics again effectively declined to publish Superboy.

Siegel entered the United States Army in July, 1943, to serve his country during World War II. In December, 1944, while Siegel was stationed abroad, Detective Comics published, without notice to Siegel and without his consent, an illustrated five-page comic strip entitled “Superboy” appearing as one among many other comics strips in the body of volume 101 of its magazine More Fun Comics. The illustrations for the first Superboy comic strip were done by Shuster at the direction of Detective Comics. When Detective Comics published volume 101 to More Fun Comics it also secured a copyright in all the contents of the same under Copyright Registration No. B653651. Thereafter Detective Comics continued to publish (and Shuster for a period of time continued to illustrate) “Superboy” comic strips, first in its serialized magazine More Fun Comics, then in Adventure Comics, and eventually as a stand-alone feature in the self-titled comic book Superboy.
Detective Comics’ publication of Superboy increased an already growing rift between the parties predicated largely upon Siegel and Shuster’s conclusion that Detective Comics had not paid them their fair share of profits generated from the exploitation of their Superman creation, as well as the profits generated from characters like Superboy, which had his roots in the original Superman character. As a result, in 1947, Siegel and Shuster brought an action against Detective Comics’ successor, National Periodical Publications, Inc., in New York Supreme Court, Westchester County, seeking to annul and rescind their previous agreements with Detective Comics as void for lack of mutuality and consideration. As part of the suit Siegel argued that Detective Comics had no right to publish his “Superboy” creation.

Towards that end, the third cause of action in the New York state court complaint asserted that the release of the Superboy comic strip in More Fun Comics, no. 101, “was based entirely upon the synopsis submitted” by Siegel to Detective Comics, “and contained in detail the same characters, incidents and plot” in the synopsis. The complaint further alleged that Detective Comics’ publication of Superboy was done “without the consent of” and without payment to Siegel. These points were important as the third cause of action averred that Siegel’s Superboy submissions belonged to him alone in light of Detective Comics’ failure to exercise its right of first refusal under the parties’ September, 1938, contract. Essentially, the third cause of action pled that Detective Comics had stolen Siegel’s Superboy idea. (averring that Detective Comics’ publication of Superboy “use[d] and was based upon the conception and idea as submitted in writing and detail by the plaintiff, SIEGEL”).

In the alternative, the fourth cause of action in the complaint alleged that the “plot, conception and incidents” contained in Detective Comics’ Superboy publication “were based upon and copied from the plot, conception and incidents” of Siegel and Shuster’s Superman character, and that such misassociation between Siegel’s Superman creation and Detective Comics’ Superboy was exacerbated by Detective Comics affixing, without Siegel’s consent, his name as the author to each of the Superboy releases. In so publishing Superboy, it was alleged Detective Comics had “deceived the public” into believing that Siegel “was the author of the continuity dialogue and action of each of the individual releases” when in fact he “was not the author.” Labeling such publication as “wrongful,” the fourth cause of action alleged that such unauthorized misassociation between the two was “injurious” to Siegel’s reputation.

The complaint sought an accounting of the profits generated from Superboy’s publication and that further publication of Superboy be enjoined.

After a trial, official referee J. Addison Young, in an opinion dated November 21, 1947, concluded that the March 1, 1938, assignment of the rights to Superman to Detective Comics was valid and supported by consideration, and that, therefore, Detective Comics was the exclusive owner of “all” the rights to Superman. With respect to Superboy, the referee found that it was solely Siegel’s creation; that Superboy was a work distinct from Superman (thus falling within the right of first refusal provision contained in the parties’ September 22, 1938, agreement); and that, on account of Detective Comics’ failure to exercise its option to publish Superboy when first presented with the idea, the rights to Superboy belonged to Siegel. As explained by the referee:

It is quite clear to me, however, that in publishing Superboy the Detective Comics, Inc. acted illegally. I cannot accept defendants view that Superboy was in reality Superman. I think Superboy was a separate and distinct entity. In having published Superboy without right, plaintiffs are entitled to an injunction preventing such publication and under the circumstances I believe the defendants should account as to the income received from such publication and that plaintiffs should be given an opportunity to prove any damages they have sustained on account thereof.

Shortly thereafter, on April 12, 1948, the referee signed a thirty-six page findings of fact and conclusions of law expanding upon the statements contained in the opinion he had tendered earlier. The factual findings pertinent to Superboy were as follows:

156. On or about November 30, 1938, the plaintiff SIEGEL, in writing and by mail, submitted to DETECTIVE COMICS, INC. for its consideration and acceptance or rejection, for publication, under the terms of the contract dated September 12, 1938, … a synopsis or summary of the idea and conception and plan of a new comic strip to be known as SUPERBOY[, which would narrate the adventures of SUPERMAN as a youth].
157. On December 2, 1938, DETECTIVE COMICS, INC. deferred consideration of a SUPERBOY comic strip until some future time.
158. DETECTIVE COMICS, INC. did not within six weeks indicate its election to publish the said new comic strip SUPERBOY.
159. DETECTIVE COMICS, INC. on or about December 2, 1938, by its letter in writing to the plaintiff SIEGEL did elect not to publish the said comic strip SUPERBOY under the terms of the contract dated September 22, 1938,….
160. During the month of December, 1940, the plaintiff SIEGEL submitted to DETECTIVE COMICS, INC. for its further consideration a complete script or scenario, containing the continuity, plan and dialogue for the first “release” or “releases” of the proposed new comic strip SUPERBOY, and that the said synopsis contained within itself the entire plan for the future publication of the said comic strip SUPERBOY and the conception of the character SUPERBOY, all set forth with detail and particularity.
162. DETECTIVE COMICS, INC. did not within six weeks after the submission of the said script or scenario indicate its election to publish the said comic strip SUPERBOY.
163. Thereafter and during December of 1944 DETECTIVE COMICS, INC. did publish a certain comic strip release entitled SUPERBOY in a magazine entitled “More Fun Comics.”
164. The said comic strip release entitled SUPERBOY embodied and was based upon the idea, plan and conception contained in the plaintiffs, SIEGEL’s letter to DETECTIVE COMICS, INC. dated November 30, 1938….
165. The said release of the said comic strip SUPERBOY published in December of 1944 embodied and was based upon the idea, conception and plan contained in the script or scenario submitted by the plaintiff SIEGEL to DETECTIVE COMICS, INC. in December of 1940….
166. Said first thirteen pages of SUPERMAN material [in Action Comics no. 1] did not contain the plan, scheme, idea or conception of the comic strip SUPERBOY as it was later submitted by the plaintiff SIEGEL to DETECTIVE COMICS, INC. [in the 1938 pitch or the later 1940 script].
167. Said first thirteen pages of SUPERMAN material [in Action Comics no. 1] did not contain the plan, scheme, idea or conception of the comic strip SUPERBOY as published by DETECTIVE COMICS, INC …. from December, 1944, until the date of the trial herein.
168. The said publication was without the permission of the plaintiff SIEGEL.
171. All of the comic strip material published under the title SUPERBOY was based upon the idea, plan, conception and direction outlined in the [1938 pitch].
172. All of the comic strip material published under the title SUPERBOY was based upon the idea, plan, conception and direction contained in the scenario or script … submitted by the plaintiff SIEGEL to DETECTIVE COMICS, INC. [in 1940].
173. The publication of all comic strip material entitled SUPERBOY was at all times without the permission of the plaintiff SIEGEL.
174. Plaintiff SIEGEL has received no payment on account of the publication of any of the material entitled SUPERBOY.
175. All publications of SUPERBOY by DETECTIVE COMICS, INC. from April, 1945 until … the date of the trial herein, contained affixed thereto the name of the plaintiffs SIEGEL and SHUSTER.
176. The use of the name of the plaintiff SIEGEL … was without the consent of the plaintiff SIEGEL.
179. Defendant INDEPENDENT NEWS CO., INC. knowing of the rights of the plaintiff SIEGEL, under the [September 22, 1938, contracts], sold and distributed to newsdealers for resale to the public throughout the United States, magazines containing the material entitled SUPERBOY as hereinafter described and set forth.
180. All the art work for the SUPERBOY releases was prepared by plaintiff SHUSTER under the direction of DETECTIVE COMICS, INC.
181. Plaintiff SHUSTER was paid in full by DETECTIVE COMICS, INC. or defendant NATIONAL COMICS PUBLICATIONS, INC. for all the art work furnished by him in connection with said SUPERBOY comic strip releases.
182. At the time that publication of the SUPERBOY comic strip was commenced, plaintiff SIEGEL was unavailable to furnish any of the continuity therefor being absent in military service.
183. Upon the return of plaintiff SIEGEL to civilian status in January, 1946, DETECTIVE COMICS, INC. entered into negotiations with him regarding SUPERBOY, proposing certain payments to him and affording him the opportunity of supplying the continuity for SUPERBOY releases.
184. No agreement was reached between Detective COMICS, INC. and plaintiff SIEGEL as a result of the aforesaid negotiations; however, defendant NATIONAL COMICS PUBLICATIONS, INC. has offered to pay plaintiff SIEGEL for SUPERBOY releases heretofore published, the same rate as he was paid for SUPERMAN magazine releases for which he did not furnish the continuity, i.e., at the rate of $200 per release of standard length of thirteen pages.

In conjunction therewith, the referee also made the following conclusions of law: “Plaintiff Siegel is the originator and the sole owner of the comic strip feature SUPERBOY, and … that the defendants … are perpetually enjoined and restrained from creating, publishing, selling or distributing any comic strip material of the nature now and heretofore sold under the title SUPERBOY…. Plaintiff Siegel, as the originator and owner of the comic strip feature SUPERBOY has the sole and exclusive right to create, sell and distribute comic strip material under the title SUPERBOY.” Thereafter both sides filed an appeal from the referee’s findings of fact and conclusions of law.

While the matter was still on appeal, the parties reached a settlement on May 19, 1948, and signed a stipulation which called for the payment of over $94,000 to Siegel and Shuster. In addition, the stipulation provided that the referee’s findings were to be vacated in all respects; reiterated the referee’s earlier determination that Detective Comics owned the rights to Superman; and contained the following proviso concerning the ownership rights to Superboy: “Defendant NATIONAL COMICS PUBLICATION, INC. is the sole and exclusive owner of and has the sole and exclusive right to the use of the title SUPERBOY and to create, publish, sell and distribute and to cause to be created, published, sold and distributed cartoon or other comic strip material containing the character SUPERBOY….”

Two days later, on May 21, 1948, the referee entered a final consent judgment that, among other things, vacated the referee’s findings of fact and conclusions of law entered on April 12, 1948, and expressly acknowledged that Detective Comics is the “sole and exclusive owner of and has the sole and exclusive right to the use of the title SUPERBOY.”

The expiration of the initial copyright term for Superman in the mid-1960s led to another round of litigation between the parties. In 1969 Siegel and Shuster filed suit in federal district court in New York seeking a declaration that they, and not Detective Comics’ successor, National Periodical Publications, Inc., were the owners of the copyright renewal rights to Superman. In the process of analyzing their claim, both the federal district court and later the Second Circuit made mention of both the referee’s April, 1948, vacated findings as well as the parties’ May, 1948, final consent judgment. The courts, however, diverged as to which of the various court documents coming out of the Westchester action should have binding effect.

The district court found both the referee’s vacated findings as well as the final consent judgment to be binding upon it, whereas the Second Circuit only made mention of the binding effect that the final consent judgment had on the case. Both courts, however, concluded, in conformity with Supreme Court precedent at the time, that, in transferring “all their rights” to Superman to Detective Comics pursuant to the final consent judgment, Siegel and Shuster had assigned not only Superman’s initial copyright term but the renewal term as well, even though those renewal rights had yet to vest when the consent judgment was entered.

Thus ended the tale of the battle over the ownership to the copyrights to Superman and, by extension, Superboy. Or at least that was what everyone believed at the conclusion of the Second Circuit litigation.

With the passage of the Copyright Act of 1976 (the “1976 Act”), Congress changed the legal landscape concerning author’s transfers of their copyrights in their creations. The 1976 Act expanded the duration of the renewal period for existing works already in their renewal term at the time of the Act for an additional nineteen years, and, more importantly for this case, gave authors the ability to terminate any prior grants of the rights to their creations that were executed before January 1, 1978, irrespective of the terms contained in such assignments, e.g., that all the rights (the initial and renewal) belonged exclusively to the publisher. Specifically, section 304(c) to the Act provides that, “[i]n the case of any copyright subsisting in either its first or renewal term on January 1, 1978, other than a copyright in a work made for hire, the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it, executed before January 1, 1978, … is subject to *1120 termination …. notwithstanding any agreement to the contrary….”

It is this right to termination that Joanne Siegel, Jerome Siegel’s widow, and Laura Siegel Larson, his daughter, now seek to employ in this case. In November, 2002, they served a notice of termination to defendants2 directed solely at works featuring Superboy, claiming to undo as of November 17, 2004, any grant provided by Jerome Siegel to defendants’ predecessors in interest contained in the May 19, 1948, stipulation. The present suit by Joanne Siegel and Laura Siegel Larson seeks a declaration from this Court that the Superboy termination notice is valid and that they have recaptured all of the copyright to Superboy since the effective date of the termination.

This is a great history lesson (with some amount of “legalease”) that explains the nature of the dispute between DC and Superman’s creators in detail.  While some may dispute some of the facts recited by Judge Larson, it’s interesting that so much of the history is based upon the original case, and testimony, from the Golden Age litigation.  I’m sure this opinion will provide for much discussion in the years to come.

The entirety of Judge Larson’s order can be found here:

Siegel v. Time Warner, Inc., et. al., 496 F.Supp.2d 1111 (C.D. Cal. 2007)

Coming up next: Litigation, Golden Age Style – Part 3