Superman: Truth, justice and a copyright whodunit

You may not know Jerome Siegel, but you know his work. In 1933, Siegel and his high school buddy Joseph Shuster created Superman. In his first incarnation, Superman was a bald-headed, Depression-era villain bent on world domination. But Siegel and Shuster tinkered with the character until Supes became the hero we know and love: He came from an alien planet, had great strength and speed, was impervious to bullets, could leap a building in a single bound, and was known to the outside world as mild-mannered reporter Clark Kent.

Siegel and Shuster shopped their Superman comics to a number of publishers until Detective Comics purchased the strip, and the future rights to Superman ("to have and hold forever"), in March 1938 for $130. On April 18, 1938, Detective Comics published "Action Comics No. 1" - which pictured Superman on the cover, hoisting a car above his head - and changed the comic-book industry forever.

The publisher and its succeeding corporate parents (it's now owned by Time Warner) have made a vast fortune from Superman, with only small, grudging payments to the character's creators over the years. It's a classic case of big business bullying individual creators.

But on March 26, a California district court awarded a share of Superman's intellectual property rights back to Siegel's heirs, ruling the estate could claim a share in the profit. The story of how the heirs triumphed is a tribute to truth, justice and the American way.

The 1909 Copyright Act granted a copyright lasting 28 years from the date of first publication, with the option for renewal, also lasting 28 years. The idea behind the two tiers was that the value of intellectual property is not always immediately apparent. The renewal period was intended to let creators reap a truer value of their work after 28 years: If they sold the first rights to their work to another party, but the work increased in value, after 28 years the creators could receive a second copyright, which they could sell at a truer price. It's what lawyers call a second bite at the apple.

It was a good system, but the Supreme Court stepped in and changed it. In the 1943 case Fred Fisher Music Co. v. M. Witmark & Sons, the Supreme Court decided that creators could sell both the initial rights and the renewal rights from the outset. As a result of that ruling, corporations demanded both sets of copyrights from creators. That negated the whole purpose of renewal as an instrument of fairness.

So in 1976, Congress tried to clean up the mess by passing a new Copyright Act. The 1976 version increased the length of both the initial and renewal copyrights by 19 years. Most important, it created a mechanism that would allow - after a passage of time - creators to terminate a grant of rights they had previously made.

This is what Jerome Siegel's heirs had been trying to do: terminate the exclusive rights he had given Detective Comics back in 1938, allowing them to share Superman's copyright with Time Warner - thus entitling them to a share of the profit Supes has made since 1999 and going forward.

Termination is a complicated process. It begins with the creators' filing a "notice of termination," where they pick the date in the past that they designate as the moment of creation. Siegel's heirs chose April 16, 1938, two days before Action Comics No. 1 was published. Their case looked solid, except for one gigantic problem.

Time Warner dug up two ads for Action Comics No. 1, which had run in other comic books before April 16, 1938. The ads featured a miniature black-and-white version of the famous Action Comics cover with Superman and the car. They were published on April 5 and April 10, 1938. Time Warner argued that the appearance of Superman in the ads before the date given on the termination notice meant that the rights the company held superseded the rights created on the date specified by Siegel's family. It's a hypertechnical mistake, but one Time Warner insisted was "fatal" to the termination claim.

Judge Stephen Larson of the Central District of California wrote a decision that reads like an episode from "The Perils of Pauline." Page after page, he explains that Time Warner is correct! The two earlier ads could give it protection from the Siegel heirs' attempt at termination! The court was prepared to grant Time Warner sole copyright to everything in those ads.

But then Larson pulls off an amazing twist!

"The court begins by observing what is not depicted in the announcements," Larson wrote. No mention of the character's name or origins! No description of any of Superman's powers (except for his strength, which is obvious because he's holding a car above his head)! This leaves Time Warner with only what is pictured in the ads.

And that picture was in black and white and quite tiny. Superman's distinctive blue-and-red costume? Nowhere. He's so minuscule, you can't even make out the S on his chest.

Larson's exciting conclusion? Time Warner "may continue to exploit the image of a person with extraordinary strength who wears a black-and-white leotard and cape."

But as for Superman - or at least the Superman we know from Action Comics No. 1 - Time Warner now has to share him with Jerome Siegel's heirs.

As in many suspense stories, there are lots of loose ends. The decision may be appealed. How much Siegel's family is owed will be subject to litigation. And co-creator Joseph Shuster's estate won't have the chance to try to get his rights back until 2013.
But for now, Judge Larson's decision is enough. It makes you believe a man can fly.

(Postscript for lawyers: I've elided certain other points of contention in the case - notably, the fights over collateral estoppel and the nature of "work for hire" - for brevity's sake. Apologies; I throw myself on the mercy of the court.)

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Jonathan V. Last is a columnist for the Philadelphia Inquirer. Readers may write to him at Philadelphia Inquirer, P.O. Box 8263, Philadelphia, Pa. 19101, or by e-mail at jlast@phillynews.com.