Will DC potentially lose the rights to "Superman" and "Superboy"?

[astro]

INSIDE THE SIEGEL/DC BATTLE FOR SUPERMAN

I’m not savvy enough re intellectual property rights and trademarks to know if the case described in the link has as snowball’s chance of prevailing.

Does it?

Page of links re the case

[Scott_Plaid]

No, no way in hell DC can win. Just like with the Steamboat Willie copyright case.

Oh. Yeah. Disney won that one anyway, despite what the law clearly states.

http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act

[Menocchio]

I don’t know that law well enough to comment on the merits of the case. If DC, or more accurately, Time Warner, thinks it even has the slightest chance of losing, it will deliver dumptrucks of money to settle the thing. If that doesn’t work, and they do lose…

Well, DC fans had better hope that they’ve got a tighter hold on Batman, because if he goes, then Time Warner will dump DC so fast it’ll make your head spin. They want DC for the characters, not the comics. Perhaps they’ll sell it to Marvel or another comic group. Perhaps they’ll just shut it down.

[RealityChuck]

Not much chance of winning.

1. You can’t copyright a character. Any copyright the heirs claim would be the copyright of the original Action Comics stories that S&S submitted to DC. Most likely, later stories would have been Work for Hire; DC would have probably insisted on that.
2. DC/Time Warner has the Trademark on the character. Siegel and Schuster never were involved in that. Even if they won the copyright issue, the fact that DC controls the trademark prevents S&S from cashing in.
3. At best, S/S heirs could claim that it’s a matter of derivative rights. That would hinge on what was in the contract S&S signed when they transferred rights to DC. If DC bought all rights (which seems almost certain), then the DC contract remains in effect.
4. All the arguments are based on changes in copyright law. But the changes cannot affect contracts that were legal before the law was passed – that’d be an unconstitutional ex post facto law. So if all right have been transferred to DC, then changes in law does not affect that.

There is a lot of sympathy for S&S and the feeling they were ripped off. Yet S&S signed the contract and were comic professionals at the time, not naive farmboys as they are often portrayed. They assigned all rights to the character because they probably believed that it would not be worth much after ten years. They made a bad choice, but went into it with eyes open.

[DrFidelius]

… and it’s not as if they are also suing for the rights to Dr. Occult or Slam Bradley. I am sure that S&S got every cent they deserved for the rights to those characters and others. Not National’s fault (or their heirs and assignees) that S&S also sold off a creation that really took off (after S&S stopped writing it).

[Exapno_Mapcase]

@Scott_plaid

No, no way in hell DC can win. Just like with the Steamboat Willie copyright case.

Oh. Yeah. Disney won that one anyway, despite what the law clearly states.

http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act

That’s a ridiculously tendentious reading of copyright issues, and one that also leaves out all mention of the role that trademark law plays. The word trademark is never used on that page, making it almost worthless for a understanding of the legal outcomes. For the U.S. to separate itself from the term limitations of the Berne Convention would have created a nightmarish legal situation with worldwide copyright law.

The S&S case is interesting legally, as it would clear up a lot of the uncertainties introduced by the various revisions of the Copyright Laws. If it goes to court I guarantee you won’t see a resolution before the 2013 termination date for the copyright.

But the trademarks will still be in force, so find a lawyer before you do anything at all with those properties.

[RealityChuck]

I happened to dig up my copy of Action Comics #1 (well, actually an exact oversize reprint of the original comic that DC put out in 1974). The relevant point is this line:

“Entire contents copyright 1938 by Detective Comics, Inc.”

Now, under the copyright law at the time, the copyright holder was the person or entity who applied for copyright, and this was also required to be listed as part of the copyright notice. Since Siegel and Shuster were not on the notice, they were never legally the copyright holders at all. Thus, they have no claim at all on the copyright. With no legal claim on the copyright, they can’t claim derivative rights, and any reading of the changes in the law is moot.

[Walloon]

@Scott_plaid

No, no way in hell DC can win. Just like with the Steamboat Willie copyright case.

There was no Steamboat Willie copyright case.

[astro]

@Walloon

There was no Steamboat Willie copyright case.

He may be referring to the Disney case generally

http://www.wsu.edu/~legal/ijrnl/muffler/Muffler2003.pdf

[Walloon]

What a badly written legal article, from first permises! It says,

Steamboat Willie, and its star Mickey Mouse, were only a few of the many valuable Disney copyrighted products that were about to enter the public domain under the former Copyright Act of 1976. Other characters included Disney’s rights to Pluto, Goofy, and Donald Duck which would quickly enter the public domain only a few years after 1998.

Nowhere in the article does it mention trademark, and all of Disney’s major characters are under trademark, which exists perpetually as long as the trademark is in active commercial use. As Exapno Mapcase correctly pointed out, none of Disney’s characters was about to enter the public domain; a particular motion picture using Disney characters was.

And the article keeps talking about “life plus X years” copyright terms, when obviously Disney is a corporation, not a person, and does not fall under “life plus” definitions of copyright terms.

[Exapno_Mapcase]

Technically not “life plus” but an equivalent that is even longer, one reason that everyone is so upset with the new copyright laws.

Take a look at this copyright chart.

For a corporate author the term is “Shorter of (Creation + 120) and (Publication + 95)2 (§ 302©)”. That’s at least 25 years longer than what an individual author is allowed.

There are certainly good arguments to be made for a reduction in the length of copyright, but they tend to be lost in a haze of outrage, mostly from people who think that any restriction on their rights to steal other peoples’ property is an affront. The technical and political problem that the entire world would have to simultaneously agree to a reduction goes over their heads entirely.

[Cliffy]

RealityChuck, please stop declaiming about things in GQ when you’ve got you facts wrong.

You’re wrong that “changes cannot affect contracts that were legal before the law was passed”; it happens all the time (although there are issues of due process involved, they’re not absolute). More importantly, the changes don’t actually affect the contract rights DC bought in the '30’s. At that time (regardless of contractual language to the contrary), DC bought only the rights in effect at that time – i.e., 28 or 56 years of protection. That’s all S&S could sell, because that’s all that the law provided for. Later legislation in 1976 and (IIRC) 2000 added additional terms of protection, but this legilation provided that original creators who’d long ago sold their 56 years of original protection could decide that they didn’t want the original sale to apply to these new rights (the extra years of protection) that weren’t contemplated at the time. That’s the whole point of the right of termination.

I’d also like a cite for your claim that you can’t copyright a character. I’m no IP lawyer, so I don’t know whether that’s true or not, but it seems unlikely. Literary works can be victims of copyright misappropriation even if now actual words are copied.

Obviously, the indicia of a 1970’s reprint of Action Comics #1 isn’t good evidence of what was printed in the 1938 version. Even if it were, the fact that DC printed a statement of copyright doesn’t mean it’s true. I would like a cite for your claim that mere fraudulent registration, without more, is enough to secure a copyright on a work the registrant had no hand in creating.

–Cliffy

[Otto]

Not that I don’t agree with you Cliffy but RealityChuck did in fact declaim in CS (when he had the facts wrong).

Not an excuse but perhaps enough to spare him the infamous Bricker cigar cutter treatment.

[Cliffy]

:smack:

[Acsenray]

Fictional characters can be subject to both copyrights and trademarks. Here’s a passage describing part of the Seventh Circuit’s 2004 ruling in Gaiman v. McFarlane regarding the ownership of the characters “Medieval Spawn” and “Cogliostro.”

Turning to the issue of copyrightability, the court concluded that the Medieval Spawn and Cogliostro characters were copyrightable works in which Gaiman held co-authorship.

Comic books, like motion pictures, are collaborative media, which require the contribution of numerous parties in order to produce a final result, the court noted. The court went into the details of the creation of comic books, which involve at least four authorship functions–writing, pencilling, inking, and coloring. The comic book, the court said, is a work of joint authorship incorporating the contributions of the writer, penciller, inker, and colorist, all of whom have rights in the final work.

It may be that Gaiman’s contributions with regard to these characters, standing on their own, did not constitute copyrightable works, the court said. However, the incorporation of Gaiman’s ideas into the final product produced a copyrightable work in which Gaiman held rights, Judge Posner concluded. The court said:

Had someone merely remarked to McFarlane one day, “you need a medieval Spawn” or “you need an old guy to move the story forward,” and McFarlane had carried it from there, and if later a copyeditor had made some helpful editorial changes, neither the suggester not the editor would be a joint owner. … Otherwise almost every expressive work would be a jointly authored work, and copyright would explode.

But where two or more people set out to create a character jointly in such mixed media as comic books and motion pictures and succeed in creating a copyrightable characters, it would be paradoxical if though the result of their joint labors had more than enough originality and creativity to be copyrightable, no one could claim copyright. That would be peeling the onion until it disappeared.

The court concluded that the comic book characters were copyrightable works in which both Gaiman and McFarlane could assert rights, though Gaiman’s contributions by themselves might not have been copyrightable.

Characters Were Copyrightable Creations

Next, the court concluded that the characters were, indeed, copyrightable. Gaiman’s idea of an old man who helps move the plot forward may by itself not be copyrightable and a stand-alone drawing of an old man may not constitute a copyrightable character, but as soon as McFarlane took Gaiman’s suggestion and embodied that character in the visually represented Cogliostro, an original creation had been formed by the joining of the concept and the drawing, the court said.

The court rejected McFarlane’s argument that Medieval Spawn and Cogliostro were stock characters under the scènes à faire doctrine and thus were merely ideas that were uncopyrightable. The court said:

McFarlane argues that even as dolled up by the penciller, the inker, and the colorist, Cogliostro is too commonplace to be copyrightable. Gaiman could not copyright a character described merely as an unexpectedly knowledgeable old wino, that is true; but that is not his claim. He claims to be the joint owner of the copyright on a character that has a specific name and a specific appearance. Cogliostro’s age, obviously phony title (“Count”), what he knows and says, his name, and his faintly Mosaic facial features combine to create a distinctive character. No more is required for a character copyright.

The court then rejected the Ninth Circuit’s 1954 holding in Warner Bros. Pictures Inc. v. Columbia Broadcasting System Inc., 216 F.2d 945, 104 USPQ 103 (9th Cir. 1954), that a literary character, unlike a character that had been rendered visually, such as in a movie, was not sufficiently realized such that it could be copyrighted.

In that case, the Ninth Circuit ruled that author Dashiell Hammett could reuse his creation, the detective Sam Spade, in new stories, overcoming movie producer Warner Bros.'s claim to own the copyright in the character. First, Judge Posner suggested that the Ninth Circuit’s decision was based on a policy interest in preventing the movie producer from preventing an author from writing new stories involving his own creation.

Even if the case had been decided correctly, the court said, this case was distinguishable, because the characters in which Gaiman claimed co-authorship were not merely literary creations that had not been sufficiently realized. The court concluded:

Although Gaiman’s verbal description of Cogliostro may well have been of a stock character, once he was drawn and named and given speech he became sufficiently distinctive to be copyrightable. Gaiman’s contribution may not have been copyrightable by itself, but his contribution had expressive content without which Cogliostro wouldn’t have been a character at all, but merely a drawing. The expressive work that is the comic-book character Count Nicholas Cogliostro was the joint work of Gaiman and McFarlane–their contributions strike us as quite equal–and both are entitled to ownership of the copyright.

The court came to a similar conclusion regarding the character Medieval Spawn.