Could Superman Be Split In Two?

Posted: Fri., May. 27, 2011, 4:00am PT
Can Superman be split in two?
Warner, DC, heirs should work together
By Ted Johnson
Warner Bros. is hoping that Zack Snyder can do for "Superman" what Christopher Nolan did for "Batman." But the studio's real-life tangle over the rights to the Man of Steel risks resembling another Nolan narrative: "Inception."

The way things are going, less than a year after Snyder's "Man of Steel" is released in 2012 the rights to a significant part of the early Superman lore will revert back to the heirs of creators Jerry Siegel and Joe Shuster.

The Siegel and Shuster estates could wind up owning some parts of the Superman story while DC Comics owns others. The estates could get Superman's blue leotard, red cape and boots, plus an ability to leap tall buildings while DC retains villains like Lex Luthor plus Superman's ability to fly.

The question is: Could each party proceed with a subsequent project without the other's involvement?

In theory, come 2013 auds could see two parallel versions of the Man of Steel ramp up. In practice, that looks pretty unworkable.

Setting this potential scenario in motion were a series of rulings in 2008 and 2009 by U.S. District Judge Stephen Larson, who ruled that Siegel's heirs had successfully reclaimed their share of the copyright to Action Comics No. 1, which marked Superman's 1938 debut; Action Comics No. 4; and other early depictions of the character and storyline. (Shuster's heirs are on a separate timeline that begins in 2013). Larson was acting on a provision of the 1976 Copyright Act that allows authors to regain the copyrights to their creations after a certain period of time, subject to a series of intricate conditions.

Among those conditions is that the works can't have been made "for hire," since those are exempt from such "rights termination," and it's a reason underlying Larson's ruling that the Siegel heirs don't own the Man of Steel outright; he found that Siegel's work as an employee of DC from 1938-43, as the character's mythology was still being established, remained under the ownership of the publisher.

While the "Superman" creators' heirs stand to hold important rights to the character, they don't have the trademarks, which would pose a significant limitation on marketing and merchandising. And their reclamation of the copyright applies only to the U.S., so international rights would remain in the hands of DC.

For its part, come 2013, DC could still exploit the Superman projects it's already made, but under the Copyright Act, the company could not create new "derivative" works based on Action Comics No. 1 and other properties held by the heirs. Presumably, more sequels would mean more legal land mines.

This is where things get a bit bizarre.

In a recent article published in the Columbia Journal of the Law & the Arts, Anthony Cheng writes that 7th Circuit Court of Appeals Judge Richard Posner's decision in Neil Gaiman's suit against Todd McFarlane "could provide the rationale for both parties to continue legally exploiting" Superman. Posner determined that Gaiman's "Medieval Spawn" was "sufficiently distinct" to justify a separate character copyright from the original Spawn.

Along this line of reasoning, one way to settle the Superman dispute would be to "split the character in two -- a 1938 Superman and a Modern Superman -- and allow both sides to create new works based on their versions," Cheng writes.

Moreover, because both sides would independently be exploiting their respective versions of the Man of Steel, they wouldn't have to go through the tricky work of accounting for each others' profits. They'd own what they own. One downside, though, Cheng writes, is that DC would have the more valuable version of the character, given the length of time it has been transforming Man of Steel projects into popular culture.

The other, more obvious, option is that all parties come together. But that's no easy feat. The heirs' attorney, Marc Toberoff, is appealing Larson's decision to the 9th Circuit to get a more definitive ruling on who owns what, while DC is proceeding with its suit against Toberoff, charging that he has poisoned their relationship with the Siegels and Shusters.

Amid all the acrimony, it's easy to forget the original intent of the "rights termination" clause of the Copyright Act: to give authors another opportunity to share in the rewards of their creations, not to parcel them out in bits and pieces.

Larson's point wasn't to parcel out the rights but to compel everyone to come to the same table for potentially mutual benefit. As he wrote in one ruling, Superman is an "aggregate whole," not "a red cape here, a particular villain there."

Contact Ted Johnson at ted.johnson@variety.com

Bizarre legal battle could result in TWO competing Superman pics

By Don Kaye
4:16PM on May 31, 2011

By the time Man of Steel comes out in 2012, it will be six years since the last Superman movie. But thanks to a bizarre legal battle, there could be TWO Superman projects up and running by 2013.

Man of Steel, directed by Zack Snyder and produced by Christopher Nolan, is scheduled to come out in December 2012. But less than a year after that, according to Variety, certain rights pertaining to the character will revert back to the families of Superman's original creators, Jerry Siegel and Joe Shuster.

Notice we said "certain rights." Not everything will belong to Siegel and Shuster's heirs. That's because, the way this has played out legally, everything that the pair invented for Superman before they began working for DC Comics will be owned by their families. Everything they came up with for the Superman mythology after DC starting paying them will still belong to the comics giant (which is owned by Warner Bros. Pictures).

As a result, the Siegel and Shuster estates will own the rights to Superman's costume, as well as his ability to "leap tall buildings in a single bound." Other iconic aspects, like his ability to fly and most of his rogues' gallery, including arch-nemesis Lex Luthor, came into being under the DC Comics umbrella and therefore belong to the company.

Now, this is where the Variety article gets deep into the legal weeds, but the bottom line is that theoretically, starting in 2013, the families and Warner Bros./DC could both proceed with their own Superman movies. However, a Siegel/Shuster movie would essentially be based around elements created in 1938, before they began working for DC, while a Warner Bros. movie would be based on what the article calls the "modern Superman." A 1938 movie could not show Superman flying, while a "modern Superman" film would not have access to the classic costume.

So can't Warner Bros./DC cut the families a nice fat check and get everyone on board
together? That's not so easy either. The lawyer for the Siegels and Shusters, Marc Toberoff, is aggressively pursuing an appeal to establish who owns what, while WB/DC is suing him, claiming that he has destroyed the relationship between the company and the families (the dealings between Warner Bros. and Toberoff have the makings of a legal thriller on their own, according to a separate article at the Hollywood Reporter).

So unless this gets sorted out somehow, Man of Steel could be the last "true" Superman movie we ever see. Sequels may or may not be able to feature Kal-El in his trademark costume, while a separate set of movies could introduce a costumed Superman in 1938, unable to fly, battling whatever criminals Siegel and Shuster created before DC starting cutting their paychecks.

Both possibilities sound, frankly, like cinematic Kryptonite to us. What do you think should happen?

Rafael on May 31, 2011 04:51 PM
i'm fine with a superman that doesn't fly. doesn't make much sense anyway. having super jumping ability makes much more sense. i'd like a superman that exists in the 'real world'. Reply
Al on May 31, 2011 04:59 PM
As someone who never read any of the comics, but just enjoyed the Christopher Reeves movies, I would have to agree with you. I would even say get rid of the super breath, and xray/laser eyes, but I'm sure theres a lot of purests out there who will disagree with me.

Captain America on May 31, 2011 07:51 PM

"I'd like a Superman that exists in the 'real world'."

Wow, are you an idiot? There is absolutely NOTHING about Superman that can exist in the real world. You really think that removing his ability to fly and limiting him to being able to jump over skyscrapers somehow makes him more realistic? When was the last time you saw anybody polevault over the Empire State Building?

non_amos wrote:Here's another article I found in my 'search':

Various Apologists playing grabass with each other wrote:Captain America on May 31, 2011 07:51 PM

"I'd like a Superman that exists in the 'real world'."

Wow, are you an idiot? There is absolutely NOTHING about Superman that can exist in the real world. You really think that removing his ability to fly and limiting him to being able to jump over skyscrapers somehow makes him more realistic? When was the last time you saw anybody polevault over the Empire State Building?

Among Chris Nolan's many and varied sins, one thing I'll never forgive him for is popularizing this bullshit idea of realistic superheroes. Mostly because of the above but partly because of how much it limits the types of characters (specifically supervillains) that can be used.