Superman Case With The Shuster/Siegel Estates

Apologist Puncher wrote:Keep in mind, Deadline.com is 1000% PRO-Siegel/Shuster in this matter. Even though in their OWN story, it confirms what the Bros. Warner have been saying, and are suing Toberoff over, they still don't concede that HE is the problem.

webhead2006 wrote:I know i dont know much on legal stuff, but from everything we know about the dude, man how does he keep in business and doesnt get thrown out of cases with his illegal/bad moves he is doing?

Lawyer for Superman Heirs Loses Privilege Claims
By TIM HULL

(CN) - An attorney for the creators of Superman waived attorney-client privilege by giving the government legal documents that were allegedly stolen by another lawyer and shopped to D.C. Comics, the 9th Circuit ruled Tuesday.

A dispute has been brewing for years over the rights to the iconic and lucrative superhero, whom writer Jerry Siegel and illustrator Joe Shuster created in the 1930s. D.C. Comics and Warner Brothers claim that attorney Marc Toberoff tried to take control of the copyright himself by manipulating Siegel and Shuster's heirs into breaking decades-old agreements.

Around 2006, David Michaels, a lawyer working for Toberoff, "abscond[ed] with copies of several documents from the Siegel and Shuster files," sending them to D.C. Comics, including "a cover letter, written in the form of a timeline, outlining in detail Toberoff's alleged master plan to capture Superman for himself."

D.C. Comics gave the allegedly stolen documents over to an outside attorney and began a quest to obtain them through discovery. Toberoff refused to hand them over, saying the documents were protected by attorney-client privilege because they involved communication with the heirs. A magistrate judge eventually ordered production of some of the documents -- including the timeline - and D.C. Comics received them in 2008.

Relying on the timeline-cover letter, D.C. Comics filed a 2010 complaint against Toberoff, the heirs and others.

Since then, "Toberoff has continued to resist the use of any of the documents taken from his offices, including those already disclosed to D.C. Comics and especially Michaels' letter," according to the 9th Circuit.

Just after D.C. Comics sued, the U.S. Attorney's Office in Los Angeles, acting on a request from Toberoff, issued a Grand Jury subpoena for the documents as part of an investigation into the alleged theft. After Toberoff complied by producing unredacted copies of the documents, D.C. Comics moved for the same access.

A magistrate judge again ruled for D.C. Comics, finding that Toberoff's voluntary disclosure waives attorney-client privilege. Toberoff appealed to the 9th Circuit with a writ of mandamus, arguing that privilege remained because he merely disclosed the documents to the government.

The three-judge appellate panel rejected this claim, however, while criticizing the attorney-producer's business model.

"Having set his sights on Superman, Toberoff approached the heirs with an offer to manage preexisting litigation over the rights Siegel and Shuster had ceded to D.C. Comics," Judge Diarmuid O'Scannlain wrote for the court. "He also claimed that he would arrange for a new Superman film to be produced. To pursue these goals, Toberoff created a joint venture between the heirs and an entity he owned. Toberoff served as both a business advisor and an attorney for that venture. The ethical and professional concerns raised by Toberoff's actions will likely occur to many readers, but they are not before this court."

The panel, which included Chief Judge Alex Kozinski, found that "voluntarily disclosing privileged documents to third parties will generally destroy the privilege," and that this does not change just because the third party is the government.

"Given that Congress has declined broadly to adopt a new privilege to protect disclosures of attorney-client privileged materials to the government, we will not do so here," O'Scannlain wrote.

DC Comics wins in Superman ruling

Warner Bros.' DC Comics wing has scored a legal win in its long-running battle over control of Superman rights with the estates of Man of Steel creators Jerome Siegel and Joe Shuster.
In a ruling issued Tuesday, the U.S. 9th Circuit Court of Appeals denied an effort by attorney Marc Toberoff, who reps the Siegel and Shuster heirs, to assert attorney-client privilege over documents that DC Comics claims are key to the litigation involving control of the famed superhero.

The three-judge panel ruled unanimously that Toberoff cannot assert the privilege because he had already disclosed the documents to the government as part of its criminal investigation of a lawyer, David Michaels, who briefly worked for Toberoff "before absconding with copies of several documents from the Siegel and Shuster files," the ruling states.

The documents in question are a letter and other materials that Michaels sent to execs at DC Comics in an effort to "detail Toberoff's alleged master plan to capture Superman for himself," the ruling states. DC Comics execs gave the material to an outside attorney but then sought to obtain them as evidence through discovery motions in two other ongoing Superman cases.

Toberoff fought the disclosure, spurring DC Comics to file a separate lawsuit against him in 2010. Toberoff has maintained that while the documents were given to federal prosecutors as part of their investigation of Michaels, that decision amounted to a "selective waiver" of attorney-client privilege. Last year, a district court ruled in favor of the disclosure of the documents to DC Comics.

Warner Bros. believes the documents are central to proving its assertion that the Siegel and Shuster heirs had reached a settlement agreement with the studio in 2001, before Toberoff entered the picture as their lawyer and a prospective producer of future Superman properties. Appeals in that case, filed by DC Comics in 2004, are pending before the 9th Circuit.

The disclosure ruling comments on Toberoff's dual role as a lawyer and business partner of the Siegel and Shuster heirs.

"The ethical and professional concerns raised by Toberoff's actions will likely occur to many readers, but they are not before this court," it states.

In a statement, Toberoff said: "We cooperated with the U.S. Attorney's office to enable them to investigate the theft from our law firm of the Siegels and Shuster's privileged documents. We are disappointed in today's decision which holds that such cooperation with law enforcement by the victims of a privacy crime, itself waives privilege as to stolen documents. However, nothing in this ruling or the documents at issue will affect the merits of this case. We are considering our options as to the ruling, and will continue to vigorously defend our clients' rights."

superman1938 wrote:The Heirs are dum and frigging greedy...seriously they had an agreement on 2001..probally had a nice payday but they had to have more...I hope they disbar the f'n lawyer.

superman1938 wrote:The Heirs are dum and frigging greedy...seriously they had an agreement on 2001..probally had a nice payday but they had to have more...I hope they disbar the f'n lawyer.

thecolorsblend wrote:If this thing goes as badly as I suspect it could for Toberoff, getting disbarred may be the least of his worries. I would imagine that after DC wins, he'd be exposed to legal repercussions I can't even think about. And for all I know, some of his actions could result in prison time.

DC's Pre-Emptive Strike - $600,000 Buys 50% Of Superman

You've just read the headline correctly - DC Comics have launched an amazing, and unexpected, pre-emptive strike, this time against Joe Shuster's heirs. In between appeals against the Siegel heirs, consisting of claim and counter claim and co-counter claim, came this latest round of filings, and their associated documents consisting of just under 1,000 separate pages, apparently from the collection of Paul Levitz. DC's stance is that, for a mere $600,000, which has already been paid to Joe Shusters late brother and surviving sister, DC Comics want the court to ratify their claim of ownership of the Shuster's 50% of the Superman copyright. If the court does agree with DC Comics, it would mean that the Shuster heirs cannot go through with their copyright termination notices, which is expected to happen in November 2013, thus forcing the Siegels, and Marc Toberoff, into a stalemate.

If DC win this surprise round then it would mean that they own 50% of Superman. If they lose the Siegel claim this would then mean that both parties would own the copyright, split down the middle. This would mean that, if DC wanted to continue exploiting the character they'd have to enter into an agreement with the Siegels and Toberoff. It also means that if the Siegels and Marc Toberoff wanted to exploit the character then they'd have to enter into an agreement with DC Comics. After all, 50% of a copyright, when the other side won't come out to play, is almost worthless, unless you can sell it to someone who can deal with the owner of the other 50%.


According to DC's filing, they firmly believe that they own the claim based upon at last three points. In order they are as follows:

"In exchange for more than $600,000 and other benefits, Jean Peavy—the sole beneficiary of Shuster’s estate—entered into a 1992 agreement with DC that rescinded all of Shuster’s prior copyright grants and re-granted to DC any copyright interests that Shuster or his heirs may have held. This agreement eliminated any pre-1978 copyright grant that might otherwise be subject to termination under the Copyright Act."
"In 2001 and 2003, Jean Peavy, her son Mark Peary, and the Estate of Joseph Shuster “assign[ed]” their putative “copyright termination interest in ‘SUPERMAN’” and any “termination” rights they possessed to a joint venture with Pacific Pictures Corporation, defendant Marc Toberoff’s film production company. When the Shuster Estate served its copyright termination notice weeks later in November 2003, none of Jean, Mark Peary, or the Shuster Estate possessed the majority (or greater than 50%) share of Joe Shuster’s putative termination interest required to terminate under the Copyright Act and Copyright Office regulations. Defendants’ undisputed failure to disclose the transfer of their purported termination interest to Pacific Pictures was not “harmless error”—both the notice and the sworn declarations filed with it concealed material facts about defendants’ illicit agreements in violation of federal law. "
"The Shuster heirs’ copyright termination notice is premised on § 304(d) of the Copyright Act, which allows termination only by certain individuals whose rights “expired” under § 304(c) of the Act. 17 U.S.C. §§ 304(c)-(d). Because Joe Shuster passed away in 1992 without exercising any purported termination right or leaving a statutory heir to inherit it, his termination right did not “expire”—it simply ceased to exist. As a result, there is no statutory basis for the Shuster heirs to terminate under § 304(d)."

To summarise the claim of DC Comics, "Section 304(c)(6)(D) establishes that during the 10-year notice period before the Shuster heirs’ copyright termination notice purports to take effect (2003 to 2013), the Shusters were and are barred from entering into any agreement regarding the putative rights they hope to recapture with any party other than DC, the original “grantee” to those rights." If the court sees this the same as DC Comics, and grants them 50% of Superman, it'd make the best deal that DC has made since it shelled out $130 back in 1938 and 'bought' Superman from Jerry and Joe. So, without any further talk, have a read of the latest court document.

And just when you thought it was getting dull...

Apologist Puncher wrote:WB is ready to put this baby to bed,

Apologist Puncher wrote:and I GUARANTEE they continue to go after Toberoff:

thecolorsblend wrote:I thought it was generally known that DC had made a few such "settlements" along these lines over the years. I'm glad they're finally playing this card. DC has tried again and again to resolve things but some snake in the grass keeps whispering into the Siegels and Shusters ears.

The benefit here is that if DC winds up with 50% of Superman... they still own a majority of Superman. How interesting is Superman without Kryptonite? Or Lex Luthor? Or other characters, concepts, locations, etc? Arguably even Superboy-related stuff might be left out of reach for them. Even if the Siegels were to win the "whole" thing, they'd still end up with a lot less than half of what makes Superman work.

I would. Just to be a dick if nothing else.

thecolorsblend wrote:I thought it was generally known that DC had made a few such "settlements" along these lines over the years. I'm glad they're finally playing this card. DC has tried again and again to resolve things but some snake in the grass keeps whispering into the Siegels and Shusters ears.

Apologist Puncher wrote:Toberjackoff.

Warner Bros. Wins Big Court Ruling in Fight Over Superman
4:31 PM PDT 10/17/2012 by Eriq Gardner


Warner Bros. has won a blockbuster victory that could entitle it to maintain its copyright stake in Superman.

On Wednesday, a federal judge in California granted the studio's motion for summary judgment on the question of whether a 1992 agreement with Jean Peavy, the sister of Superman co-creator Joe Shuster, precludes the estate's attempt to terminate a copyright grant. The decision by U.S. District Court Judge Otis D. Wright comes four years after another federal judge in California confirmed the validity of a termination notice from the estate of the other co-creator, Jerry Siegel. The termination attempts have threatened Warners' hold on its lucrative Superman franchise.

Here's the full ruling.

The judge ruled "that the 1992 Agreement, which represented the Shuster heirs’ opportunity to renegotiate the prior grants of Joe Shuster’s copyrights, superseded and replaced all prior grants of the Superman copyrights. The 1992 Agreement thus represents the parties’ operative agreement and, as a post-1978 grant, it is not subject to termination."

Because Warner Bros. is in the middle of production on next summer's big-budget Man of Steel, directed by Zack Snyder and produced by Christopher Nolan, the studio likely will take tremendous comfort with the latest ruling. It comes after years of nasty litigation with Marc Toberoff, the attorney for the estates.

"We respectfully disagree with its factual and legal conclusions, and it is surprising given that the judge appeared to emphatically agree with our position at the summary judgment hearing," Toberoff says in a statement to The Hollywood Reporter.

Warners had no comment on the ruling.

Superman was first created in comic form in the 1930s. Shuster drew the character in the early editions of the Action Comics that initially told Superman's story.

During the later portions of Shuster's life, he struggled to make a living, taking a job as a deliveryman at one point to pay the bills.
Starting in the 1970s, DC Comics (now a subsidiary of Warner Bros.) began making payments to Shuster and Siegel. According to court papers, the co-creators were paid $4 million over the years under a 1975 agreement.

When Shuster died in 1992, Peavy filed an affidavit saying that she was the successor and sole heir to his property. Shuster's will also apparently named Jean's son, Mark Warren Peavy. Nevertheless, after filing her affidavit, Peavy wrote to DC and asked the company to pay her brother's final debts and expenses. DC agreed and also increased survivor benefits, but the company's then-executive vp Paul Levitz admonished, "This agreement would represent the author/heir's last and final deal with DC, and would fully resolve any past, present, or future claims against DC."

At the time, Jean said she understood. The following year, she wrote a letter saying she would "stick to our bargain" and not attempt "to reclaim the Superman copyright."

But about a decade later, the Siegels and Shusters engaged Toberoff in an attempt to do just that.

The estates' primary weapon was the so-called "termination rights" in US copyright law. In 1976, the U.S. Congress lengthened the copyright term, but as a fig leaf to artists who had created works at the early stage of their careers but handed their rights over without much bargaining power, gave artists another bite of the apple by allowing them to enjoy the benefits of the latter stages of a copyright term by terminating a copyright grant. As the copyright term has since been extended even further over the years, so too has the power of these termination rights.

But executing a termination notice isn't easy because artists need to adhere to a strict protocol, including sending out precise "termination notices" during a short few-year window. Terminations also have been subject to other limitations such as when an artist and studio make what's known as an "agreement to the contrary," negating the termination powers.

Despite the odds, the Siegels tasted success in 2008 when a federal judge ruled they successfully had recaptured copyrights to some—but not all—of Superman’s defining characteristics, such as his costume, Clark Kent and his origin story, as described in the first editions of Action Comics. The scope of the ruling is now under appeal at the 9th Circuit with arguments being heard soon.

But the Shusters aren't so lucky.

Judge Wright first indicated that he was leaning towards rejecting the termination based on the 1992 agreement in a tentative decision issued this past summer. But at a hearing in September, Toberoff argued that it didn't make sense that in 1992, Warners would be replacing all of their previous contracts dating back to 1938 with the Shuster estate and throwing away the chain of title on Superman that the studio has relied upon for so many years.

Toberoff also asserted that if this was the intention, it would have been spelled out in the contract to avoid any ambiguity.

The argument was enough for Judge Wright to take time in reconsideration, but ultimately, he decided to apply the law of New York, where the 1992 agreement was signed. For guidance on whether the Shusters' termination rights had been waived, the judge looked to an important 2008 decision involving the estate of John Steinbeck, where the 2nd appellate court found that an agreement made by the author's widow in 1994 superseded older contracts and eliminated a termination right. He also looked at a 2008 decision involving the Lassie franchise where a 1978 grant was determined by the 9th Circuit not to have waived a termination right.

Probably the line of Judge Wright's ruling that will trigger an appeal is the one that reads, "The broad and all-encompassing language of the 1992 Agreement unmistakably operates to supersede all prior grants."

According to the judge, Peavy's 1992 agreement deals with the same subject matter as the parties' earlier agreements, settling and displacing all claims. He says that the Shuster heirs were aware of the termination rights "when they bargained for and entered into the 1992 Agreement" and can't claim ignorance. This set the case apart from what happened in the Lassie litigation, according to the ruling.

Thus, Judge Wright has determined that the Shuster heirs won't be able to terminate their share of the Superman copyright.

The litigation has been intensely fought, with the studio bringing out its top legal gun, Daniel Petrocelli at O'Melveny & Myers, to handle this important case. Warners continues to assert claims that Toberoff has tortiously interfered with its deals with the estates by, among other things, getting the Siegels to back away from a settlement in 2001. Recently, Warners asked for terminating sanctions arising from alleged efforts by Toberoff to hide pertinent information in the case.

Despite the studio victory, the parties figure to be in court for many years to come. Up first is the 9th Circuit hearing in the Siegel case, and down the road will likely be an appeal in this one.

In the meantime, the result of the decision on Wednesday will mean that Warners can continue to exploit Superman however it likes, including in Man of Steel next summer. That said, it will need to account on profits to other copyright holders such as the Siegels, providing plenty of new ground for yet more litigation. Far from being settled, the legal fight will continue like a comic book. Stay tuned for the next edition.
E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner

non_amos wrote:I'll have to actually read the article later but a word of advise here to both DC Comics and duh brothers Warner:

BRING BACK THE TRUNKS...........................................................NOW!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Just explain the other crapola as some phase he was going through or something, alternate universe, whatever, but trunks are mandatory!

Warner Bros Wins Big In Superman Copyright Case
By DOMINIC PATTEN | Thursday January 10, 2013 @ 11:23am PST

The 9th Circuit Court of Appeal today ruled in Warner Bros.‘ favor in the long standing copyright battle with the heirs of Superman co-creator Jerry Siegel that there was a binding agreement in 2001 giving the studio full rights to the superhero character. The ruling (read it here) Thursday is basically a green light for Warner Bros. to now move forward with its Superman big screen reboot Man of Steel and other related properties without the specter of further legal action from the creator’s heirs hanging over them like Kryptonite. “Today’s ruling vindicates DC Comics’ long-held position that it entered into a binding agreement with the Jerry Siegel family in 2001. The Court’s decision paves the way for the Siegels finally to receive the compensation they negotiated for and which DC has been prepared to pay for over a decade. We are extremely pleased that Superman’s adventures can continue to be enjoyed across all media platforms worldwide for generations to come,” said Warner Bros in a statement Thursday.

The 9th Circuit’s ruling today admonished a previous lower court decision that denied the claims of Warner Bros-owned DC Comics that they had a deal over a decade ago with the Siegel heirs. “The district judge erred in granting summary judgment to Larson as to DC’s third and fourth counterclaims. The central issue in these counterclaims is whether the parties reached a binding settlement agreement during their negotiations over the rights to Superman in 2001 and 2002. The district judge, however, failed to address whether the October 19, 2001, letter from Larson’s then-attorney constituted an acceptance of terms negotiated between the parties, and thus was sufficient to create a contract. We hold, as a matter of law, that the October 19, 2001, letter did constitute such an acceptance,” said the trio of judges on the appeal panel today. The panel then threw the issue back to the district judge to reconsider DC’s other claims. “Because a judgment on those claims in DC’s favor would appear to render moot all of the other questions in this lawsuit, we decline to address these other issues at this time,” the six-page ruling added. Through the courts, the estate of Jerry Siegel had recaptured half of the original Superman rights in 2008, with the estate of co-creator Joe Shuster to do the same in 2013. A ruling in October by Judge Otis Wright III said that an agreement the estate of Joe Shuster signed 20 years ago with DC Comics rules out any effort by his heirs to terminate the copyright granted to the Warner Bros-owned company Today’s ruling pretty much does the same to the Siegel heirs.