Archive for the ‘Copyrights’ Category

Orphan copyrights 2008

Saturday, April 26th, 2008

I wrote recently about the tempest over a bill that had been introduced in Congress two years ago, which would establish some boundaries and procedures for how to deal with “orphan works” (works that are copyrighted, but the owner can’t be located… read the previous article for more background on the subject). The furor was a bit overblown, in part because - contrary to what the Chicken Littles were saying - the bill was not before Congress; it had died in committee and had not been reintroduced.

Well, it’s back.

The Orphan Works Act of 2008 has been introduced in both the House and Senate. (In the Senate it’s called the Shawn Bentley Orphan Works Act of 2008, named by sponsor Orrin Hatch to honor a 41-year-old former staffer who died of cancer.) The two bills are very similar, with the House version (H.R. 5889) including some provisions which appear to have been added in response to fears by copyright holders, but aren’t in the Senate version (S. 2913). Each house of Congress will make additional changes to their bill over the course of its life, and if both of them pass, a committee of the two houses will wrangle a compromise version and send it to the president to sign into law.

The bill’s sponsors are Senators Patrick Leahy (D-VT) and Orrin Hatch (R-UT), and Representatives Howard Berman (D-CA), Lamar Smith (R-TX), John Conyers (D-MI), and Howard Coble (R-NC). As you can see, it has some bi-partisan backing, and these particular Congressfolks include some heavy hitters in the judiciary committees, so the bill has a reasonably good chance of passing. If I had to make a prediction, I’d expect the final version to look more like the House version, since it’s more friendly to copyright owners, and those are the people (or corporations, rather) that have the better lobbyists in Washington. But I’ll try to describe them both.

Limitations on Remedies

The bill would add a section to the copyright law currently on the books, putting specific limits on what “remedies” a copyright holder could get if he discovered that someone was using one of his works without permission. In general he would have the same rights as before, unless the infringer (I’m going to assume it’s a woman, so I can use gender-specific pronouns as a shortcut here) can demonstrate that she was unable to locate the owner and therefore concluded that the work was an “orphan”: a copyright-protected work with no surviving owner.

This bill doesn’t actually create a class of works that are officially “orphans”. Unlike when a work falls into the Public Domain (which is permanent), just because someone successfully uses the Orphan Work defense today doesn’t mean someone else can use it for that work tomorrow. This bill is all about the process of someone trying in good faith to identify the owner, and using that process as a partial defense if the owner turns up later. When the owner is identified, his copyrights remain intact.

The Orphan Defense

To qualify for protection under this bill, the copyright infringer would first have to prove “by a preponderance of the evidence” that she “performed and documented a qualifying search, in good faith, for the owner” and couldn’t locate him. “Preponderance of evidence” is the usual standard in civil cases, and simply means that she has to convince the court that her account of what she did to locate the owner is more likely to be true than false; she doesn’t have to prove it “beyond a reasonable doubt”. But the burden of proof is still on her. One of the key things here is that she has to document her search. If she doesn’t, she won’t have the preponderance of evidence on her side, and she’ll lose.

But that’s not all she’d have to do. Under the House bill, she’d have to file a “notice of use” with the Copyright Office. Under either bill, if she was able to identify the owner (but couldn’t locate him to get permission) she’d have to give him attribution for the work. (How this would be done depends on what kind of work it is. If she was using an orphaned comic book character, it would presumably mean stating “Heroman was created by John Q. Doe” in the credits.) Whether she identified the creator or not, she’d have to include a symbol (apparently to be determined later) that indicates that she’s using a presumedly-orphan work.

In order to use the Orphan Defense when the case went to trial, she’d have to declare that up front, and provide all the documentation of her search before the case went to trial. That’s to prevent her from first trying to claim that she didn’t infringe on the owner’s copyright, then trying to claim that yes, she did rip off his work, but she did a thorough search for him before she did it, as a “plan B” to limit her legal liability. In other words, she can’t use a variation on the Bart Simpson Defense of “I didn’t do it, and nobody saw me”; she can’t have it both ways.

Furthermore, when the owner first contacts her and points out that she’s infringing on his work, she has to negotiate “in good faith” for how much to pay him for it, and she has to make “reasonable compensation in a reasonably timely manner”. If she fails to do either of these, she gets no protection.

Qualifying Search

That’s all about what she has to do in court. What does she have to do before she uses someone else’s work? The bill says she has to make a “qualifying search” which includes “a diligent effort to locate the owner of the infringed copyright.” More specifically, the court will consider whether her search efforts were “reasonable and appropriate” and whether she acted based on what she found. It will consider whether she followed the “best practice” guidelines for how to conduct a search, which will be published by the Register of Copyrights. And it will consider when she did the search (i.e. was it shortly before she used the work?)

The bill specifically states that she can’t use the fact that there’s no identifying information on the work she copied as proof that the owner couldn’t be located. She has to try.

The House bill includes a provision that’s missing from the Senate version, for a “Notice of use archive”, where someone who’s going to use an orphan work would be required to describe what she’s doing: describe the work she’s copying, what she knows about the owner, what she did to find him, how she’s going to use it, etc. It isn’t clear who would have access to this archive, with the bill saying only that it would be determined by the Copyright Office.

Failure to meet all of these requirements would mean that she’d be subject to the same legal repercussions as she is today.

Pictorial Works

The bill calls for the creation of a pictorial database that would make it easier to search for the owners of works that aren’t easily Googled. Actually it’s more correct to say that it tells the Copyright Office to write up the specs for such a database, which would be used to certify databases (plural) as meeting the standards for a qualifying search. So it sounds like they’re talking about privately-run databases, rather than one operated by the Library of Congress. That’s a little troubling, but not surprising given the mindset among so many in Washington that the government should outsource whatever it can to the private sector.

Both versions of the bill would have these new rules go into effect in 2009, but put a later date on applying them to pictorial works. The Senate bill would delay them until either: two or more of these databases are online and available, or 2011. The House bill would extend that to 2013.

Punishment and Limitations on Punishment

All of this provides the infringer with a defense against a copyright infringement suit, but it’s only a partial defense. Under this bill, the infringer would still have to make “reasonable compensation” for her use of the work, unless she could demonstrate that she’s a not-for-profit entity used the work purely for traditional not-for-profit purposes (e.g. education), didn’t profit from the work, and stopped using the work as soon as the owner told her to “cease and desist”.

The court can issue an injunction prohibiting her from continuing to use the work, unless she’s done something more than simply reproducing it. For example, if she’s taken the character of Heroman and written new adventures for him, she’d be permitted to continue publishing those adventures, with proper compensation and credit to the character’s creator. So in effect, once the horse is out of the barn, he can’t be corralled back into it. But as I said before, this right to continue using the character isn’t a universal one. Only the person who did the original search and came up empty can do it; I can’t come along and do my own Heroman adaptations as well… especially since at this point the owner of the character has been clearly identified.

Blogosphere Criticism

I’ve seen all sorts of wild criticisms of this bill in blog and message board “warnings” about it. Few of them seem to be familiar with the bill itself, or even copyright law in general, which is unfortunate.

Many of them accuse it of creating a situation which already exists under current copyright law. For example, opponents complain that under this bill, copyright holders would have to be constantly on the lookout for infringement to have any hope of catching someone trying to sneak by under these rules. Well, that’s how copyright works today. They also complain that the court - not the creator - would determine after the fact what a “reasonable” fee is for the use of the material. That’s how it works today as well.

Others insist that it would be easy for the infringer to bluff her way through an Orphan Defense. While the bill doesn’t spell out in detail what the requirements for a qualifying search are (a valid criticism of the bill), it’s clear enough from the language of the bill that some real care and effort will be necessary. After all, the “prosecutor” in these cases is going to be the person whose work has been infringed, not a disinterested district attorney, so it’s safe to say that he’ll present a spirited challenge to her claim that she performed a “diligent” search for the work’s creator, and not let her get off with a shrug and “I tried”.

Bottom Line

There are some additional bits and bobs in this bill, which aren’t especially relevant to the subject of this site (comics and the law), but that’s the gist of it, as briefly as I could make it. I think it’s a Good Thing.

These versions of the bill eliminate some of the things that creators didn’t like about the 2006 bill, and provide a reasonable framework for dealing with the problem of missing owners. Back when renewals were still required, only about 15% of copyrights were renewed, which means that 85% of them were effectively abandoned after only 28 years. But under current copyright law there’s no need to renew them, so 100% of works created 28 years ago are under ironclad copyright, and will remain that way until 2075… even if there’s no one alive who claims them. That’s an utterly pointless restriction, and it’s bad for the development of our shared culture. With the Public Domain frozen at 1923, an exception for abandoned and orphan works is the only way those works will be used in the foreseeable future.

I think that a sober reading of this bill reveals a system that would work. It would give some protection to people who seriously try to locate the owners of works they wish to use, and it would still give recourse to those owners when/if they discover that they’ve been prematurely declared “dead”. I’d rather see the pictorial database kept under direct government administration, or at least have some assurances that it will be kept free of charge or have some solid caps other than “what the market will bear” on the fees, both to search and to register. But on the whole, it seems fair all around, with no gaping holes that would gut the whole copyright system, as some opponents of the legislation seem to believe.

Further Reading

Of course the devil is in the details, and if this is something that concerns you, I recommend reading through the bills to look for dangerous loopholes or unfair give-aways to one group or another (which commonly get added in committee).

Here are two rather different perspectives on the new legislation: Public Knowledge, and Illustrators’ Partnership, and a more balanced one from the American Society of Media Photographers.

Plagiarism in the Internet Age

Sunday, April 20th, 2008

Darren Di Lieto, the operator of the Little Chimp Society web site, has blogged about a troubling incident in which the series of interviews of illustrators, which he conducted for the LCS web site, were stolen wholesale and published in book-and-CD form, along with the sample illustrations he included with the interviews. Luc Latulippe, one of the illustrators whose work was ripped off, has blogged about it as well.

The publication is called Colorful Illustrations 93°C, and the publisher is (if you can believe the information in the book) called “Great Creativity organization”. The interviews and illustrations are copy-and-pasted directly from the web site, and to compound the theft, the image files are all included on a CD with the book, as if they were clip-art bundled with the price of the book.

This is an open-and-shut copyright infringement case - even without registration of the copyright it would be trivially easy to show where the material came from and that it was used without permission - and a good lawyer could probably include some additional complaints, perhaps involving “right of publicity” (the included illustrators didn’t give permission to be profiled in this book). In theory.

The main problem is that the publisher is in Hong Kong. As part of the People’s Republic of China - which as a communist state for a long time didn’t recognize the legal concept of private intellectual property at all - copyright enforcement there is… weak. If you think suing someone in Czechia or Colombia or even Chad would be challenging, China is an especially challenging venue. Even though China is a signatory to the Berne Convention covering international copyright, even Microsoft has a difficult time getting the Chinese government to enforce copyright law to protect bootleg copies of Windows that are being produced in that country. For a bunch of working-class illustrators going after a small publisher sneaky enough to use a fake ISBN… it doesn’t look good.

This sort of thing - at least something this blatant - doesn’t happen often in the tightly-knit, in-bred world of comics publishing. If there’s a silver lining to the Diamond monopoly on distribution to the comics-shop market in North America, it’s the fact that you could successfully cut off a plagiarist’s access to that market by contacting one company (and I have no doubt that the folks at Diamond would do that if presented with evidence of something like this). But as the global market for comics shifts to other channels (the bookstore distributors, print-on-demand and other direct sales, online publishing, etc.) the chance of this increases.

Orphan copyrights

Thursday, April 17th, 2008

There’s been a blogosphere hullaballoo over an article by Mark Simon on Animation World Network about a piece of legislation that would deal with the copyright status of so-called “orphan works”. By his own admission Simon is full of piss and vinegar over this, but he’s also full of misinformation. He’s upset - and rallying the crowds like Chicken Little - because he imagines that this bill would do things that it wouldn’t do.

A Problem

“Orphan works” has nothing to do with young master Bruce Wayne; the character may be an orphan, but as property it’s a no-brainer to figure out who owns the copyright. The problem is that for many copyrighted works, it’s not that easy. Suppose I discover the Orange Orphan, a comic book character published (without creator credits) in 1947 by a publisher who has since gone out of business. I might want the Orange Orphan to make a guest appearance in my series, or I might want to make him the star of all-new stories. To do that, I need the permission of his copyright holder. I might make every reasonable effort to figure out who created the Orphan, who owned the publisher, what happened to their copyrights when they went out of business, and so on… but come up empty.

It’s something of a catch-22: the fact that I can’t find the owner probably means that there’s no one out there who would care if I used the Orphan, but that same fact also means that I can’t.

A Solution?

What this legislation (or something like it) would do is to make an exception in U.S. copyright law to allow someone in that situation to conclude that the work is an “orphan”, and treat it as if it were in the public domain. And if the son of the Orange Orphan’s creator saw the feature film I’d made about the character, and sued me for copyright infringement, I would have some limited defense based on the fact that made a good-faith effort to find him to ask permission first.

The crux of the matter is how much of a burden to place on the guy who wants to revive the Orange Orphan. Requiring him to get a notarized affidavit from every person on the planet saying that they don’t own the Orphan, would be too much. Letting him just do a Google search for “Orange Orphan” superhero copyright and give up when it doesn’t turn up the owner’s e-mail address, would be too little. If you listen to Simon and those who take his word for what this legislation would do, this bill would make it too easy. He’s misreading the bill.

(He’s also confused about the status of the bill. It died in committee from the 2006 session of Congress, and as far as I know hasn’t actually been reintroduced yet, though it reportedly will be soon.)

The bill says that “at a minimum” I would have to search the Library of Congress copyright registry. Before 1978, copyrights in the U.S. had to be registered, so if the Orphan’s creator or publisher wanted protection they would have registered it. In most such cases, this would produce a positive hit, and I’d have a name and address to start with. From there I’d probably have to do some old-fashioned detective work, and this would cost me time and probably some money. But the bill says that’s no excuse. The phrase they use to describe the search I have to conduct is “reasonably diligent”. I have to sincerely try to locate an owner, and I have to document that search in case I ever end up in court over it.

For works created since 1978, the LOC registry is less likely to produce an answer. But for newer works, the detective work gets easier. The “reasonably diligent” requirement doesn’t change. There’s also the real-world factor that the judge is going to get increasingly skeptical because the work I’m calling an “orphan” is new. It would stretch credibility to the breaking point to claim that a photo taken just a few years ago has no living “parent”.

The Underlying Problem

Some people question why this kind of legislation is needed in the first place. Mainly, it’s because copyright law has gone too far in freezing works out of the public domain. It used to be that orphan works fell into the public domain pretty quickly, such that an obscure superhero character from 1947 would obviously be free for anyone to use. But with near-perpetual copyright terms, that no longer happens. If we want the public domain to be forever limited to works from before 1923, the status quo is just fine. If we don’t, allowing works that no one still has a proprietary interest in to (effectively) join the public domain is the only way I see that changing.

The main concern of creators over this bill is that it would require them to register everything (which costs a small amount if time and money for each work, but adds up quickly) to get full copyright protection. The thing is… that’s already true. If you don’t register your copyright, and I infringe on it, you can’t sue me for all I’m worth; you can only sue me for “actual damages”, which means I have to pay you what the property is worth. Under this legislation, if you sued me, and I successfully defended myself with my “reasonably diligent” search, I’d still have to pay you what the property is worth. It’s not a “Get Out Of Litigation Free” card.

What this bill tries to do is to separate people into two groups: those who are trying to play by the rules and make an effort to get permission to use a copyrighted work, and those who are just trying to rip something off. Someone in the first group will meet the requirements of a diligent search, and will get some limited immunity from litigation because of it. Someone in the second group won’t, and they’re just as liable to get their asses sued off as they would be without this legislation.

I do think the legislation could make it clearer that a search of just the Library of Congress records is never enough by itself to qualify as “reasonably diligent”. That seems to be the bit that’s alarming even people who have read the bill itself, rather than Simon’s distorted interpretation of it. Since the bill is not anywhere close to being enacted, there’s plenty of time to amend it, and it would certainly be worth contacting your Congressperson to express your concern about it.

For a further reading and a few other perspectives on this:
Radio Free Meredith
The Beat
Copyright Office study about orphan works
Public Knowlege (including a copy of the bill)
Cory Doctorow (BoingBoing)

Whoever owns the Man of Tomorrow?

Wednesday, April 9th, 2008
Contracts Copyrights Trademarks

Although I’m “retired” from blogging these days, I’ve had a number of people asking me about the Siegel family getting half the rights to Superman.  It’s a somewhat complicated situation, and depending on whom you ask it’s either a landmark victory for the little guy or a shameless money grab spelling doom for the greatest superhero ever.  But it’s really neither.  I’ll try to sort it out.

As a Distant Planet Was Destroyed…

Action Comics #1, panel 1It’s probably best to start at the beginning, which in this case is the early 1930s.  Two young men from Cleveland (one a childhood immigrant from Toronto) created a character named “Superman” whom they made the hero of a proposal for a newspaper comic strip.  Jerry Siegel and Joe Shuster shopped this strip around to the syndicates, but didn’t get any takers until 1938, when an editor at National Publications (the company that would become DC Comics) offered to buy it from them for $130.  

It wasn’t a good deal, but it was a deal, and they took it.  After all, this was nearly a decade into a global economic depression with wars looming overseas, and the sale included a promise that Joe and Jerry - by this time 23 years old - would have a job, writing and drawing the strip. Their first assignment was to rework the first several strips into a 13-page story which would be the lead feature in Action Comics #1.

It may be a familiar story, but the sequence of events is pivotal to this case. Siegel and Shuster didn’t create Superman as employees of National Publications, as an assignment from their boss. If they had, the character would have been National’s property, and that would be the end of it. In fact, they created him independently, then sold him to the publisher. The end result is nearly the same - the publisher owns it - but copyright law treats the situations differently.

We all know what happened after that: Superman became a huge success, spawning a newspaper strip, a radio program, motion picture serials, and a novel… all in just a few years. Shuster and Siegel tried to get National to compensate them better for their rather profitable creation, but were unsuccessful. To put it bluntly, Superman was worth far more to the publisher than Shuster and Siegel were, so the only time the company treated them well was when it was shamed into it, in the PR run-up to the release of Superman: The Movie. From a legal standpoint, none of this had any significance, because it didn’t affect the original facts of the matter: DC owned Superman, and Siegel and Shuster were just a couple of ex-employees. (The ownership of Superboy is a separate issue; I’ll cover that in another article.)

Congress Gets Involved

Meanwhile, the U.S. Congress was getting busy. To anyone who follows the history of copyright law, that’s an ominous statement. That’s because the reason Congress got involved was to protect the interests of big entertainment companies. At the time, the longest a copyright could last was 56 years, which would mean that Mickey Mouse would be in the Public Domain in 1984. With only years to spare, Congress acted quickly, extending copyrights to 75 years. Mickey would be securely in Disney’s hands until 2004. Superman would be the exclusive property of DC until 2014.

Or maybe not.

In a somewhat surprising outbreak of common sense and compassion, Congress acknowledged that they were giving copyright owners a free gift. When National bought Superman, their lawyer understood that the company would get exclusive rights to the character for 56 years at most. After that, he’d be public property, and their ability to make money from him would be undermined, because anyone could produce and publish Superman stories. The extra 19 years this legislation gave them was a windfall. A free gift.

Meanwhile, Congress recognized that it was common for unsophisticated creators, especially those in the early parts of their careers, to sell their creations to publishers in bad deals. Giving Siegel and Shuster $130 for Superman was like the legendary $24 for Manhattan: in retrospect an obvious rip-off. So Congress included a provision in the Copyright Act of 1976 that allowed creators who sold their creations like this to reclaim them when the original copyright would have expired. In other words, the free gift didn’t necessarily have to go to the current owner: if the original creator or his immediate family were still around to benefit from it, the free gift could go to them.

The Widow and the Orphan

Jerry, Joanne, and Laura SiegelJoe Shuster died in 1992 and Jerry Siegel died in 1996. But Siegel’s widow Joanne and their daughter Laura were eligible to reclaim their half of the copyright from DC. In theory, Shuster’s heirs could have done the same thing, but the 1976 law limited who was eligible to exercise this right. They didn’t want a second cousin once-removed or the church to which a childless author left his estate to try profiting from this provision. It was strictly for reasons of fairness to the creator and his family, not to transfer the windfall from one undeserving party to another. But Shuster didn’t leave any immediate family when he died. (More about this later.)

Joanne Siegel and her daughter Laura Siegel Larson filed the necessary paperwork to reclaim their husband/father’s copyright in 1999. DC understandably tried to prevent the transfer back. They tried negotiating with the Siegels. They argued that her transfer-termination notice wasn’t done properly. (Admit it: If you worked for a company that owned Superman, and your stockholders were bugging you about your profitability, you’d probably do the same thing.) But in March 2008, a judge ruled (mostly) in favor of the Siegels.

Action Comics #1, Clark and LoisMore specifically, the judge ruled that the 13-page Superman story in Action Comics #1 belongs to two parties: 1) DC and 2) the Siegels. As far as copyright law is concerned, Joanne and Laura Siegel wrote the story (Jerry’s contribution), and DC Comics drew it (Joe Shuster’s contribution). So they are co-creators of Superman. They are also co-creators of his alter-ego Clark Kent, his co-worker/love interest Lois Lane, his employer The Daily… Star, his boss… who apparently isn’t Perry White, his home planet… which isn’t named, at least in this story. And that’s about it. There are quite a few things associated with Superman that the Siegels can’t claim co-ownership of. Even though Jerry Siegel co-created many more aspects of the Superman mythos (e.g. Jimmy Olsen), he did that later, as an employee of National. So National automatically owned those things, which means DC owns them entirely today.

One could argue that the Superman of today is a different character than the one who appeared in Action Comics #1. That Superman didn’t fly, didn’t have X-ray vision, could only outrace an express train, and (by implication) could be harmed by a bursting shell. DC even presents the current Superman as a different character; the “original” Superman was sent into exile in the 1980s at the end of Crisis on Infinite Earths, and died recently at the end of Infinite Crisis. (You don’t have to be a raving conspiracy theorist to think that this is not a mere coincidence.) But it’s a weak legal argument. The Superman appearing in Action Comics #864 this month is clearly derived from Siegel and Shuster’s Superman, and the Siegels’ copyright entitles them to half of the profits from the character.

It’s Nice to Share

Co-ownership of a copyright isn’t like co-ownership of a house. In the case of physical property, if one owner wants to do something with it, he needs permission from the other owner. But with intellectual property such as copyrights, each owner is free to do whatever they want with it (within reason). The only real catch is that they have to share the profits. So DC is perfectly free to continue doing what they’ve been doing with Superman: publishing comics featuring him, licensing him for use in cartoons and feature films, selling overpriced statues of him to collectors, etc. But starting in 1999, they have to give half of the profits to the Siegels.

Superman logoLikewise, the Siegels are also free to exploit Superman. But they have some serious limitations on them, because of all the things they don’t own. If they were to produce and publish their own Superman comics, they couldn’t use Jimmy Olsen. Or Lex Luthor… or any of his classic villains. No Daily Planet. No kryptonite. Using superpowers which were added after Action #1… they might get away with that, but only after an ugly legal battle with DC, who’d be almost certain to sue them over it. I’d advise against it.

Oh, and they couldn’t put the name “Superman” on the cover. Or the familiar gem-shaped “S” logo. That’s because those are trademarks belonging to DC, and this copyright transfer doesn’t affect them. If any other publisher tried marketing their character as “the man of steel” (a registered trademark), DC’s lawyers would come down on them like a ton of bricks. So if the Siegels did it, the same thing would happen. The judge also ruled that the Siegels rights only extend to the U.S., and that DC’s international licenses stand as they are.

This means that - as a practical matter - the Siegels can’t do anything with Superman, and DC can do pretty much anything they want. (If DC were to turn him into a baby-raping sociopath, the Siegels could probably successfully sue them for damaging the character’s commercial value, but that’s not going to happen.) They just have to share the profits with the Siegels.

Women of Steal?

So the online detractors of the Siegels who shriek that “they’re only in it for the money”… are right. I don’t think Mrs. Siegel or her daughter have any interest in getting into the publishing business. They don’t have their own vision of Superman that they want to implement. They just want a cut of what DC is doing. And you know what? I think that’s just fine.

Personally, I think copyright terms are way too long. The old terms of 28 years with a 28-year renewal (if you’re still exploiting the property) were reasonable. I’ve even argued that copyrights should expire with the creator: Jerry’s daughter Laura didn’t create Superman, so why should she be entitled to control and profit from the character after her father died? My father’s law practice won’t keep writing checks for me after he dies, so why should her father’s work do that for her?

Superman vs. wife-beaterIn this case, there’s a good answer: Because her father was cheated. He didn’t get to profit from his creation while he was alive. If he had, his wife and his daughter would have inherited a small fortune when he died, instead of the little bit he was able to get out of DC. Copyright law is a bit broken, but given how it’s structured, letting the man’s elderly widow and his daughter start claiming some of the profits at this point is a simple matter of fairness. (If you want to bring this up again in another 40 years, when Jerry Siegel’s great grandchildren or whatever are making money off a character created by a man they never even knew, I’ll be happy to change my tune. But for now, I like the sound of this one.)

Man of Tomorrow

Speaking of the future, this story isn’t over. And the ending could turn out very badly for DC.

Remember Joe Shuster? And how his heirs weren’t eligible to reclaim his half of the copyright? About 10 years ago, Congress got involved again. Apparently someone convinced them that the requirements listed in the 1976 act for who could reclaim the copyrights were too restrictive, and when they extended copyright terms again in 1998 (to 95 years), they expanded the eligibility for reclaiming copyright to include more distant relatives. So when the 75-year copyright for Superman would have expired in 2013, Shuster’s heirs could do the same thing that Siegels did. And that would leave DC with no copyrights to Superman at all.

DC would still have the trademark rights, and nothing short of special legislation is going to take Jimmy Olsen and Lex Luthor away from them. But they’d be at the mercy of Laura Siegel Larson and the survivors of Joe Shuster for permission to use Superman, and in theory those heirs could demand that 100% of the profits be split between them, making it pointless for DC to continue using the character (unless they want to publish him at no profit just to keep the trademark licenses fresh). But the heirs wouldn’t be able to exploit the character themselves because of the trademark rights. This could end in a stalemate in which nobody can do anything with the character. Which is pretty damn unlikely, because I’m pretty sure everyone in the Siegel and Shuster families is familiar with the story about killing the goose that lays golden eggs. They’ll work something out… the only question is what. (My prediction is that DC will continue challenging all of this however they can in court, but end up with a cash buy-out of the heirs’ rights.)

In the meantime, the judge in this case has ordered both DC and the Siegels to negotiate a couple of unresolved issues: the ownership of any changes the DC has made to the character since the Siegel’s filed to reclaim their copyright, and how the copyright and trademark rights relate to each other (for example, the DC-controlled trademarks are based on copyrighted material the two parties now share). If they fail to reach a settlement on those points, it’ll go back to court. The court will settle the Superboy issue later. (The gist of that case is that the Siegels claim that Superboy is a separate character, with a separate copyright… which is theirs. And it is definitely not a coincidence that the name “Superboy” has not appeared in any DC comics lately.)

And What About Naomi?

There’s plenty of anxiety about what this bodes for the future of Superman, but this case also has fans nervous about the fate of other beloved characters. The good news (from that perspective) is that the case of Superman is relatively uncommon. Most of the superhero characters published by DC and Marvel were created “in house” by employees or commissioned by the publisher from freelancers, and in either situation the publisher has a pretty secure claim on the characters as “work for hire”. It’s the fact that Siegel and Shuster walked in the door of National Publications with a completed story and characters which they already owned, that gives their heirs the right to reclaim them.

Stan Lee, Jack Kirby, and Steve Ditko were all working for Marvel when they created most of the Marvel-U pantheon in the 1960s. The most notable exception is Captain America, whose real-world history is remarkably parallel to Superman’s, leading to the Joe Simon filing for his half of the character back. And again - perhaps not coincidentally - the original version of the character was recently killed off. But that’s another case for another day.

By the way: comics are work for hire

Friday, April 23rd, 2004

Matt Brady has an interesting article on Newsarama that explores the legal implications of a single word that appears in the judge’s ruling in the case in which Neil Gaiman sued Todd McFarlane for the rights to certain characters. I’ll write more about it later, after I’ve had a chance to look it over myself a little further.