DC may already own your story


Sometimes people do the right thing for the wrong reason. That might not be such a big deal, but when the person in question is a judge ruling in a trial, those wrong reasons can be a serious problem. For example: In June 2003, the Court of Appeals for the Third Circuit ruled that DC Comics was innocent in a “they stole my story” suit (which happened to be the right answer), because the story in question was about Superman, a character DC owns (which is absolutely the wrong reason).

Heck, one of the most remarkable things about this case is that nearly everyone involved in it is wrong.

The case was a fairly typical one of this sort. Marcel Walker was a life-long Superman fan and a graphic designer, with aspirations of creating comics professionally. He had a clever idea for a Superman “Elseworlds” story, turning the origin story around and having Clark Kent be a human sent from the dying planet Earth, to be raised by Jor-El on Krypton. In 1998, he wrote it up as a proposal, and sent it to DC for consideration. He titled it “Superman: Last Son of Earth”.

If that title sounds familiar, it’s because Steve Gerber later wrote an Elseworlds limited series with the same name, with the same basic premise. It was illustrated by Doug Wheatley, then published by DC in 2000. When Walker learned about it, he reacted like just about anyone would: He felt like DC had ripped off his idea. He contacted a lawyer, who said he had a case against DC.

The lawyer was wrong. OK, maybe Walker had a case, but it was a weak one. Even if DC did take the idea for this story from his proposal, that’s not a copyright violation in itself. The idea, while somewhat clever, is something someone else might have easily come up with as well. Copyright doesn’t cover ideas, only the creative expression of an idea. So unless DC also ripped off original elements of his plot and he can prove that they got those elements from him (which doesn’t appear to be the case), they didn’t technically steal anything.

I don’t blame Walker for feeling the way he did. (I have a friend who recently experienced the same sort of thing, and he wanted badly to sue someone for it.) But an idea’s just an idea, no matter how much it meant to you, and how unfair it is that someone else had the same idea and managed to get further with it than you did. Sorry, dude.

On the other hand, DC’s claim - that they automatically own the copyright on Walker’s proposal because it’s based on their copyrighted characters and past stories - is a gross misinterpretation of the law. By that legal reasoning, publishers can simply steal writers’ proposals (regardless of whether they actually did in this case), simply because something they own appears in it. The DC lawyers who made this argument were just doing their job, which is to use whatever legal argument might win the case, so I don’t really blame them. The judge who bought the argument was not doing his job, and deserves most of the blame.

Just as an example, this ruling means that every Marvel-Universe script currently sitting unread in the Epic office already belongs to Marvel. If they like your plot but your pacing sucks, your characterisation is all wrong, and your dialog is laughable, they can just give the script to another writer, ask him to script the same story at a professional level, and tell you to shove off, and no they aren’t paying you for your script. Same with the clever new character you introduced in a team-up with Wolverine: the “underlying work” of the Marvel Universe and X-Men belongs to Marvel, so you don’t get copyright protection for the bit you just donated to them. This is worse than Work Made For Hire; it’s Work Made For Nothing. In short, this interpretation is a disaster for freelancers.

Yes, DC does own Krypton, Clark Kent, etc. and this gives them the legal right to prevent Walker from publishing the story he wrote using these elements as its foundation. Copyright gives them that veto power. But it doesn’t give them viral power, to “infect” Walker’s original ideas with their ownership and convert them into DC’s property as well.

Walker’s lawyer argued that his use of DC’s copyrighted characters in his springboard was “fair use”. Too bad Fair Use doctrine says nothing even remotely like that. It’s all about parody, and borrowing excerpts for educational purposes or commentary. It sounds like his lawyer was just throwing every possible argument against the courtroom wall and seeing what stuck. I suppose you could say he was just doing his job, but doing it properly would have meant pointing out the flaws in DC’s counter-argument, and how they undermine the very process under which freelancing works, and misconstrues the whole point of copyright law.

There’s a vanload of case law that specifies how a copyright case of this sort should be tried. Walker has to provide evidence that he wrote the original proposal, that he sent it to DC when he claims, that DC read the proposal, that the proposal was shown to (or summarised for, or otherwise made its way to) writer Steve Gerber, and that Walker’s original story elements appeared in the final product. He didn’t do that.

For one thing, he used the so-called “poor man’s copyright”: mailing a copy of the script to himself as proof of his authorship and the date. That’s so easy to fake (e.g. mail yourself an unsealed envelope) that it proves nothing. He also failed to prove (or even provide evidence) that Gerber ever saw his story (which Gerber flatly denies, and he has no history of ripping off others’ work). And finally, there’s nothing in the published story that resembles Walker’s proposal, except for coincidences that follow naturally from the basic premise. Even the title is no proof of anyone copying anything: it’s an obvious twist on Superman’s nickname “Last Son of Krypton”. (If it were possible to copyright a title, Walker might have had a case on that point, but it’s not.)

So far I haven’t heard of any repercussions or follow-up on this case. Walker probably can’t afford to appeal, which is a bad way for this sort of thing conclude. The ruling and the arguments for it are now part of U.S. case law, and can be cited in future cases of this sort. Because it apparently gives a Get Out of Litigation Free card to any publisher who actually does rip off a “rejected” proposal using their characters, it’s bound to show up eventually. I can only hope that a judge with a clearer grasp of the principles and prior case law applying to copyright, and the authority to overturn an Appeals Court ruling, will do so.

Actually there has been one definite lasting repercussion of this case. After Walker filed his original suit, the legal advisors at Time-Warner convinced management that it would be prudent to close the door that this nuisance suit came through. So they stopped accepting unsolicited submissions. Even after winning, the policy remains in place. Dealing with proposals tossed over the transom has always been a hassle, and their rolodex is full of talented creators they can invite to send them pitches when they have an opening in the publishing line, so no one at DC is eager to change it back. It’s always been a long-shot for hopeful creators, but it’s a shame that it’s no longer even an option.

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