For more than a year, rumors have been whispered from one anonymous source to another that DC's most treasured copyright, possibly the most reasured copyright in the world -- Superman -- was about to slip, or had already slipped from its grasp. Adding to the suspicions was the fact that DC had directed its marketing and editorial staff to "play down" Superman's 60th anniversary. But when Matt Brady broke the story in a recent report on AnotherUniverse.com, it had gained a new wrinkle that was potentially even more dire for Superman's parent company.

The Comics Journal had been researching copyright records and laws in an effort to determine if DC had somehow failed to file or incorrectly filed renewal forms back in the 1960s when the copyright's original term expired. The truth turned up in a far more recent document.

In April, Jerry Siegel's widow Joanne and daughter Laura filed a termination of copyright transfer which is intended to return the Superman copyright to the heirs of the character's co-creator. The document states that the Siegels "hereby terminate the grant of the transfer of renewal copyright(s) (to the extent of author Jerome Siegel's share in the ownership of the renewal copyright(s)) made in a certain agreement between Jerome Siegel and Joe Shuster and Detective Comics, Inc. executed on or about December 4, 1937."

The document states that the termination is intended to apply not just to Superman himself and his origin story but "to each and every work (in any medium whatsoever, whenever created) that includes or embodies any character, story element or indicia reasonably associated with Superman or Superman stories, such as, without limitation, Superman, Clark Kent, Lois Lane, Perry White, Jimmy Olsen, Superboy, Supergirl, Lana Lang, Lex Luthor, Mr. Mxyztplk (also known as Mr. Mxyzptlk), Ma and Pa Kent, Steel, the planet Krypton, Kryptonite, Metropolis, Smallville, or the Daily Planet."

Joanne Seigel confirmed for the Journal that the document had been filed, but said, "At this point, I cannot make any comment."

In fact, it was hard to deny the filing, since AnotherUniverse.com had posted the document, and every comics-reading web-surfer had already seen for themselves what had been causing the ghost of Jerry Siegel to rise up in the nightmares of every DC/Time/Warner lawyer for the past two years.

The law that allowed copyright reversion to a work's original authors came into being as part of a package of copyright reform laws passed in 1978. It called for a five-year window to open up whenever a copyright was renewed or extended that would allow a property's creator to take action to regain the copyright. According to copyright attorneys, the philosophy behind this law was that creators often sold properties before the properties' true value could be anticipated. The copyright reversion law allows creators or heirs to renegotiate such deals at the time of a copyright's extension, when the value of a property has made itself known.

Before the new law, copyrights had a term of 28 years and could be extended for an additional 28 for a total potential term of 56 years. The changes in 1978 included an addition of 19 more years to the allowed extensions for a total potential copyright life of 75 years. Last year, pressure from longtime copyright-holding companies like Disney succeeded in getting the limit for corporate copyrights extended for another 39 years. For copyrights held by individuals or their heirs, the limit is 50 years from the death of the author.

The 1978 extension meant that DC's copyright, which reached its 56th year in 1994, was allowed to be extended another 19 years, or 75 years from the publication of Action Comics #1. Authors and their families objected that there was little point in having a series of renewals if corporations were going to be automatically granted extensions without any opportunity for the authors to terminate the original copyright transfer. Hence, the 1978 law allowing a five-year period for authors to terminate copyright transfers at each renewal juncture.

Under the newest law, the DC copyright could be extended another 39 years when it expires in 2013. If the Siegels have their way, however, the term of the DC copyright has already reached its end. Under the1978 law, the 56th year of DC's copyright also began a five-year window during which the heirs of Siegel and Shuster could file to regain their copyright. The law requires that copyright-holders be given a two-year notice before copyright reversion is to take effect. The Siegels served DC notice of their intent in April 1997 and followed through in April of this year, which may explain why DC decided to keep a low profile for Superman's 60th birthday.

Joe Shuster, who accounts for 50% of the original creator ownership, appears to have left no eligible heirs, which means that his half of the copyright would remain with DC. Joanne and Laura Siegel claim 75%, a controlling interest, of Siegel's share of the creator ownership. Siegel's surviving son Michael, who would account for the remaining percentage of Siegel's ownership, is apparently not a participant in the copyright termination.

The real nightmare for DC is that the potential loss of Superman revenue, as valuable as that may be, might not be the worst of it: Superman could simply be the first of a whole herd of Golden Age super-friends to burst out of the DC stable. The grandkids of every freelance creator who thought up a costume and a super-power circa 1940 might start turning up on DC's Avenue of the Americas doorstep with injunctions in their hands. And DC may find that a good portion of its costumed meal tickets have suddenly become free agents.

That is the vision, anyway, that has been conjured up to the delight of some and the horror of others. It's too early, however, to predict much about the implications and consequences of the Siegels action, except that they will be very, very complicated.

Marshall Nelson, a Seattle attorney who was in law school when the copyright reforms of 1978 were being heavily debated by experts, knows enough about the issues involved to know they won't be easily resolved. "The Siegels have taken the broadest, most aggressive position they can in the filing," he told the Journal, "but there's still an awful lot of issues to be resolved. There's so much uninformed bullshit on the street and on the Internet right now, I would discount a lot of what you hear."

For one thing, the fact that the Siegels have filed a copyright termination doesn't make it a done deal. As long as you've got cash up front to pay their fees, the bureaucrats at the United States Copyright Office will record anything you want to file, regardless of legal standing. The purpose of the Copyright Office is to back you up with documentation in the event you find yourself challenging someone or being challenged in court. Such challenges must be resolved in court, however, not by the Copyright Office.

One of the scenarios being bandied about on the Internet is an outcome in which DC pays 50¢ of every dollar it earns from Superman to the Siegel family. Lawyers will tell you this is unlikely to come about. Harris Miller, an attorney who specializes in "entertainment law" and who has a long background in dealing with comics-field-related clients, told the Journal, "There are a couple of caveats it's important to keep in mind. The termination refers only to the copyright, not the trademark, which DC would still own. Also, DC would still own the copyrights to its derivative works."

A copyright covers ownership of a work in its entirety. A trademark is intended to protect the proprietary business interests of an image, pattern or logo. Works which feature substantial elements of an earlier work are considered derivative works. Superman, as a character at the center of a storyline created by Siegel and Shuster, is protected by copyright law. The "S" emblem, the red-and-blue costume, the Superman title, and slogans like "The Man of Steel" are considered elements which identify the property in the minds of the buying public, and they are controlled by trademark law.

Since DC retains the trademark, this means that the proceeds of things like T-shirts, mugs and other merchandise emblazoned with Superman's "S" would arguably all still go to DC. Unless the Siegels' attorneys were to argue successfully that the value of the Superman trademark is primarily rooted in Superman the work.

Due to the split between the trademark and the copyright, if the Siegels decided to publish their own new Superman works, they might have to find a way to do it without using Superman's image, costume or logo.

So let's say DC nets $1 off a Superman comic book. The Siegels claim 50% or 50¢. Except DC lawyers counter that most of that profit results from the value that has accrued to DC's long establishment of the Superman logo in the minds of the public. Off the top of his head, Miller guessed DC attorneys might claim as much as 70% for DC's trademark, bringing the Siegel's share down to 50% of 30¢ -- or 15¢. Except DC lawyers may argue that most of the remaining value stems from its long development of the Superman mythos through its many derivative works. As Nelson said, "You've got a lot of history there." Maybe another 70% worth. This would leave the Siegels with 50% of roughly 9¢ -- or 4.5¢ on the dollar.

"These are the kinds of arguments going on behind closed doors right now," Nelson speculated. "The interesting thing will be to see whether they'll be able to reach an agreement or if the whole thing will go to court."

But even 4.5¢ on the dollar can add up fast if it starts applying to every DC superhero born in the Golden Age. If Jerry Siegel's family can do it, why not others?

Washington, D.C., attorney Arthur Levine is representing the Siegels in their copyright termination. As a result of the attention the case has received on the Internet and in the national press, Levine told the Journal he has begun "hearing from comic book people" with similar copyright interests. Asked if he had filed copyright termination forms for any other comic-book properties, Levine said such cases were "still in the early stages."

Miller said "a number of ambiguities" would have to be resolved before it could be determined which Golden Age creators or heirs might be eligible to file a copyright termination. [See Ripples on the Golden Age Pond for a consideration of some of the likely prospects.]

For example, works produced under a work-for-hire agreement do not qualify for the copyright termination filing. During the period in question, DC was working entirely with freelancers. None were on staff. Everyone was paid by the page. The current definition of "work for hire," which covers both on-staff employees and freelance or independent contractors, would probably be applicable to much of the work done for DC at the time, but the same concept of freelance work for hire did not exist during the Golden Age of comics. "Do we apply the current policy on work for hire," Nelson asked, "or the policy that existed at the time?"

A key factor in distinguishing between work done for hire and original work is the degree to which a creator received editorial direction. How much of the character or plot concept was mandated in the details of an assignment and how much was invented by the creator or creators? As anyone who has followed the field knows, these are not easy matters to untangle even when the comic book was published yesterday, let alone 60 years ago. Having all the involved creators and editors die in the meantime doesn't help the situation.

In the case of some prominent creations, such as Bob Kane and Bill Finger's Batman, the five-year window will close before the heirs can give DC the required two-year notice -- unless they have already given such notice.

DC may not even have seen the last of copyright terminations from the Siegels. Jerry Siegel is credited with creating The Spectre in 1941. If the circumstances of its creation make it eligible for copyright termination, that would mean its five-year copyright termination window opened in 1997. Asked if he had filed or was preparing to file a copyright termination on behalf of the Siegels for The Spectre, Levine replied, "No comment."

While champions of creator rights may cheer the potential victory of a creator's heirs over a big corporation, Miller said he was not convinced the copyright termination trend would be good for the comics industry. "I don't view this as a good thing," he told the Journal. "Look at the chances DC has been taking with Vertigo, Paradox Press, Helix, John Ostrander's Spectre, The Kents, creator-owned stuff, painted books. DC is able to do these things because it has a cushion of income from Superman and Batman properties. To the extent that the copyright termination causes money to go from DC to the Siegels, that's money going out of the comics industry. Unless the Siegels put it all into some grant program for the comics field, I don't see it as that great of a thing for the comics industry."

The Journal will continue to research and report the story as it develops.

See what Valentino and Marder had to say in TCJ #216.

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