Axel-In-Charge: Facing the 'Divided' Marvel NOW! Future
I just saw a thread about it on Comic Book Resources, and I had actually been meaning to do one of these for awhile, so, well, here it is – Frequently Asked Questions about the Superboy copyright mess!
Who owns the copyright to Superboy?
According to Judge Harold S.W. Lew, the heirs of Jerry Siegel (Joanne Siegel and Laura Siegel Larson, Jerry Siegel’s wife and daughter, respectively), successfully recaptured the copyright to Superboy on November 17, 2004. So, as of right this moment, the Siegels own the copyright.
How did DC get the copyright to Superboy?
Back in 1947, while Siegel and Shuster sued DC to regain the copyright to Superman, a judge ruled in favor of DC on the Superman matter, but DID rule that Jerry Siegel owned the copyright to Superboy. This was because Siegel had given a proposal for the idea of Superboy (a much different proposal than what they ultimately used) and DC told them they weren’t interested. Then, with Siegel away in the Armed Services, DC came out with their own Superboy in More Fun Comics #101. New York state court Judge Addison Young ruled that Siegel was the sole owner of the separate character, Superboy, under the theory that DC used unfair business dealings with the creation of the character. Siegel and Shuster then sold all their remaining Superman interests, as well as any interest in Superboy to DC.
So this has nothing to do with the case for the copyright to Superman?
Nope. It has nothing to do with that. That’s a whole other matter.
So what’s the deal? Why does DC not still own the copyright?
There were changes made in 1976 to the Copyright Act, where the length of copyright renewal was extended from 28 years to 47 years, and allowed that any copyright transfers could be terminated so that the original copyright owner (or his/her heirs) could gain the benefit of those extra 19 years of protection (with the presumption being that it would be unfair to the original copyright owners, as any deals they made before the change were based upon the 28 year duration, not 47). In 2002, the Siegels gave the required two-year notice, and on November 17, 2004, the rights reverted back to the Siegels, who, if this decision stands (and it seems pretty clear cut), will retain the copyright until 2023, when the copyright expires.
But isn’t Superboy just a derivitive work of Superman?
Perhaps, under traditional circumstances, this would be the case. This, though, is anything but traditional circumstances. Siegel came to DC with the idea. They told him they didn’t want a Superboy comic. Then, when he was in the Armed Services, they came out with their own Superboy, based on his idea (that they had rejected many times).
Judge Young ruled that this was unfair business practices. Part of his ruling was that DC would be barred from creating a Superboy character on their own, because of their unfair treatement of Siegel.
Therefore, even if it would seem that Superboy was derivitive, DC’s poor business dealings resulted in its forfeit of the right to make this claim. That was its punishment for essentially screwing over Siegel, in regards to Superboy.
Therefore, since they could never create the character themselves, they had to purchase the character from Siegel himself. This is why DC’s claims to Judge Lew that Superboy was a derivitive character of Superman did no good, because of Judge Young’s prior ruling on the matter.
Can the Siegels make a Superboy comic book if they want to?
Yes, but there are two big caveats to that. While the Siegels may own the COPYRIGHT to Superboy, DC still owns the TRADEMARK on the Superboy name. This means that, so long as DC continues to use the Superboy name in commerce (like have a mini-series titles “Tales of Superboys” just about kids with all sorts of wacky powers), they will continue to own the trademark on Superboy, and no one else can come out with a comic book titled Superboy, even if they own the copyright. This is why DC cannot have a comic called Captain Marvel, even though it owns the copyright to Captain Marvel (Shazam), because Marvel owns the trademark on Captain Marvel.
In addition, DC owns a trademark on the stylized S that Superboy and Superman wear, so the Superboy comic would have to be titled something else and with a different costume! Not exactly a huge property.
So, why is it worth it to the Siegels to fight for?
Mainly, bargaining power, as Time Warner (owner of DC) would gladly just settle this matter to get this done with. It is mainly a matter of how much they will have to pay the Siegels. In fact, one of Time Warner’s claims in the past involves their insistence that the Siegels already did settle, but decided to break the settlement agreement and therefore, the Siegels should be bound by the terms of the original settlement. Therefore, it is clear that Time Warner is quite willing to settle this.
What does this mean for Smallville?
There is a copyright infringement trial currently scheduled that might decide that. The Siegels claim that Smallville is part of the Superboy copyright. DC disagrees.
The “Smallville” claim will go towards one simple decision – is “Smallville” a TV show about Superboy, or is it a show about a young Clark Kent? The difference might not seem like much, but what it boils down to is that DC, as of right now, owns the copyright to Clark Kent, so if it was determined that “Smallville” is merely a show about a young Clark Kent, then Warner Brothers would be fine.
However, if a jury determines that “Smallville” is based upon Superboy (presuming that the current ruling saying the Siegels own Superboy’s copyright), then Time Warner would be in quite a difficult position. The position of Time Warner is that a young Clark Kent appeared in the comic well before Superboy was introduced, so a young Clark Kent is a good deal different than “Superboy.”
The Siegel’s side, of course, believes that not to be the case, citing the examples that the only “young Clark Kent” before Superboy’s introduction was an infant and toddler, never a teenager, and Judge Lew clearly leans towards the Siegels, stating in a footnote “In the Superboy comic strip, a billboard on the side of a rural country road announces, ‘Welcome to Smallville! Home of Superboy.”
Judge Lew, though, did not rule on the issue, saying a jury would have to decide.
What does this mean for Conner Kent?
Well, he is still close enough to the copyright currently owned by the Siegels that it would very likely would be seen as infringing upon the Superboy copyright if DC called him Superboy. After all, super-strong, flies, calls himself Kent in his secret identity and Superboy in his superhero identity? That’s way too close to the Superboy copyright. But what’s interesting is that Conner Kent really could easily distance himself from the Superboy copyright if DC wanted to. After all, “clone of Superman” is not part of the copyright at all, so if DC wanted to bring him back as a NEW character, with different powers – that’d be totally okay.
Is that it?
I think so.
You folks tell me! Any questions?
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