"Captain America: Steve Rogers" #2 Reveals Why Cap Hailed Hydra
I think there’s actually a lot more good information out there about this current situation than the Superboy ruling from awhile back, but there’s enough confusion that a FAQ could probably still be useful.
What is a copyright?
Copyright is a legal right that gives the creator of an original work specific rights to the original work, such as the right to control who can copy the work, who can adapt the work, who can publish the work or heck, who can financially benefit from the work, period.
So, who owns the copyright of Superman?
As of this moment, as per the ruling by Judge Stephen Larson on March 26, 2008, Superman’s copyright is owned in two equal parts by DC Comics/Time Warner and the heirs of Superman co-creator, Jerry Siegel.
Why do the Siegels own half?
Because, in 1997, they gave notice that they were terminating their half of the 1938 transfer of the Superman copyright from Jerry Siegel and Joe Shuster to DC Comics, and the termination became effective as of 1999 (Joe Shuster’s half remains owned by DC).
Why can they terminate the copyright?
When Siegel and Shuster sold Superman to DC Comics, the status of copyrighted material in the United States was that they last for 28 years, with the right to renew for an additional 28 years – making it a total of 56 years. In 1976, Congress extended the renewal period from 28 years to 47 years (an increase of 19 years), making it a total of 75 years. At the time, Congress decided that people who transferred a copyright before 1978 (when the extension kicked in) deserved a chance to terminate the transfer to gain the benefit of the extra 19 years. Their theory was that when people sold their copyright, they did so under the idea it would be for 56 years, and since it was now for 75 years, the creator of the original work, or their heirs, should get back the copyright for the extra time, presumably to get financially compensated again, if the copyright still had value.
Why can the Siegels terminate the copyright and Joe Shuster’s estate can’t?
Because the 1976 Copyright Act applied only to the author or his/her heirs. Siegel had heirs, Shuster did not.
What is the work-for-hire exception?
If a copyright was created under work-for-hire, then it is not eligible for termination, as the copyright is considered to have been created by the company who employed the creators, not the creators themselves. For instance, cartoon characters created for Disney by Disney employees are considered creations of the Walt Disney corporation, not their individual workers.
Why was Superman not considered to be a work-for-hire?
In this particular instance, Siegel and Shuster had written the comic that was the lead story in Action Comics #1 many months before they sold the story to DC Comics. Therefore, they were not considered to have written the comic FOR DC Comics. Instead, it was a work that they sold TO DC Comics, and thereby not a work-for-hire, so it would be a standard copyright transfer and eligible for termination.
What does it mean that the Siegels only own the copyright to Action Comics #1?
Once they sold the first Superman story to DC Comics, Siegel and Shuster became employees of DC, so every comic they wrote AFTER Action Comics #1 WOULD be considered work-for-hire, so anything created after Action Comics #1 would be owned by DC.
So what do the Siegels own, exactly?
The Siegels own half of the copyright to everything introduced in the first issue of Action Comics #1, which, really, is the vast majority of everything folks associate with Superman. The name Superman, the secret identity of Clark Kent, the fact that he is an alien who came to Earth from an alien planet as a baby, his super strength, invulnerability and ability to leap over tall buildings in a single bound, the red, yellow and blue costume with a red “S” on his chest and a red cape on his back, and his fellow reporter, Lois Lane. The Siegels co-own all of that, which is basically everything.
What do they NOT own?
While the specifics would be determined by a jury, it seems pretty safe to say that they do not own everything after Action Comics #1, like Lex Luthor, Jimmy Olsen, Perry White, Superman being able to fly, Superman’s vision powers, Superman’s expanded origin (the whole “Red Son” stuff).
What about trademarks?
DC still owns all of the notable trademarks, specifically the name Superman, the “S” symbol, the visual look of Superman and some other notable features (like the slogan “Up, Up and Away!”).
What does that mean that they own the trademarks?
Trademarks are for commerce purposes, so advertisements and the covers of comic books. So no one can advertise a Superman comic book, in an ad or on the cover of a comic book, other than DC Comics.
What does that mean for the Siegels’ rights to use the character?
It means that if they were to license Superman to another company, like Marvel, that company would not be allowed to call the character Superman on the cover of the comic, nor would they be able to use the changes to the character post-Action Comics #1, like the more detailed S on Superman’s chest or the expanded powers.
It’s a lot like how DC has a character called Captain Marvel, but they have to call his book Shazam! because Marvel has a trademark on the name Captain Marvel.
What does this mean for DC’s rights to use the character?
They do not change at the moment. Since they own an equal share, they can do what they want, so long as they cut in the Siegels for one half of the profits. Same with the Siegels, who’d have to pay DC one-half of any profits they got from licensing the character to another company.
So, does it make much sense for the Siegels to license the character to another company?
At the moment, no, not really. Since DC has all the trademarks AND an equal share of the copyright, it is better for the Siegels to just take their cut of any Superman proceeds, as well as work out a huge monetary settlement from DC Comics to sell their rights to DC.
How much money does DC owe them for Superman’s profits since 1999?
A jury will have to decide that.
Do they get a cut of DC’s international profits, too?
No, this is only for the US rights of Superman. DC fully maintains all international rights.
Okay, so what’s this about 2013?
In 1998, Congress extended copyrights AGAIN. This time, for any copyright formed before 1978, Congress just added a flat 20 years. So Superman will now stay in copyright for 95 years, or until 2033. However, this time, that extra 20 years is available not only to authors and their heirs, but also to the ESTATES of authors. So Joe Shuster’s estate (executed by his nephew) will certainly be exercising their right of termination, which will be in 2013.
At that point, for the last 20 years of the Superman copyright – the Superman copyright will be owned FULLY by Siegel and Shuster.
What does that mean for DC?
That’s the big one for them. Then they would likely have NO rights to do Superman comics, movies, etc. except on a license from Siegel or Shuster. They would still own the trademarks, though, so DC would certainly have a lot of negotiating strength, so a deal would be likely (if it is not already finished BEFORE then), but it is not a good place for DC to be.
What is the current status of the case?
DC is, of course, appealing. And since the monetary issues are to be settled in trial (which is not scheduled to begin in the very near future), nothing much changes for now. Most likely, we just see a new round of settlement negotiations, with an eye by DC of getting this all taken care of via a large check being handed to the Siegels (do note that DC has been very willing to settle this thing – the Siegels just differ with their terms).
EXTRA FAQ FOR JUST CONFUSING STUFF YOU REALLY DO NOT NEED TO KNOW, SO READ AT YOUR OWN RISK
What exact rights might DC hope for past-Action Comics #1?
I would presume DC might try to make an argument that their work on Superman past Action Comics #1 was different enough that it could stand on its own as independent work (particularly the post-Byrne reboot), and not subject to the Siegel’s copyright. The Siegels, of course, will argue it is all just derivative of Action Comics #1. This would also be determined by a jury, and since it would be by a jury (and this case likely will never see a jury), it really is not a big deal.
That is strictly a “Do we have to pay them for this stuff?” question, by the way, not a “Hey, they don’t own Superman! We changed him enough!” thing.
So wait, if the Siegels could terminate after 56 years, why did they terminate in 1999, which is 61 years after Action Comics #1?
Part of the Act gave people a five-year period in which to terminate, provided they gave notice two years in advance. So the Siegels could have terminated anywhere between 1994 and 1999. They waited as long as they did because they were negotiating a settlement with DC. When that didn’t work by the deadline, they terminated.
What’s this about DC owning the copyright on the ad for Action Comics #1?
As I just mentioned, you have a five-year period to terminate, and if you take longer than five years, you cannot terminate the copyright. There were ads for Action Comics featuring Superman that came out before Action Comics #1. Since they fell BEFORE Action Comics #1’s release, they fell outside of the five-year period, and the Siegels could not terminate them. So yes, DC owns the copyright for the Action Comics #1 ad, which was a small black and white reproduction of the cover of Action Comics #1. So DC owns the right to the character who appears in that ad – however, since it is devoid of the context of the story, all they own is a super-strong man in a black and white outfit (the S is not even recognizable, so they wouldn’t get that, even) – the name Superman isn’t even used, so they don’t get that. So basically, they get nothing. It’s, like, 10 pages of the ruling, and it amounts to essentially nothing.
If you have any further questions you’d like to see included here, let me know!
Here are some questions!
My buddy Kurt asked:
What about all the other Superman stories Siegel and Shuster wrote before Action Comics #1? Are those considered work-for-hire?
As Slam rightfully points out, since nothing really notable came about in those stories, I don’t think either side is much concerned about the copyright on those stories. Now if Luthor had made his first appearance then, perhaps they’d think differently.
Zach Adams asks:
Since trademark protection expires when it is not used, could the Siegels and Shuster’s estate just not do anything until 2018 or so, and just cause DC’s trademark to expire?
In theory, perhaps, but DC could save the copyright by just making a new book using the name. Superman’s Pal, Jimmy Olsen, perhaps?
But yeah, as you mention, it makes more financial sense for the Siegels and Shusters to keep the trademark alive, so DC will pay more.
Why/how does DC soley own international copyright? Is that settled, or still up for negotiation/litigation? All this termination stuff is strictly US law. International law is different, and DC is pretty set with it.
(More a hypothetical: there are more uses of the character than just in books, so long-term it’d show bad faith) Since DC owns international copyright, could they publish the books Superman appears in only in Canada, buy them from themselves (directly or via subsidiaries), then import them for resale? After all, when I buy or sell back-issues of Spawn (for example; I don’t really do that), Todd MacFarlane doesn’t get any of that money. They could publish Superman comics only in Canada, sure, but they would not be able to import them to America for resale.
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