Kryptonite for creators: How to protect your intellectual property

Friday 1st February 2013
Article written by: Thomas Huthwaite

Just months before “The Man of Steel” releases in US cinemas, Warner Bros, the owner of DC Comics, has won an appeal in the US 9th Circuit Court of Appeal confirming its ownership of its rights to the Superman universe and creative control over the Superman character. 

The appeal decision, which comes after almost 75 years of on-going legal battles involving Warner Bros and the co-creators of Superman, Jerry Siegel and Joe Shuster, represents a resounding victory for Warner Bros and will be a great relief to the business.  However, the on-going legal saga illustrates the importance for creators of obtaining appropriate legal advice before commercialising their intellectual property. 

When they created Superman in 1938, Siegel and Shuster would have had little idea of the then current and future value of their creation, but at the time they should have considered alternative means of structuring the deal with Warner Bros (such as a licensing arrangement) to ensure that they retained the legal rights to their now world-famous character.

Superman’s legal history

Siegel and Shuster sold all the rights to Superman in 1938 for US$130, and at the time they entered into an agreement to supply the publisher (then National Comics Publications) with material on a regular basis.  The agreement provided the creators with a fairly substantial annual salary, although this was relatively little compared to the millions that the publisher was already making from Superman.

In 1947, Siegel and Shuster attempted to void their 1938 contract and reclaim copyright in Superman.  The case was ultimately settled, with National Comics retaining all legal rights to Superman.

Then in 1973, Siegel and Shuster made a further failed bid for ownership, losing their arguments before both the New York District Court (in October 1973) and the US Second Circuit Court of Appeals (in December 1974).

In 1975, the publisher of Superman (now owned by Warner Bros) felt a moral obligation to accredit Siegel and Shuster as the creators of Superman, agreeing to do so for all comics, TV series and films.  In addition, Warner Bros reportedly agreed to award lifetime pensions to the pair of $20,000 each per year.

Major amendments to the Copyright Act in 1976 and 1998 then saw the US copyright term lengthened, and special “termination” clauses inserted, allowing for authors to reclaim rights to their works from publishers within specific reclamation windows.  Siegel and Shuster’s estates filed notice of their intent to reclaim copyright to Superman, and then entered into lengthy settlement negotiations with Warner Bros.  However, the Siegel and Shuster estates had little success and issued further legal proceedings, alleging copyright infringement by Warner Bros.

In March 2008, the California District Court ruled that Siegel’s estate was entitled to reclaim some of its rights to Superman.  However, Warner Bros appealed the decision, claiming that the District Court did not adequately consider an agreement between the parties that was concluded in 2001.

In January 2013, the US 9th Circuit Court of Appeal held that the parties had agreed to specific terms of settlement in October 2001, that those terms were sufficiently clear, and that the settlement agreement between them was legally binding.

That decision followed a similar finding in October 2012 regarding the estate of Superman’s other co-creator, Joe Shuster.  The combined result of the recent litigation leaves Warner Bros in complete creative control over the Superman character, including his origin, his likeness, and his alias Clark Kent.

Batman too?

Of course, Siegel and Shuster are not the only creators to receive what they later considered to be a raw deal for their intellectual property.  Under an agreement with DC Comics, Bob Kane is recognised as the sole creator of Batman.  While it is true that Bob Kane came up with the idea for Batman, much of the character, plot and mythology of the Batman series – including many of its villains – were developed in close collaboration with William “Bill” Finger.

Bill Finger passed away in 1974 having received very little compensation or recognition for his contributions to the Batman universe.  Even to this day, Bill’s estate has failed to have him listed in the credits to more recent Batman works.  Despite being the creator and writer of the Joker character, and the man who coined the term “The Dark Knight”, Warner Bros has refused to accredit Bill Finger in its most recent Batman movie franchise.

Protecting creations

The cases of Superman and Batman illustrate the need for authors and other creators of intellectual property to ensure that they receive appropriate legal advice before entering into agreements with publishers and other businesses to commercialise their intellectual property. 

In particular, authors and other creators sometimes appear sometimes to disregard their on-going legal rights when negotiating with publishers, and care should be taken (for example) when conducting an outright sale of the intellectual property rights to their creations.  In certain cases, a licensing arrangement where the author or creator receives on-going royalties based on revenues derived from the creation may be appropriate.

If you need any assistance with protecting your creation, then please contact David Alizade and Thomas Huthwaite.

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