February 23, 2008 by Christopher Bird
In two months’ time, the estate of Jerry Siegel, co-creator of Superman, will finally take Time-Warner Communications (via its subsidiary, DC Comics) to trial over ownership of copyright. Siegel (along with artist Joe Shuster) created Superman in 1928, and DC Comics currently owns the rights.
Of course, it’s not that simple. Last year, the Siegel estate successfully won back the copyright to Superboy. They did so because Superboy was ruled to be Siegel’s creation: Siegel created Superman and then sold the rights to DC in 1947. When the United States Congress extended the length of copyright renewal in 1976, they also allowed creators who had sold their copyrights under a work-for-hire agreement to terminate their transfers after the fact (reflecting that they might have wished to negotiate different agreements had they known works would not expire into the public domain for another 28 years). These same issues arise over Superman, who was initially created by Siegel and Shuster independently for a comic strip then sold to DC.
When decided, it will further define the parameters of a currently uncertain issue: namely, how much of Superman’s copyright overlaps that of Superboy?
This is more difficult than it sounds. Superman’s copyright encompasses his interactions with Metropolis, Lois Lane, and Lex Luthor; Superboy’s includes Smallville, Lana Lang, Ma and Pa Kent, and Krypto the Superdog. Consider that the television show Smallville includes multiple elements from both franchises. In the Superboy decision, Judge Harold Lew refused to state decisively whether Smallville infringes on the Superboy copyright, but did say that it could potentially infringe. (And if Smallville infringes, then potentially so does the Superman movie franchise. Superman is big money.)
To elaborate: DC’s current argument, should they maintain the Superman copyright, is that Smallville is a show about a “young Clark Kent.” DC claims this because stories featuring a young Clark Kent were published long before any comic with Superboy, and thus “a young Clark Kent” is part of the Superman copyright. The Siegel estate countered (and Judge Lew seemed to agree in his decision, albeit not emphatically) that “a young Clark Kent” does not automatically give DC an escape clause, because all Superman comics featuring a “young Clark Kent” featured the character as an infant or toddler, rather than as a teenager.
I think the most difficult aspect of deciding whether any “young Superman” story drifts into Superboy territory, however, is that storytelling in comics is by its very nature fluid; new writers add and change the character as they see fit, and interactions with other (copyrighted) elements help to define each property. A good example of this as regards Superboy is Smallville itself. If you ask most casual Superman fans where Smallville is, they’ll tell you it’s in Kansas. The problem is that Smallville’s location was only determined to be in Kansas in the original Superman movie in 1980; prior to that, Smallville’s location was indeterminate. Does the Superboy copyright include that Smallville is in Kansas? Should it? It wasn’t part of the integral concept as envisioned by Siegel, but later creators were simply building upon and extending DC’s intellectual property (and, by proxy, Siegel’s).
And of course, Smallville the television show draws upon elements of both the Superboy and Superman copyrights. On the Superman side of things, you have Lex Luthor as the show’s primary antagonist – but on the Superboy side, Lana Lang is the primary love interest. Modern superhero comics storytelling (and anything derived from it) is unique in that it absolutely demands the interaction of dozens, even hundreds or thousands of copyrights at a time. DC’s ownership of Superman may be in question, but their ownership of Krypton, Lois Lane, Lex Luthor and Jimmy Olsen isn’t, and what’s Superman without his home planet, girlfriend, archenemy and best buddy?
Which is why the Superman lawsuits aren’t about control of the character – that’s effectively been ceded to DC until such time as the character and his entire supporting cast becomes public domain – but simply about fair recompense.
(A final word: although I’ve been trying to be fair in discussing this, the truth about DC’s shameful treatment of Siegel and Shuster – and later their estates – is public record. The Superboy and Superman lawsuits are classic examples of how corporate advantage in the legal arena can be harnessed to unfair extremes.)