T.J. McLean Writes

A longtime showbiz journalist and fan's thoughts on comic books, movies and other cool stuff.

Tag: copyright

‘Before Watchmen’ is like gambling and smoking: Legal, but probably not a good idea

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On February 7, 2012

In Uncategorized

It’s time to revisit the saga of Alan Moore and Watchmen.

In case you missed it, DC Comics made public its long-rumored plans to publish this summer a series of Watchmen prequel miniseries using a variety of the industry’s top talents. The plans call for more than 30 issues in the project, with one arriving each week. Covers for a lot of the first issues have been released and the press release included a supportive quote from original Watchmen co-creator Dave Gibbons.

As soon as the news hit, the debate and bitching began over whether this was appropriate to do given the long-standing dispute between DC Comics and Alan Moore, with many fans and more than a few professionals showing the same kind of moral cowardice seen in the Superman copyright dispute and cheering on DC and calling Alan Moore a dick for not going along with the idea.

Among the rationales used to justify the “Moore is a jerk” arguments are:

  • Moore had discussed at the time Watchmen came out the possibility of doing some prequel stories himself. 
  • Moore has used other authors’ characters in his own work, most notably in League of Extraordinary Gentlemen, even encountering a small bit of copyright controversy for Peter Pan in the U.K. 
  • Moore, like everyone else in comics, has used and built upon characters others created to advance their career with the understanding that others will do the same with their characters. For example, Moore got his big break in American comics writing Swamp Thing, which was created by Len Wein and Berni Wrightson. 
  • Allowing creators to make their stories and characters off limits would be the equivalent of saying Superman should have ended after Siegel and Shuster stopped doing it, and that would be terrible! 
  • There’s also the argument that he signed the contract he signed and can’t complain about it now. If he really wanted to retain all the rights, he and Gibbons could have self-published Watchmen. 

All of which are poor arguments, in my opinion.

It always helps to go back to the facts and look at how we got to the place we’re at. Before that, an aside: Most of my books and magazines about comics were put in storage in the garage to make room for my daughter, meaning the many Moore interviews from years past I planned to cite in this post are not available to cite in the kind of detail I would like. I will try to approximate with online sources where possible. If I get the specifics wrong, let me know; I’m pretty confident having read up on this for many years that I’ve got it straight.

Most folks know Moore, who had become a writer of note in British comics, came to DC Comics in the early 1980s to write Saga of the Swamp Thing. The book had been slumping in sales and a new approach in Moore was needed to keep it going. Moore understood the job quite well: This was a mainstream American comic book that was distributed on newsstands with the Comics Code Authority seal, so there were limitations already in place on the types of stories that were going to be acceptable in a horror-tinged but still all-ages title. Moore succeeded rather well in reviving interest in Swamp Thing, and sales began to rise. The book was acclaimed in the fan market and began to draw the attention of the mainstream press, which was where the problems started. The shadow of the anti-comics crusade still lingered in the early 1980s and some of the powers that be at DC or over DC became concerned that a sophisticated title like Swamp Thing, even operating within the restrictions of the Comics Code, could attract unwanted attention to DC and the entire industry. 

For those who don’t remember, one of the less-savory aspects of the Reagan revolution was a censorious impulse that lead to Attorney General Edwin Meese conducting a major investigation into the evils of pornography with an eye on restricting access to that kind of material even for adults. This also was the time when parents’ reaction to PG-rated movies like like Indiana Jones and the Temple of Doom, which features a beating heart being pulled from a man’s chest, put enough pressure on the movie industry to create the PG-13 rating. It also was the era when Tipper Gore, wife of then-Senator Al Gore, lead a charge to restrict sexually suggestive lyrics in rock and pop music. So DC was not too far off base to worry about some of that energy could be turned comics’ way, because it already had with a number of conservative law enforcement officials prosecuting comics shop owners for selling objectionable material to minors.

The result was that DC made Swamp Thing one of its first titles to carry the label “Suggested for Mature Readers.” Many fans expected this would have been perfect for Moore, who obviously could take it darker. But the real result of such a label was to reduce quite significantly the distribution of the comic. Without the Comics Code seal, there was no newsstand distribution, and even local comics shops would cut back their orders of the title and be wary about who they sold it to for fear of being prosecuting. That fear was strong enough for many to simply not bother to carry such a title.

For Moore, this effectively means that DC was rewarding him for successfully reviving Swamp Thing under the restrictions placed on it by reducing his potential audience to a fraction of its previous size. I don’t know if Swamp Thing sold well enough for Moore and his collaborators to earn sales incentives, but it doesn’t take a math wizard to see what the distribution change would mean for that income. To Moore, his success was punished and not rewarded — a recurring theme for many top creators in the history of comic book publishing.

Still, Moore continued to work for DC, eventually signing contracts to allow DC to publish what would become Watchmen and for V for Vendetta. These contracts are the meat of his disputes with DC. At the time, DC was not allowed by its ownership to publish material to which others held the copyright. On V for Vendetta, Moore and artist David Lloyd had begun the strip in Warrior magazine in the U.K., but the publisher folded before the story was completed. Moore and Lloyd held all rights to the material, and DC wanted to re-publish the completed parts of the story in color and have Moore and Lloyd complete the tale.

I’m sure at first the idea of the temporary copyright transfer seemed like a great solution. At the time, the American comics market was almost exclusively periodicals, with only a handful of graphic novels and trade paperbacks having even been tried. Those, too, rarely stayed in print long. DC at the time likely had no trade paperback collections or plans in place to create the kind of book backstock they are now well known for. With no precedent, there was no reason to assume that the series would be printed as a series of comics and then essentially go out of print with the rights reverting to Moore and Lloyd after a short time.

Taking a bit of speculation on my part here: this arrangement must have seemed quite radical and forward thinking at the time. Getting DC to put in a contract a copyright reversion clause for a comic’s creators must have seemed like an incredible and hopeful breakthrough for those interested in creator rights. Moore must have felt like he had helped make progress that all creators could benefit from and that he had avoided with his own creation the traps that befell the likes of Siegel and Shuster and Jack Kirby.

The same deal was struck for Watchmen. A lot has been made in the past week that the original idea for Watchmen was to use the Charlton Comics characters. The argument is being made that Moore should not complain about the copyright dispute over Watchmen, since it was originally going to use characters owned by DC Comics and the versions that ended up in the final story are inspired, based on or ripped off, depending on your perspective, from those same characters.

And that’s an interesting argument but ultimately is one that fails to hold water. There are similarities, but there also are enough differences to make the characters distinctly different, especially in a legal sense. Fans who make this argument seem to overlook its implications for all kinds of comics characters. Following it could open up arguments that the Fantastic Four is ripped off from Challengers of the Unknown, X-Men from Doom Patrol, Man-Thing and Swamp Thing from The Heap, Hawkeye from Green Arrow, and on and on. That DC Comics needed a contract with Moore and Gibbons that transferred the copyright to the publisher is all the proof you need to show that even DC at the time thought they were distinct enough to need to clear the rights.

Most fans know what happened from here on out: Watchmen and V for Vendetta were published as a series of comic books and then collected into book editions that have remained in print and strong sellers ever since, preventing the copyright reversion from kicking in.

For the most part, I think DC was simply lucky in this deal. They realized they had a cash cow and have milked it for all its worth for the past 25 years. Yes, they stuck to the letter of a deal that benefits them tremendously, and from that perspective Moore et. al are just plain out of luck. But DC is violating the spirit of the deal, as the terms of the contract were drafted to make the copyright transfer temporary, and that’s where Moore is correct and DC is in the wrong.

Yes, the contract has always entitled Moore and his collaborators to royalties from sales of Watchmen. It’s clear, however, that the money is less important to Moore than ownership and control of his work, and he has given away his share of such proceeds to his collaborators. I think this is the one point that really puzzles some people. In the Superman copyright case, it’s all about money at this point. The Siegels have no interest in making new Superman comics, they want the money they are due from having recovered their share of the copyright to the character as of 1999. Same with the Kirby family claims — it’s about getting a piece of the very large pie Kirby helped create. And in America, where getting rich or dreaming about getting rich is the real national pastime, a lot of folks don’t understand how Moore can complain about all this when he is still getting paid. Obviously, the principle of the matter is what’s important to Moore, and he has the courage to call out the industry for its abuses and to walk away from it.

DC Comics’ decision to now create Watchmen derivative works after 25 years, against the wishes of Moore in particular, violates the spirit of the deal even more. That a lot of professionals are chiming in with the sentiment that Moore should just get over it and let others play with his work kind of amazes me. Watchmen is not in the same work-for-hire category as Fantastic Four or Green Lantern, which were created to be ongoing series. It was created to be a stand-alone, independent, creator-owned work and its creator feels — rightly, I think — that DC Comics is exploiting a loophole in the deal that allows them to hang on to a property they had originally only borrowed and intended to return to its creators.

I’ll briefly discuss some of the criticisms of Moore’s position that I listed earlier but have not yet addressed:

  • Yes, Moore had discussed doing prequels himself. But to say Moore’s plans to write prequels to a project he expected to own means that others can do it without his permission for the publisher that failed to return it is ridiculous. 
  • Yes, Moore has used other authors’ characters in his work. Those works are, however, now in the public domain and can be used by anyone. The copyright, which was originally held by the authors themselves, has expired on them and the authors themselves are long gone. 
  • Had Siegel and Shuster had control over Superman, then it’s possible they might have retired the character. He surely would be very different from the Superman we know today. That would have been a more human outcome for Jerry and Joe and their families — as for the rest, I don’t think it really matters. The world at large and comics would have gotten along just fine without Superman. 

If you have read through all of this, you surely have realized I will not be buying or reading any of the Before Watchmen comics. In many ways, it’s yet another sign of mainstream comics’ slow creative and commercial decline. DC and Marvel have such a stranglehold on the market and have become in the past two years in particular even more corporate minded and creatively bankrupt that it’s hard to find any fresh air left in this medium. Independent comics have so slim a share of an already slim market that it seems there’s no place for talent to develop and, as soon as it does, it’s sucked up by the DC and Marvel machines, which are, unfortunately, about the only ones left who can offer creators enough work and compensation for them to make a living at comics.

It would seem I have more to say about the current state of comics, so I’ll save that for my next and possibly last post.

Kirby Heirs’ Claim a Tougher Row to Hoe

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On September 22, 2009

In Uncategorized

As if the news from comic book land couldn’t get any more sensational, the heirs of Jack Kirby have notified Marvel and the movie studios making Marvel movies of their intent to reclaim Kirby’s rights to the likes of Fantastic Four, Hulk and X-Men.

Like the news of the similar, successful attempt by the heirs of Superman co-creator Jerry Siegel against DC Comics, this news raises questions among fans about the future of these iconic comic book characters. Adding to the interest is the involvement of attorney Marc Toberoff, who is representing the Siegels in a court proceding that will determine how much DC owes them for the use of Superman since 1999.
Toberoff has had a lot of success with this sort of case, both in the courtroom and in making headlines. In this case, sending out 45 notices of intent to terminate the transfer of copyright to Marvel, Sony, Fox, Universal and more, just weeks after Disney agreed to buy Marvel and its catalog — a large portion of which Kirby had a hand in creating — for $4 billion.
But there are some pretty major differences between Kirby’s case and the Superman case. Namely, that Siegel and his partner Joe Shuster had clearly created the character of Superman prior to working for DC Comics and selling all rights to that company, while Kirby was had been working for Marvel as a freelance artist for several years before he and Stan Lee collaborated to create the characters that become the backbone of the Marvel Universe.
When the copyright laws in the United States were revised in 1976 to include provisions for original rights owners to cancel the transfer of rights, it also made clear that the same right does not exist for material created as work made for hire. That law clearly defined work made for hire and what kind of relationship qualified as WFH.

At the time Kirby co-created the Marvel characters, the specifics of the law were less clear. The 1909 Copyright Act does include the concept of work made for hire, but doesn’t clearly define it. According to this article, courts interpreted work made for hire as requiring a traditional employer-employee relationship, though around the mid 1960s they began to expand the definition to include freelancers who contributed to collective works like Kirby, Steve Ditko and everyone else who worked on those early Marvels, except for Stan Lee.
I expect this will be the crux of this case, with Marvel arguing Kirby was creating work made for hire and Toberoff arguing Kirby — who claimed in interviews he never signed any document during those years ceding his rights to the work — created copyrighted material on his own that he sold to Marvel and that his heirs now have the right to cancel.
Lee’s situation is completely different. As the editor of Marvel Comics, he had that traditional relationship with the company and I don’t think any reasonable person would consider his contributions to those comics as anything but a textbook case of work made for hire. Of course, a lot of this is going to reopen the old argument of who was contributing what to the finished work. It’s an argument that will never be settled, but what is clear is that Kirby drew the comics, while Lee wrote the dialog and served as editor. Who was most responsible for the actual content of those stories — creating characters, coming up with and pacing out the plots — is the area of dispute. Lee surely contributed some of those elements, especially in the early days, but it’s also obvious that Kirby had the greater impact in plot and character design. It’s long been fashionable to denigrate Lee’s contributions, but the personality he projected in the dialog and the copy he wrote for Kirby’s stories was essential in developing and defining the Marvel style for decades to come.
Even though Kirby was not a traditional employee, I think it’s going to be tough for the Kirby heirs to make a convincing legal argument that he was not doing work made for hire. Unless there’s some smoking gun, the issue of Kirby and Lee’s relationship has been the most scrutinized in comics history. If there were smoking gun documents still in the hands of the Kirby estate, or even Marvel documents that dated back to the time, they likely would have surfaced by now.
And a lot of this has been disputed before, back when Jack Kirby was trying to get Marvel to return his original artwork in the 1980s. (It says on Mark Evanier’s website here that Kirby never actually sued Marvel.) There was a long dispute over a release form that Marvel asked Kirby to sign that clarified Marvel’s ownership of the copyright, but also contained many measure Kirby objected to. A long, public standoff occurred, the details of which have been recorded in detail elsewhere. One such account, Michael Dean’s overview in The Comics Journal Library: Jack Kirby, states that in the end Kirby signed a a shorter form of the release that addressed his concerns and got his art back. How that, and any other documents or agreements Marvel had with Kirby over the years, would affect the copyright termination attempt will have to wait.
And that’s the other element — this is a long-term deal that won’t really have any effect for years. Consider that in the Siegel case, they successfully terminated the copyright transfer for Action Comics #1 in 1999 and are still in court determining the details and litigating exactly how much that share of the rights is worth. With the Kirby work, the copyrights aren’t even eligible to be terminated until 56 years after first publication, which is 2017 for Fantastic Four #1, 2018 for The Incredible Hulk #1 and Thor’s first appearance in Journey into Mystery #83, and 2019 for X-Men #1. The window is five years, so it could be even longer before any kind of legal heat results.
And there’s also the issue of Disney’s legal acumen, especially in defending its copyrights and trademarks. Take for example this Los Angeles Times article from last year that makes the case that, due to a faulty copyright notice, Disney’s famous “Steamboat Willie” cartoon has long been in the public domain but remains de facto protected by Disney’s immense legal muscle.

As with the Siegel and Shuster case, it’s clear that Kirby deserved better treatment — money and credit for his contributions — from Marvel. Unfortunately, I think this will be a much tougher argument to win. Perhaps Disney/Marvel will see the benefit in settling this without going to court. But history seems to indicate a years-long legal battle before any of this is settled for good.

Anti-Siegel Superman “fans'” arguments are inaccurate and lame

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On July 12, 2009

In Uncategorized

After my last post, I expected to get some comments. But I didn’t expect them to be quite as lame as this one I got from someone named “Media Monkey Ninja.”:

I agree, the heirs are going to be the “REAL” death of The Mam of Steel. I’m not a huge Superman fan (I’m more of a Batman kinda guy), but The Boyscout is an American icon. If there is no Superman, what character is going to uphold Truth, Justice, and the American way. I’d hate to see this happen to any copyrighted character that is this loved by millions. I say if you work for a company and you create copyrighted material while working at that company. The copyrighted material should be owned by the company. If someone whats to have complete copyright ownership, they should create the character solely by themselves while working solely for themselves. That way no company can lay claim to your copyrighted material.

And this is exactly what I was arguing against — fans whose instincts are completely counter-intuitive to the facts of the case (assuming they know the facts, which this poster does not).

So let’s start from the top and try to explain this to anyone who may be interested in actually understanding what’s going on and have some interest in actually learning something. It’s distressing to get such comments, because I generally think comics fans are smart people. And I’m not saying this because “Mr. Ninja” disagrees with me — but if there’s a good moral and legal case for Warner Bros. to not share proceeds from Superman with the Siegels under the current law, I have yet to hear it. And, “DC may stop publishing the Superman comics I so love” does not qualify because no one with any real knowledge of this case or authority at Warner Bros. or DC has even suggested that would happen.

But let’s get into the details of why this kind of this panicky, selfish, pro-corporate position put forth by “Mr. Ninja” is complete bullshit.

First, let’s review copyright law. The United States Constitution states in Article I, Section 8, Clause 8:

The Congress shall have Power [. . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

What’s key is the “limited Times” element, which has constantly been extended from the original 14-year term with a single 14-year renewal to the current law which establishes copyright for corporate works made for hire at 95 years and individual copyrights at 70 years after the life of the author.

All works eventually fall into the public domain. This is important to society and to education — the works of Shakespeare are public domain more than 400 years after his death. The benefit to society of his work being freely accessible outweighs the interest of whatever distant descendant (and he has none) may have in milking it for all its worth. Most works in the public domain are not well-known, and being free increases the likelihood that they will be used, republished and generally benefit our society.

At the time of the creation of Superman in the mid-1930s, the law stipulated a term of 28 years for copyright that could be renewed for an additional 28 years. Copyright was bestowed automatically upon the creators, which applies directly to Siegel and Shuster. As teens, they created the character of Superman and his world, and spent years trying to get it published before Detective Comics Inc. bought the material to appear in Action Comics #1. By paying Siegel and Shuster the grad total of $10 a page — $130 total for 13 pages of art and story — DC acquired all rights to the material therein. That was a transfer of copyright, from Siegel and Shuster, to Detective Comics Inc., which is distinct from a work made for hire, in which a company hires people to create material for it. Most Golden Age and Silver Age comics qualify as work made for hire. Stan Lee was employed as editor of Timely/Atlas/Marvel when he came up with the typed plot for Fantastic Four #1 and hired Jack Kirby on a freelance basis to draw it. That’s a quintessential example of work for hire.

The original deal between Siegel and Shuster was iron-clad and held up more than once in court — in DC’s favor. The pair tried to reclaim the copyright to the character in the 1940s and were rebuffed by the courts. They tried in the mid-1960s to argue that they had the first right of renewal of copyright, only to have the courts rule that that right had been sold along with all the others in the original transaction. Under that deal, the Superman material in Action Comics #1 would have entered the public domain in 1994 — more than 15 years ago, for the math impaired among you. Each subsequent issue of Action Comics and Superman would have lost its copyright over time and we’d now have all the Superman material from Action #1 through 1953 in the public domain.

But that deal — which I think is quite reasonable and should remain the standard term for copyright — was no good for the corporations that held copyrights to the likes of not just Superman, but Popeye, Mickey Mouse, Tarzan, Sherlock Holmes and countless others. So, enter the copyright act of 1976, which was the most significant revision to the copyright law in the nation’s history. It not only extended copyright terms, but in a rare show of justice adjusted the law to compensate folks who had sold copyrights that, due to the extension, were now more valuable than they were when originally sold. So to make up for the fact that companies like Disney and DC Comics now had decades more to exploit characters they had acquired, a complicated clause was put in that allowed for the original copyright owners to possibly benefit from the longer terms by terminating the transfer of copyright.

So now comes a common complaint from the anti-Siegelites: If they signed over the rights, they signed over the rights and have to live with that mistake no matter what. But this ignores not only what I stated above about the change in the copyright law, but also the entire area of contract law. No matter what kind of contract you sign, it’s subject to copyright law, i.e., you can’t make a contract that contradicts the law. So the revisions to the copyright law that allow that allowed DC to keep the Superman contract beyond the original term, also allow the Siegels to terminate the original transfer. Still, some seem to think that’s unfair — to DC. But anyone who’s ever signed a contract, be it a lease or rental agreement or deal to buy a house or whatever, will come across a clause that states, essentially, that should any clause in a contract be found illegal that the legal elements will still apply. That should indicate to the vast majority of people that contracts are subject to law. You can’t, for example, contract someone to commit an illegal act and then sue them for breach of contract. The contact, despite the fact that both sides agree to it, is not a legal contract.

So what does “Mr. Ninja” mean when he calls Superman an American icon, and says that he hates to see this happen to any copyrighted character beloved by millions? His position, whether he means it or not, is that the corporate right to copyright is absolute and should never be questioned. Which not only runs counter to the Constitution and copyright law, but also the very truth and justice he says the Superman character stands for. Justice, in essence, is another word for fairness — and who can say it’s fair for DC Comics to have exploited the character of Superman for immense profit for more than 70 years, 15 years beyond the original copyright terms, and then not have to honor a part of the law that says the Siegels as the heirs of the original creator deserve to share in those profits?

What’s missing, of course, is the American way, which apparently is to bow to corporate interests at every opportunity and to support DC’s decades-long piss poor treatment of the Siegels, which included all kinds of demeaning treatment, blacklisting and persistent efforts to deny any legal claim they have to the millions — if not billions — of dollars DC has earned from the character in the past seven decades.

The other point “Mr. Ninja” brings up is that if you want control of your copyright, you shouldn’t create it for a company. Ignoring the factual error — Siegel and Shuster created Superman long before they took it to DC and never created it “for” the company or at its behest — the technology of publishing and the business realities of distribution at the time made it near impossible for a pair of newcomers like Siegel and Shuster to publish their idea without going to a comic book publisher or comic strip syndicate. No comic book publisher of the era let any creator keep the rights. And only the most powerful or business-savvy of the comic-strip artists — like Milton Caniff in comic strips or Will Eisner, who kept the rights to The Spirit comic book inserted in newspapers at least in part because he was a good business man and wasn’t the first to demand and get it — were able to retain their copyrights. Siegel and Shuster, proposing an outlandish idea that was completely untested, had no such leverage.

Which brings us to another point, which is that you can’t determine the value of the copyright to an intellectual property before it hits the marketplace. Publishers have always liked to play the odds and use the failure of the bulk of their ideas to justify stealing the ones that do work. But that’s hardly fair and it’s even arguably bad business. Would the Harry Potter books have become the sensation they are now if the publisher had treated J.K. Rowling — now one of the richest women in the United Kingdom, if not the world — even half as badly as DC treated Siegel and Shuster? They certainly would not be as creatively rewarding for the millions of fans who believed in them to preorder and line up to buy each book in the series the moment it was released. But that’s not how corporations and the small minds that run them think.

At its core, what trolls like “Mr. Ninja” seem to be most afraid of is change. That the victory the Siegels have already won will somehow change or even end the parade of Superman material from DC Comics and Warner Bros. they have come to love in an almost fetishistic sort of way. Which is the most embarrassing part — because Superman remains a vital and extremely viable commercial property. That DC and Warner Bros. would balk so thoroughly at having to share their profits with the heirs of the creators after more than seven decades of exclusive and extremely profitable exploitation is the height of corporate greed. It’s also eminently excusable, justifiable and even admirable in most circles of American society and, apparently, even among fans for whom the worship of the character through the purchase of stuff is more important than the truth and justice they believe the object of their affection represents

Fans’ anti-Siegel position in Superman case is frustrating

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On July 10, 2009

In Uncategorized

I’ve had more than my share of frustrating moments this week — Why, yes! I have been dealing with the health care industry. How did you guess? — nothing upset me quite as much as getting a message from the DC Comics Movies Group on Facebook that included the following bit of blood-boiling idiocy:

In saddening news, if the heirs of Siegel and Shuster have their way Superman will die in 2013 and DC will cease publication of all related Superman comics. Talk about punch to the collective American nutsuck, right?

I instantly sent a message back to the moderator, Allynd Dudnikov, explaining his claim was factually challenged in the extreme and that I was leaving the group immediately because of it.

What he’s talking about is the most-recent development in the ongoing legal proceeding between the heirs of Superman co-creator Jerry Siegel and DC Comics, which produced a minor victory for the publisher and its parent company the other day. But I continue to be amazed at the number of people who profess to be fans of Superman in particular and comic book superheroes in general who propagate this idiotic notion that Warner Bros. and DC Comics are somehow the injured party in this dispute and that the Siegels are opportunistic and greedy people out to deprive the fans of the character they’ve come to know and love.

I’ve written about this before and there are plenty of great sites on the web that recount the facts and provide the original documents (which are fascinating reading and highly recommended.)

I’m not an attorney, but what I undstand from following all is this is that the court decided so far is that his heirs have successfully terminated effective in spring 1999 the transfer of Jerry Siegel’s half of the copyright to the Superman story published in Action Comics #1. That means DC owes the Siegels a share to be determined at trial of the money the character earned in the time since the copyright transfer was reclaimed. Similarly, the estate of Joe Shuster has an opportunity to reclaim the other half of the Action #1 copyright in 2013. Should Shuster’s estate succeed, then DC will lose the complete copyright to that original story and will have to license the rights to it back from the creators to use the elements it introduced or to reprint that story.

This most recent ruling states that when the trial to determine the amount of money owed to the Siegels, it will include only the profits earned by DC Comics, and not of Warner Bros. as a whole. The Siegels had argued that the companies are one and the same — a claim the judge rejected. That means the Siegels’ share will come out of a smaller pie, but it’s still coming.

But it doesn’t mean the end of Superman as he exists today — or will exist tomorrow. While Action #1 introduces some of the most significant elements in the Superman mythos — the orphan sent to Earth from outer space, the alter ego of newspaper reporter Clark Kent, the love interest in Lois Lane, the basic costume and powers such as strength, invulnerability and leaping tall buildings — everything that came after Action #1 is solidly work-for-hire owned lock, stock and barrel by DC Comics for a full 95 years.

And I can’t see it making sense for DC or Warner Bros. to stop putting Superman content out there because they have to pay a percentage of the character’s profits to the Siegels. A percentage of the profits is better than no profits. And neither Warner Bros. nor DC is going to go out of business because the courts say they have to pony up to the Siegels. As Harlan Ellison, a wise and smart man — as well as a terrific writer — said about one time the studio asked him to work without pay: “What is Warner Brothers, out with an eye patch and a tin cup, begging for money?”

As I’ve said before, what’s really shameful in all of this is that this conflict was, in my opinion, unnecessary. Warner Bros. got off to a good start in the mid-1970s by restoring Siegel and Shuster’s credit and establishing an annual stipend. Had they gone a bit further and given them a sum that would have been small for so large a conglomerate but lavish for Siegel and Shuster’s final years. Even just making a big deal of the pair — sending them to festivals, comics shows, putting them on TV every now and again — I think would have done a lot more to put this dispute to rest than taking a hard position that may make good legal and business sense but is morally and ethically bankrupt.

Publishers’ shabby treatment of the folks who create and give life to the comic books we love is truly the great shame of the industry. And it’s not just folks from the past, like Siegel and Shuster, Jack Kirby or Alan Moore who are the sole victims. Ask Hero by Night creator DJ Coffman how work for hire worked out for him at Platinum Studios. And as it becomes harder and harder to make money solely by publishing comics, many of the gains made in the 1970s, 1980s and 1990s by folks like Dave Sim, Peter Laird and Kevin Eastman, the Image boys and Neil Gaiman have been pushed back by publishers who need those licensing and movie option dollars to stay in business. A quick look at the indicias and copyright notices on publishers that once used their creator-friendly deals as a selling point with fans will reveal a lot of shared copyrights — and I’ll give you one guess which party has the majority share. I expect this to get worse as more and more people create content — comics and not — with no sense of the lessons learned by the likes of Siegel and Shuster and have to learn this unnecessary lesson all over again.

I have had creators tell me revised contract terms have prompted them to stop working with publishers they had long worked with and take their work to houses like Image, which along with Fantagraphics and one or two other independent publishers, are perhaps the last bastions of creator ownership in comics.

What amazes me is that so many people buy the line that Warner Bros. and DC are entitled to make as much as they can off of Superman without any kind of legal or moral obligation to the Siegels of the world. It’s some strange kind of American corporatist thinking that gives all the power and rewards to the corporate executives who exploit a work and cuts out completely the creative people elements that give a character and a story life in the first place. (Again, I’ve been dealing with the health-care industry in a relatively very minor way this past week. It’s clear and logical to me that if someone is in the position of benefiting themselves, the company they work for or their investors by denying care, then making such a decision even in the face of overwhelming evidence to the contrary is inevitable. And there are such people making that very decision at every level of the American health care system. No wonder the industry has become a black hole for money and morals.)

Given the United States is a country that, particularly of late, has sadly been more pro-business than pro-people, I’m not surprised to see the attorneys and execs for Warner Bros. acting this way. But I wish the fans of Superman, who represents an ideal of fairness above all else, were better represented in the online chatter than by this kind of remark, which exudes above all else a selfishness and short-sightedness that the Man of Steel, were he real, would hardly approve of.

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