Comic-Book Rights Get Close Look

The Golden Age?

The golden age of comic books, say most historians, ran from the 1930s to the mid-1950s. Today, however, may well be the golden age of comic-book litigation. And somewhat ironically, the comic character said to have launched the golden age of comic books ' that man of steel, Superman ' is the focus of what could be the highest-stakes litigation yet.

In the comics industry, notes Gerber, the individual print issues provide one revenue source, but another that involves big money is the licensing of story lines and characters within those works to Hollywood entertainment for video games, television shows and animation and movies. 'It works both ways: entertainment from video games going into comics; television shows into comics ' 'CSI' and 'Buffy the Vampire Slayer' ended up as comics,' Gerber says. 'A lot of the litigation that arises is related to control and ownership of the rights in the characters.'

There is some hope that a long-running battle between the heirs of Superman co-creator, Jerome 'Jerry' Siegel, and the publisher who made the character famous, DC Comics (now part of Time Warner Inc.), over rights to Superman and Superboy will come to a head this year in the U.S. District Court for the District of California. By some estimates the Superman franchise is now worth close to $1 billion.

Character Ownership Issues

An increasing amount of litigation occurs because comic books generally are serial publications, says Gerber. Character creation in any given issue is divided up typically among an author who writes the script, a penciler who draws the image, an inker who goes over the image and prepares it for publication, a colorist who fills in and a letterer. 'In trying to identify who the creator is, you have competing interests,' he says.

Character ownership is protected by copyright, trademark and unfair-competition laws. Trademark litigation in this area is not unusual for the courts, says Michael Lovitz, an intellectual-property partner in the Los Angeles office of Wilmington, DE-based Connolly Bove Lodge & Hutz.

In addition, the Copyright Act of 1976, which extended the life of copyrights, also created two types of termination rights. Section 203 conveys a termination right covering all transfers of copyright made by authors in 1978 or later, and Sec. 304(c) for copyrights transferred before 1978. The sections provide a five-year window in which a copyright can be reclaimed. No termination rights are offered to works originally created as works for hire.

Lovitz says some companies are trying to be 'proactive' on potential termination litigation by reaching out to creators to involve them in a percentage of new products. But Lovitz also says the work-for-hire issue also is particularly interesting. The copyright statute sets out limited categories of works for hire. 'Do comic books fall under one of those categories?' he asks. 'The jury is still out. Most of the contracts used in the comic book industry are standard work for hire.'

There recently have been a number of right-of-publicity lawsuits in which a celebrity's identity is used without permission for a comic-book character, Gerber says, noting his firm's case involving former professional hockey player Tony Twist. [After the Court of Appeals of Missouri affirmed a jury verdict that the 'Spawn' comic books violated Twist's publicity rights by including a 'Tony Twist' character, 'Spawn' creator Todd McFarlane settled with Twist in 2007 for $5 million.]

And comic-book litigation can involve criminal and constitutional law. The Comic Book Legal Defense Fund in New York, for example, primarily represents retailers charged with displaying or distributing allegedly obscene materials or, more recently, displaying or selling allegedly obscene materials to minors, says Executive Director Charles Brownstein. The fund has been representing a Rome, GA, retailer arrested when a comic book with a nude picture of the artist Pablo Picasso was given to a minor during a free distribution of comic books on Halloween.

Although far afield from his own work, Brownstein, like intellectual-property lawyers and the comic-book community, has his eye on the Superman lawsuit, scheduled for a May trial date. [In 2007, the district court decided that Superman co-creator Siegel hadn't created his Superboy character as a work for hire, but that issues remained of joint authorship, derivative work and whether the Superboy character had been covered by federal copyright law for purposes of Siegel's heirs' effort to terminate any grant of rights by Siegel to DC Comics. Siegel v. Time Warner Inc., 496 F.Supp. 2d 1111. See the news item in this issue for a community-property ruling by the California Court of Appeal regarding Superman copyrights in a case involving Jerry Siegel's daughter, Laura Siegel Larson; she is a plaintiff in the suit against Time Warner.]

'The issues involved are issues that confuse and muddy waters for all of the rights holders out there in this field and other fields, depending on how decisions ultimately are made,' says Gerber. 'Because it is so complicated, it takes a case where the dollar figures are large enough to justify litigating through the complications involved. Superman is that case.'

As a child, Geoffrey Gerber grabbed comic books out of his dentist's treat bag after checkups. As an intellectual-property partner at Husch Blackwell Sanders, he grabs comic books ' key elements now in a substantial portion of his practice ' out of his litigator's case. 'There's a tremendous amount of comic-book litigation out there,' says Gerber, who practices in St. Louis for the newly merged firm. He adds that comic books, which hit it big in the 1930s as mainstream media, are 'fairly new media' in the scope of entertainment.

East of the Mississippi, Mark Zaid, a partner at Washington, DC's Krieger & Zaid, may sometimes feel as if he lives in a superhero comic book with a practice focusing primarily on national security/intelligence and whistleblower challenges. But outside of his vocation, his passionate avocation is collecting comic books.

Both Gerber and Zaid are watching closely as the courts have begun to work through difficult issues related to ownership rights and transfers of ownership in what is today a multimedia, multibillion-dollar business built upon those once slim, easily rolled-up, eagerly anticipated comic books.

The Golden Age?

The golden age of comic books, say most historians, ran from the 1930s to the mid-1950s. Today, however, may well be the golden age of comic-book litigation. And somewhat ironically, the comic character said to have launched the golden age of comic books ' that man of steel, Superman ' is the focus of what could be the highest-stakes litigation yet.

In the comics industry, notes Gerber, the individual print issues provide one revenue source, but another that involves big money is the licensing of story lines and characters within those works to Hollywood entertainment for video games, television shows and animation and movies. 'It works both ways: entertainment from video games going into comics; television shows into comics ' 'CSI' and 'Buffy the Vampire Slayer' ended up as comics,' Gerber says. 'A lot of the litigation that arises is related to control and ownership of the rights in the characters.'

There is some hope that a long-running battle between the heirs of Superman co-creator, Jerome 'Jerry' Siegel, and the publisher who made the character famous, DC Comics (now part of Time Warner Inc.), over rights to Superman and Superboy will come to a head this year in the U.S. District Court for the District of California. By some estimates the Superman franchise is now worth close to $1 billion.

Character Ownership Issues

An increasing amount of litigation occurs because comic books generally are serial publications, says Gerber. Character creation in any given issue is divided up typically among an author who writes the script, a penciler who draws the image, an inker who goes over the image and prepares it for publication, a colorist who fills in and a letterer. 'In trying to identify who the creator is, you have competing interests,' he says.

Character ownership is protected by copyright, trademark and unfair-competition laws. Trademark litigation in this area is not unusual for the courts, says Michael Lovitz, an intellectual-property partner in the Los Angeles office of Wilmington, DE-based Connolly Bove Lodge & Hutz.

In addition, the Copyright Act of 1976, which extended the life of copyrights, also created two types of termination rights. Section 203 conveys a termination right covering all transfers of copyright made by authors in 1978 or later, and Sec. 304(c) for copyrights transferred before 1978. The sections provide a five-year window in which a copyright can be reclaimed. No termination rights are offered to works originally created as works for hire.

Lovitz says some companies are trying to be 'proactive' on potential termination litigation by reaching out to creators to involve them in a percentage of new products. But Lovitz also says the work-for-hire issue also is particularly interesting. The copyright statute sets out limited categories of works for hire. 'Do comic books fall under one of those categories?' he asks. 'The jury is still out. Most of the contracts used in the comic book industry are standard work for hire.'

There recently have been a number of right-of-publicity lawsuits in which a celebrity's identity is used without permission for a comic-book character, Gerber says, noting his firm's case involving former professional hockey player Tony Twist. [After the Court of Appeals of Missouri affirmed a jury verdict that the 'Spawn' comic books violated Twist's publicity rights by including a 'Tony Twist' character, 'Spawn' creator Todd McFarlane settled with Twist in 2007 for $5 million.]

And comic-book litigation can involve criminal and constitutional law. The Comic Book Legal Defense Fund in New York, for example, primarily represents retailers charged with displaying or distributing allegedly obscene materials or, more recently, displaying or selling allegedly obscene materials to minors, says Executive Director Charles Brownstein. The fund has been representing a Rome, GA, retailer arrested when a comic book with a nude picture of the artist Pablo Picasso was given to a minor during a free distribution of comic books on Halloween.

Although far afield from his own work, Brownstein, like intellectual-property lawyers and the comic-book community, has his eye on the Superman lawsuit, scheduled for a May trial date. [In 2007, the district court decided that Superman co-creator Siegel hadn't created his Superboy character as a work for hire, but that issues remained of joint authorship, derivative work and whether the Superboy character had been covered by federal copyright law for purposes of Siegel's heirs' effort to terminate any grant of rights by Siegel to DC Comics. Siegel v. Time Warner Inc. , 496 F.Supp. 2d 1111. See the news item in this issue for a community-property ruling by the California Court of Appeal regarding Superman copyrights in a case involving Jerry Siegel's daughter, Laura Siegel Larson; she is a plaintiff in the suit against Time Warner.]

'The issues involved are issues that confuse and muddy waters for all of the rights holders out there in this field and other fields, depending on how decisions ultimately are made,' says Gerber. 'Because it is so complicated, it takes a case where the dollar figures are large enough to justify litigating through the complications involved. Superman is that case.'