Lawyers of steel

This story is all over the everywhere; I’ll let Eriq Gardner sum it up, as he does so very nicely:

Warner Bros. has won a blockbuster victory that could entitle it to maintain its copyright stake in Superman.

On Wednesday, a federal judge in California granted the studio’s motion for summary judgment on the question of whether a 1992 agreement with Jean Peavy, the sister of Superman co-creator Joe Shuster, precludes the estate’s attempt to terminate a copyright grant. The decision by U.S. District Court Judge Otis D. Wright comes four years after another federal judge in California confirmed the validity of a termination notice from the estate of the other co-creator, Jerry Siegel. The termination attempts have threatened Warners’ hold on its lucrative Superman franchise.

Here’s the full ruling.

Okay, wait — “terminate a copyright grant”?  What’s that?  I’ve never really written about copyright termination here.  It’s something we’ll see more of, that’s for sure.  Jonathan Bailey explains:

The basic principle of copyright termination is that creators may not know the value of their work or be in a position to negotiate favorable terms when they are starting out. [Therefore], they often sign deals to their work that are less-than-favorable, especially if the work takes off and becomes extremely popular.

To prevent having creators live with these bad deals they made earlier in their careers, the law grants them or their heirs the right to revoke any copyright transfers or exclusive licenses that they granted in the work after a certain amount of time has passed.

For assignments made before January 1, 1978, that time is 56 years, letting the creator recapture the last 39 years of the copyright term in the work. For those deals struck on or after that date, the time is reduced to 35 years, unless the grant covers the right of publication, where it is the earliest of 40 years after execution of the grant or 35 years after publication.

That’s beginning to read a lot like math, so I’ll break off the excerpt here.  Eriq explains that these termination rights, a bone thrown by Congress to creators who risk exploitation at the hands of major publishers (such as music producers, movie studios and book publishers), have ironically given those creators increasing leverage over Hollywood and New York even as the copyright term has been extended at Big Content’s behest.  The trick, however, is terminating ju-u-u-u-u-st so.  And evidently the heirs of one of the two Superman creators, the Shusters, weren’t so super about that part:

As the copyright term has since been extended even further over the years, so too has the power of these termination rights.

But executing a termination notice isn’t easy because artists need to adhere to a strict protocol, including sending out precise “termination notices” during a short few-year window. Terminations also have been subject to other limitations such as when an artist and studio make what’s known as an “agreement to the contrary,” negating the termination powers.

Despite the odds, the Siegels tasted success in 2008 when a federal judge ruled they successfully had recaptured copyrights to some—but not all—of Superman’s defining characteristics, such as his costume, Clark Kent and his origin story, as described in the first editions of Action Comics. The scope of the ruling is now under appeal at the 9th Circuit with arguments being heard soon.

But the Shusters aren’t so lucky.

The lawyers for both sides, however, are.  As Eriq notes, the appeal of this ruling, and the Seigel litigation — currently on appeal — should roll on for a long time.  Some things, after all, should never terminate.

Originally posted 2012-10-18 10:28:03. Republished by Blog Post Promoter