Superman – the superhero known to be faster than a speeding bullet and able to leap tall buildings in a single bound – seems to be a magnet for lawsuits. The iconic superhero with the ‘S’ on his chest was the subject of another long legal battle that ended earlier this month. Had the case been decided differently, Warner Brothers’ upcoming Man of Steel movie based on the character could have found itself in a very awkward spot.
Adam Jacobs, one of our other IPilogue editors has written an extensive article on what could be considered the “sister case” to the Siegel estate’s legal battles here. DC Comics v Pacific Pictures Corp et al details the denial of termination rights (provided in 17 USC § 304) to the heirs of Joe Shuster, the other co-creator of Superman. Many of the issues present in that case were discussed in Siegel, et al v Warner Bros Entertainment Inc, et al. The decisions of the trial judge and the 9th Circuit Court of Appeal are found here and here, respectively.
While the decision was made with regards to US Copyright law, legislation that differs in a number of ways from the Canadian copyright regime, it is useful to look at the reasoning behind the inclusion of termination rights in different copyright regimes, and how the policies that drive Canadian and US copyright law in this area might be applied in future cases.
First, it will be useful to discuss what happened in the appeal to the 9th Circuit court in the case at hand. On appeal, the court determined that regardless of the arguments made for and against the Siegel estate being able to put to use their termination right against WB and DC Comics (an issue discussed at length in the trial decision), a letter from the Siegel estate’s lawyer was enough to find that a valid contract existed between the two parties. The court stated that years of ongoing negotiations between the two parties that resulted with this letter on October 19, 2001 – a letter reflecting material terms that had been orally agreed to – was enough to bind the parties even if “some material aspects of the deal [will] be papered later.” After the court determined this, it stated that such a decision would render all the other questions in the lawsuit moot and therefore, declined to address the other issues. As such, it seems like the reasoning given on trial (where the Siegel estate won its case) would stand to be precedent upon the issue (with admittedly low persuasive value).
The main reasoning that such termination rights were introduced in the Copyright Act of 1976 was to allow creators to renegotiate the terms of deals before the value of their work was fully realized. Such a decision allowed for deals made before 1978 to “expire” after 35 years (upon the decision by the original copyright owner to do so). Policy-makers in US copyright law, in this respect, seem to put little faith in the ability for creators to contract their works out to others; but in the grander scheme, such protection, especially for those contracting when new media forms were in their infancy, might balance out the difficulties that seem to arise within the legal system when applying such a law.
Again, while such a decision and discussion of policy seems to have little to do with Canadian law, where no exact analogue to this “termination right” exists in the Canadian Copyright Act, many parallels can be drawn to our legislation. Section 14 of the Copyright Act could be seen as providing a very similar protection (and resulting rights) for creators and their families. Section 14(1) provides a reversionary interest in copyright to the estate of the author which vests 25 years after the death of the author. Through the operation of this statute, the families of deceased creators will be able to renegotiate the contracts for the assignment/licence of the work for the remaining term of copyright.
In the future, it will be especially curious how termination rights operate in US Copyright law. The American legislature seem to be slightly more keen on extending the terms of copyright in order to protect some of the foundational works of American culture (the last Extension Act in 1998 wasn’t nicknamed the Mickey Mouse Protection Act by accident). As a result of a new extension, we may also see another extension on the date as to which deals the termination rights could be afforded to. For now, by winning big in this lawsuit, WB and DC Comics must feel like a bullet just ricocheted off of their Kryptonian skin.
Adam is a JD Candidate at Osgoode Hall Law School