'Superman' Heirs Still Hope to Grab Back Rights

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Giving up on superhero dreams doesn't come easily.

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Superman was created in the late 1930s by Jerry Siegel and Joe Shuster. For three-quarters of a century since, the two have been in and out of court to gain greater financial participation. The duo and their heirs have made deals with studios along the way, and most recently, the Siegel and Shuster estates were hoping to exploit a provision of the Copyright Act that allows a copyright grant to be terminated.

In January, they were dealt a blow when Warner Bros. scored a huge win in a lawsuit that's lasted nearly a decade. Unfortunately for the Siegels and their attorney Marc Toberoff, the Ninth Circuit Court of Appeal ruled that in 2001, the Siegel family came to an agreement with Warners' subsidiary D.C. Comics to settle the termination fight.

Over? Not quite yet.

Now the case is back at a lower federal court in California.

Warners smells blood and believes that a conclusion is just around the corner -- which would represent great timing because its big-budget Superman reboot Man of Steel, directed by Zack Snyder and produced by Christopher Nolan, will be released this summer.

"After over eight years of litigation, the Siegel Superman and Superboy Cases can and should now come to an end," the studio argued in legal papers filed last week.

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Warners has a summary judgment motion pending that seeks a declaration that the 2001 agreement is enforceable, and that DC owns all the copyrights. Additionally, the studio is pursuing its legal attack on Toberoff for interfering with its rights and for alleged misconduct in the discovery process. It believes that the fight can be "fully and finally resolved in the next 60 to 90 days."

But the Siegels and Toberoff are attempting a new strategy premised on the notion that the Ninth Circuit ruling was limited. "There are a host of outstanding issues that preclude DC from the relief it seeks," the Siegels' say in legal papers.

If a contract was created, the heirs of the Superman co-creator want to argue, the Warners subsidiary didn't perform under the contract.

"DC failed to perform or to even tender performance by March 31, 2002, the date agreed upon," writes Toberoff. He continues, "DC anticipatorily breached by instead demanding unacceptable new and revised terms as a condition to its performance; accordingly, the Siegels rescinded the agreement, and DC abandoned the agreement."

Finally, Toberoff is looking to reintroduce his long-held belief (fought in various lawsuits over the years) that the Copyright Act prevents the anticipatory transfer of terminated rights through contracts. He's prevailed once before on that argument in a case involving rights to Lassie. There have been other decisions that have gone the other way -- including, most recently, against the estate of Superman's other co-creator Joe Shuster.

Toberoff's greatest challenge, though, might be judicial fatigue after eight years of a case that's been up and down and up and down the court system. He could soon find himself in a similar position as the various lawyers for Stan Lee Media Inc. who have been frustrated with judges refusing to pay much respect to countless arguments for why Spider-Man and other superhero characters were wrongfully ripped away.

But for now, it appears Toberoff still has some hope left.

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner