On the latest chapter in a vey messy custody battle

The Siegel and Shuster estates have been in a death-struggle over the rights to Superman over the last years, as I'm sure you've heard.  Their lawyer Marc Toberoff has made great progress on his clients' behalf, so much so that DC has tried a new play that, if successful, coiuld get him booted off the case entirely.

Warner Brothers filed a suit against Toberoff himself today, claiming that he convinced the heirs of the Superman creators to sue DC and attempt to cancel the copyright agreement between them and the company to regain the rights to Superman, not to benefit the heirs, but himself.  Citing papers gained through means that could potentially be described as "questionable", they claim that the agreement he entered into with the Siegel and Shuster families would put HIM, not them, in controlling interest of the characters.  This could be seen as a way to unfairly benefit from the work, much in the same way he and the families are claiming Warners is.  Many articles are calling this a low blow by Warners, and accusing them of "by any means necessary" tactics.

Here's the thing...All told, it's a pretty damn good play.

If they can make the case that Toberoff talked the heirs into grabbing for the whole pie (as opposed to the small piece they had) solely to ensure himself a nice commisionary payday, they could pull it off. They'd need to show that getting a larger share of the right is not in their best interests, and if the ownership breakdown as reported in the story is true, they might be able to.  WB further points out that while S&S were alive, they were always happy to work with DC ad its owners and never made any attempt to sue or reclaim the rights from DC (in fact Jerry sued several times, mostly, as I understand it, under the advice of his latest wife.)  It's only after their deaths and a discussion with Toberoff that the families showed any interest in such a move, which might suggest the idea came not from their heads, but Toberoff's.  It puts Toberoff in the role of bad guy, not the heirs.  And he's safe to tar; he's a lawyer after all.

Toberoff comments that it's perfectly legal for a lawyer to be working on contingency or commision, ad he's absolutely correct.  But if the WB can show (or at least present the possibility) that his motive is for himself and not his clients, he might have to recuse himself.  And odds are that whoever they get as his replacement will not have teeth as sharp as he, and would place Warners in a better position to reclaim victory.

Toberoff is also respresenting Jack Kirby's family in their quite similar case against Marvel.  If this play works, expect Marvel/Disney to try something exceedingly similar.

The sad story between Siegel and Shuster and DC Comics (in all of its iterations) is well known in the industry.  It's the story that every creator remembers (or should) when they prepare to sign an agreement with a publisher.  They signed the worst deal since the sale of Manhattan.  But to be utterly fair, neither they nor National Periodical Productions knew what they were holding.  If either party could have POSSIBLY known what a kick in the zeitgeist Superman would be, they'd have gone through some positively epic negotiations. 

To be blunt, S&S signed a contract, they weren't misled in any way, and if the current holders (WB) really wanted to, they wouldn't have to drop them a dime.  And for decades, that was the position - fuck 'em.  It wasn't until the Superman movie was coming out that Neal Adams and a number of other creators pressured DC into doing what they believed should have done a long time ago - re-establish creators' credits for the pait and let them share in the impossible profits the character has garnered.

This all comes back around to the subtle differences between "Must", "May" and "Should" do.  DC didn't HAVE to give the boys a penny.  They CHOSE to do as a result of pressure by its creators.  And it also provided some good publicity for the company and the film.  In the decades since the original agreement, the amounts provided to the creators and their families have been increased, voluntarily, by DC.  The amounts were, to be fair, the merest fraction of what the character was making and had made.  Many would argue that DC SHOULD give/have given them more, but the point is they didn't HAVE TO give anything.

It's exactly because of this that so many creators have gotten very nice checks from DC, along with very thick sheafs of paper to sign, promising that they won't sue if the characters become a big hit.  Neal Adams and Denny O'Neil got nice payments for Ras Ahl Ghul, and Jerry Robinson got a nice check and an editor emeritus position at DC for his (finally recognized) creation of the Joker.  DC wants to make sure this doesn't happen again.  Tony Isabella can likely tell you a few stories about the creation of Black Lightning.  But all told, DC and the other major publishers have learned a few things since 1939, and we'll likely not see a series of events like this again.

The opinions of the fans is rather varied.  Were Jerry and Joe the ones behind this case, DC wouldn't stand a chance in the court of public opinion. But it's not; it's their kids, and in the eyes of many, they don't deserve a penny.  One could easily argue that if Jerry and Joe had made this move and gotten the rights and money, it would have ended up in the kids' hands anyway, so so what if it just happens a few years later. 

Most fans don't give a flying rat's ass for the kids, they just want their comic books.  They see the families (and more so Toberoff) as evil people who are going to make it impossible for them to read about Superman anymore.  The arguments about rights, fairness and the concepts of immortal corporations owning and controlling creations in perpetuity all shrivel before the blazing light of the question, "Does this mean DC can't do any more Superman comics?"

Again, if this was Jerry and Joe, the fans would be on their side without a blink of an eye.  Because the fans would believe that they would want to keep the characters at DC and largely, nothing would change.  But the families and their counsel are unknown entities.  The mindset that this is solely about money.  They can talk about wanting to restore the legacy of their fathers, but that falls flat, as their legacy has already been restored, and has been for 33 years now.  So there's a feeling that these kids don't "deserve" the rights, or the money.

To be honest, I don't really mind the fammilies getting a nice payday; again, if S&S had gotten one, it'd end up in their hands.  But I think that Warners should do everything in their power to get sole control of the rights to the characters when all is said and done.  If the families retain rights to the characters in any amount, especially if those rights involve having say over how the characters get used, I can absolutely envision scenarios where they put the brakes on the occasinal deal in exchange for another payout.

Shared ownership of the characters will result i the cliche'd "two parties with half the map" scenario.  S&S will own the rights to the origin, much of the design and description of many of the characters, and DC will own the trademarks.  Neither party will be able to truly create a complete project without the cooperation of the other, and in such a situation, all it takes is the slightest hesitation to throw delicate negotiations into a gin-fueled tizzy.

So in honesty, this puts me in the "I just want my comics" camp, but at least I'm willing to say the families deserve a good payday for their trouble. 

This is far from over.  It's going to get uglier.