Litigation is ongoing in California federal courts between the heirs of Joe Shuster, the co-creator of the famous Superman comic book, and DC Comics, the division of Warner Bros. that held the rights to the Superman comics for more than 60 years. The case, which began in 2010, involves a convoluted series of copyright agreements and near agreements, complete with claims of unethical conduct by the heirs’ attorney, Marc Toberoff, a Hollywood insider. At issue presently is the effect of a 1992 agreement that, according to DC Comics, forfeited the heirs’ termination/clawback rights with respect to the Superman copyrights. Ultimately, the court will decide who owns the copyrights in the Superman comics, a piece of intellectual property that is worth millions.

The transfer of rights to the Superman copyrights began with a 1938 agreement that assigned all rights to Superman to DC Comics for $130. Over the next 70 years, a series of negotiations and agreements ensued between the co-creators, their heirs, and DC Comics regarding the ownership of the Superman copyrights. In a 1975 contract, DC Comics agreed to pay the Superman co-creators $20,000 annually, along with other benefits, in exchange for the co-creators’ acknowledgment that DC Comics is the sole owner of the rights to the Superman copyrights. When the 1976 Copyright Act went into effect, the co-creators and their heirs had a new opportunity to try to recapture the Superman rights. The Act grants copyright owners and their heirs the ability to terminate some prior copyright assignments.

In 1992, with the threat of a termination notice from the heirs looming large, DC Comics claims it entered into a one-page agreement with the heirs that terminated all of their interests in the Superman copyrights. By contrast, the heirs argue that the 1992 agreement could not have terminated all of their interests in the Superman rights, as the termination of such a valuable asset would warrant more than a short one-page agreement, and would have been recorded at the Copyright Office if the true intent was to terminate all of the heirs’ rights. Hon. Otis D. Wright II of the US District Court for the Central District of California has delivered a tentative opinion that the 1992 agreement did, in fact, terminate the heirs’ rights. In oral arguments this month, however, the heirs will try to convince him that the 1992 agreement did not terminate their clawback rights, and that they are therefore entitled to compensation based on DC Comics’ exploitation of the Superman rights, including exploitation of those rights after the heirs’ termination notices in 2001.

The case highlights the need for clear drafting and recording of copyright assignments with the US Copyright Office, as chain of title issues can become crucial for copyright owners and their heirs in the future.

For assistance with copyright matters, please contact Anthony V. Lupo, Sarah L. Bruno, or Amy E. Salomon.