The relevant ruling was on a motion for summary judgement. Basically, that sort of motion says "Your honor, look at what the other side alleges. Assume that every word of it is true. Based on what they say in their pleading, we still win." Jason is more expert in these things than I am, however, so if he disagrees with me, I beg you to believe him rather than me.
Now, the actual question of the profits from "Smallville," has not been decided, as yet. The case is still pending. So, what are the ramifications?
To me there are a couple ways to look at this.
One, obviously "Smallville" is based on Superboy, as originally situated, because his parents are named Jonathan and Martha. He has friends named Lana Lang and Pete Ross. He lives in Smallville.
But, seriously, how much of "Smallville" is based on the Superboy concept. He doesn't fly. He doesn't hang out with the Legion of Super-Heroes. He doesn't wear the costume. This is clearly the post-Crisis Clark Kent. Also, his father was the single stupidest parent in television history.
So, really, what are the damages to the family? The argument that Smallville is based on Superboy is strong enough to survive a motion for summary judgement, and obviously so. However, I'm not sure it is so compelling that it will survive an actual trial. In fact, in an actual trial I would argue that Superboy is clearly deriviative of Superman and thus Superboy never has any basis to be a separate copyright anyway. I don't know that it would win, but I'd try it.
Additionally, intellectual property is a branch of property law, and it's hard for me to believe a court, as a matter of public policy, is going to make a ruling that would discourage the use of intellectual property.
I suspect a settlement offer will make a rather hasty appearance.
Posted by Mike Chary at April 7, 2006 2:50 PM
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In fact, in an actual trial I would argue that Superboy is clearly deriviative of Superman and thus Superboy never has any basis to be a separate copyright anyway. I don't know that it would win, but I'd try it.
See Evanier on this here and here. Basically, Siegel was awarded Superboy in a court case in 1947. DC then bought the copyright from him. By doing that, they essentially acknowledged that Siegel owned the copyright to Superboy and that Superboy was separate from Superman.
I'm not sure about the Smallville side of things, but I'm wondering how the ruling will affect the new Legion cartoon. Will it be retooled without Superboy, will Warners just scrap it, or will they go ahead and use it as a test case in their appeal? Anyone have any thoughts?
What "copyright" did DC buy?
If they bought everything, then they should be able to create derivative works.
If they only bought rights to comic books with the character, then the family would probably have a case.
As to the similarity thing, it could certainly be argued that if Smallville weren't connected to Superboy, it wouldn't have much value in the market. The young Superman angle is a key hook, whether he wears a costume and flies or not.
I'd be tempted to retool it to use Supergirl even in the absence of the suit if I were running that particular zoo. If you're not going to set about quarter of your stories in 1950's Smallville, you're not gaining much from using Superboy anyhow, and if you do make the switch, the marquee character gets to participate in whatever amount of intra-legionaire dating soap opera you put into the series.
The minor correction to what Mike said -- a motion for summary judgment says "based on what the evidence shows, no reasonable jury could possibly find for the other side." The technical language is that there must be "no genuine issue of material fact," and the "moving party is entitled to a judgment as a matter of law." I'm being pedantic, I know, and correcting a reference to pleadings that non-lawyers probably didn't even notice.
Anyway ...
I haven't been following the Superboy case too closely, but here's my understanding (keep in mind that I am not an IP attorney and I'm doing this without the benefit of actually doing any legal research or looking up any statutes or cases. Caveat emptor):
1) Back in 1938, Siegel and Shuster created Superman.
2) In the 1940s, Jerry Siegel created Superboy.
3) In a 1947 court case, a judge ruled that Superman was work-for-hire. In a nutshell, this meant that Jerry and Joe were working at the direction of DC when they created Superman and that as a legal matter, Superman was therefore creted by DC, not by Jerry and Joe. By the way, I'm using "DC" throughout, even though the company wasn't known as DC back then.
4) In that same case, however, the judge ruled that Superboy was not a work-for-hire. This meant that Jerry, not DC, owned the rights to Superboy.
5) Jerry sold the rights to Superboy to DC. He apparently got a pittance, and later concluded that his lawyer was paid off by DC. I don't know if this is true. In any event, DC bought all rights to Superboy in perpetuity.
6) Begining in the 1970s, Congress began extending the term of copyrights. When Jerry sold the rights to Superboy, a copyright lasted (I think) 56 years (assuming you filed the appropriate forms at the approriate times). Now they last something like 95 years.
7) At the same time Congress did that, Congress decided that it would not be fair to the artists to allow them to go uncomepnsated. The reasoning went something like this: When Artist A sold Buyer B the rights to Copyrighted Work C for $D Dollars, A and B thought they were negotiating over a 56-year right, and presumably agreed on a $D amount accordingly. Now, it turns out that they were actually negotiating over a 95-year right. This means B underpaid significantly. As a solution, Congress decided that at the end of 56 years, A (or his heirs, but I think only spouses and lineal decendants qualify for purposes of this rule) would be allowed to file a claim for reversion. Basically, if A files a proper claim for reversion, the copyright goes back to A. The reasoning is that B paid for a 56-year copyright and B got a 56-year copyright.
8) Jerry Siegel's heirs filed a reversion on Superboy.
9) The reversion was done apparently done properly andthe Siegels own the rights to Superboy. I can only surmise that DC is now paying the Siegels a licensing fee for Superboy. I suppose it might say something in the indicia of a recent comic featuring Superboy, but I don't have one handy to check. Most likely, this license only allows DC to use Superboy in comics, action figures, and the like, but not in movies or TV -- otherwise, we wouldn't be having the current suit, since DC is Warner Brothers.
10) Meanwhile Warner Brothers created the Smallville TV show. But for this whole reversion thing, this wouldn't be a problem since, as noted, WB and DC are the same company. But once it's determined that Superboy is owned by the Siegels, not by DC, things get tricky. If Smallville is based on Superboy, then the WB has created a derrivative work based on the Siegels' intellectual property. That's copyright infringement.
11) The Siegels sued.
12) The defendants moved for summary judgment, basically arguing that as a factual matter, Smallville is simply not derrived from Superboy. As Mike noted up at the top, this motion was denied. Thus, the parties will now get to try to convince the jury whether Smallville is derrived from Superboy (as the Siegels contend) or not (as WB, DC, and Time Warner contend). Or, quite possibly, the whole thing will settle and WB will pay a licensing fee to the Siegels.
Clear as mud?
Jason--
I think you're right except that Superman wasn't judged a work-for-hire product. The first 13 pages of the Superman story appearing in Action 1 were demonstrably created by Jerry and Joe before the DC/National deal. From what I understand from reading about 2 million analysis articles over the past couple days, the copyright for Superman was simply assigned to DC as part of a "split the baby" type settlement, but the work was never declared to be work-for-hire. I think that's the basis of the Siegel's reversion of trademark case for Superman, which is ongoing. At least, that's what I've been able to glean from Mark Evanier, Newsarama, CBR, etc. etc. etc.
I'vw only read the one article I linked to, but I don't think the copyright is in dispute. The only question is whether or not "Smallville" is based on Superman or Superboy. They already know who owns the copyright on the respective characters.
Well, I can't find the original 1947 case online, but here's an edited version of the 1973 case in which Siegel and Shuster sought a declaratory judgment that they (Siegel and Shuster) had renewal rights in Superman. The text below is the court's; the emphasis and bracketed materials are mine. As you read the following, keep in mind 1) at the time Superman was created, as well as at the time the 1973 case was decided, in order to obtain copyright protection, you had to actually register a work with the copyright office, and 2) the copyright reversion procedures I discussed in my previous post also had not been created by 1973:
United States District Court,
S.D. New York.
Jerome SIEGEL and Joseph Shuster, Plaintiffs,
v.
NATIONAL PERIODICAL PUBLICATIONS, INC., et al., Defendants.
No. 69 Civ. 1429.
Oct. 18, 1973.
364 F.Supp. 1032
Although Clark Kent, generally known as Superman, is happily capable of solving all problems without going to court, his creators and exploiters, mere mortals like the rest of us, are not so fortunate. Jerome Siegel and Joseph Shuster are Superman's creators. They seek a declaration that they, and not the defendant National (the other defendants are National's officers) are entitled to the copyright renewal rights of the renowned comic strip. National counterclaims for a declaration in its favor. It is stipulated that both plaintiffs and defendants have made timely renewal filings with the Register of Copyright. The matter comes before us on defendants' motion for summary judgment dismissing the complaint and declaring National to be the owner of the copyright of all Superman strips during the renewal term. We find, on the material facts as to which there is no genuine issue, that National is the owner of the copyright renewal term and grant the motion.
I. This is not the first time the parties have locked horns in a contest as to rights to Superman. As indicated below, plaintiffs instituted an action on the subject against National in 1947 in the New York Supreme Court for the County of Westchester. The court made voluminous findings of fact and conclusions of law. Although the issue of renewal rights was not specified in that litigation, we hold that, on the facts found by the court, which are binding on the parties here, National is the owner of all rights in Superman.
[The facts below are those found by the State Court in 1947]
II. In 1933, Siegel conceived the idea of a cartoon strip, whose feature character was a man of superhuman strength who would perform great feats for the public good. Siegel discussed his idea with Shuster, an artist, and together they prepared a comic strip embodying the idea. They did not publish the strip but continued to collaborate on other cartoon strips, some of which they sold for publication between 1933 and 1938.
One of their customers during that period was the Nicholson Publishing Co., which purchased material from plaintiffs on behalf of Detective Comics, Inc. (National's predecessor in interest). When, in late 1937, Nicholson went out of business, Detective acquired some of its magazine properties.
On December 4, 1937 Detective entered into a written employment contract with plaintiffs (Exhibit B, annexed to Answer) relating to two features known as "Slam Bradley" and "The Spy" which plaintiffs had been furnishing to Nicholson. This contract provided that the plaintiffs would give their exclusive services as artists in producing "Slam Bradley" and "The Spy" for a period of two years and that "all of these products and work done by said Employee for said Employer during said period of employment, shall be and become the sole and exclusive property of the Employer". The agreement also provided that any new or additional features were to be submitted first to Detective who was given an option on them.
When, in 1938, Detective decided to issue a new comic magazine, to be named Action Comics, it reviewed the Superman material which plaintiffs had prepared in 1933, and requested them to revise and expand it to a full length production suitable for magazines. Plaintiffs submitted the expanded material in February, 1938. On March 1, 1938, prior to the first printing of the first issue of Action Comics, Detective sent Siegel a proposed release (Exhibit A, annexed to Answer). The release, which plaintiffs executed, transferred to Detective the first thirteen page Superman strip, "all good will attached thereto and exclusive right to the use of the characters and story, continuity and title of strip ... to have and hold forever and to be your exclusive property ..."
On April 18, 1938, Detective published the Superman strip prepared by plaintiffs in the first issue of Action Comics. After the initial publication, plaintiffs continued to supply Detective with Superman strips for publication. On September 22, 1938, Detective, plaintiffs, and McClure Newspaper Syndicate executed agreements for the newspapers syndication of Superman and other strips. Plaintiffs and Detective simultaneously executed a new long-term employment agreement which stated that Detective was "exclusive owner" of Superman and of the "right to publish" Superman comics.
As Superman became increasingly popular, certain changes occurred in the relationship between plaintiffs and Detective. Plaintiffs ceased work on other cartoon features to concentrate on the Superman strip. With this change, plaintiffs and Detective executed a supplemental employment agreement on December 19, 1939, increasing plaintiffs' compensation and reiterating that Detective was the "sole and exclusive owner" of Superman, of "all rights of reproduction and of "all copyright and all rights to secure copyright registration in respect of all such forms of reproduction ..."
The 1939 agreement was the last written agreement between the parties until 1947. During the intervening years plaintiffs' compensation increased to $1,000. per release plus royalties from newspaper syndication and other forms of commercial exploitation. By 1947, plaintiffs' total compensation from all sources for the strip amounted to over $400,000.
III. In 1947, plaintiffs brought the action we have described against National, Detective's successor, and several of its officers, seeking, among other things, a determination that the March 1, 1938 release was void, and a declaration of the rights of the parties.
The Westchester action was tried before Official Referee J. Addison Young who rendered a detailed opinion on November 1, 1947, finding the March 1, 1931 release valid and holding that National, not plaintiffs, owned all rights to Superman. On April 12, 1948, Judge Young signed Findings of Fact and Conclusions of Law. His Conclusions of Law included the following:
"1. By virtue of the instrument of March 1, 1938, plaintiffs transferred to DETECTIVE COMICS, INC. all of their rights in and to the comic strip SUPERMAN including the title, names, characters and concept as same were set forth in the first release of said comic strip published in the June, 1938 issue of the magazine 'Action Comics' and by virtue of said instrument DETECTIVE COMICS, INC. became the absolute owner of the comic strip SUPERMAN, including the title, names, characters and concept as the same were set forth in the said first release."
This conclusion was incorporated almost verbatim in an interlocutory judgment signed on April 12, 1948, from which neither side perfected an appeal. Instead, the parties began settlement negotiations, and, on May 19, 1948, signed a stipulation under which National was to pay (and subsequently did pay) some $94,000. in exchange for all rights to Superman and to "Superboy," another cartoon strip created by plaintiffs whose ownership was contested. The stipulation recited the first conclusion of law just quoted and further stated that:
"7. Defendant NATIONAL COMICS PUBLICATIONS, INC. is the sole and exclusive owner of and has the sole and exclusive right to the use of the title SUPERMAN and to the conception, idea, continuity, pictorial representation and formula of the cartoon feature SUPERMAN as heretofore portrayed and published ... and such sole and exclusive ownership includes, but is not limited to the fields of book and magazine publications, newspaper syndication, radio broadcasts, dramatic presentations, television, motion picture reproduction and all other forms of reproduction and presentation, whether now in existence or that may hereafter be created, together with the absolute right to license, sell, transfer or otherwise dispose of said rights."
On May 21, 1948, Judge Young signed a final consent judgment incorporating this provision and stating:
"ORDERED AND ADJUDGED that plaintiffs, their agents, servants and employees, be and they hereby are enjoined and restrained from creating, publishing, selling or distributing or permitting or causing to be created, published, sold or distributed any material of the nature heretofore created, produced or published under the title SUPERMAN, or any material created, produced or published in imitation thereof, or from using, permitting or causing to be used in connection with any comic strip or other material created by them the title SUPERMAN or any title imitative of the title SUPERMAN or which shall contain as part thereof the word 'SUPER'." (Exhibit G, annexed to Answer).
IV. Defendants move for summary judgment on two grounds: first, that the initial Superman strip was a "work for hire" within the meaning of the Copyright Act and second, that the various agreements between the parties, as well as the consent judgment in the Westchester action divested plaintiffs of the renewal copyrights. Before we discuss these contentions, we note that the findings of the State Supreme Court in the Westchester action are binding upon us here. Vernitron Corp. v. Benjamin, 440 F.2d 105, 108 (2d Cir. 1971). The terms of the stipulation of settlement in that action, and the consent judgment are also binding. Stuyvesant Insurance Co. v. Dean Construction Co., 254 F.Supp. 102, 110 (S.D.N.Y.1966), aff'd on opinion below, 382 F.2d 991 (2d Cir. 1967). Furthermore, the issues which plaintiffs want to litigate in this action could have been raised in the Westchester action, and consequently are barred by res judicata as well, so that summary judgment must be entered on this ground in addition to those we are about to discuss.
We find that Superman is a "work for hire" within the meaning of the Copyright Act, 17 U.S.C. § 26. In Picture Music, Inc. v. Bourne, 314 F.Supp. 640, 650-651 (S.D.N.Y.1970), Judge Pollack ably described the elements of an employment for hire: "The existence of an arrangement going beyond an assignor-assignee relationship," the payment of wages or other remuneration, the "right of the employer to direct and supervise the manner in which the work is performed," and the "existence of an express contract for hire, expecially one calling for an author to devote his exclusive artistic services to his employer." These elements were indisputably present in the relationship between plaintiffs and Detective. The Westchester Court found that on December 4, 1937, plaintiffs entered into a written contract of employment with Detective with reference to two comic features known as "Slam Bradley" and "The Spy" which provided that plaintiffs would "give their exclusive services as artists" in producing these features and that "any new and additional features which Employees produce for use in a comic magazine are to be first submitted to Employer, who reserves the right to accept or reject same within a period of Sixty days" (Finding of Fact 15).
The Westchester court also found as a fact that after examining the 1933 Superman material, Detective "returned it to plaintiffs for revision and expansion into a full-length thirteen page comic strip release suitable for magazine publication" and that plaintiffs complied with Detective's requests. The court further found that the release executed by plaintiffs on March 1, 1938, represented the exercise by Detective of the option granted to it by the employment agreement of December 4, 1937. These findings, particularly when viewed in conjunction with the correspondence between the parties during 1937-38, establish that Detective as employer supervised and directed the work of plaintiffs in connection with Superman.
Even if the relationship between Detective and plaintiffs was not a classic employment relationship, the Second Circuit's decision on appeal in Picture Music, Inc. v. Bourne, 457 F.2d 1213, 1216-1217 (2d Cir. 1972), requires a finding that Superman was a "work for hire." There the court, in holding that the work of an independent contractor was a work for hire if it was done "at the instance" of one who commissioned the work, observed that "The purpose of the statute is not to be frustrated by conceptualistic formulations of the employment relationship."
There can be no doubt that the plaintiffs' revisions of the 1933 Superman strip in 1938 were done at the instance of Detective.
Plaintiffs contend, however, that notwithstanding the employment relationship, Superman was a fully developed work by 1933 so that, as a matter of law it cannot be a "work for hire". The authority cited for this proposition, Scherr v. Universal Match Corp., 417 F.2d 497 (2d Cir. 1969) actually militates against plaintiffs' position. That case dealt with the copyright status of a statue in an Army post, which the plaintiffs, two enlisted men, had constructed pursuant to an Army work assignment. The assignment grew out of a clay model of the statue created by the two men during their leisure time. In deciding that the larger statue was a work made for hire, the court said:
"While the idea for the statue originated from the smaller clay model, the statue differs from the model. Moreover, plaintiffs never attempted to secure a copyright for their original clay model. Their claim of infringement rests solely upon whether they possess an effective copyright in the finished statue." (Scherr, supra, at 499).
The court's reasoning in Scherr is controlling here. The court in the Westchester action explicitly found that the original (1933) embodiment of the Superman concept consisted of "a few panels suitable for newspaper syndication," and that the strip was suitable for magazine publication only after plaintiffs "resubmitted such revised and expanded material" to Detective. Moreover, the Westchester court found that the Action Comics strip of 1938, rather than the 1933 newspaper strip, "constituted the formula for the continuing SUPERMAN series to come" (Finding of Fact 22). Res judicata bars plaintiffs from relitigating this issue.
[The Court then held that copyright renewal rights were transferred to Detective via the various contracts in the 1930s and 1940s]
Plaintiffs also assert that the renewal term exists to give the creator a second chance to exploit a property whose marketability was uncertain at the time it was created. They point out that Detective was staffed by thoroughly experienced businessmen who surely would have explicitly referred to the renewal term in the various agreements between the parties had it actually been bargained for.
But these arguments prove too much. Plaintiffs certainly knew by 1947, if not before, that Superman was an extraordinarily marketable man, as well as one of unusual powers. Both parties were represented by distinguished counsel in the 1947 proceedings, which resulted in a stipulation worded in all-inclusive language. The fact that this language makes no specific reference to renewal rights militates as much as if not more strongly against plaintiffs than defendants, in whose favor all rights to Superman were confirmed on the face of the various agreements.
Since we find that plaintiffs are precluded from relitigating matters which could have been raised in the 1947 action, and since, on the material facts before us, Detective owns the renewal copyrights as a matter of law, defendants' motion for summary judgment to dismiss the complaint is granted.
Mike's understanding matches my own -- as far as I can tell, it's clear that the Siegels own the copyright to Superboy. The only issue is whether or not Smallville is based on Superboy. The Siegels say it is, while the defendants say it's based on an extrapolation of Superman's boyhood, which is distinct and different from the Superboy mythos the Siegels own.
I wish I could find a copy of the 1947 case. I did find this quote:
In a 1948 interlocutory judgment, Justice J. Addison Young agreed with Siegel, stating, "It is quite clear to me, however, that in publishing Superboy, the Detective Comics, Inc., acted illegally. I cannot accept defendant's view that Superboy was in reality Superman. I think Superboy was a separate and distinct entity. In having published Superboy without right, plaintiffs are entitled to an injunction preventing such publication and under the circumstances, I believe the defendants should account as to the income received from such publication and that plaintiffs should be given an opportunity to prove any damages they have sustained on account thereof."
On the TCJ website.
I have to say that the words "plain error" leap to mind. Distinct character? Do me a favor. The lawyers for the heirs need to be very careful here, because they do not want another judge looking over the 1947 case if that's all that's there. I want to see the arguments that were made back then. The characters had the same origins and powers. The same costume. The same creators. Many of the same villains. I poked around a little on the web. I couldn't find it in two pages and lost interest. Anybody know where the complete decision is? There's got to be more there.
I would say that Smallville is probably based more on Superman than on Superboy.
Some of the trappings of Smallville, including the name itself, and the use of Lana and Pete Ross, are based on what we think of as the Superboy mythos, but from a purely legal perspective, Superboy is not being used.
On the other hand, Time Warner may be genuinely concerned if the case goes to trial, especially a jury trial, since we all know that juries can be unpredictable.
One more thing -- the judgement Jason posted mentions that by 1947, Siegel and Shusters total compensation for Superman was 400K. I dont know if they mean over 8 years, or in 1947 only. But even over 8 years, 400/8 = 50K, a pretty substantial sum back in 1947 (plus the settlement for 94K mentioned). Comic book history has it that Superman was sold for a very small sum by Siegel and Shuster. That may not be so if one goes by these notes. Yes, its still small considering the characters worth today, but it may have not have been unreasonable back in the 1930s/1940s
One additional small note: In one of his recent articles about the Superboy case, Evanier indicates that Siegel proposed the Superboy series to DC, DC said no and proceeded without him. As such, it's possible (likely?) that few or none of the now-canonical Superboy trappings like the Kents, Lana, and Smallville were actually created by Siegel and cannot be claimed as infringing.
However, to the extent that Superboy exists at all as a copyrightable concept, it is "the adventures of Superman as a boy". If the Siegels have any defendable rights in the character, it seems that Smallville would have to infringe them.
Kevin, which is why they don't want another judge looking at the 1947 case again. DC might owe Seigel something for the original concept, which he or his heirs have probably gotten moeny for, but the whole "Superman as a boy" thing is clearly a derivative work from what I can tell. And plain error is one of those places wherein stare decisis don't have much sway, particularly in 60 year-old cases. (Of course, Korematsu is still good law, so who knows...)
Regardless of what the lawyers say, I'll add my take for the Wisdom of Crowds perspective: Smallville is Superboy.
which is why they don't want another judge looking at the 1947 case again.
But the recent judgement was based on a judge looking at that case and ruling, once again, for the Siegels and against DC's "derivative" argument. It all comes down to precedent and transfer of copyright. In 1948, by buying the rights to Superboy from Jerry Siegel, National acknowledged that he owned the copyright to the character and it was not a derivative work. (And, since they bought the rights, they never bothered to challenge the original ruling.) That was the basis for the recinding of the transfer of rights filed in 2002 and the recent summary judgement. That's why DC seems to be dropping the "derivative" argument and is sticking with the "It's Clark Kent, not Superboy" argument. Of course, characters like Lana Lang, Pete Ross, Krypto, the LSH and even Bizarro could be considered derivative of Superboy, so I think the Siegels still have a case about Smallville (for Lana Lang, at least).
As for the "where's the costume," I'd say most, if not all, of the elements of Superboy are there except the costume--the boy being molded by his adoptive parents, learning to control his superpowers, Lana Lang next door, Pete Ross as his best friend (though Pete's long gone) and Smallville itself. The differences are also there, of course, but the no costume thing is really minor given all the derivative concepts that are present. I agree that the show is more Superman than boy, but it's the elements of Superboy that do exist in the show that are the issue.
Jonathan: A motion on the pleadings is not a dispositive ruling. That sort of ruling cannot just ignore the weight given to other court decisions. A trial is another thing altogether.
As for the merits:
The no costume thing is huge, actually, because the main thing that makes the character Superboy qua Superboy as opposed to qua Superman as a boy is the elements of the legend which are there already: the costume, flight, etc. Time Travel, for instance, was a HUGE honking deal in the Superboy mythos, and it's nowhere to be found in Smallvile, except recently. Unless you want to say that the Seigels just own the rights to anything dealing with Superman's youth, I'd say you have to acknowledge that there's some difference between Superboy and Superman as a boy with no costume, no flying, Chloe Sullivan as his first girlfriend, Lois Lane on the scene as a sort of foster sister, Jor El possessing Lionel Luthor...
Btw, did Clark just forget that he knew about that?
Anyway, I think there are genuine issues of material fact.
Mike, it was a summary judgement. I agree that the full trial might find a way around it, but the judge seemed to be saying (from my read) that a motion on the rights issue was off the table for the time being for the reasons I mentioned above. We'll see how it develops, of course.
Now, Smallville. Sure, as I said, there are major differences, but Lana Lang (and her relationship with Clark), Pete Ross, the town of Smallville, etc. are definitely Superboy derivative, all originating in the Superboy strip, not the Superman strip. As for the elements you mention as only being recent, the royalties being demanded only date from 2002 on, so it'd be the recent episodes that'd be applicable anyway.
What I'm saying is that both sides have cases here. The Siegels definitely have a potential claim on Lana, Pete, the town of Smallville and (potentially, though not probably) the Kents as they're portrayed in the series, simply because all of those characters/locations originated in the Superboy strip. Whether, ultimately, that claim is upheld is the question. The series is a combination of elements from old Superboy comics, current Superman backstory and completely original ideas (Lionel Luthor, Chloe Sullivan, etc). But the new elements don't negate the fact that, costume or not, the show uses lots of Superboy elements in its makeup. As I said, I generally agree that Smallville is more about "young Clark Kent" than Superboy, per se. But that doesn't mean the Siegels don't have a claim against it, given the Superboy connections.
"The Siegels definitely have a potential claim on Lana, Pete, the town of Smallville and (potentially, though not probably) the Kents as they're portrayed in the series, simply because all of those characters/locations originated in the Superboy strip."
Thats the key point. Those characters were largely created after the 1947 lawsuit. While the Kents were created before for the Superman comic, they only appeared in the Superboy comic later. So I think that Warner has the stronger claim in general. But I still expect them to settle.
Generally speaking, if you get a judgment that goes against you in a case you litigated on the merits, and you exhaust or waive your appeals, you're going to have a pretty damned hard time attacking the basis of that judgment in a subsequent case. If the judge, after hearing all of the evidence in Smith v. Jones, rules that the sun rises in the west, and Smith appeals that decision as far as he can and still loses, then under most circumstances, when he and Jones get in another dispute ten years from now, he's probably stuck with the ruling that the sun rises in the west.
All of this by way of saying that it probably doesn't matter whether Justice Young was right or wrong in 1947 -- take it as a given that Siegel and Shuster created Superman as a work-for-hire but Siegel created Superboy all on his own. Take that as a given because the Siegels and DC will almost certainly have to do so.
Exactly how does the costume distinguish Superboy from Superman? It doesn't, so it's irrelevant.
As others have pointed out, it's the rest of the context in the show that established this as Superboy.
Jason: yes, Full Faith and Credit still exists, except, of course, for marriage, and immigration, and, well, anywhere else the court decides not to bother with it. I'm just saying that if the case comes down to the judge looking over that ruling again, I suspect it will be read extremely narrowly.
WRT, the costume. It doesn't distinguish Superboy from Superman, however, it might distinguish Superboy from not-Superboy, and since the producers of "Smallville" are saying this is not-Superboy it is a factor in their favor.
The thing to remember about lawsuits is that for partizans they can take on a sort of religious fervor. The key to being a good litigator is to look at these things rationally with no emotion.
Here's how I break it down:
Yes, he's Superboy:
Powers
Lana Lang
Pete Ross
Farm
Weakened by kryptonite in ridiculous ways
Girlfriend constantly trying to prove he has powers
Friendship and then antagonism with Lex Luthor
Survivors of Krypton constantly showing up to give him grief
Red over blue wardrobe
Smallville
No, he's not Superboy:
No costume
No time travel
No LSH
Chloe Sullivan
Lois Lang is his friend
No eye glasses
No wimpiness
Now, given that a lot of the pro stuff is actually derivative of Superman, well....
Additionally, there's the issue of where the show is at this point in its run. This is why I don't think the heirs want a judge looking at the 1947 case too closely, because based on what I saw, there's nothing there to make anyone with a law degree want to interpret in broadly.
So, let's say that the heirs are only entitled to a profit from episodes building on Superboy after the rights reverted.
This season Clark is out of high school, contending with Brainiac. Last season he was a star quarterback looking at colleges, and making adult decisions about his future. SuperBOY? I'm not sanguine about anyone's chances of making the last couple seasons out to be anything to do with the character Seigel created as "Superboy." And I don't think any judge is going to want to do anything to strengthen the ridiculous quote I found. I really want to see the whole decision, myself.
Seems to me that unless you want to create a third version that is "Not-Superboy and Not-Superman," then Clark remains Superboy until the time he appears in Metropolis working for the Daily Planet. THEN he's Superman.
Smallville contains elements of BOTH Superman and Superboy. DC certainly gave itself permission to use Superman stuff in it. Then again, Warner/DC could decide to include Batman, the Flash, Green Lantern or anything else it wanted to. The introduction of those elements would not challenge the Superboy copyright so I don't think the Superman elements should either.
As originally stated, this is simply my input for the wisdom of crowds angle. I'm not claiming to be a lawyer.
Claiming that the character of Superman, Kal-El from Krypton, who disguised as Clark Kent etc., is Superboy before he was an adult regardless of costume, friends, backstory, whatever, would be interpreting the prior decision broadly.
Besides, that is not what happens. For example, in the JLU tv show, when Superman was young, they called him "young Superman."
Same costume? No, admittedly.
Same friends? Yes, Pete and Lana. (There really weren't any other continuing friends in the Superboy comics; having more characters doesn't negate the fact that those two are part of the show. Heck, Martha and Jonathan Kent were essentially created for Superboy too.)
Same backstory? Yes (Smallville was created for Superboy long before it was mentioned in the Superman strip.) and no. Sort of. (No costume, but Superboy--especially in the 70s and 80s--was often about Clark learning to use and live with his new powers, like Smallville.)
I think saying that there are grey areas in Smallville is inarguable. As I've said, the show seems to be a combination of aspects of Superman and Superboy concepts. But saying there's no Superboy in there at all is a bit of a stretch.
Back to the topic in general, here's an article from Publisher's Weekly that seems to lay things out nicely. Among other things, it says that the "Superman=work-for-hire" has been overturned, but doesn't cite any source. Anyone know if that's accurate? http://www.publishersweekly.com/article/CA6323787.html