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