Copyright contract proves to be Kryptonite for Superman co-creator
Joseph Shuster (artist) and Jerry Siegel (writer) created the legendary comic book character Superman in 1933, and assigned copyright in the work to Warner Bros subsidiary DC Comics in 1938 – apparently for $130. (Fun fact: the original cheque from DC Comics to Joseph Shuster was recently sold at auction for $160,000! Although we note that the duo continued to receive royalties).
In October 2014, the US Supreme Court declined to hear a challenge from Joseph Shuster’s estate regarding copyright in Superman.
The dispute centres upon a question of contract law and a peculiar feature of US copyright law – which is a statutory termination right that allows the author and/or the author’s heirs to terminate the grant or licence of copyright by serving a notice of termination within a 5 year “termination window” commencing 35 years after the date of assignment or licence (or 56 years after the date of publication / registration in the case of pre-1978 grants). This right effectively allows the author and and/or the author’s heirs to have a “second bite at the apple” by reclaiming or regaining the ownership of the copyright work . At the time of the original assignment it was not just US copyright law which gave rights to the estates of authors that prevailed over agreements entered into by authors during their lifetime. For example, Australia’s copyright law mirrored English copyright law, and it provided for an automatic reversion of rights to the author’s estate 25 years after death. See s5(2) of the English Copyright Act 1911, which was enacted as Australian law by the Copyright Act 1912 (Cth), the effect of which on agreements entered into between 1912 and 1968 was preserved by s239(4) of the Copyright Act 1968 (Cth).
In the present case, Shuster’s nephew, Mark Peary, filed a copyright termination notice, attempting to reclaim the copyright from DC Comics. In response, DC argued that the termination notice was invalid, because an agreement signed in 1992 between Shuster’s sister Jean Peavy and DC Comics had superseded the 1938 assignment and there was therefore no “termination window” that was open.
After Shuster died in 1992, his sister Jean Peavy signed a contract with DC Comics that provided her with more than $600,000 and other benefits including $25,000 per year and money to cover Shuster’s debts and burial costs, in exchange for full settlement of “all claims to any payments or other rights or remedies which you may have under any other agreement or otherwise, whether now or hereafter existing regarding any copyrights, trademarks, or other property right in any and all work created in whole or in part by your brother, Joseph Shuster, or any works based thereon.”
The Ninth Circuit Court ruled that the 1992 agreement operated to supersede all prior grants to copyright in the work. This therefore operated to revoke that assignment and re-grant the Superman copyright to DC, meaning that the 1992 assignment was unaffected by the termination notice filed by Peary.This leaves DC Comics with the rights to Superman, and follows previous unsuccessful attempts made by co-creator Siegel in reclaiming the copyright in the famous comic book character.
This is the third time the Shuster estate has failed to reclaim copyright in Superman.
And finally, just because this is IP Whiteboard, I will leave you with a Superman joke and a fun fact:
Q: Why is Superman’s shirt so tight?
A: Because he is wearing a size ‘S’.