Robot 6

Judge grants Warner Bros. access to stolen Superman documents

Action Comics #1

A federal judge has denied an appeal by the attorney representing the heirs of Superman’s creators, clearing the way for Warner Bros. to gain access to documents the studio contends will demonstrate he “orchestrated a web of collusive agreements” that led the families to reject longtime deals with DC Comics.

The documents, which were stolen from the law offices of Marc Toberoff and delivered anonymously to Warner Bros. in December 2008. Although a judge at the time ruled that the documents were privileged and ordered them returned, it was determined that the attached seven-page cover letter was not protected by attorney-client confidentiality. That letter, dubbed the “Superman-Marc Toberoff Timeline,” became the basis for the studio’s 2010 lawsuit against the attorney, in which it claims he acted improperly to convince the heirs of Jerry Siegel and Joe Shuster to seek to reclaim the original copyright to the Man of Steel. Warner Bros. also alleges tht Toberoff schemed to secure for himself “a majority and controlling financial stake” in the Superman rights.

U.S. Magistrate Judge Ralph Zarefsky ruled late last month that those documents aren’t protected by attorney-client privilege because Toberoff didn’t fight a grand jury subpoena issued in the investigation of their theft, thus waiving privilege. However, the judge deferred the decision to presiding U.S. District Judge Otis Wright who, according to Hollywood, Esq., on Monday rejected Toberoff’s argument that he had no choice but to cooperate with prosecutors in the burglary investigation.

Barring another appeal, Warner Bros. will finally get unfettered access to the documents that it hopes, at the very least, will force Toberoff, long a thorn in the studio’s side, to resign as the Siegel family’s attorney. Whether the papers are the legal hand grenade that Warner Bros. attorneys have made them out to be, demonstrating improper and even illegal, behavior, of course remains to be seen. Wright could look at the evidence and decide Toberoff’s actions were merely those of an attorney aggressively soliciting clients and (just as aggressively) representing their interests.

If that’s the case, it would make this lawsuit only the latest detour in the decade-long fight for Superman — one that became even more bitter in 2008 following a ruling that Siegel’s widow Joanne Siegel and daughter Laura Siegel Larson had successfully recaptured half of the original copyright to the Man of Steel. The window will open in 2013 for Shuster’s estate to do the same.

Deadline’s Nikki Finke offers spirited commentary on the Warner Bros. lawsuit against Toberoff, focusing on the stolen documents and the studio’s controversial tactics.

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25 Comments

“Barring another appeal, Warner Bros. will finally get unfettered access to the documents that it hopes, at the very least, will force Toberoff, long a thorn in the studio’s side, to resign as the Siegel family’s attorney.”

This will absolutely be appealed because attorneys do not want this to be a precedent in future cases regarding attorney-client privilege. There are now many deep pockets who, despite not being parties to this case, now have a vested interest in its outcome.

— MrJM

I_Captain Blanco

June 15, 2011 at 8:19 am

Good. Toberoff’s a weasel and a scumbag and the Siegel family deserves better than him.

As for Nikki Finke’s “spirited” commentary, it should be noted that she and Warner Bros. attorney Dan Petrocelli are old enemies, so she’s hardly unbiased.

since the documents were stolen. and warners being able to get access to them just proves that warners will not leave any turn unturn in their quest to keep the rights to super man for those documents could just turn out to be Tobien doing his job and getting the information from his clients. about his case.and warner’s so called key to being rid of Tobien could turn out to be useless.

I would love this, if it weren’t so disgusting, WB is concerned that Toberoff is/was trying to do something unbecoming? Pot calling the kettle black?

I hope the Siegel manage to grab the majority of the rights for Superman. I love DC, but I detest the way WB are trying to diminish the rights of the co-creators relatives. If it were this day and age superman was created, the family would have garnered hundreds of millions of dollars for the rights to superman. I am sure the co-creators never dreamed of the immense popularity this character would have gotten on a world wide scale in this era. WB makes billions of dollars a year, give the family all they deserve.

I think I don’t like even more that the current creators of popular mags are never willing to stand up to thier publishing company and rather not cause contention by blasting their bosses for their poor conduct in these matters.

Good. This pleases me.

Not as much as Copyright Law being fixed so that Superman and other properties would rightfully be part of the Public Domain, defeating the purpose of these legal shenanigans, but I’ll settle for the company producing work to get paid instead of the heirs of of creators long dead.

Robin in Alaska

June 15, 2011 at 11:38 am

Mr JM, I will not profess to be a legal expert. I am a mere ant on the legal evolutionary scale. I do get what you’re saying in regards to precedent. However there are be exceptions. If there is an abuse here, a wrong doing, fraud, collusion etc as the suit insists and that these documents are key evidence and that the prosecution has effectively made that argument then there is a valid legal basis for overriding the privilege. There have been numerous exceptions to Attorney/Client, Doctor/Patient confidentiality and privileges. This case wouldn’t be a new precedent, at least that my admittedly layman knowledge of the situation understands. Also given the Warner Bros allegations then it is not just in their interest for these papers to be admitted, but to the interest of the attorney’s clients. But again I’m just an amateur, so perhaps I’m very off base here.

Robin in Alaska

June 15, 2011 at 11:42 am

^Please excuse the typos in that. LOL Hey I said I was amateur! :) I didn’t catch them in my proof read.

i seemed that Warner is objecting to settling with the Lawyer but was willing to negotiate with the heirs which these documents say the lawyers rejected –if this is the case… the lawyer may be in trouble and the heirs may be out of luck because as their council he rejected offers which should have been accepted bar his involvemnent and getting partial ownership. Sounds like he is doing something underhanded on both sides.

whatever the case the continued reporting that this has any bearing on the content of the books is still negligible. [as we can see Superboy is being re[printed many times and the character is being publshed quite heavily by DC despite claims by fans that these lawsuits were the cause of them killing him off — the editors no comments when asked are again due to not bein g able to comment on ongoing legal battles.

“I am sure the co-creators never dreamed of the immense popularity this character would have gotten on a world wide scale in this era. ”

And neither did National Periodicals. That right there is the point. NOBODY knew that this was going to be such an iconic creation.

This whole mess is based on the concept of “must” vs. “should”. Jerry and Joe signed a contract, which if Superman had come and gone, nobody would be contesting. National / DC / WB didn’t HAVE to give them another penny. They CHOSE to, in the 70s, at the time of the film, and at the pressure of the creators. It’s what they SHOULD have done, arguably many years before, but it’s not what the law says they MUST do. This case is an attempt to turn that “should” into a “must”. And if the reports of what the documents in question contain, the character would fall under the control of Tobleroff, who had no hand in their creation whatsoever. So they may be being schnookered all over again, under the guise of a halpful hand.

DC / WB made the error of offering too little, too late. And now they’re in a battle that will leave both sides with dirt on their collars and blood on their hands.

Jerry and Joe suffered the fate of being first. Thanks to what happened to them, every other creator, from Bob Kane on, knew to at least TRY and cut a deal that would get them a taste of the gate. They deserved far FAR more than they got.

exactly if you enter into an agreement and have it fufilled you can’t go back after the fact and ask for it to be changed…

So pretty much Vinnie is right but if these papers are to be taken seriously Warner offered a very generous sum to the heirs which was turned down so the lawyer could get part ownership as well. It seems if this plays out Warner will end up giving alot of money but maintaining control. It seems on every level they are still trying to offer money which by all accounts is being rejected — this may prove fatal to the heirs… If you go technically by the letter of contract law National;DC;Warner has fufilled their side and offered more than they were legally obligated to do so [abeit in terms of what they should offer that is another matter entirely, ] however if the lawsuit ends up that they are unable to use the characters or concepts a countersuit could be filed. as means of lost revenue… so many technicalities… but in the end until such time as a legal order is issued that saysd they can’t do this or that with the character it means NOTHING for the CONTENT or the titles being published… in fact if DC starts re-acting in a manner which seems like they are pulling back from looking like they have full control this could be used against them. Again nothing like this is happening.[ again just in the minds of comics fans wanting some bizzare scenario]

“exactly if you enter into an agreement and have it fufilled you can’t go back after the fact and ask for it to be changed…”

The change was to the term of copyright in the United States.

When Siegel and Shuster sold the rights to Superman to National, the duration of copyright was 28 years with the possibility of renewal for an additional 28 (for a total of 56 years). The creators argued unsuccessfully in the early 1970s that the rights should’ve been returned to them after the first 28-year period. When Congress amended U.S. copyright law in 1976 and extended the duration of copyright, it included a provision allowing creators (or their heirs or estates) to reclaim the rights beginning 56 years after the transfer. Siegel’s widow and daughter filed a termination notice in 1999, within the window prescribed by law, followed in 2004 by the executor of Shuster’s estate, who took advantage of another window opened by the Copyright Term Extension Act of 1998.

If not for these changes, made by Congress — in the case of the 1998 extension, at the behest of media conglomerates like Disney — Superman would’ve lapsed into the public domain 17 years ago.

Seriously, this begs the question (outside legal terms): why didn’t ANY Siegel/Shuster relative think of working for DC full-time in the first place? Perhaps this wouldn’t work anyway, but wouldn’t the presence of a creator or creator who’s descended from said creator (like the Kubert brothers) working full-time or part-time at a comic company kind of enforce the creative rights of a character they made for that company?

Acer: Probably because the “victimized” heirs don’t care to actually produce Superman material, they simply want a trust fund to live off of for as long as our asinine Copyright Term extensions allow.

That, I find more sickening than anything else, to be honest. At least Time Warner is producing material.

As K Melrose pointed out this whole issue is the first of a number of such lawsuits we can expect to see if we don’t fix Copyright law and terms especially. Superman SHOULD be in the public domain. Both creators are long dead. Time Warner shouldn’t hold exclusive rights to the character either.

Anyone willing to work to create something new should be able to. That’s how Copyright works: It defends creators, ensuring they can earn a fair wage for their work. It was not designed as part of the US Constitution to grant perpetual ownership of IDEAS!

Can someone here give me the address to the courthouse this is taking place in? I have drafted a letter that should be given to both parties in this situation. I don’t think anyone, be they fan or non-fan, has ever spoken up to call to an end to this mockery of justice. I’m serious, I’ve finished the letter.

“Anyone willing to work to create something new should be able to. That’s how Copyright works: It defends creators, ensuring they can earn a fair wage for their work. It was not designed as part of the US Constitution to grant perpetual ownership of IDEAS!”

This is the sad truth of why this whole affair is so absurd. Superman should belong to the everyone by now.

I have no problem with the heirs wanting a trust fund in perpetuity. What I have a problem with is the fact that they produce nothing, while DC / Warner Brothers are the ones responsible for the exploitation (and I mean “profits” here, not something bad) of the material. They are the ones making the money. Yes, the heirs should get a share – but HALF? I think not.

This was a work for hire, which was the norm in those days. Things have changed. Should DC / Warners pay the heirs some reasonable (and I’m talking millions per year here, something commensurate as a percentage with DC and Warners’ profits) amount per year? Yes, they should, because it’s the right thing to do. But should the heirs be able to hold the character who is the tentpole of an entire industry hostage? No. That’s no more right than them receiving nothing would be.

As to Superman being in the public domain… again, I think not. If that were the case, you would have Superman porn everywhere, sh*tty merchandise and oversaturation all over the place. Everyone would want their piece, and pretty soon, it would be milked completely. Leave it to the professionals, kids. Superman is a storied, legendary character with a rich history spanning closer to a century than not. He deserves protection just like Mickey Mouse and Donald Duck have, and that can be provided ably by DC / WB.

Siegel and Shuster made a deal with Warner Bros back when the first movie came out, to be like $35,000 a year til they died for their rights to Superman.

This was a work for hire, which was the norm in those days. Things have changed. Should DC / Warners pay the heirs some reasonable (and I’m talking millions per year here, something commensurate as a percentage with DC and Warners’ profits) amount per year? Yes, they should, because it’s the right thing to do. But should the heirs be able to hold the character who is the tentpole of an entire industry hostage? No. That’s no more right than them receiving nothing would be.

Lol.Please tell me you’re joking.Superman is not and has never been a work for hire character when he was created nor is Lois Lane and his entire origin storyline.Superman was created by the two creators and best friends Jerry and Joe then the two of them submited the comic to the newspapers.Dc comics caught wind of this bright colored flashy popular superhero and instantly fell head over heels for this character.They obviously saw the huge potential in him and as soon as they got through some fluke and the naive nature of the creators of Superman who for some unexplained reason sold this superhero to their company they took full advantage of the situation.

The other thing is the fact that you’re ignoring the copyright law which changed in 1976 extending the rights of cartoon creations to their creators or their heirs.So technically and legally the creators of Superman could have regained the full rights to their creation in 1976.I’m tired of hearing how Dc Comics gave them money when it only happened after pressure from the other artist in the same field of work.The amount of money that Dc Comics was giving them was pennies compared to the billions that they were raking off Jerry Siegel and Joe Shuster creation.To Dc Comics the only thing that they saw was huge money signs and the creators where now a non-factor and treated like dirt.Why do you think there is so much bad blood between the heirs of the creators and Dc Comics? Isn’t it obvious? Are your eyes open now?

Had Dc Comics treated the creators like the genius that they were, to create such a beloved Superhero who started his adventures in the newspaper strips then some of those same strips were reprinted in the form of a comic book then it exploded into something extroadinary then we would not be hearing about all of these legal issues.Dc Comics thought that they could pay off the creators small amount of money while they made billions but the law has changed and given other creators a chance and hope that they too can reclaim their cartoon creations as long as they didn’t create the character and put it in a Dc Comics or Marvel Comics book.That would be considered work for hire.

I’m a comic book artist myself and have already copyrighted my characters.The only side I’m on is on the side of the Siegel and Shuster family.It was their father or brother who was screwed over.Not Dc Comics who sits on their throne enjoying a healthy profit from the backs of two men who just wanted to create an inspirational hero in the time of a great depression and whose character lifted the spirits of many in those deep dark times.

“At least Time Warner is producing material.”

If the rights to Superman reverted to the S&S families, I am fairly certain that they would have material produced in short order.

— MrJM

Does no one see the bigger picture… the threat to the individual’s Constitutional rights, if the individual is blocking a large, multinational corporation?

As it stands now, if the outcome of a case can make a profit for the lawyers’ trying the case, then the attorneys who stand to benefit in the outcome of the case must not be allowed to represent, presumably, the plaintiffs of that case. And counsel for the defense can make a case for opposing counsel having a financial stake in the judgment using stolen work-product.

Wow.

If this ruling is allowed to stand, it affects so many areas of civil litigation (and, potentially, criminal litigation) it’s frightening. Earlier this year, in an Arizona court, a bailiff removed a file from a defendant’s attorney’s briefcase and gave it to the prosecution, during recess, in open court. The bailiff was reprimanded and demoted… I guess he just did it a few months too early.

Sherlock Holmes

June 16, 2011 at 10:20 am

Who stole the documents from Toberoff’s office in the first place??! Obviously someone being paid by Warner/DC!!

These documents were stolen from the lawyer, and delivered to Warner Bros. And NO ONE READ THEM. Really?? You sure about that??

The Siegel & Shuster families might want to hold off on their quest for the Superman copyright. The way DC is being run right now (yet another universe reboot, and the introduction/renumbering to #1 of 52 titles), it’s entirely possible that by 2013, Superman won’t be worth squat.

Again, someone PLEASE give me the address to the courthouse this case is taking place. It’s time both parties got an idea of what their tussle is doing to both the character, the fandom, and people in general.

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