Saturday, June 11, 2011

THOUGHTS ON DC REBOOT PART 2 (of 3): Lawyers, Comics, and Heirs...Oh My!

This may be the most over-analyzed move by a comic book company...
So, I may as well contribute my thoughts as well. 

PART 1 of this blog series contained a legal research article I wrote back in 2000 when the Siegel Estate's lawsuit against DC Comics to recover partial ownership of the Superman copyright was just beginning.  Ultimately, the issue at hand at that time was whether the Siegel Estate had successfully terminated Jerry Siegel's earlier "transfer of copyright" to DC Comics and my conclusion, based on the facts available and the law at that time was, yes, they had successfully done so. 

PART 2 discusses some key developments up through the 2009 Summary Judgment in the Siegel Estate's favor and my thoughts on how that decision has driven nearly every corporate and creative decision as it relates to the Superman copyright and trademark (and the DC Universe of characters by extension).

PART 3 will move on from the legal and corporate shenanigans and focus on a fan's perspective and thoughts concerning the announced reboot of the entire DC Universe line of comics and flooding the market with 52 first issues of new ongoing series.
Before jumping into reading PART 2, you might want to try tackling these 3 articles linked below by other writers first, just to familiarize yourself with some of the particulars surrounding the legal issues involved.  I promise, they are written better than I could attempt to do here and will give you a deeper understanding of the issues at hand.

Superman co-creator's family given rights (Aug. 13, 2009)

Can Superman be split in two? (May 27, 2011)

THE LEGAL VIEW: The DCU Relaunch and the Superman Copyright (Jun. 9, 2011)

I am going to leave it to someone with a lot more time and energy to do the legwork on tracking the dates and specifics on the legal case, but I will give credit to for their decent coverage of each step of these proceedings over the last 10 or so years. 

What I do remember is that the Siegels exercised their right to terminate the transfer of copyright in 1998 and it was granted in 1999.  The details in dispute were over what aspects of the Superman copyright reverted.  In all the proceedings I've read through, one thing has been clear, that the judge reaffirms and reaffirms that the Siegels are not gaining complete control over the property, they are regaining a 50% interest in the property as it existed in ACTION COMICS #1 and to those items directly derivative from that source.  However, the judge has insisted that it is not a slice-and-dice type of co-ownership here, it is an equal ownership of the whole property.  The real sticky point is that come 2013, the estate of Joe Shuster will be able to lay claim to the Superman property for the other 50%.  In effect, it could mean that as of 2013, DC Comics will have lost all rights to domestically produce new creative works based on the original Superman copyright.  They will still be able to reprint and profit from all derivative works published up through 1999 but anything after 1999 through 2013 would be subject to profit sharing with the Siegels.  DC would still retain international copyright of Superman, so they could conceivably continue to publish works outside of the U.S.  Warner Bros., because they met the 2011 deadline to fulfill the license extension requirements (beginning production on director, Zach Snyders' SUPERMAN: THE MAN OF STEEL) for their "sweetheart deal" film license from DC Comics means that so long as they continue to create film and tv projects containing the version of Superman that DC Comics held copyright to prior to 1999, they can continue to use the character in those other media formats. 

And, technically, that means that DC Comics could skirt around the loss of the Superman copyright by creating comics based entirely on the film versions.  DC Comics will continue to fully and completely own the trademarks surrounding the Superman property and that's where the big money lies anyway.  Comics are really just a drop in the bucket of the massive cashcow that Superman as a franchise property is for WB/DC.  This will also make it extremely difficult for the Siegels and/or the Shusters to ever really pursue any efforts to profit on their own by publishing comics or pursuing other media options with the property without involving DC Comics cooperation in terms of their trademark ownership and aggressive defense of that trademark (a requirement, by the way, to maintaining a trademark is defending that trademark, and once you've lost it you can't regain it -- unlike a copyright in some instances).

Now, how does all this relate to the "Reboot."  It is ALL related.  Marvel and DC have a history of reacting in print and continuity because of behind-the-scenes lawsuits or developments in copyright law.  In fact, back in the mid-1980s, Marvel was driven to fear a loss of ownership of the original copyrights to their major properties from the 60s and launched a multi-year gambit to basically replace or remake their characters.  There was even an ad campaign with the tag "Everything old is new again!" That featured a drawing of Spider-Man (in his black outfit that looked nothing like his original), Thor (in armor and a beard that looked nothing like his original), Capt. America (dressed in a horrid black costume with angled red and white stripes), Iron Man (wearing a red and SILVER armor that bore little resemblance in shape and form to the classic red and gold style), and Hulk (boasting his gray look rather than the more familiar green).  Once the "crisis" of copyright loss/reversion passed, Marvel promptly moved to get Spider-Man back into his classic costume, Thor back in more familiar armor, Cap back in the red, white, and blue, and Iron Man back into a more classic (but updated) red and gold armor.  The only change that stuck was the Hulk gone gray because by that time, this reinvention of the character as the "gray" Hulk had connected with readers and boosted sales well beyond what the "green" Hulk had ever experienced.  So, Marvel stuck with it.  But, as with all these corporate publishing monsters, they made sure and kept that "new" Spider-Man costume around to preserve copyright and trademark (Venom!) and U.S. Agent became the character who switched costumes with Cap to keep that horrid black costume viable.

DC, likewise, has demonstrated timely moves within the comics line that reflect the corporate directives from above at WB.  As pointed out in the ComicsBeat's LEGAL VIEW article linked above, when it looked like the Siegels were winning against DC's legal challenges, then the comics did things like kill off the "original" Superman and Lois Lane and the Conner Kent modern Superboy in INFINITE CRISIS.  And when the Siegels won a ruling on the Superboy character (a separate suit but rolled into the larger case in 2005), then you see DC turn the Superboy-Prime character (who most resembles the original Superboy copyrighted version) into a mass-murdering villain.  Then they stopped using the name Superboy, indicating that they really didn't understand the ruling or the fact that the copyright is not over the "name" of Superboy.  You can't copyright a name.  You might be able to trademark it.  Might.  But for a little while Superboy became Superman-Prime, which made no sense within the comics.  Likewise, around that time, the Legion of Super-Heroes animated series went into production with the Superboy character along with the other characters.  But, instead of referring to him as Superboy they called him "Young Superman".  Jim Shooter also relates on his blog how 2 or 3 years ago when he was working on the LEGION OF SUPER-HEROES comic book, he was directly instructed to create a "new" character, a "Super-Lad" that could be a fill-in for the Superboy character because it looked like they had lost that battle.

However, there was some sort of decision made at that point that quashed the steps being taken to develop "Super-Lad" and all of a sudden, the Conner Kent version of Superboy was resurrected and further steps taken in retellings of Superman's origin to show him functioning to some extent as a "Superboy" along with the classic costume.  I suspect that the judge's declaratory judgment that the Siegel suit did not extend to the larger Warner Bros corporate and was limited only to DC Comics (which meant that the Siegels, for example, are not entitled to profits from the TV show SMALLVILLE) began to embolden them to begin to establish new and original elements to the characters that would distinguish them from the original copyright elements and be less directly dirivative -- such as the current Superboy being a human/Kryptonian hybrid clone in the modern day rather than the adventures of Superman when he was a boy.  It is a very different concept; it just shares the same name -- which is not copyrightable.

Now, add into this mix, that Dan Didio has made it known for a number of years that his career wish in leadership at DC Comics was to just reboot the entire thing and flush out all the clogged up continuity that weighs down every story and character to the point of impenetrability by new readers.  Former SUPERMAN writer, J. Michael Straczynski confirmed this information recently online on his Facebook page where he acknowledged Didio's express plan to reboot the line and how this led to Straczynski taking the bold step to walk away from his year-long stint on SUPERMAN and WONDER WOMAN. 

So, couldn't the reboot of the DC line of comic books simply be a creative decision?  Sure, it COULD be.  But it obviously isn't.  And I don't mean that as a denigration of the creative writers, artists, and editors working on the books that are trying their damn best to do good work.  However, it is clear when you look at the timeline and developments in terms of the case between the Siegels and DC (as well as the Shusters coming up), the precipitating event driving this "reboot" is the need to take proactive steps to shore up a clear dividing line between a "modern" version of a Superman character that is unique to DC alone (and expressly wholly corporate-owned) and the "classic" version of the Superman character that saw a partial copyright reversion to the Siegels in 1999 and is facing a complete reversion in 2013 if the Shusters follow through as expected.

The Neil Gaiman case cited above in the ComicsBeat article, but also the Marv Wolfman case against Marvel over the copyright ownership of the Nova character, reinforce the fact that in terms of modern Copyright Law it is quite possible to have 2 discrete characters called "Superman" that are obviously derivative of each other without one being an infringement of the other.  As well, I think the steps taken last year by WB to absorb DC Comics and restructure it as a more prominent and integrated part of the WB corporate machine might also be a strategic step to pursue throwing the Siegel case out on the basis of the earlier declaratory judgment that the Siegel's could not sustain a claim against WB corporate.  I don't think a court would buy it, but I also wouldn't put it past a corporate attorney to give it a shot.

So, faced with the need to completely redo SUPERMAN, and this was a corporate conversation that probably started 2 years ago and went into fast-mode last year as soon as the restructuring plan went into effect, I think Didio saw it as a perfect opportunity to implement his goal.  The re-imagining of SUPERMAN along with DC's continued loss in the marketplace overall to arch-rival Marvel Comics (a recent corporate acquisition of WB arch-rival Disney) gave him the excuse and the leverage he needed to push a line-wide reboot through.  It's a risky investment to do what every other Editor-In-Chief, Publisher, and President of DC Comics has chickened out on doing since all the way back to the original CRISIS ON INFINITE EARTHS in 1985 -- itself a project originally intended as a line-wide reboot from scratch.  I will discuss in PART 3 my wild speculations from a creative and fan-observer perspective on what I think may be the approach to the Superman character when this all-new Superman launches in September 2011.  This gives DC a solid 2 years to establish this new version of Superman as the primary version in terms of the comics and then, if by some miracle, WB/DC is able to settle with the Siegels and Shusters and retake the domestic copyright on the "classic" Superman, then I think the speed will be super-human at which DC scrambles creatively to reintroduce the "classic" Superman and reestablish their ownership.

The bottom line is that for the last 10+ years, the decisions at DC indicate that rather than cooks in the kitchen, they have lawyers.  That's why things just don't seem to smell right or taste right going down.

Part 3 should be a lot more fun to write as I go through the 52 titles announced for September and ramble on about them (but without legalese or any of that cynical corporate-driven nonsense).  Needless to say, I think Corporate-driven "creativity" just leaves husks of dessicated artist (or writer) corpses in their wake like the old "Salt-Vampire" did on STAR TREK. 

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