By Jeff Trexler
In March 2008, Grant Morrison’s homage to Siegel and Shuster appeared in comic shops on the very same day that the Siegel heirs recaptured half the original Superman copyright. Now Morrison is set to work his shaman’s magic once again in the September relaunch of Action #1–and this time, the Siegels could lose everything.
Morrison’s upcoming Supergods holds the key to understanding why. For an explanation and a sneak preview of Morrison’s new book, click below. A mysterious appeal, Joe Shuster’s super-swastika and the final crisis of the legal multiverse–this one has it all.
The landmark federal district court decisions awarding the Siegel heirs half of the copyright in early Superman material were indeed historic, but they were not the end of the story. An appeal of the Siegel’s recapture of the copyright is now on the docket of the Ninth Circuit Court of Appeals, with briefing set for November through January.
The timing of this appeal is somewhat unusual, given the fact that a number of issues in the case remain unresolved. What may seem even more surprising is the party that called for an expedited review before all of the issues in the case were resolved: none other than the remaining Siegel heir, Laura Siegel Larson herself. The decision to move forward so quickly reflects a court strategy discussed in this case document, which provides the legal arguments for having the appellate court determine (a) whether the termination of copyright was indeed valid and (b) which Superman works the Siegels recaptured.
From the Siegel perspective, triggering an appeal on these select issues is a counterstrike to a revitalized DC offensive. The Siegel and Shuster heirs taken some serious PR and legal hits in the separate DC lawsuit challenging Toberoff’s financial interest in the disputed properties, and Toberoff’s argument for an appeal includes a direct reference to a desire to resolve certain issues raised in the case–in particular, arguments concerning the Shuster heir’s purported stake in Superman. Besides the fallout from this lawsuit, a prolonged and expensive war of attrition over the unresolved issues in apportioning profits also tends to the favor DC. Getting appellate validation for the Siegel termination claim would be a quick, high-profile way to shift momentum back to the heirs–ostensibly to increase DC’s incentive to settle, but perhaps also to renew Siegel Larson’s own commitment to a seemingly neverending courtroom battle.
Nonetheless, an outcome affirming the Siegel claim is not a slam-dunk. The court could reverse the 2008 ruling in regard the validity of and scope of termination, and it’s also possible that the Siegel victory could be limited in ways that make it far less significant.
And this is precisely where Grant Morrison’s work could have the most serious implications for the Siegel copyright–although the key material in question involves neither the multiverse nor an alleged editorial diktat to relaunch continuity, which in themselves would be not be likely to negate the Siegel share. Rather, the case could end up turning on the Superman material in the promotional ads featuring the cover of Action Comics #1, for which Morrison offers a most insightful–and legally relevant–interpretation.
Supergods and the Superman Case
As we’ve discussed before, in 2008 the judge in the Superman case came up with a clever way to get around the fact the Siegel heirs’ termination filing had failed to include two black-and-white promotional ads published before Action Comics hit the stands. DC did indeed continue to own this material, the judge found, but rather than giving DC ownership of Superman the ad contained “nothing concerning the Superman storyline and leaves DC with only “the image of a person with extraordinary strength who wears a black and white leotard and cape.”
DC, of course, disagrees with the judge’s conclusion and has argued that the promotional ads issue “bears directly on the scope of the copyright interested” recaptured by the Siegel heirs. While the Siegel heirs claim that the promotional ads issue is relevant only to the apportionment of profits and has no bearing on the matters now on appeal, DC contends that it is inextricably intertwined with the question of which original literary elements define the Superman copyright.
Thus far, the assessment of the ads has centered on the disputed analysis of a hired DC expert, with a considerable discussion of how Superman’s essential traits are not immediately evident. Morrison’s forthcoming Supergods, however, opens with an extensive meditation on the cover of Action Comics #1 that could be used to support DC’s own assessment of the ads. The notion that the ads showed nothing more than a black-and-white stereotyped strongman does not begin to capture what Morrison says is actually apparent in the image, even in its promotional form.
In the opening of Supergods (select quotes here), Morrison describes the image of Superman tossing a car as a revolutionary comic book mise-en-scène that literally “showed something no one had ever seen before.” The fact that the character wasn’t even named was itself revealing. ”Additional words would have been superfluous,” Morrison contends. “The message was succinct: Action was what mattered.” While there had been other action heroes before this, no other pop prodigy was able to smash a car in his grip, and if you looked carefully at has flowing cape in motion, you could see this preternatural character “almost taking flight.”
The tensions embodied in this man of constant motion–more than machine, more than human–were directly evident in this iconic image. This was no empty image; rather, it “looked like a cave painting waiting to be discovered on a subway wall ten thousand years from now–a powerful, at once futuristic and primitive image of a hunter killing a rogue car.” The man clutching his head in stunned disbelief bespoke not only the climax of the interior story–a copyright connection the 2008 opinion arguably missed–but also evoked Eduard Munch’s The Scream and the “existential terror” of the age of soulless mass manufacturing. The character at the cover’s center was more than a mere strongman too mundane for myth; rather, the Action image ”delivered the spectacle of triumphant individualism exercising its sovereignty over the implacable forces of industrial oppression.”
While Morrison does make occasional references to the use of the color on the page, for him the crux of the cover’s impact lies in Joe Shuster’s compositional layout. In what could be Supergods’ most controversial passage, Morrison describes Shuster’s iconic image of the American Ubermensch tossing a car as a mystical super-swastika. According to Morrison, the cover’s latent X-shape layout “gives the drawing its solid framework and graphic appeal:”
This subliminal X suggests the intriguing unknown, and that’s exactly what Superman was when Action Comics no. 1 was published: the caped enigma at the eye of a Pop Art storm. Superman, the human swastika at the heart of Shuster’s pulp mandala is beyond man, beyond technology.
Whatever one may think of the propriety of likening Shuster’s design to the ancient symbol” then being appropriated by the Nazis, Morrison’s central point is arguably valid from an artistic point of view–and again, on point for DC. Incompleteness in this image is not a meaningless void–it helps define the character himself.
Just as his reference to a Buddhist swastika was doubtless not meant to say Siegel and Shuster were Nazi sympathizers, Morrison’s paean to the dynamic originality of the Action cover image was certainly not intended to subvert the Siegel copyright. Nonetheless, however unintentional, it provides plenty of material supporting DC’s claim. Supergods provides a powerful argument that the “essential, unshakeable quality of Superman-ness the character possesses in every incarnation” has been evident from the very beginning, drawn in that singular historic image of a demigod tossing a car.
The One and the Many
When viewed in connection with DC’s arguments regarding the apportionment of profits from post-termination derivative works, the DC relaunch and Grant Morrison’s forays into the multiverse would seem to be the foundation of DC’s attempt to undo the Siegels’ 2008 victory. Actually, it’s only one part. The essential continuity between the cover of Action Comics #1 and later material poses a far greater danger to the Siegels’ claim. The greater the perceived similarity, the more the Siegels could lose.
But will they? The Siegel Superman case is something of a legal wildcard, one that invokes stirring principles of equitable treatment for creators and highly technical aspects of copyright law. We also need to take into consideration that federal appellate courts do not treat lower court opinions as binding precedent–in fact, at times it can seem that the lower courts exist primarily to provide something for appellate judges to correct.
With regard to the issues discussed in this post, it’s conceivable that an appellate panel will find that the Siegels’ failure to include the promotional ads in their termination notice was not fatal. One could argue that this was a de minimis mistake distinguishable, say, from failure to include a book–expecting an heir to know about every interior ad in an expensive collectible imposes a burden that would seem inconsistent with the policy underlying the termination right. Siegel Larson may also succeed in persuading a court to treat the promotional ads as merely a minor matter for apportionment.
However, victory for the Siegel side is by no means guaranteed. The Second Circuit’s ruling against the Burroughs heirs when they failed to include certain Tarzan books is a well-known and influential example of the unrelenting strictness of the termination technicalities, and the Siegel case could just as well join its ranks.
It’s also quite possible that a panel could find the judge’s assessment of the promotional ads to be an unsupportable assessment of the link between a sign and the thing signified. Whatever the benefit to the Siegels, it is arguably incoherent to say that the color version of Action Comics #1 has not organic connection to a black-and-white image of Action Comics #1 accompanied by the bold descriptor that the real issue is in “Color!”
A court could also find that the 2008 ruling on the promotional ads was based on an overly narrow understanding of both the Action cover and the law regarding comic book character copyright. While the Siegel judge highlighted the lack of storyline elements and the limited information contained in a single image, in its infamous Air Pirates decision, the Ninth Circuit established that comic book characters are copyrightable based on the physical and conceptual qualities evident in their graphic image apart from any storyline. It’s entirely possible that appellate judges–or, perhaps as important, law clerks working for appellate judge–could find Morrison’s detailed analysis of the creative elements in the image of Superman reproduced in the promotional ad to be far more persuasive than the glib treatment in the 2008 opinion. With that as its foundation, an appellate panel may also pay more attention to the ad’s overt references to the interior story to which it directly refers.
In this respect, the discussion of derivative works in the Siegel Superboy case suggests some intriguing possibilities for defining the scope of DC’s interest resulting from the promotional ads. In that opinion, the judge looked to the court opinion giving DC its victory in the 1940 Wonderman lawsuit as a guide for defining the copyrightable pre-existing elements of the Superman character. “A man of miraculous speed and strength … in a skin-tight acrobatic costume” is the central focus of this description, and one could argue that the cover image reproduced in the promotional ads, with its groundbreaking depiction of a powerful man so unbounded by natural limitations that is on the verge of taking flight, introduced this hybrid of the human and divine.
Given the complex issues and the substantial stakes, rushing an appeal was not without serious risk. It could validate the Siegels’ victory, but it could also result in a devastating loss–not because there are many Supermen, but because, in the end, there’s just one.
[Jeff Trexler is a lawyer and consultant and a comics fan who writes frequently about how legal matters pertain to comics.]