By Jeff Trexler
Judging from the images released so far, it would appear that the relaunched versions of Superman and Superboy will be different from previous versions. Superman will no longer be wearing red shorts over his blue tights, and his belt, boots and S-symbol have also undergone notable alterations. Somewhat more dramatically, Superboy is sporting a black shirt and pants, a black-and-white S-shield mini-cape attached to his back, and a stylized red S-shield tattoo. It also appears that both characters will have significant changes in their continuity, most notably Superman’s age and his relationship with Lois Lane.
This changes in the Superman costume are in themselves not likely to provide a solid foundation for erasing the Siegel heirs’ ownership interest. However, the costume changes and other shifts in continuity are consistent with DC’s arguments for limiting what the Siegels now own.
As we saw in the case review, the Siegels argue that they should be 50% co-owners of the current Superman material, inasmuch as it all substantially derives from Siegel and Shuster original. However, DC counters this by arguing that Superman is a dynamic, not a static character. DC claims that the 1938 Superman is “stylistically dated”–if the company had stuck with the Siegel and Shuster original, the character would now be worthless.
Instead, DC has told the court, the company’s distinct creative contributions are what has kept the character economically viable. Rather than drawing from the outdated material sold by Siegel and Shuster in 1938, the company continues to present “an ever-evolving portrayal of Superman” featuring additional new material and changes in Superman’s appearance. This extends both to the Superman copyright and to the iconic S-shield, which the Siegels claim to co-own as a work derived from the S-shield worn by the character in Action #1.
Judging by what DC has released, the changes made in the Superman relaunch would seem to reflect DC’s strategic emphasis on creative change. Costume alterations may not establish that the character is wholly new, but they do arguably provide evidence of how the company is creating stylistic elements distinct from the character’s original form. Changes in continuity are also consistent with DC’s argument, inasmuch as they underscore the company’s ongoing creative input and quite possibly take the disputed material further away from the key elements present in the co-owned Siegel content.
The changes to Superboy are a bit more radical, which could be a reflection of the special circumstances in the Superboy case. On the one hand, the character’s new look reinforces the organic differences between this version and the character that is at issue in the Siegel Superboy case. In contrast to the Siegel version of the character, the Superboy in the DCU since the mid-1990s is not a young Clark Kent, nor has he been wearing the traditional supersuit. That said, Superboy will presumably continue to have powers that are arguably derived from the Superman material co-owned by the Siegels, so the difference is not absolute.
Which is why Superboy’s new color scheme is particularly noteworthy. As you may recall from my previous post, the Siegels’ victory in 2008 was not entirely clearcut–Judge Larson had to find a way to deal with DC’s copyright interest in the black-and-white version of the Action #1 cover in these ads. His solution was to make DC the owner of a superhero wearing a black-and-white costume–a property that DC is free to exploit without any competing claim from the Siegels. Thus, the most important characteristic about the new Superboy may not be his differences from Superman, but rather, his similarity to the black-and-white costumed strongman from the promotional ads for Action #1.
That this Superboy also sports a couple of different S-shields is itself consistent with DC’s arguments in the Superman case. The Siegels argue that because the S-shield derives from the S-shield on the original Superman that they co-own, they should also be co-owners of the S-shield trademark. DC, however, not only argues that it owns the S-shield free and clear due to its appearance in the promotional ads, but it also claims that the company continues to make substantial changes to the S-shield beyond the version that appeared in Action #1. Perhaps not coincidentally, a close look at the relaunch Superboy reveals a black-and-version with a rounded S similar in style to the Action #1 version reproduced in the ads, as well as more cutting-edge S-shield tattoo.
Even without the specter of termination rights, a company maintaining an IP farm such as the DCU has a significant incentive to make periodic additions and changes–every new creative element provides more material to exploit. The Superboy and Superman lawsuits would appear to be channeling this impulse in intriguing ways, from alterations to the iconic S-shield trademark to evolving superhero couture.
Next: Retconning Neil Gaiman
[Jeff Trexler is a lawyer and consultant and a comics fan who writes frequently about how legal matters pertain to comics.]