In 2008, the Siegel family won a historic courtroom victory. So why did they risk it all on an appeal? An encounter between Jerry Siegel’s widow, Joanne, and Super Boys author Brad Ricca provides a telling clue.On his must-read blog covering material connected to his forthcoming Siegel and Shuster biography, Ricca tells the following story as part of his reflections on the Siegel case:
Personally, I am thinking of Joanne Siegel, who I once somehow had the younger guts to ask point-blank: “So how is the thing going?” and I saw fire in her eyes.
Her response should come as no surprise to anyone familiar with the case. The fire in Joanne’s eyes had been burning hot for decades. Not even the famous 1975 non-settlement was enough to extinguish it–the annual stipend and bonuses were nice, but they never compensated for all that Siegel and Shuster had endured.
The personal nature of the Siegel and Shuster lawsuits was evident in an act that the courts so far have discussed merely for its legal implications: Joanne’s decision to revoke her acceptance of the 2001 settlement. The Ninth Circuit treats her action as irrational–DC’s final long-form agreement differed from the term sheet only in minimal or anticipated ways, and Joanne’s objections were unfounded or vague. Yet just as a divorcing couple’s fight over a family dog can involve much more than just love for a pet, Joanne’s change of heart reflects how money was not enough to satisfy a more fundamental sense of justice.
The Siegel case didn’t start with the filing of the copyright termination form–it smoldered through decades of perceived unfairness and disrespect. Jerry Siegel and his family saw the creators of other major characters receive evident guarantees of attribution, payment, and creative freedom far greater than their own. Termination of the 1938 agreement provided an occasion for setting things right.
In a situation such as this going to court is rarely just a way of settling a financial dispute over contracts and property. A verdict has a powerful rhetorical force in American culture–it’s like the voice of God pronouncing judgment from on high.
In the Siegel case, attorney Marc Toberoff was able to persuade the Siegel heirs to jettison the 2001 settlement precisely because he knew that a payout alone would not fully satisfy the family’s desire for justice. DC’s millions were not enough to get past decades of mistreatment and mistrust, nor was Siegel’s being recognized merely as a contributor to a long superseded old comic book. The Siegels needed something more.
However, the symbolic value of a final courtroom victory masks the practical difficulties of living through a lawsuit. What most people don’t understand is the system often doesn’t work with the efficiency and authority that we see in courtroom fiction. The litigation process is long, expensive and enervating. A case can also turn on a principle or fact that seems irrelevant to the fundamental principles at stake.
Given the harsh realities of the American legal system, many lawyers feel an ethical responsibility to explain to a client that justice and lawsuits are not necessarily synonymous. Even a widely celebrated favorable verdict can be vulnerable, as we have seen.
Does this mean that the Siegel and Shuster heirs should simply have resigned themselves to their respective unsatisfying settlements? Not at all. There are ways that the various attorneys on both sides in the Siegel and Shuster cases could have fostered a sense of justice without a vicious courtroom struggle or a massive payout that wouldn’t have passed approval from the corporate board.
As I’ve noted elsewhere, the following are a few of the meaningful gestures that could have been made part of a settlement rich in both its rhetoric and reward. DC could have agree to
- endow a Hero Initiative fund named for Siegel and Shuster,
- sponsor a Siegel and Shuster copyright education program,
- sponsor a Siegel and Shuster exhibit at a major museum,
- hold Siegel and Shuster celebrations, featuring the families, at major comic conventions,
- back a Siegel and Shuster book or film, which was in fact something that the Shuster family had sought, and even
- commit to maintaining an iron-clad royalty program and naming it after the medium’s most influential creators.
The biggest concession, though, would have been for DC to apologize.
That’s not as out there as one might think. Apology is actually a cutting-edge practice in contemporary negotiation, and the Superman case provided DC an occasion to make one without creating a costly precedent for other lawsuits. The Superman situation is truly unique, the first and only instance of its kind. Moreover, thanks to the 1975 stipend agreement, the parties could have even negotiated a public statement that focused on the unfortunate treatment of Siegel and Shuster before Time Warner bought DC.
By all rights, Joanne Siegel should have spent the last years of her life as the grande dame of American popular culture. Instead, she had to endure years of brutal litigation with precious little hope of seeing a final resolution, let alone one that would work in the family’s favor. She and her daughter Laura Siegel Larson had to suffer through hearing DC characterize the 1975 agreement as an undeserved gift, and now the historic 2008 ruling for co-ownership is set to disappear. In the end, she and Laura–as well as Siegel and Shuster–became marginal characters in their own story, as the Toberoff-Time Warner clash of the titans became the driving force of the case.
Still, her fire continues to burn. Now that that the company has won its central legal points, DC and Warner Brothers once again have an opportunity to demonstrate their commitment to the deeper principles of justice that Superman represents.
Fat chance.
“Marc Toberoff was able to persuade the Siegel heirs to jettison the 2001 settlement precisely because he knew that a payout alone would not fully satisfy the family’s desire for justice. ”
—what a stirring sentiment! because the marc toberoffs of the world are only looking for justice!
“By all rights, Joanne Siegel should have spent the last years of her life as the grande dame of American popular culture. ”
—who then IS the grand dame of American popular culture? we need to know!
“DC and Warner Brothers once again have an opportunity to demonstrate their commitment to the deeper principles of justice that Superman represents.”
—can someone at THE BEAT ever edit some of these writers? this is embarrassing!!
@Joe Perhaps, but that should never stop us from trying.
@trabo (1) That wasn’t a statement about ideals. It was about an exploit. (2) One of the heartening things about contemporary mass culture is its openness to celebrating those who contributed to its creation. Far too many have spent their final years in loneliness or bitter struggle. We reflect on what might have been in part so others need not suffer the same fate. (3) I’ve diagrammed that sentence several times and it always parses, at least for me. I welcome a more rigorous analysis based on your more nuanced editorial acumen.
seems like everyone would do themsevles a big favor if they disabused themsevles of that notion that there is any actual justice in the universe.
When Joanne Siegel is described as someone who should have been the “grande dame of American popular culture,” it makes me ponder why that should be the case when she wasn’t the artist who was robbed of compensation for his creation.
At most, she could get some posthumous justice for her husband and some money for his heirs.
Though that’s a worthy cause, a fight like this loses some of its moral impetus when the creator dies. The time to right these wrongs is when the person who created the work is around to enjoy the benefits. The way the comic publishers treated greats like Joe Shuster, Jerry Siegel and Jack Kirby is a wrong that will never be fully undone.
Straight from the text of the article…
…the following are a few of the meaningful gestures that could have been made part of a settlement rich in both its rhetoric and reward. DC could have agree to
■endow a Hero Initiative fund named for Siegel and Shuster,
■sponsor a Siegel and Shuster copyright education program,
■sponsor a Siegel and Shuster exhibit at a major museum,
■hold Siegel and Shuster celebrations, featuring the families, at major comic conventions,
■back a Siegel and Shuster book or film, which was in fact something that the Shuster family had sought, and even
■commit to maintaining an iron-clad royalty program and naming it after the medium’s most influential creators
Outside of the book or film which was IN FACT something the Shuster family had sought…….did anyone from the Siegel and or Shuster clan ask for any of these things? If they never asked you can’t possibly expect brass ass lawyers who know nothing about the history or heritage or mass appeal of Superman to say “hey…I have a great idea, besides monetary compensation, would you like us to set up a traveling exhibit of Superman memorabillia or perhaps start a yearly art scholarship for the best up and coming Superman artist”….lawyers like this only think in terms of money – they could give two shits about percieved justice or legacy building…if none of those things were asked for they sure as hell weren’t going to be offered out of the blue by men who could care less. So my question is…outside of the book or movie possibility….do you know if anyone on the Siegel Shuster side ask for these things?
Jeff writes: “In 2008, the Siegel family won a historic courtroom victory. So why did they risk it all on an appeal?”
Time Warner also appealed the ruling. Jeff do you think Warner would not have appealed if Siegel Larson had not?
@Thomas Wayne – Understanding what’s really going on is one of the traits that distinguishes a great lawyer from an average lawyer. If you’re on a legal team getting paid seven figures to handle a case, being just an average lawyer does a real disservice to your client. You’re not getting paid to wait for someone else to tell you what you should do to make the problem go away.
The notion that attorneys shouldn’t or can’t be creative hurts clients, the profession and the legal system as a whole.
Re honoring Joanne Siegel: Judging from comments threads, you’d think she spent her life at home eating bon bons and playing canasta. Not only was she a central part of Siegel’s struggle for work and recognition, but she was Lois Lane. Historical resource, cultural icon, creators’ rights pioneer–to dismiss her as just an irrelevant wife is less a debatable assessment of one person’s significance than a symptom of the misogynistic insecurity that continues to plague the comics community.
DC seems not to have realized that she was much more than a legal problem–she was a gift for a truly contemporary corporate identity strategy. You couldn’t have asked for more reputational assets to be leveraged for generating goodwill towards the brand. That too is something an excellent lawyer always has in mind–otherwise, winning a case can cost your client actual or potential market value.
@Patrick Sure, but it wasn’t inevitable.
There are a few ways you can go after a big win. One is to double down on the aggressiveness in pursuit of total victory. Sometimes that’s appropriate, but in this case the ruling was so fragile that you need to think seriously about taking a different approach.
First and foremost, you have to be honest with yourself about the weaknesses and what could go wrong. You also need to explain to your client that as wonderful as the victory was, going forward has substantial risks, such that this might be the best time for securing a meaningful victory without potentially destructive litigation–in other words, don’t just simply throw gas on the flames.
That goes for PR and backroom outreach as well. Spiking the ball in the endzone is often counterproductive, especially well before the game is over. Others’ mileage may differ, but my own approach would have been to do whatever possible to secure an agreement that secured at least the 2001 financials and mutually acceptable public gestures along the lines described above.
This is in part why judges have so far looked so unfavorably on the Pacific Pictures agreements–they created at least the appearance of a conflict of interest that would put the attorney’s financial benefit above the overall best interest of clients.
Jeff, I’d argue doubling down was the best tactic seeing as the Warner appeal was coming no matter what. In fact they were not in any way in the End Zone. The play wasn’t even under review, because if the play stood, the game was not over. The IP issues are so important to Disney and Time Warner I have no doubt that if necessary they would appeal lower court rulings all the way to the Supreme Court of the United States. That’s the end zone. In fact I wouldn’t rule out Toberoff trying to do the same thing.
Jeff, great article — and thanks for the mention. You need to write the book on this case, no question.
Joanne did a lot more than people might know. But I agree that interest dissipates once the creators are gone. . . .What she did do was try very hard to make sure that interest did not go away once Jerry died, making her Lois Lane claim to fame all the more resonant. The good news is that very recently she did finally get to enjoy the spotlight — the above picture is from her trip to Cleveland to dedicate the Siegel house restoration where she had a huge crowd cheering her on. She was also given a Friends of Lulu Lifetime Achievement Award that I know she really treasured.
T.W. : ” you’d think she spent her life at home eating bon bons and playing canasta.”
Agreed, it always gets me when I see the wise/sage Superman fans flock into these discussions under the impression Siegel-Larson is some kind of bozo who is being manipulated by her attorney. Or that the attorney just has no clue as to what he’s stepping into.
The idea, “I’ll just play nice and reasonable with the good folks at Disney/Warner and everything will be spiffy,” just doesn’t fly as far as I’ve seen. Ask the Tolkein heirs about their percentage. As soon as you look like you’re willing to meet a corporation half-way they smell blood and begin their negotiation four steps back from what they were willing to settle for before you foolishly showed your hand.
“the unfortunate treatment of Siegel and Shuster before Time Warner bought DC”
Ummm, except Kinney-National bought Warner Bros., not the other way around (Steve Ross was the head of Kinney before he became the head of Warner). Although you could instead point to the pre-1967 time before Kinney bought National Periodical Publications.
@Allen Thanks for the correction — definitely a historical mindblip. It would have indeed been better to say something along the lines of “before DC became part of the Time Warner corporate family.”
This is an op-ed piece. Not a news article.
I do hope that people can differentiate between the two.
(Although, I guess one could argue that ALL news articles are in a sense op-ed pieces.)
Cynics of this world “That’s the way it is”, it’s not really an argument. “Roll with the punches”, is not a satisfying solution.
There are people in this world who are like Sheriff Woody, and think, “We won, and Luxo learned his lesson, lets go easy on him.”
@Patrick Being strategic and going easy are not the same thing. The same goes for conflating fighting with winning. As someone who has been in this biz longer than he’d care to admit, I can say with some confidence that power players tend to see approaching armor more as Don Quixote than the Atomic Knight.
The families repeatedly made deals with DC regarding rights and money. If these were good or bad deals is not the issue because the family entered into them voluntarily and with the later deals knowing exactly what they were getting and who they were dealing with. The family repeatedly broke these deals and attempted to get more out of DC. Mistrust was on both sides. Why should DC apologize to the family when the family continued to come after the company after each new deal was made? It would be great for DC to have corporate responsibility but how about a little personal responsibility from the family to honor the deals that they make.
Jason: They were entitled to termination of transfer at, regardless of any previous deals they’d made. That’s a concession enshrined in the 1976 Copyright Act — okay, we’re extending copyrights without bothering to ask creators how they feel about it, but if they don’t like it they can reclaim them.
Now, the courts have ruled that the 2001 deal waived that right to termination (and a similar deal with the Shuster family did as well). Clearly the Siegels and Shusters didn’t see it that way. I don’t see this as a matter of breaking a deal, I think it’s more a case of believing a deal didn’t involve a waiver of their rights under copyright law. (The Shuster family in particular — their settlement is CLEARLY not a case where they thought they were exchanging what they got for a chance at 50% ownership.)
@Jason Apologies can be a powerful tool in an effective PR + negotiation strategy, especially if without corporate speak in a way that makes the company seem more human. For instance, no domo arigato Mr. Roboto about about potential missteps having been made by predecessors in the leveraging of corporate content and creative personnel assets.
From the corporation’s perspective, it’s not so much a matter of whether someone deserves an apology as whether an apology can be useful.
given how long dc and warners have fought to keep super man in their control instead of sharing what is by right the wealth with the creators. sadly the devil will be shopping to reignite the flames of hades before warners and dc say they are sorry for the way they treated siegel and shuster
@Jeff and Brad
This was truly an inspired piece. While I believe it would work in sparking discussion amongst those who read it, I feel the both of you should have taken this and read it aloud to both sides of the case, and try to get THEM to think about it. I honestly believe that if someone wanted to address an injustice that had been done, they should just state it OUTRIGHT–no subtle hints, no long-winded cliches, just say it in one sentence. If it was me, and I had gotten into the courthouse the case was taking place it, I would have just simply said that this case should end, right here and now, with the ultimate compromise. One that could only happen if both sides dismissed their attorneys. It’s simple enough–a grandfathered-in ‘co-ownership deal’ that would allow both the family of the creator (or the creator himself/herself) AND the company to own the rights to the character (and all elements of the mythos introduced by said creator), where each can benefit from such a deal EQUALLY. If they were both handcuffed to a ball and chain, they both owned the ball and chain, not one or the other. This case has been a mockery of justice and an affront to the ideals Siegel and Shuster weaved into their creation. I have a letter that I would’ve sent if someone had given me the courthouse address:
“To the Parties present in the fight for the rights to Superman-
Growing up, I watched the Superman cartoon series made by Warner Brothers in 1996; a while later I began to read some of the stories created by Siegel and Shuster. Since that time, I’ve always associated the Man of Steel with two entities, BOTH of whom were always present on the same page in a comic book: Jerry Siegel and Joe Shuster, AND DC Comics, not one or the other. I want that imagery to stay that way for good, and I won’t take no for an answer. If you refuse, you’ll be hearing from me with a vengeance; THIS I promise. All I ask is this: I want my Superman safe and sound, safe from ANY legal action, any statute, code or charter; I want both parties to have a peaceful and tranquil co-ownership where the company can continue to publish him, yet the families of the character’s creators can survive financially (even if they do have jobs that provide); I want quality Superman stories told, both in print and in film or television, without the threat of any legal or corporate speed bumps hidden under the floorboard like the Tell-Tale Heart; and finally, I want my Superman to continue to be an inspiration to all people around the world, untarnished by a black and desolate legal legacy forever hanging around his neck, like the chunk of Kryptonite on Christopher Reeve in the 1978 film Superman: The Movie. You heard me right—I want MY Superman back. So again, I strongly urge you, END this petty squabble once and for all, while the character still has an ounce of dignity and respect, and while you yourselves still have an ounce of dignity as well. Think of the children and the young at heart; think of the generations to come who have yet to experience the phenomena and legend of the Man of Steel. PLEASE, I beg you, BOTH of you. Ask yourselves this:
WHAT WOULD SUPERMAN DO?
Your little war over the copyright of Superman has resulted in the disillusionment of the many fans of the character that’ve followed him for years, AND may have been a factor in the decision of the big line wide re-launch by DC Comics, something that has also caused a great deal of controversy with those same fans (despite its semi-successes so far). I’m sorry if there isn’t a lot of legal knowledge in my background, but I have seen the voices of those who are utterly disgusted with the way this case has been going on, something that shouldn’t have gone on this long. You’ve ended up like that infamous rascal of a stockbroker Gordon Gekko of Oliver Stone’s Wall Street. Newsflash, ladies and gentlemen: greed is not good. FOCUS on what the families truly want: justice.
I don’t know why either of you REALLY want more control over the guy, but because of your legal dispute, you’re costing the reputation of the character its sense, sanity, and integrity. Have you seen the way Superman has been underappreciated and made fun of by many fans in the past decade? Your little fiasco in 2005 with the whole Superboy copyright issue also didn’t help. Your legal battles are wreaking havoc with the way Superman is currently perceived, and it’s not making people happy. The new version of Superman is now out on the shelves, in DC’s re-launched titles such as Justice League, Action Comics (volume 2), and Superman (volume 3), and most fans are still completely dissatisfied with the new design of the Superman costume—many even accuse this legal dispute of being the cause for Superman being “re-booted”! Joanne Siegel made a sensible argument, but did either of you listen? NO. This lawsuit, this whole circus, this mockery of justice, isn’t fair to anyone, not to the fans, not to the people who aren’t fans, not to people who just know Superman as a pop culture icon.
What would the people, even the ones who’ve never picked up a comic book in their lives, think of all this? Don’t you think they would’ve gotten tired of it by now after so long? Look at the monumental achievements this character has already made, both in real life and in fiction: the first volume of Action Comics, the title he first appeared in, is now one of the longest running comic book series in history, at nine-hundred and four issues; a town in Illinois is THE Superman destination of America; Superman finally married Lois Lane in 1997, and they’ve been one of comics’ most successful couples for two decades (though the “New 52” has since rendered that aspect void); Smallville, the television series based around a young Superman that just recently ended its run, is now the longest-running comic book-based television show, and has garnered multiple awards; and now he’s getting a chance to make up for that not-too-successful Superman Returns film from five years back, thanks to the man who brought new life to Batman on film. Superman is nearly seen and admired all over the world (even an idiot will know who Superman is); if either of you pushes to win your legal war, do you really want to take all that made the Man of Steel so great away from us, the people who have followed the character, bought his merchandise, watched every television show and film based on him, for nearly over a century????
If that is your game, then history won’t remember either of you as the home of Superman (DC/Warner Bros.) or the families of those who created him, but as “the company that defaced its own property” (if DC/Warner Bros. wins) or “those money-hungry heirs” (if the families win). But there still is time to do something different, to end this quarrel once and for all: just settle on equal terms. “Play nice”, be completely transparent and honest; work out a fair and flawless royalties deal, start a legal precedent called “equal copyright law”, or something, something that is not counterproductive. Otherwise, go ahead, continue to waste money that could be well-spent on improving the storytelling of Superman in all media; let the Man of Steel fall into the public domain; let the comic book industry—the superhero aspect of it, at least—die because of that; let Superman belong to everybody; let the world continue to drift into a downward spiral of continued disillusionment with superheroes, anything to continue twisting the proverbial shard of Kryptonite in our backs. But if either of you has even one iota of sense left, please, for the sake of this modern-day myth’s lasting legacy, STOP this legal brouhaha right now, while there is still time to do so. To those representing DC/Time Warner: enough already, stop acting corporate and start acting more cooperative. To the families of Jerry Siegel and Joe Shuster: do the same. It’s not too late–please, I beg of you, END THIS NOW.”
I agree that Time Warner would do well to make some conciliatory moves. However, as far as Superman specifically is concerned, Ms. Siegel might well have been yearning for control of the Superman property more than she desired control of the Superman character.
A character and a property are two different things. A character is part of a story; a property is an asset. There’s Elmo, the Sesame Street character, and Elmo, the wildly profitable property. There’s James Bond, the character appearing in novels written by whomever, and James Bond, the celebrated cinematic property.
I’d argue that any character, whether it’s Superman, Spider-Man, Spock, Bond, Holmes, or someone else isn’t irreplaceable because the character alone never determines whether a story is successful. His presence only shapes the market for it. While a character can always be replaced, a property is much harder to replace because people invest too much in it to give it up easily.
Why does someone write a story? If a primary reason is that there’s a schedule to be kept, a contract to be honored, or commercial demand for it, then the story is being written for the sake of promoting a property. If someone wants to say something in the form of a story, then he’ll write it before he tries to sell it.
Superman the character would probably have become Superman the property with Siegel and Shuster retaining control of him.
SRS
Excellent write-up. I appreciate the perspective.
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