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[…] Legal | No, the lengthy battle over the rights to the Man of Steel still isn’t over. Attorneys for Warner Bros. and the family of Superman co-creator Jerry Siegel on Tuesday were back before the Ninth Circuit to argue once again whether Siegel’s daughter Laura Siegel Larson was entitled to rescind a 2001 settlement agreement. The outlook doesn’t appear promising for the Siegel family. [Courthouse News Service, The Beat] […]

If I were asked to express in a single sentence what has happened mentally to many American children during the last decade I would know no better formula than to say that they were conquered by Superman. And if I were further asked what is the real moral of the Superman story, I would know no better answer than the fate of the creator of Superman himself.

Fredric Wertham, Seduction of the Innocent, Chapter 10.
http://tinyurl.com/agvmrje

Settlement talks? I don’t see anything.

@mgh The following are a few references to the initiation of settlement talks.

Toberoff’s argument against the summary judgment is that DC violated procedural rules re a mandatory pre-filing notice period. DC finds the you-said-judgment-but-not-summary-judgment argument to be transparent jockeying for tactical advantage. Specifically, DC alleges that Toberoff was delaying so he could prepare and file the 2/7 Pacific Pictures motion, which, reading between the lines, is an attempt at showing that the recent string of losses has not left Toberoff powerless.

Thing is–and here I’m speaking more about the negotiating role of an attorney than the legal–the PacPic filing doesn’t achieve that goal. If anything, it has the opposite effect.

The same goes for the objection to DC’s motion on 2/7. Could Toberoff win on the you-said-judgment-not-summary-judgment technicality? Sure. District court judges have to be sensitive to this sort of stuff, since you don’t want a picayune matter of procedure to undo more substantive decisions. But as I noted yesterday, it doesn’t foster fear or respect.

Settlement talk references – the process started in January

p.17 – email
p. 18 – email
p. 78 “In reality, Mr. Petrocelli had stated in a largely unrelated telephone
conversation with Mr. Toberoff about organizing settlement talks that DC would file a “motion for entry of judgment””

p. 78 “On January 31, Mr. Petrocelli had a telephone conversation with Mr. Kendall (who does not represent any party in these two cases) about coordinating a settlement meeting.”

p. 79 “Obviously, DC cannot use casual references in settlement conversations to evade its meet-and-confer obligations under Local Rule 7-3, especially when DC was openly vague about the sort of motion it intended to file”

A quick update – one procedural, another more interesting.

Procedural: Judge Wright replied pretty much as one might expect. He says that while DC gave Toberoff plenty of notice, Toberoff IDed a technical inconsistency with the procedural rules.

You can almost hear the judge sigh.

The upshot: he grants the continuance and cancels the March 11 dates for the Siegel and Pacific Pictures cases. In Pacific Pictures, he takes this one step further and says that he’ll make his decision based on the record.

What’s more interesting is that DC’s latest document dump includes an interesting piece of info re the Shuster case. DC includes material indicating that it has sought a new court-ordered mediation with Mark Peary now that the court has shown him that he really can lose everything except the micro-settlement with his mother. Previously, Peary had said he had only considered the possibility of a loss “like I would an asteroid hitting us and wiping out life on earth.”

In other words, DC is likely prepared to reach a new agreement in excess of the old 25K/year settlement.

The latest case documents can be found here: http://www.scribd.com/doc/124657128/Siegel-Superman-Superboy-Pacific-Pictures-cases-2-8-2013-documents

Oh Jeff, Jeff, Jeff….
What will you get to write about now?

You don’t have to be a procedural wonk to understand the importance of the admittedly complex issue of civil procedure. That’s because, as far as I understand it, there is still some bargaining to be done. And every DC claim that can be dismissed improves the Siegel’s bargaining position. I think the 9th Circuit’s decision is horrible. It chills the bargaining process by putting in land mines, it also seems to directly contradict one of the cardinal rules of evidence in civil matters – statements made in conjunction with an offer of settlement are not admissible as evidence. And if a term sheet doesn’t fit that description, I don’t know what does. Maybe that’s why the 9th Circuit didn’t want the case to establish a precedent.

@Jonboy Just you wait. Been holding back. Always open to questions too.

@Mitchell Berger The state of the law regarding term sheets would surprise a lot of people who agree to them. It’s in many ways counterintuitive. My take on the 9th Circuit’s use of a memo dispo is that the legal principles for finding a term sheet binding have already been established. This was just an application of established law to a particular fact pattern – no need to offer additional guidance in binding precedent.

Re bargaining to be done: yep, that’s how these things often get wound up after one side wins a huge victory. Thing is, though, DC is now in the stronger position, a reversal of the situation in 2008 and the subsequent expansion of the Siegels’ ownership stake. The filing described in this post is primarily about Toberoff not getting hit with owing damages & attorney fees to DC.

Now can we get Superman back in his original costume instead of Jim Lee’s nightmare?

Jeff, I can’t wait for the book you write on this. You know — the book that I decided in my head will be on sale around this time next year.

Seriously, these as-we-go-along posts are stirring and wrenching and eye-opening. Putting it all in one place in the proper context (and in the right narrative order) would be a must-read.

The human “point” that stands out to me here is the aggressive attempt to strip an author of his right to be considered an author while we here in the 21st century are enjoying a renaissance of author recognition; even corporate authors! “Monsters, Inc.” isn’t just a Pixar film, but a Pete Doctor film, and it’s marketed that way. Kevin Feige, Jon Favreau, and Joss Whedon are given more credit for the Marvel film explosion than the corporation itself is. Today, corporate art producers promote their employed or freelance individual humans as the secret to their success, yet we just have a block preventing us from affording the same recognition to those who built the foundations. It’s because the working relationships then were so fuzzy and disputed that any “give” in those relationships today becomes dangerous to the financial health of the companies. Understood. But it doesn’t make it any less outrageous.

I second Jeff’s book — he is literally the only person who is getting the analysis of this right. Otherwise, facts like these get buried behind single news leads and small paragraphs. No one is simply willing to do the homework anymore.

Something new that struck me was the use of “Jack Kirby’s Fourth World” in a few places in the settlement. I don’t know the exact reason they were putting it in (help?) but just the way it is worded — as his, but emphatically theirs — very ironic and sad.

@Jesse Many lawyers today are domo arigato Mr. Roberto when it comes to preventing future harm to a corporate client. It doesn’t occur to them that treating folks as less than human is offensive in ways that can lead to much more substantial harm down the line.

For instance, the Siegel case has cost Time Warner millions in legal fees–probably more than they would have paid the Siegels under the settlement during the same period of time. The likelihood that Time Warner would have taken the same financial hit if Joanne Siegel had gone off the reservation after transferring DC all the rights in the settlement falls somewhere on the spectrum from slim to none. But all the lawyer can think is control, control, control without any sense of nuance or a strategy informed by human nature.

@Brad Based on the context, my initial sense is that Kirby’s Fourth World + related material are there to forestall on claim to revenue from post-termination versions of Kirby’s Jimmy Olsen/Fourth World/Kamandi material with an arguable or actual Superman connection. (Definition 9, “Superman Property,” is key here.) At the time profits from Darkseid material may have been the main concern, but who knows? Perhaps the original plan for the New 52 was to build it around Goody Rickles.

On a broader level, yes, the phrase “Jack Kirby’s Fourth World” has branding value in the comics community, but in a document designed to deny an original creator the possibility of any credit or financial interest it takes on a wholly different valence.

Jeff,
Aren’t the royalties retroactive? Meaning, isn’t DC paying the royalties from the date the agreement was signed to today, as well as going forward? DC didn’t pursue this case to stop those royalties, or even reduce them, they reacted to Toberoff’s claims.

So saying “the Siegel case has cost Time Warner millions in legal fees–probably more than they would have paid the Siegels under the settlement during the same period of time” isn’t really accurate, is it?

Did the lawsuit cost TW money? Yes. But they were willing to pay the Siegel heirs significant money, and had an agreement to do so. It was the Siegels and Toberoff who decided to try to void that agreement.
What was TW to do? Renegotiate for more? Siegel didn’t want more. Apparently she wanted to stick it to the man. So TW had to defend their property.

@jonboy There was a way to write certain clauses – particularly anything pertinent to non-defamation and other stuff beyond finances – that likely could have kept the settlement process from breaking down into the long-ongoing lawsuit.

When you’re negotiating a settlement, particularly a one involving a situation w/ decades of hard feelings, you don’t stop with cash if you want the settlement to get the folks on the opposite side of the table to sign on the final dotted line. Many disputes aren’t really just about money–and if you pretend they are, you could end up losing more of it than is necessary.

In the Siegel deal, when the dollars were more or less set would have been a great to time to think about how to get the Siegels to see this a good thing, as a form of vindication for Jerry and a means of securing his legacy. Without that, there was always a serious chance it could revert to the mean–a fractious, costly legal dispute.

Now DC is on the hook for the past royalties *and* the decade or so of lost time, extra staff, $ spent massaging it for SEC filings and fees for outside counsel. A bit of strategic humanity in 2002 could have saved all that extra cash for creative projects to further corporation growth–or, more likely, tripling bonuses for C-level executives.

This deserves a book all to its own. But I’d also be interested in an indepth detailed history of the larger universe of notable comic/ fandom trademark and copyright disputes including Superman (Siegel/Shuster), Natl vs Fawcett / Marvel vs DC (Shazam/Capt Marvel), DC vs Bruns, Gerber/ Wolfman/ Friedrich vs Marvel, Warren vs Harris, Gaiman vs McFarlane (Medieval Spawn, Angella, Cogliostro, and Miracleman/Man-of-Miracles), Miracle(Marvel)man, Stan Lee vs Marvel (2002 not Stan Lee Media), Jack Kirby vs Marvel, and hell, let’s even toss in Lucasfilm vs Battlestar Galactica.

My overall understanding of things is that the (admittedly different) courts have been schizophrenic at best over the nearly century of time they’ve been looking at the sausage-making of my beloved hobbies.

Jeff,
So are you thinking that if DC/TW had been “nicer” to the Siegels in 2002, all the subsequent legal wranglings wouldn’t have occurred?
That, I can understand.

BUT, if the Siegels had made up their minds to fight prior to the 2002 settlement regardless of the $ offered (in which case why would they have agreed to it), then no amount of nicety would have fixed it.

All in all, yes, I agree being ‘nice’ solves a heckuva lot more problems than it creates, but at the same time, sometimes you just gotta be a dick in order to get what you want.

JT:

Thanks for your detailed reporting/analysis + I look forward to a book.

JT: I do as well, hopefully it’s not just on this case, but all previous legal cases. Preferably written from the Siegel family POV and explains what they were going through and why they came to that POV, if possible. That’s a book I really want to read.

Yeah, just shocked by how much DC insisted on controlling the narrative of the actual story. It’s the ultimate version of Editorial — making the Siegel life story itself part of approved DC canon. How do you make something work? Fit it in continuity. Really surreal.

[...] More last words on the lawsuit by Jeff Trexler at The Beat. [...]

This is interesting stuff. I’m bookmarking it to read later.

Interesting stuff. Thanks for making it available in such an accessible format.

Levitz: “I was disappointed when I learned when I learned that the Shuster family filed their termination claim.”

I’m kind of disappointed in Levitz. He comes across as playing a sort of corporate “good cop”, convincing the heirs he’s genuinely interested in Shuster’s contribution to comics history and that the pittance DC’s paying is the best deal he can get them. I don’t know if his interest is genuine, but I can see that by filing the termination, the heirs were able to get an offer, that they rejected, which would have paid a guaranteed $4 million dollars from 2005 to 2033 (and probably considerably more, unless DC was planning on playing accounting games with the profits. Just the 1% cover price royalty on comics should cover the guaranteed amount with just direct market sales), more than five times that deal Levitz got them, even assuming DC was willing to modify that deal to cover Shuster’s nephew and niece after his sister passes away.