Anti-Siegel Superman "fans'" arguments are inaccurate and lame

After my last post, I expected to get some comments. But I didn’t expect them to be quite as lame as this one I got from someone named “Media Monkey Ninja.”:

I agree, the heirs are going to be the "REAL" death of The Mam of Steel. I'm not a huge Superman fan (I'm more of a Batman kinda guy), but The Boyscout is an American icon. If there is no Superman, what character is going to uphold Truth, Justice, and the American way. I'd hate to see this happen to any copyrighted character that is this loved by millions. I say if you work for a company and you create copyrighted material while working at that company. The copyrighted material should be owned by the company. If someone whats to have complete copyright ownership, they should create the character solely by themselves while working solely for themselves. That way no company can lay claim to your copyrighted material.

And this is exactly what I was arguing against — fans whose instincts are completely counter-intuitive to the facts of the case (assuming they know the facts, which this poster does not).

So let’s start from the top and try to explain this to anyone who may be interested in actually understanding what’s going on and have some interest in actually learning something. It’s distressing to get such comments, because I generally think comics fans are smart people. And I’m not saying this because “Mr. Ninja” disagrees with me — but if there’s a good moral and legal case for Warner Bros. to not share proceeds from Superman with the Siegels under the current law, I have yet to hear it. And, “DC may stop publishing the Superman comics I so love” does not qualify because no one with any real knowledge of this case or authority at Warner Bros. or DC has even suggested that would happen.

But let’s get into the details of why this kind of this panicky, selfish, pro-corporate position put forth by “Mr. Ninja” is complete bullshit.

First, let’s review copyright law. The United States Constitution states in Article I, Section 8, Clause 8:

The Congress shall have Power [. . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

What’s key is the “limited Times” element, which has constantly been extended from the original 14-year term with a single 14-year renewal to the current law which establishes copyright for corporate works made for hire at 95 years and individual copyrights at 70 years after the life of the author.

All works eventually fall into the public domain. This is important to society and to education — the works of Shakespeare are public domain more than 400 years after his death. The benefit to society of his work being freely accessible outweighs the interest of whatever distant descendant (and he has none) may have in milking it for all its worth. Most works in the public domain are not well-known, and being free increases the likelihood that they will be used, republished and generally benefit our society.

At the time of the creation of Superman in the mid-1930s, the law stipulated a term of 28 years for copyright that could be renewed for an additional 28 years. Copyright was bestowed automatically upon the creators, which applies directly to Siegel and Shuster. As teens, they created the character of Superman and his world, and spent years trying to get it published before Detective Comics Inc. bought the material to appear in Action Comics #1. By paying Siegel and Shuster the grad total of $10 a page — $130 total for 13 pages of art and story — DC acquired all rights to the material therein. That was a transfer of copyright, from Siegel and Shuster, to Detective Comics Inc., which is distinct from a work made for hire, in which a company hires people to create material for it. Most Golden Age and Silver Age comics qualify as work made for hire. Stan Lee was employed as editor of Timely/Atlas/Marvel when he came up with the typed plot for Fantastic Four #1 and hired Jack Kirby on a freelance basis to draw it. That’s a quintessential example of work for hire.

The original deal between Siegel and Shuster was iron-clad and held up more than once in court — in DC’s favor. The pair tried to reclaim the copyright to the character in the 1940s and were rebuffed by the courts. They tried in the mid-1960s to argue that they had the first right of renewal of copyright, only to have the courts rule that that right had been sold along with all the others in the original transaction. Under that deal, the Superman material in Action Comics #1 would have entered the public domain in 1994 — more than 15 years ago, for the math impaired among you. Each subsequent issue of Action Comics and Superman would have lost its copyright over time and we’d now have all the Superman material from Action #1 through 1953 in the public domain.

But that deal — which I think is quite reasonable and should remain the standard term for copyright — was no good for the corporations that held copyrights to the likes of not just Superman, but Popeye, Mickey Mouse, Tarzan, Sherlock Holmes and countless others. So, enter the copyright act of 1976, which was the most significant revision to the copyright law in the nation’s history. It not only extended copyright terms, but in a rare show of justice adjusted the law to compensate folks who had sold copyrights that, due to the extension, were now more valuable than they were when originally sold. So to make up for the fact that companies like Disney and DC Comics now had decades more to exploit characters they had acquired, a complicated clause was put in that allowed for the original copyright owners to possibly benefit from the longer terms by terminating the transfer of copyright.

So now comes a common complaint from the anti-Siegelites: If they signed over the rights, they signed over the rights and have to live with that mistake no matter what. But this ignores not only what I stated above about the change in the copyright law, but also the entire area of contract law. No matter what kind of contract you sign, it’s subject to copyright law, i.e., you can’t make a contract that contradicts the law. So the revisions to the copyright law that allow that allowed DC to keep the Superman contract beyond the original term, also allow the Siegels to terminate the original transfer. Still, some seem to think that’s unfair — to DC. But anyone who’s ever signed a contract, be it a lease or rental agreement or deal to buy a house or whatever, will come across a clause that states, essentially, that should any clause in a contract be found illegal that the legal elements will still apply. That should indicate to the vast majority of people that contracts are subject to law. You can’t, for example, contract someone to commit an illegal act and then sue them for breach of contract. The contact, despite the fact that both sides agree to it, is not a legal contract.

So what does “Mr. Ninja” mean when he calls Superman an American icon, and says that he hates to see this happen to any copyrighted character beloved by millions? His position, whether he means it or not, is that the corporate right to copyright is absolute and should never be questioned. Which not only runs counter to the Constitution and copyright law, but also the very truth and justice he says the Superman character stands for. Justice, in essence, is another word for fairness — and who can say it’s fair for DC Comics to have exploited the character of Superman for immense profit for more than 70 years, 15 years beyond the original copyright terms, and then not have to honor a part of the law that says the Siegels as the heirs of the original creator deserve to share in those profits?

What’s missing, of course, is the American way, which apparently is to bow to corporate interests at every opportunity and to support DC’s decades-long piss poor treatment of the Siegels, which included all kinds of demeaning treatment, blacklisting and persistent efforts to deny any legal claim they have to the millions — if not billions — of dollars DC has earned from the character in the past seven decades.

The other point “Mr. Ninja” brings up is that if you want control of your copyright, you shouldn’t create it for a company. Ignoring the factual error — Siegel and Shuster created Superman long before they took it to DC and never created it “for” the company or at its behest — the technology of publishing and the business realities of distribution at the time made it near impossible for a pair of newcomers like Siegel and Shuster to publish their idea without going to a comic book publisher or comic strip syndicate. No comic book publisher of the era let any creator keep the rights. And only the most powerful or business-savvy of the comic-strip artists — like Milton Caniff in comic strips or Will Eisner, who kept the rights to The Spirit comic book inserted in newspapers at least in part because he was a good business man and wasn’t the first to demand and get it — were able to retain their copyrights. Siegel and Shuster, proposing an outlandish idea that was completely untested, had no such leverage.

Which brings us to another point, which is that you can’t determine the value of the copyright to an intellectual property before it hits the marketplace. Publishers have always liked to play the odds and use the failure of the bulk of their ideas to justify stealing the ones that do work. But that’s hardly fair and it’s even arguably bad business. Would the Harry Potter books have become the sensation they are now if the publisher had treated J.K. Rowling — now one of the richest women in the United Kingdom, if not the world — even half as badly as DC treated Siegel and Shuster? They certainly would not be as creatively rewarding for the millions of fans who believed in them to preorder and line up to buy each book in the series the moment it was released. But that's not how corporations and the small minds that run them think.

At its core, what trolls like “Mr. Ninja” seem to be most afraid of is change. That the victory the Siegels have already won will somehow change or even end the parade of Superman material from DC Comics and Warner Bros. they have come to love in an almost fetishistic sort of way. Which is the most embarrassing part — because Superman remains a vital and extremely viable commercial property. That DC and Warner Bros. would balk so thoroughly at having to share their profits with the heirs of the creators after more than seven decades of exclusive and extremely profitable exploitation is the height of corporate greed. It’s also eminently excusable, justifiable and even admirable in most circles of American society and, apparently, even among fans for whom the worship of the character through the purchase of stuff is more important than the truth and justice they believe the object of their affection represents