Super snit in 'Smallville'
Skein faces copyright infringement charges
By DAVE MCNARY
There's a big dispute in "Smallville."
A federal judge in Los Angeles has found that the WB's young Superman skein may be infringing on the copyrights held on the Superboy character by the widow and daughter of Jerome Siegel, originator of the comicbook series.
The March 23 summary judgment by Judge Ronald S.W. Lew also found that Joanne Siegel and Laura Siegel Larson had successfully recaptured the Superboy rights as of Nov. 17, 2004.
Lew's rulings in the copyright infringement lawsuit against Time Warner, Warner Bros. and DC Comics throw into question the ownership of "Smallville" episodes that have run since November 2004. Lew denied a request by the defendants for a ruling that "Smallville" did not infringe on the Superboy copyrights.
Warner Bros. said in response that it "respectfully disagrees" with the rulings and will pursue an appeal.
Still to be resolved is the question of whether "Smallville" -- now in its fifth season and centered on a teenage Clark Kent -- is actually infringing on the Superboy copyright. No trial date has been set in the suit, filed in 2004.
In their request for partial summary judgment, Siegel and Larson didn't ask for a copyright infringement ruling, which Lew said would require a "detailed factual comparison." But he noted, "Enough facts are presented, where this court, contrary to defendants' request, could find that the main character in 'Smallville' is in fact Superboy."
Lew also added in a footnote, "In the Superboy comic strip, a billboard on the side of a rural country road announces, 'Welcome to Smallville! Home of Superboy."
In response, Warner Bros. also pointed out that the suit is directed solely to rights relating to the costumed character Superboy -- not Superman. "Moreover, the court's ruling does not affect the television series 'Smallville,' which is grounded in depictions of a young Superman that pre-date the publication of Superboy in 1944 and which therefore are not subject to the termination notice, even if valid," Warner added.
Marc Toberoff, who represents Siegel and Larson, told Daily Variety that the only representations of a younger Superman which pre-date 1944 Superboy consist of one or two panels showing Superman as a baby or toddler. "Jerry Siegel's Superboy focuses on Superboy's relationship with his parents and his adventures with school classmates in a small town which, by Superboy No. 2, was named Smallville," he added.
The dispute over who owns Superboy goes back to 1938 -- the same year the first Superman comicbook, based on the story originated by Siegel and illustrator Joseph Shuster, was published.
A few months later, Siegel agreed to provide Detective Comics with a new Superboy comicstrip and submitted a plan that was turned down. Siegel unsuccessfully attempted several more times to pique Detective's interest in Superboy before entering the Army in 1943.
But Detective began publishing Superboy comics in 1944 while Siegel was stationed in the Pacific, resulting in a 1947 lawsuit in which New York state court Judge Addison Young found Siegel to be the sole owner of Superboy. In 1948, Siegel reached a settlement with National Comics Publications (predecessor of DC Comics) in which he sold ownership of Superboy and Superman to National.
Siegel and Shuster sued to regain the Superman copyright in 1973, but lost that suit two years later. Siegel then launched a PR campaign to protest DC Comics' treatment of him and Shuster, placing a "curse" on the upcoming "Superman" film and resulting in Warner Communications awarding annual pensions to the duo along with credit as co-creators.
Shuster died in 1992; Siegel passed away four years later.
The Superboy copyrights -- granted originally for the standard 28 years -- were renewed for another 28 years between 1972 and 1975.
However, Congress amended copyright law in 1976 to extend renewal terms from 28 years to 47 years in order to allow authors and their heirs to recapture copyrights for the extended renewal period. So in late 2002, Joanne Siegel and Laura Siegel Larson served the standard two-year notice they were terminating the 1948 grant of the Superboy copyright.
But in August 2004, DC Comics notified Siegel and Larson it was denying the validity of the termination notice and asserting it would "vigorously oppose" any attempt to exploit the Superboy copyrights. Siegel and Larson filed their suit two months later.
In their legal responses to the Superboy suit, Time Warner and its co-defendants had contended Superboy was simply a younger version of Superman and that Superboy was "work for hire" solely owned by its predecessors. But Lew said those arguments were unpersuasive in light of rulings made by Judge Young in the 1947 trial.
Lew noted that Young had made those determinations after hearing evidence from the parties who were "directly involved" in the original dispute.
"Defendants' attempt to recast Superboy as a 'derivative work' or 'work for hire' stands in stark contrast to Judge Young's conclusion that Detective/National was 'perpetually enjoined and restrained from creating, publishing, selling or distributing' Superboy, based on the fact that Siegel was the sole and exclusive owner," Lew said.
"Defendants' argument also contradicts the fact that Siegel subsequently transferred his exclusive interest in Superboy to National in the May 19, 1948, stipulated settlement. Had Superboy been nothing more than a derivative work, Siegel would have owned no interest in the Superboy property to transfer."
Lew also noted that the defendants' predecessors had relied on Young's rulings in previous cases such as Siegel-Shuster's unsuccessful 1973 suit. "Defendants now take the inconsistent position that this court is not bound by the state court findings, as they relate to Superboy," he wrote.
Toberoff, a specialist in intellectual property, represented Robert B. Clark in his suit against Warner Bros., which was settled last year for at least $17.5 million for infringing on the copyright to the 1974 film "Moonrunners" by making the feature "The Dukes of Hazzard." "Moonrunners" became the basis of the Warner TV series "The Dukes of Hazzard."
http://www.variety.com/story.asp?l=story&a=VR1117941008&c=1236
hint hint WB.
is. 
