Superman's Legal Fees of $500,000 who pays?

Marc Toberoff, the attorney representing the estates of Superman co-creators Jerry Siegel and Joe Shuster, won't have to pay $500,000 in attorney's fees to Warner Bros. in the fight over rights.

Warners' subsidiary DC Comics moved for an award of attorney's fees after winning a big ruling last October that precluded the Shuster estate's attempt to terminate a copyright grant thanks to a 1992 agreement.

On Thursday, U.S. District Judge Otis Wright denied the motion.

DC argued that it was "forced" to prosecute a claim that ran counter to its rights.

In coming to a decision, the judge had to analyze whether the litigation commenced over Superman rights was frivolous and objectionably unreasonable.

The judge says that Toberoff and his clients had latitude to advocate their positions, especially given the lack of clarity on termination provisions under the Copyright Act.

"Though Defendants did not ultimately prevail, their argument rested on several different primary and secondary authorities," writes the judge. "Defendants sought to explore the boundaries of a relatively green area of copyright law and did so without traversing the bounds of reasonableness."

Read full Ruling... http://www.scribd.com/doc/134242756/Superman-Attorney-Fees
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The Owner Superman Rights is Warner Brothers, Judge confirms, However...

However, the ruling suggests that more litigation could be coming.

Warner Bros. scored another win in the war over Superman rights Wednesday when a federal judge confirmed the enforceability of a 2001 agreement between DC Comics and the estate of Superman co-creator Jerome Siegel.

The decision follows a Ninth Circuit Court of Appeal decision in January that held that contrary to the Siegel estate's pursuit of terminating a copyright grant, the Siegels made a deal 12 years ago to settle a war over rights.

However, the decision by U.S. judge Otis Wright to confirm the continued enforceability of the agreement points to a lawsuit that seems likely to come from the Siegels and their lawyer, Marc Toberoff.

Toberoff argued that after the studio agreed to a deal in 2001, "DC anticipatorily breached by instead demanding unacceptable new and revised terms as a condition to its performance; accordingly, the Siegels rescinded the agreement, and DC abandoned the agreement."

Judge Wright admits, "Subsequent events may have affected the present enforceability of that contract, as by a material breach followed by an effective rescission of the deal."

But he adds, "The Siegels’ breach and repudiation defenses do not affect the enforceability of the agreement, but rather constitute grounds for termination or a breach-of-contract action."

Read Full Ruling... http://www.scribd.com/doc/131715688/gov-uscourts-cacd-166872-235-0

The judge notes that up until now, the Siegels haven't attempted a rescission. Such an event can only happen if the rescinding party gives proper notice, and here the judge finds "as a matter of law" that letters sent in the months of 2002 "do not constitute proper notices of rescission" as "neither letter even recognizes a contract at all, much less expresses the intent to rescind the contract."

The judge further notes that the heirs might make a proper case by arguing in a separate breach-of-contract lawsuit that Warners failed "to provide a royalty statement to the Siegels by March 31, 2001, as agreed in the October 19, 2001 Letter, and failed to pay or offer to pay the Siegels their royalties.”

Such a claim might have big statute of limitation hurdles, but given the stakes and the never-ending madness over Superman rights, it won't be surprising to see such a lawsuit filed soon.

Judge Wright doesn't entirely dispense with the case because he says there is still the "lingering issue of what to do with Superboy and the early Superman ads."

Warners is safe as it prepares to release its big-budget Superman reboot Man of Steel, directed by Zack Snyder and produced by Christopher Nolan, but there may be more fussing on works like the TV series Smallville, before the case is firmly wrapped up.

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'Superman' Heirs Still Hope to Grab Back Rights

Warner Bros. believes that the legal war can be ended before the release of "Man of Steel," but the attorney for the Jerry Siegel estate has new arguments in the long-running case.

Superman was created in the late 1930s by Jerry Siegel and Joe Shuster. For three-quarters of a century since, the two have been in and out of court to gain greater financial participation. The duo and their heirs have made deals with studios along the way, and most recently, the Siegel and Shuster estates were hoping to exploit a provision of the Copyright Act that allows a copyright grant to be terminated.

In January, they were dealt a blow when Warner Bros. scored a huge win in a lawsuit that's lasted nearly a decade. Unfortunately for the Siegels and their attorney Marc Toberoff, the Ninth Circuit Court of Appeal ruled that in 2001, the Siegel family came to an agreement with Warners' subsidiary D.C. Comics to settle the termination fight.

Now the case is back at a lower federal court in California.

Warners smells blood and believes that a conclusion is just around the corner -- which would represent great timing because its big-budget Superman reboot Man of Steel, directed by Zack Snyder and produced by Christopher Nolan, will be released this summer.

"After over eight years of litigation, the Siegel Superman and Superboy Cases can and should now come to an end," the studio argued in legal papers filed last week.

If a contract was created, the heirs of the Superman co-creator want to argue, the Warners subsidiary didn't perform under the contract.

"DC failed to perform or to even tender performance by March 31, 2002, the date agreed upon," writes Toberoff. He continues, "DC anticipatorily breached by instead demanding unacceptable new and revised terms as a condition to its performance; accordingly, the Siegels rescinded the agreement, and DC abandoned the agreement."

Finally, Toberoff is looking to reintroduce his long-held belief (fought in various lawsuits over the years) that the Copyright Act prevents the anticipatory transfer of terminated rights through contracts. He's prevailed once before on that argument in a case involving rights to Lassie. There have been other decisions that have gone the other way -- including, most recently, against the estate of Superman's other co-creator Joe Shuster.

Toberoff's greatest challenge, though, might be judicial fatigue after eight years of a case that's been up and down and up and down the court system. He could soon find himself in a similar position as the various lawyers for Stan Lee Media Inc. who have been frustrated with judges refusing to pay much respect to countless arguments for why Spider-Man and other superhero characters were wrongfully ripped away.

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