Saturday, May 28, 2016

The Superman Case and Best Outcomes

This is a slightly revised version of an essay that was published at The Hooded Utilitarian on November 1, 2012

Readers of my comics criticism know that I’m a strong advocate for thinking outside the box of the comics subculture. I ask for comics to be examined from a more culturally rounded perspective, and I do my best to live up to that standard in my own work. I have a polemical bent, and calling out others for being locked into subcultural attitudes has been par for the course. Over the last few months, I’ve felt compelled to extend this to historical and business issues within the field. The most recent examples have been my comments on the summary judgment against the Joe Shuster heirs in their efforts to reclaim a portion of the Superman copyrights from DC Comics.

The verdict was issued on October 17, 2012. Two days later, co-editor Dan Nadel linked to Tom Spurgeon’s commentary at The Comics Reporter. (Click here.) Nadel called Spurgeon’s post (click here) “the most cogent analysis” of the decision. I’d read the piece earlier that morning. It was hardly an analysis, and “cogent” was probably the last adjective I’d use to describe it. It featured a rhetorical broadside against DC Comics that misrepresented the company’s dealings with the Shuster heirs in the most inflammatory and Manichean terms. (The key sentence: “It’s darkly, stab-both-your-eyes-out ironic that Warner/DC’s parsimony in forcing an elderly woman to haggle for a 23-year-old’s income with everything she had at her disposal is actually benefitting the company down the line.”) The verdict and the exhibits that provided the history of DC’s dealings with the Shusters were both available online. Spurgeon clearly hadn’t read either. (DC hadn’t forced anybody to do anything, there was no haggling, and at the time she didn't have anything to legally bargain with.) Worse, Spurgeon hadn’t even paid much attention to the news report he linked to in his opening paragraph; he wrote the piece from the erroneous impression that DC had been dealing with Shuster’s widow rather than his sister. (Spurgeon corrected his references to her after complaints.) In short, the post was ignorant and prejudiced about the case.

Spurgeon obviously buys into the fan-community myth that Joe Shuster and Superman co-creator Jerry Siegel were hapless victims of the greed and villainy of DC Comics. After reviewing the compensation history, one may come away with a different impression. The two earned the 2012 equivalent of at least $5 million from Superman during the character’s first decade. They would have earned a great deal more if they hadn’t filed an unsuccessful lawsuit to regain the property in 1947. (I’ve read the court filings and the preceding contracts. Almost all of the non-speculative grievances were over things they clearly had no claim to, such as money from Batman. The speculative grievances--namely being shorted for monies owed--were determined groundless.) The cumulative income of Siegel, Shuster, and their heirs from a 1975 pension agreement with DC has been the 2012 equivalent of over $6 million. That’s altogether more than $11 million between the two parties in 2012 dollars, and the Shusters alone would have stood to make at least an additional $2 million had they not chosen to pursue the partial copyright termination that resulted in the most recent verdict.

If that kind of compensation is what it means to be victimized by DC Comics, please let me know where to sign up. Siegel and Shuster sold Superman outright in 1938. There is no evidence of bad faith in the transaction. For the equivalent today of about $2,500, DC bought a comics feature that no other publisher was interested in. When the commercial potential of the property became apparent, the company voluntarily increased its contractual obligations to the creators. Siegel and Shuster were allowed to participate in the expanded publishing opportunities, and they were given a percentage of the non-publishing licensing revenue. They were extremely well paid before they burned their bridges with a largely senseless lawsuit in 1947 and 1948. They were able to negotiate a new settlement in 1975, and they enjoyed a handsome pension afterward. Their heirs have been treated generously. The two suffered economically during the time between the lawsuit’s end and the 1975 settlement deal, but it’s becoming increasingly clear that they were akin to the lottery jackpot winners who quickly end up in bankruptcy court. Judging from the paper trail of exhibits in the various cases, as well as Larry Tye's recent book Superman: The High-Flying History of America's Most Enduring Hero, they were financially irresponsible people who squandered a truly enviable amount of money. (Shuster in particular was quite the spendthrift.) I just don’t see how that’s DC’s fault.

However imperfectly, DC has made a pretty consistent effort to equitably deal with Siegel, Shuster, and their heirs. The company has negotiated settlement after settlement after settlement with them in an effort to resolve matters. That’s why I was especially struck by the end of Spurgeon’s post, where he wrote:
[…] it’s hard for me to see this as a best outcome. I think it’s okay to want best outcomes.

Well, that raises the question of what he would think a best outcome is. Spurgeon doesn’t allow comments on his site, so I sent an email asking on October 19. He posted it with a reply on October 29. (Click here.)

It’s very clear that Spurgeon and I take a very different view of intellectual-property ownership. He obviously feels there is something inherently illegitimate about anyone but the original creator owning a copyright or patent or whatnot. Apart from public-domain laws, I personally see little difference between a copyright and a piece of tangible property such as a car or a house. It’s something that can be sold from one party to another, and the sale should be governed by the basic rule of transactions: If both parties are competent, uncoerced, and acting in good faith, the transaction is inviolable. If the purchaser proves better able to exploit the goods or property than the seller, then good for the purchaser. I think any reasonable adult recognizes this is a possibility in selling anything. If I sell a developer a piece of real estate for $20 per square foot, and the developer, for whatever reason, is later able to sell it for $100 per square foot, the developer is entitled to the money. I have no claim on it, and there’s no reason I should.

I’d be very curious to read the ethical reasoning why the sale of Superman in 1938 should not be binding on Siegel and Shuster. Or why their 1948 decision to give up all remaining financial interest in the property for a cash lump sum was not something they should have to treat with respect. Or why they (and now their heirs) should not be expected to honor the multitude of settlements DC has made in its truly quixotic efforts to find a permanently satisfactory common ground with them. Is it because authors and their heirs should be considered the same as minor children, and therefore not competent to enter into contracts? Or is it because they enjoy some sort of exalted status by which the rules that everyone else has to follow in every other circumstance should not apply to them? Or is there something else?

My guess is that the “exalted status” view of authors is what is guiding this. A related view has managed to find expression in our copyright laws. In tandem with the incessant extensions of copyright protection over the past century or so, a truly astonishing innovation has been introduced: legally mandated time-limited ownership for purchasers, with the original seller having the rights of termination and reclamation. If an author sells his or her copyright to a publisher, the author or the author’s heirs now have the right to invalidate the transaction after a certain period of time. The justification is that the author couldn’t have known the future value of what he or she had sold, so he or she should have a certain amount of time to exploit that at the current owner’s expense. Just imagine if we expanded this to other kinds of transactions. General Motors could legally repossess my prized Camaro without compensating me. After all, to paraphrase Spurgeon, I’ve had it a long time. Why shouldn’t I give it back? GM couldn’t have possibly foreseen that the car would have collector value, so it’s only fair that they be allowed to take advantage of this. By the same token, DC Comics could reclaim all extant copies of Action Comics #1. The company sold them for pennies back in 1938; they couldn’t possibly have predicted that copies would eventually change hands for up to a million dollars apiece. Or should the Siegel and Shuster heirs have the right to reclaim those, too?

This ill-considered do-gooder revision to the copyright law is what opened the door to the present litigation from the Siegel and Shuster heirs. And DC is of course fighting this for the same reason I would fight to retain ownership of my Camaro. The property was bought fair and square, and a good deal of time, labor, and money has been spent on its upkeep; it’s wrong that the original seller should be allowed to take it back.

Actually, DC is fighting this a lot harder than I would (or could) for my Camaro, and for a very good reason. I’m not answerable to anyone but myself with regard to that car. DC, though, has a fiduciary responsibility to the shareholders of Time-Warner to protect the company’s assets. They cannot pursue any solution to the Siegel and Shuster imbroglio that does not take the best interests of the company shareholders into account. We’re talking hundreds of thousands--if not million--of people. This is why none of Spurgeon’s proposed “best outcomes” can ever happen. Any one of them would likely result in a class-action shareholder lawsuit that would, just for starters, prompt the removal of the DC and Time-Warner executives responsible for pursuing any of those “best outcomes.” Those same executives could very well be facing litigation themselves for the rest of their lives if one of those “best outcomes” went forward. There would certainly be litigation seeking to have any of the pursued “best outcomes” set aside.

This is partly why I think “equitable and fair” is preferable to “best outcome.” Any proposed solution has to be reasonably acceptable for Time-Warner’s shareholders. Spurgeon is right to characterize my shift in terminology as “an almost willful renunciation of what [he is] talking about.” Approaching a problem in terms of “best outcomes” allows one to indulge in absurd fantasies. Looking at it in terms of what’s “equitable and fair” requires one to engage with the real world.

Let me end by shifting gears away from the Superman case. We need to try to understand issues relative to all perspectives at play in them. It should be imperative to know where both sides are coming from before reaching a conclusion. Uninformed, knee-jerk partisanship should be avoided. Sometimes parties we sympathize with are in the wrong, and sometimes parties we see as antagonists are in the right. A fuller view of a situation may lead one to decide that one’s initial sympathies are misplaced. As writers and readers about the field, that fuller view should be our main goal. Achieving it the real best outcome, at least for us.

This post prompted a lively comments discussion in its initial publication. Click here to read.

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