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Lessig on Digital Barbarism

Lawrence Lessig has posted a review of David Halperin's recent book, Digital Barbarism.

Halperin, who authored the (in)famous New York Times article calling for perpetual copyright, has now compiled his ideas into a book. Lessig offers a much-needed critique, including citing misconceptions about Creative Commons (Halperin conflates it not only with "freeware" with software... more

Superman – caught in a cage called copyright!
Tobias Schonwetter · Cape Town (South Africa) · Apr 11th, 2008 8:43 pm · 24 votes · 1 comment
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Will Superman return to fight to free copyright?
This month, iCommons’ resident copyright columnist, Tobias Schonwetter, offers his view on a recent US court decision which reassigned the copyright in Superman-related works to the family of one of the original creators.

At the end of March 2008, United States District Judge Stephen G. Larson issued a decision which in the eyes of many provided a long overdue vindication for one of the late creators of Superman, Jerome “Jerry” Siegel, and his heirs. The judge essentially ruled that the heirs successfully terminated the transfer of copyright in Superman material to which Siegel and his co-creator Joseph Schuster had agreed way back in 1938 in return for the payment of US$130. However, the decision is limited to the territory of the United States and only applies to works created after 1999. Moreover, numerous details need still be clarified and the decision is subject to a legal challenge by the other party.

The sum originally paid to Siegel and Shuster is, of course, ridiculous given the huge profits made with Superman books, movies and other merchandise over the years. One could therefore easily concur with the outcome of the case. Yet, the case leaves me wondering. On the one hand, there is no doubt that District Judge Larson delivered a thoughtful and diligent decision in which he applied a section of the US Copyright Act (section 304 (c)) that specifically allows for such a termination if certain requirements are met.

From what I understand (although this is beyond the scope of this article), this provision has historic roots which relate to the former renewal right of copyright holders under US copyright law as well as a decision of the Supreme Court in 1943 which was in conflict with some of the lawmaker’s intentions for such a renewal right. Furthermore, I tend to prefer copyright ownership by the creator of a work rather than ownership by a large multinational corporation like Warner Bros, the defendant in the Superman case. However, it is not that simple. First of all, Siegel and Shuster initially signed away their rights, without coercion, in a clear and simple manner by assigning to (the then) Detective Comics “all good will attached […] and exclusive right[s] […] to have and hold forever”. Years later, this agreement was reaffirmed. In light of one of the most fundamental legal principles, pacta sunt servanda (“agreements must be kept”), the termination is indeed a surprise. Moreover, Warner Bros, and previous right holders, were in fact not as inconsiderate as it appears at first. Rather, they paid moderate sums of money to both creators and their immediate families over the years, including annual amounts between US$20,000 and US$50,000 plus bonuses, health insurances and the like. Admittedly, however, these amounts of money were dwarfed by the huge income that was generated by Superman-related works.

The main point I want to make here is this: I actually don’t care whether Warner Bros or the Siegel heirs won the recent case. For both, the outcomes are flawed. Superman should after such a long time not be copyright protected any more! Copyright protection is primarily meant to incentivise the creation of new works, or, if you follow a more author-centric approach as is favoured in many continental European countries, to honour a natural right of a creator in his or her creations. Yet, what purpose other than pecuniary enrichment of either the family of Siegel or Warner Bros does copyright protection serve here? I doubt that the money Siegel's heirs, not Siegel himself, are about to get will result in an increased creative output.

One could of course argue that, following the aformentioned natural rights approach of copyright protection, the heirs have just inherited the (natural) rights in the Superman-works that Jerome Siegel deserved for his creation. Fair enough; but if a creator decides in his lifetime to sell his rights, regardless of whether it is “real” property or intellectual property, why should the heirs be able to rescind this deal. From my point of view, copyright law is once again abused here to satisfy greed and nothing else. Unfortunately not even Superman seems to be able to stop this from happening.

tags: cape-town south africa policy-law copyright-law ip-law superman greed

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Hey Tobias! Thanks for another great column this month. I agree than we really do need Superman himself to step in to fight the good fight for freeing copyright. (wow, that even rhymes!)
Daniela Faris · Johannesburg (South Africa) · Apr 11th, 2008 8:42 pm
your call: is this comment useful?
your take: useful lame

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