2014 Merchandise & Miscellaneous News Archives

July 1, 2014: Examining the Shuster Estate Petition to Supreme Court

Superman Court Case A few days ago the family of Superman co-creator Joe Shuster submitted a petition to the US Supreme Court, seeking to have their claim over the rights to Superman reviewed.

Jeff Trexler, legal expert and friend of the Superman Homepage, has given us his thoughts on what this all means and how it might play out.

    First, when it comes to the Supreme Court, nothing is impossible, so when it comes to any negative arguments they're not meant as a firm prediction that the Court will refuse to hear the case.

    A couple things that the case has going for it: it's from the Ninth Circuit, which has a relatively high reversal rate (the U.S. federal appellate court system is divided into sections covering several states; the term "circuit" is a reference to the old practice of judges riding the circuit, traveling by horse from town to town). Also, there was a dissent in the case, so there is at least some evidence of a differing opinion.

    That said, there's a pretty high wall to jump. The Ninth Circuit majority framed this case as a matter of interpreting the contract under state law - it's largely a factual inquiry grounded in interpreting the specific language of the contract, which is not the sort of thing in which the Court tends to get involved. Toberoff tries to get past this by invoking the statute's language re folks retaining the right terminate transfers despite "any" agreement to the contrary, but this runs up against the established case law across circuits + some language in the statute's legislative history, both of which indicate that "any" here does not extend to a contract where the original transfer is being rescinded and regranted.

    Why does the rescind-and-regrant exception make sense? Well, imagine a situation in which an author or heirs go to a publisher and say, "Hey, our termination right is coming up. Give us a bunch of money now, we'll rescind and regrant, and you'll save yourself a lot of hassle later." The publisher pays up, a new contract is issued... and then when the time comes, the author or heirs file for termination anyway, citing the "any agreement" language. The courts have agreed that the policy behind the statute allows for authors and heirs to trade on their rights to secure a better deal; otherwise you open things up to that kind of abuse.

    The petition has a number of other incidental flaws that would pop out to a savvy law clerk or reflective Justice. The bit about how Shuster's siblings had no rights to bargain with since Shuster's copyright interest was still in probate; the distinction between a pension agreement and a settlement; the lack of a viable alternative to the present interpretation embraced by all circuits; the reference to the existence of a dissent as proof that a standard is inherently and improperly vague. While the press reports may see all this as evidence that the case is heating up for the Shuster side, for others it can have the appearance of someone pushing a big rock up a steep hill.

Jeff Trexler



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