It’s not going to be up, up, and away with the Superman copyright, as a California court held that DC Comics will retain the copyright to the Man of Steel. A federal judge in the Central District of California, Western division, issued a summary judgment on October 17, 2012 in favor of DC Comics in ongoing litigation over who owns the copyright to Superman. The case, which is between DC Comics and the heirs of one of Superman’s co-creators, is over whether the heirs are able to reclaim the Superman copyright, under provisions of the Copyright Act. This case, like a comic book saga itself, is the latest in the long legal battle over the rights to one of the most profitable comic book characters of all time.

The Copyright Act provides that, for works created before 1978, the original author or his heirs can recapture the copyright as long as the work is not a “work made for hire.” The ongoing litigation over the Superman copyright has been an attempt by the heirs of a co-creator, Joe Shuster, to recapture the copyright.

The California court sidestepped any issues regarding the creation of Superman and whether it was a work for hire by finding that the heirs of Shuster made a binding contract with DC Comics in 1992. Judge Otis Wright II held that the 1992 agreement between Shuster’s heirs and DC Comics acted as a grant of copyright to DC Comics. This agreement also replaced any and all prior grants of the Superman copyright. Judge Wright of the Central District of California ruled that this one-page agreement operates as a waiver of any claims on the Superman copyright and against DC Comics. The agreement is also not subject to termination by Shuster’s heirs.

Superman was created by Joe Shuster and Jerry Siegel as a character originally created for publication in newspaper comic strips. In 1938, Shuster and Siegel sold the exclusive rights of the character and the story to DC Comics for publication in Action Comics #1. Since Superman was created and published before Action Comics #1, it was not a traditional work for hire. Action Comics #1, published in June of 1938, was actually an adapted version of the Superman story that Siegel and Shuster published in newspapers. After 1938, Siegel and Shuster continued to create more material for the Superman character as work for hire for DC Comics. The popularity of Superman has since risen dramatically, with the character being featured in five feature-length films with a sixth film coming out in 2013, multiple television series, numerous books, actions figures, and, of course, more comic books.

The start of legal troubles over the Superman copyright began in 1947, when Siegel and Shuster sued DC Comics to invalidate the 1938 agreement. A New York court found in favor of DC Comics. In 1948, Siegel and Shuster agreed to a stipulated judgment with DC Comics acknowledging that the 1938 agreement granted DC Comics all rights to Superman. DC Comics provided lump sum payments to Siegel and Shuster in 1975, with the original creators again acknowledging that DC Comics owned all Superman copyrights. Since then, DC has voluntarily increased the annual payments for Siegel and Shuster and their heirs. After Shuster’s death in 1992, DC Comics made an agreement with the representative of his estate, his sister Jean Peavy, for annual payments in exchange for any past, present or future claims against DC Comics. Though Siegel’s heirs began litigation against DC Comics seeking to reclaim the copyright, Peavy pledged to DC Comics that she would not follow suit and thanked them for voluntarily increasing the annual payments.

In the October 17 ruling, Judge Wright found that the Shuster estate relinquished its chance to reclaim Superman copyrights in an agreement it made with DC Comics in 1992. The Shuster heirs, in a one-page document, agreed to give up any claims they had against DC Comics in exchange for annual pension payments in the amount of $25,000. In his opinion, Judge Wright noted that the executive vice president of DC at the time, Paul Levitz, said that the agreement “would fully resolve any past, present or future claims against DC.” This agreement also voided any claim the Shuster heirs had to reclaim the Superman rights.

Since Superman was created by both writer Jerry Siegel and artist Joe Shuster, both co-creators can potentially reclaim their 50% ownership of the character. Though the Shuster estate has received an unfavorable decision in the district court, it seems likely that they will appeal the decision and try again to recapture the Superman copyright.

There is also ongoing litigation against DC Comics by the heirs of Jerry Siegel, the other co-creator of Superman, who could reclaim 50% of the Superman rights. The Siegel case is headed by the same counsel as that of the Shuster case, a veritable nemesis for DC Comics. In 2008, a judge ruled in favor of the Siegel heirs, but that case is currently awaiting appeal by DC’s parent company, Warner Bros.

Even if the Superman copyright is ultimately reclaimed by the Siegel estate, Shuster estate, or both, it is unlikely that they will lock DC Comics out from using the character. The Superman character, as created in 1938, lacks much of his most recognizable features. The original character sold to DC Comics did not work for the Daily Planet, was unable to fly, and his famed weakness to Kryptonite did not exist. If the Siegel and Shuster estates reclaim the copyright, they would not have access to any of those elements created after 1938, including the modern iconic “S” emblem. Such a decision would not entirely remove Superman from DC Comics’s use, since they would retain ownership of all aspects of the character created after 1938, but not anything created by Shuster and Siegel. Neither party would be able to profitably use a character that retains some elements, but not others. The likely outcome is that DC Comics would agree to purchase outright or license the Superman character. While it’s unclear how any appeals in battle for Superman will turn out, one thing is certain—it’s a bird, it’s a plane… it’s ongoing litigation!