SUPERMAN Legal Primer: FBI, Hot Documents & Mark Zuckerberg?

1938's Action Comics #1

This week, Warner Bros. and DC Comics claimed a "significant victory" in its ongoing litigation involving Jerry Siegel, Joe Shuster, and the copyrights for the Superman property they co-created.

But for those of us without law degrees, understanding the significance of this week's ruling might seem nearly impossible. After all, the ruling had nothing to do with the actual copyrights nor even any money. Instead, the ruling involved some documents that Warner Bros. wants to be able to use in court.

While that might sound like a bunch of meaningless paperwork, the legal team at WB is implying that this week's ruling may very well be the breakthrough that decides the whole shebang. And while the Siegel and Shuster lawyers are downplaying the importance of the documents, they spent the last year trying to keep WB from utilizing them.

So what's the story behind these documents?

Newsarama talked to lawyers involved in the case to find out. Hold onto your capes, comic fans.... this is a convoluted story that involves the FBI, allegedly illegal documents and precedents from a case involving Facebook, Mark Zuckerberg and the Winklevoss twins.

Warner vs. Toberoff

In order to understand the most recent legal battle over the Superman copyrights, it's necessary to recognize that WB is now approaching the case by concentrating less on the families of Siegel and Shuster and instead on their attorney.

At the center of the debate is Marc Toberoff, the lawyer who's not only a key player in the Superman case, but is also involved in the Kirby family's similar case against Marvel Comics.

Warner Bros. is alleging that Toberoff isn't just a lawyer for the Siegel and Shuster heirs, but he is also a businessman hoping to profit from his clients' case. They allege that Toberoff tried to strike business deals with the families over the copyrights to Superman. DC Comics' legal representative, Daniel Petrocelli, even said Toberoff had a 47.5 percent stake in the claimed copyrights, while the Siegels get 27.5 percent and Shusters get 25.

Toberoff countered the allegations by accusing WB of "desperately" targeting him to stall the case. And while Toberoff admitted that he did try to strike business deals with the families in the past, those agreements were cancelled several years ago. As for his stake in the copyrights, he claimed he has only been working on retainer with the Siegel and Shuster estates.

Stolen Documents?

While the Toberoff/WB back-and-forth involves what appears to be legal mud-slinging, the dirt doesn't stop there. This week's ruling focuses on documents that Toberoff claims were illegally obtained from his law firm.

In a situation the press could easily label "Super-gate," some documents from Toberoff's files on Siegel and Shuster were obtained by a lawyer who formerly worked with him. And like a tale straight out of a John Grisham novel, the lawyer who obtained the documents gave them to WB, complete with a cover letter that questioned Toberoff's tactics. According to WB, that cover letter outlined Toberoff's plan to capture Superman for himself by entering into a joint business venture with the Siegels and Shusters.

Warner turned the documents over to an independent attorney and started the legal process of trying to get the court to waive the attorney-client privilege that allegedly protected those documents. Meanwhile, Toberoff went to the FBI, reported the documents as stolen, and gave some of his documents to the government to assist with its investigation.

2011's Action Comics #1

Between Toberoff's alleged business ventures with the families — which WB maintains are not protected by attorney-client privilege — and the lawyer's willingness to turn documents over to the government, Warner claimed that the documents were no longer protected by attorney-client privilege.

With this week's ruling, the court agreed with Warner Bros.: They ruled that attorney-client privilege no longer applies to these documents.

Now that Warner is free to use the documents in court, they are claiming that these documents will make a significant difference in their case over the Superman copyright.

In a public statement after the ruling, Toberoff said, "nothing in this ruling or the documents at issue will affect the merits of this case."

Siegel/Shuster Case = Facebook?

The "case" that both sides are talking about is an appeal that's currently in the 9th Circuit Court. It centers on a lower court's landmark rulings in 2008 and 2009 that gave the Siegels the copyright for key Superman storylines.

Warner hopes their side of that appeal will get a boost from the documents that were just released. At the heart of that hope is the argument that the Siegels already had a deal with Warner back in 2001. That deal, which Warner said is "worth millions," was negotiated with the Siegels' then-attorney Kevin Marks.

Warner lawyers are alleging that Toberoff coaxed the Siegels out of that 2001 deal, despite the families already having other legal representation. Toberoff counters that he didn't consult the Siegels until after they dropped Marks' firm.

According to Warner Bros. lawyers, they believe one of the documents they will now be able to use, thanks to this week's ruling, is Kevin Marks' memorandum to the Siegels documenting that Marks told Toberoff they already had a deal with DC.

Why is that significant? Because it's a lot like the now-well-publicized Facebook case involving Mark Zuckerberg and the Winklevoss twins. The parties involved in the Facebook case reached a settlement agreement, but then later started to disagree again. In their case, the 9th Circuit Court said they were stuck with that original agreement. Warner is hoping the 9th Circuit Court will do the same thing, reverting back to the 2001 deal between DC and the Siegels.

For the Shusters, Warner Bros. is taking a similar approach, because there is a 1992 agreement between DC and the Shuster heirs. The company's lawyers are again using the approach that Toberoff coaxed the family out of being satisfied with that earlier agreement.

Does Superman's Future Rest on Ethics?


This week's ruling may only apply to documents, but the court used language that implies the judges give weight to WB's arguments against Toberoff's financial interest in his clients' cases.

"The ethical and professional concerns raised by Toberoff’s actions will likely occur to many readers, but they are not before this court," the panel's opinion said. The ruling also added, "There is also evidence that Toberoff should himself be treated as a co-client. After all, Toberoff represented all of the Petitioners, including a joint venture between the Heirs and himself in which he had a controlling interest."

Warner Bros. lawyers believe this language validates their claims that Toberoff wears two hats: businessman and lawyer. If that claim proves effective in their other legal action, the copyright battle over Superman could come down to ethical questions about a lawyer.

So what's the next move?

Warner's legal team is, for now, cleared to give these allegedly critical documents to the courts — and will certainly do so if Toberoff's team doesn't block them. Lawyers for the company also believe they will be able to use the documents to revisit witnesses and pursue new avenues in depositions for their appeal — as well as finding new witnesses.

Even after all the explanations, the significance Warner's lawyers are placing on these documents sounds high, particularly when Toberoff is claiming they aren't important at all. But if the documents do prove to contain something "significant," Warner's appeal will likely center on the claim that the lower court made their landmark rulings in the Siegel case without having the key information from those documents.

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