by Gene Turnbow

Happy birthday, Superman!  Today marks the 74th anniversary of the first appearance of Superman in Action Comics #1.  The now famous cover of the Man of Steel lifting that green car over his head and people running in panic debuted on newsstands on this day in 1938. But the day is marred by more in-fighting over his parentage, between DC Comics (now owned by Time Warner) and the descendents of the original creators of Superman, Jerry Seigel and Joe Schuster.  This time it’s the attorney representing the creator’s families who’s in trouble.

This law suit has been running for years, and we hear bits and pieces of it.  It’s really confusing – but it looks like the familys’ lawyer and business partner, Marc Toberoff, may have been trying to take the rights for Superman for himself.

Around 2006, David Michaels, a lawyer working for Toberoff, “abscond[ed] with copies of several documents from the Siegel and Shuster files,” sending them to D.C. Comics, including “a cover letter, written in the form of a timeline, outlining in detail Toberoff’s alleged master plan”.  D.C. Comics gave the allegedly stolen documents over to an outside attorney and began a quest to obtain them through discovery. Toberoff refused to hand them over, saying the documents were protected by attorney-client privilege
because they involved communication with the heirs. A magistrate judge eventually ordered production of some of the documents — including the timeline – and D.C. Comics received them in 2008.  Relying on the timeline-cover letter, D.C. Comics filed a 2010 complaint against Toberoff, the heirs and others.

Since then, “Toberoff has continued to resist the use of any of the documents taken from his offices, including those already disclosed to D.C. Comics and especially Michaels’ letter,” according to the 9th Circuit.

This basically means that he’s trying to deny that they have any bearing at all.  Does it mean he really was trying to do this and he’s trying to bury the fact?  Or that the papers are really pointless?

Toberoff asked the U.S. Attorney’s office in Los Angeles to subpoena the documents as part of the investigation into the theft – and then DC Comics asked for the same access to clear the path to use the documents since they weren’t supposed to have had them in the first place (since they were stolen in the first place).  A judge agreed with DC Comics and gave them the access they wanted. Now Toberoff has lost his attorney-client privilege with respect to the stolen papers, undermining his work with the heir families to protect their interests in the Superman properties, but mostly simply exposing himself to scrutiny about his alleged plot to take the Superman legacy for himself. He had also approached the families to let him manage their preexisting litigation over rights they’d ceded to DC Comics. He formed a joint venture with the families but acted as that partnerships legal representation at the same time.  This is legal skunkduggery, and roughly analogous to being your own surgeon.  You know, like doing a hernia transplant.  From one side to the other.  On yourself.

The observation of how wonky this business idea was was made by Judge Diarmuid O’Scannlain of three-judge appelate panel reviewing the case as well: “Having set his sights on Superman, Toberoff approached the heirs with an offer to manage preexisting litigation over the rights Siegel and Shuster had ceded to D.C. Comics. He also claimed that he would arrange for a new Superman film to be produced. To pursue these goals, Toberoff created a joint venture between the heirs and an entity he owned. Toberoff served as both a business advisor and an attorney for that venture. 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, which included Chief Judge Alex Kozinski, found that “voluntarily disclosing privileged documents to third parties will generally destroy the privilege,” and that this does not change just because the third party is the government.

The film currently in production was launched in a hurry, before the script was finished.  This is usually a bad sign, but Casablanca was done that way too, and look how well that one did.  The long strange tale of the battle for Superman is nowhere near over.  We hope that eventually some sanity is restored, and that the Man of Tomorrow lives on to have many more birthdays.  And what if the fight results in the fragmentation of the rights to Superman?  We could see a world without a Superman. It’s not especially likely, admittedly.  But it’s possible.

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