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As a child, Geoffrey Gerber grabbed comic books out of his dentist’s treat bag after checkups. As an intellectual property partner at Husch Blackwell Sanders, he grabs comic books � key elements now in a substantial portion of his practice � out of his litigator’s case. “There’s a tremendous amount of comic book litigation out there,” said Gerber, who practices in St. Louis for the newly merged firm. He added that comic books, which hit it big in the 1930s as mainstream media, are “fairly new media” in the scope of entertainment. East of the Mississippi, Mark Zaid, whose firm Mark S. Zaid P.C. is located in Washington, D.C., may sometimes feel as if he lives in a superhero comic book with a practice focusing primarily on national security/intelligence and whistleblower challenges. But outside of his vocation, his passionate avocation is collecting comic books. Both attorneys are watching the courts closely as they have begun to work through difficult issues related to ownership rights and transfers of ownership in what is today a multimedia, multibillion-dollar business built upon those once slim, easily rolled-up, eagerly anticipated comic books. The golden age The golden age of comic books, say most historians, ran from the 1930s to the mid-1950s. Today, however, may well be the golden age of comic book litigation. And somewhat ironically, the comic character said to have launched the golden age of comic books � that man of steel, Superman � is the focus of what could be the highest-stakes litigation yet. In the comics industry, noted Gerber, the individual print issues provide one revenue source, but another that involves big money is the licensing of story lines and characters within those works to Hollywood entertainment: video games, television shows and animation and movies. “It works both ways � entertainment from video games going into comics, television shows into comics � CSI and Buffy the Vampire Slayer ended up as comics,” he said. “A lot of the litigation that arises is related to control and ownership of the rights in the characters.” There is some hope that a long-running battle between the heirs of Superman’s creators, Jerome “Jerry” Siegel and Joe Shuster, and the publisher who made the character famous, DC Comics (now part of Time Warner Inc.), over rights to Superman and Superboy will come to a head this year in a federal court in California. By some estimates the Superman franchise is now worth close to $1 billion. The Superman/Superboy lawsuits exist only because Congress gave authors and creators a powerful tool when it revised the copyright laws in 1976, said Zaid. “It gave authors � and their heirs, which was really significant � the right to reclaim a character by terminating their transfer of rights after a certain period of time,” he said. Serial litigation An increasing amount of litigation occurs because comic books generally are serial publications, said Gerber. Character creation in any given issue is divided up typically among an author who writes the script, a penciler who draws the image, an inker who goes over the image and prepares it for publication, a colorist who fills in and a letterer. “In trying to identify who the creator is, you have competing interests,” he said. Character ownership is protected by copyright, trademark and unfair competition laws. Trademark litigation in this area is not unusual for the courts, said Michael Lovitz, an intellectual property partner in the Los Angeles office of Wilmington, Del.-based Connolly Bove Lodge & Hutz. Not as “ripe” yet for courts are cases involving the termination of transfers of ownership rights. The Copyright Act of 1976, which extended the life of copyrights, also created two types of termination rights. One section conveys a termination right covering all transfers of copyright made by authors in 1978 or later, and another for copyrights transferred before 1978. They provide a five-year window in which a copyright can be reclaimed. No termination rights are offered to works originally created as works for hire. Seeing termination litigation on the horizon, Lovitz said some companies are trying to be “proactive” by reaching out to creators to involve them in a percentage of new products. “You can turn a potential negative into a great good will.” Lovitz said the works-for-hire issue also is particularly interesting. The copyright statute sets out limited categories of works for hire. “Do comic books fall under one of those categories?” he asked. “The jury is still out. Most of the contracts used in the comic book industry are standard work for hire.” Trademark infringement, termination rights, works for hire and increasingly “right of publicity” litigation involving comic books are heading to courts, said Gerber. There recently have been a number of “right of publicity” lawsuits in which a celebrity’s identity is used without permission for a comic book character, he said, noting his firm’s case involving former professional hockey player Tony Twist. And, comic book litigation can involve criminal and constitutional law. The Comic Book Legal Defense Fund in New York, for example, primarily represents retailers charged with displaying or distributing allegedly obscene materials or, more recently, displaying or selling allegedly obscene materials to minors, said Executive Director Charles Brownstein. The fund has been representing a Rome, Ga., retailer arrested when a comic book with a nude picture of the artist Pablo Picasso was given to a minor during a free distribution of comic books on Halloween. That misdemeanor case, Brownstein said, has been going on for three years “because of some of the stupidest prosecution tactics in the history of the law.” Eyeing Superman Although far afield from his own work, Brownstein, like intellectual property lawyers and the comic book community, has his eye on the Superman lawsuit, now scheduled for a May trial date. “The issues involved are issues that confuse and muddy waters for all of the rights holders out there in this field and other fields, depending on how decisions ultimately are made,” said Gerber. “Because it is so complicated, it takes a case where the dollar figures are large enough to justify litigating through the complications involved. Superman is that case.”

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