Consumer Law

It's a bird, it's a plane, it's a copy

By Rebecca Tushnet

The recent Superman case includes as an attachment the entirety of the Action Comics #1 in which Superman first appeared, in color. That this wholesale copying of a copyrighted work of undoubted economic (and cultural) significance is part of an important copyright opinion might seem highly ironic. Apparently the fair use was so obvious to the court that it didn?t think the question worth mentioning. The full content of Action Comics #1 is crucial to the resolution of the case because subsequent Superman works were works for hire, and thus the heirs cannot terminate with respect to any features of Superman added after that issue, which in turn has significant implications for apportioning profits from subsequent derivative works. Only by examining the full comic, that is, can one understand what rights the heirs have managed to recapture (in part, as DC retains half ownership for now). The opinion's overwhelmingly transformative purpose suffices to override the other considerations, even without transformation of the content.

Full post as published by 43(B)log on April 11, 2008 (boomark / email).