siegel shuster superman superboy legal docs - petrocelli filing 07-16-12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PETROCELLI DECL. RE: DC’S MOT. FOR PARTIAL SUMM. J.

DANIEL M. PETROCELLI (S.B. #097802) [email protected] MATTHEW T. KLINE (S.B. #211640) [email protected] CASSANDRA L. SETO (S.B. #246608) [email protected] O’MELVENY & MYERS LLP 1999 Avenue of the Stars, 7th Floor Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 Attorneys for Plaintiff DC Comics

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DC COMICS,

Plaintiff,

v. PACIFIC PICTURES CORPORATION, IP WORLDWIDE, LLC, IPW, LLC, MARC TOBEROFF, an individual, MARK WARREN PEARY, as personal representative of the ESTATE OF JOSEPH SHUSTER, JEAN ADELE PEAVY, an individual, LAURA SIEGEL LARSON, an individual and as personal representative of the ESTATE OF JOANNE SIEGEL, and DOES 1-10, inclusive,

Defendants.

Case No. CV 10-3633 ODW (RZx)

DECLARATION OF DANIEL M. PETROCELLI IN SUPPORT OF DC COMICS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON ITS FIRST AND THIRD CLAIMS FOR RELIEF Hon. Otis D. Wright II

Hearing Date: Aug. 20, 2012 Hearing Time: 1:30 p.m. Courtroom: 11

Case 2:10-cv-03633-ODW-RZ Document 459 Filed 07/16/12 of 8 Page ID #:27021

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 1 - PETROCELLI DECL. RE: DC’S MOT. FOR PARTIAL SUMM. J.

DECLARATION OF DANIEL M. PETROCELLI

I, Daniel M. Petrocelli, declare and state:

1. I am a partner at O’Melveny & Myers LLP, counsel of record for

plaintiff DC Comics in the above-entitled action. I make this declaration in support

of DC Comics’ Motion For Partial Summary Judgment On Its First And Third

Claims For Relief. I have personal knowledge of the matters set forth in this

declaration, and if called to testify to the facts stated herein, I could and would do

so competently.

2. Attached hereto as Exhibit 1 is a true and correct copy of an agreement

signed by Jerome Siegel, Joseph Shuster and DC, dated December 4,1937.


signed by Jerome Siegel, Joseph Shuster and DC’s predecessor in interest, dated

March 1, 1938. (When referring to DC’s predecessors, I refer to “DC” throughout

this declaration for simplicity.)


signed by Jerome Siegel, Joseph Shuster and DC, dated September 22, 1938.


signed by DC and the McClure Newspaper Syndicate dated September 22, 1938.

6. Attached hereto as Exhibit 5 is a true and correct copy of a letter from

J.S. Liebowitz to Jerome Siegel, dated September 28, 1938.


signed by Jerome Siegel, Joseph Shuster and DC, dated December 19, 1939.

8. Attached hereto as Exhibit 7 is a true and correct copy of an article

titled “Up, Up And Awa-a-y! The Rise of Superman, Inc.” from The Saturday

Evening Post, dated June 21, 1941.

9. Attached hereto as Exhibit 8 is a true and correct copy of a Certificate

of Registration for A Claim to Renewal Copyright for Action Comics No. 1.

10. Attached hereto as Exhibit 9 is a true and correct copy of the


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Complaint in Siegel v. National Comics Pubs., Inc., No. 1099-1947 (N.Y. Sup. Ct.)

(the “Westchester Action”).

11. Attached hereto as Exhibit 10 is a true and correct copy of the referee’s

Findings of Fact and Conclusions of Law in the Westchester Action, dated April

12, 1948.


Stipulation filed in the Westchester Action, dated May 19, 1948.

13. Attached hereto as Exhibit 12 is a true and correct copy of the Final

Judgment issued in the Westchester Action, dated May 21, 1948.

14. Attached hereto as Exhibit 13 is a true and correct copy of an affidavit

signed by Jerome Siegel in in Siegel v. National Periodical Publications, Inc., 364

F. Supp. 1032 (S.D.N.Y. 1973) (“National”), dated March 1, 1973.

15. Attached hereto as Exhibit 14 is a true and correct copy of an affidavit

signed by Joseph Shuster in National and dated March 7, 1973.

16. Attached hereto as Exhibit 15 is a true and correct copy of an

agreement signed by Jerome Siegel, Joseph Shuster, and Jay Emmett on behalf of

Warner Communications Inc. dated December 23, 1975.

17. Attached hereto as Exhibit 16 is a true and correct copy of a letter

signed by Joseph Shuster, dated November 12, 1978.


Martin D. Payson to Joseph Shuster, dated August 8, 1988.


Martin D. Payson to Joanne Siegel, dated March 12, 1990.


Martin D. Payson to Joanne Siegel, dated March 5, 1991.

21. Attached hereto as Exhibit 20 is a true and correct copy of a death

certificate for Joseph Shuster, dated August 11, 1992.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


22. Attached hereto as Exhibit 21 is a true and correct copy of the affidavit

of Jean Peavy dated August 17, 1992.


Jean Peavy to Marty Payson dated August 21, 1992.


Marty Payson to Jean Peavy dated September 8, 1992.

25. Attached hereto as Exhibit 24 is a true and correct copy of an

agreement signed by Frank Shuster, Jean Peavy, and Paul Levitz on behalf of DC

Comics dated October 2, 1992.

26. Attached hereto as Exhibit 25 is a true and correct copy of excerpts

from a Notice of Termination of Transfer Covering Extended Renewal term for

“Superman” dated April 3, 1997, regarding the March 31, 1938, grant.



“Superman” dated April 3, 1997, regarding the December 4, 1937, agreement.



“Superman” dated April 3, 1997, regarding the September 22, 1938, agreement

with DC.



“Superman” dated April 3, 1997, regarding the September 22, 1938, agreement

with McClure Newspaper Syndicate.



“Superman” dated April 3, 1997, regarding the 1948 Stipulation.




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28






33. Attached hereto as Exhibit 32 is a true and correct copy of a Joint

Venture Agreement signed by Mark Peary, Jean Peavy, and Marc Toberoff on

behalf of Pacific Pictures Corporation and dated November 23, 2001.

34. Attached hereto as Exhibit 33 is a true and correct copy of the Petition

for Probate of Lost Will and for Letters Testamentary (“Petition”) filed by Mark

Warren Peary on July 23, 2003, in In re Estate of Joseph Shuster, Case No. BP-

080635, in the Superior Court of the State of California for the County of Los

Angeles (“Probate Action”).

35. Attached hereto as Exhibit 34 is a true and correct copy of the Order

Admitting Will To Probate, Appointing Executor and Authorizing Independent

Administration of Estate with Limited Authority filed by Mark Warren Peary on

October 7, 2003, in the Probate Action

36. Attached hereto as Exhibit 35 is a true and correct copy of the Duties

and Liabilities of Personal Representative filed by Mark Warren Peary on October

21, 2003, in the Probate Action.

37. Attached hereto as Exhibit 36 is a true and correct of an agreement

signed by Peary on behalf of the Estate of Joseph Shuster, Jean Peavy, and Marc

Toberoff on behalf of Pacific Pictures Corporation, dated October 27, 2003.

38. Attached hereto as Exhibit 37 is a true and correct copy of the Notice

Of Termination Of Transfer Covering Extended Copyright Renewal Term Of

“Superman” served by Mark Warren Peary, as Executor of the Estate of Joseph

Shuster, on November 10, 2003.


from the transcript of the November 11, 2006, deposition of Jean Peavy.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



from the transcript of the November 11, 2006, deposition of Mark Warren Peary.


Declaration of Paul Levitz in Support of Defendants’ Motion for Partial Summary

Judgment, filed with this Court on April 30, 2007, in the related Siegel cases, Case

Nos. CV-04-8400 and CV-04-8776.

42. Attached hereto as Exhibit 41 is a true and correct copy of an order

issued by this Court on March 26, 2008, in the related Siegel case, Case No. CV-

04-8400

43. Attached hereto as Exhibit 42 is a true and correct copy of an order

issued by this Court on September 26, 2008, in the related Siegel case, Case No.

CV-04-8400.


“Toberoff Timeline.”


Declaration of Adam Ronan, M.D., in Opposition to Plaintiff’s Motion to Initiate

Discovery of Two Elderly Witnesses filed in this case on September 13, 2010.


from Plaintiff DC Comics’ Renewed Opposition To Marc Toberoff, Pacific

Pictures Corporation, IP Worldwide, LLC, and IPW, LLC’s Renewed Motion To

Dismiss Plaintiff’s First Amended Complaint Pursuant To Fed. R. Civ. P. 12(b)(6)

(Docket No. 147) (RE: Third And Sixth Claims For Relief), filed in this case on

March 21, 2011.


from the transcript of the June 29, 2011, deposition of Mark Warren Peary.


from the transcript of the July 22, 2011, deposition of Laura Siegel Larson.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



from the transcript of the August 3, 2011, deposition of Dawn Peavy.


Of Termination Of Transfer Covering Extended Copyright Renewal Term for the

Superman promotional announcements served by Mark Warren Peary, as Personal

Representative of the Estate of Joseph Shuster, on March 6, 2012.


Of Termination Of Transfer Covering Extended Copyright Renewal Term for the

Superman promotional announcements served by Larson on March 6, 2012.

52. When Marc Toberoff raised issues concerning the scheduling of this

motion, my partner Matt Kline proposed a briefing schedule by which DC would

file its motion for partial summary judgment on July 16, 2012, defendants would

file their opposition and cross-motion on July 30, DC would file its reply and

opposition on August 10, and defendants would file their reply on August 17,

allowing for a hearing date of September 10 or 17, 2012, if a hearing was needed.

Although this would cut DC’s time to file its opposition and reply short by three

days, we offered it to Mr. Toberoff so that briefing could be complete on the

parties’ motions before he allegedly was set to leave for vacation. Mr. Toberoff

declined Mr. Kline’s proposal and proposed a schedule that would push the

summary judgment hearing in this matter back by a month and afford him a month,

rather than two weeks, to oppose DC’s motion. On July 13, 2012, DC declined

Mr. Toberoff’s proposal and gave him notice that it would file its motion on July

16, 2012, as planned. A true and correct copy of the July 13, 2012, e-mail from

Mr. Kline to Toberoff is attached hereto as Exhibit 51. A true and correct copy of

DC’s letter giving defendants notice of this motion is attached hereto as Exhibit 52.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


I declare under penalty of perjury under the laws of the United States that the

foregoing is true and correct and that this declaration is executed this 16th day of

July 2012 at Los Angeles, California.

/s/ Daniel M. Petrocelli

Daniel M. Petrocelli


EXHIBIT 1

Case 2:10-cv-03633-ODW-RZ Document 459-1 Filed 07/16/12 Page 1 of 148 Page ID #:27029

EXHIBIT 1 8


EXHIBIT 1 9


EXHIBIT 2


EXHIBIT 2 10


EXHIBIT 3


EXHIBIT 3 11


EXHIBIT 3 12


EXHIBIT 3 13


EXHIBIT 4


EXHIBIT 4 14


EXHIBIT 4 15


EXHIBIT 4 16


EXHIBIT 5


EXHIBIT 5 17


EXHIBIT 5 18


EXHIBIT 5 19


EXHIBIT 6


Publishers of DETECTIVE COMICS MORE FUN COMICS NEW ADVENTURE COMICS ACTION COMICS NEW BOOK COMICS

480 LEXINGTON AVE. NEW YORK, N. Y.

December 19, 1959

Jerome Siegel and Joseph Shuster, New York, N. Y.

Dear Sirs:

We, have discussed with you certain changes of procedure and compensation which we feel it advisable to set forth in a written modification so as to bring our agreement of September 22, 1958 down to date.

In the 1958 agreement we had agreed to pay both of you for the art work and continuity for the comic strips entitled "SUPERMAN,* *SLAM BRADLEY°, "SPY", "RADIO SQUAD" and "FEDERAL MEN° at certain rates per page. Since that time, how-ever, while both of you have continued to furnish art work and continuity for "SUPERMAN", only Mr. Siegel has continued to furnish the continuity for the remain-ing comic strips. Mr. Shuster no longer furnishes the art work for "SLAM BRADLEY", "SPY; "RADIO SQUAD° and "FEDERAL MEN". Also, we have discussed with both of you a change of your page rate compensation with respect to "SUPERMAN*.

Effective, therefore upon the signing of this modification, we agree to pay to both of you for all art work and continuity for "SUPERMAN" at the rate of $20. per page, and both of you agree that you will at such rate continue to furnish ell art and continuity work for "SUPERMAN" to us in accordance with the agreement of September 22,* 1958. As to the rem/lining comic strips, we shall be free to make other arrangements with Mr. Siegel personally as to the furnishing

'of continuity for them and also make other arrangements for the furnishing of art work for them in view of the fact that Mr. Shuster no longer furnishes the same.

We have'also informed you of our activities in promoting the commercial exploitation of "SUFERMAN" in other fields in addition to magazine publication and newspaper syndication. Such other fields include radio, motion pictures, the toy and novelty field and others and we have indicated to you our willingness that both of you receive some portion of the proceeds which maybe realized from these addi-tional activities. We, therefore, hereby agree to pay to you 9, of all net proceeds which may be derived by us from all commercial exploitation of "SUP AN" outside of magazine and book publication and newspaper syndication. Such net proceeds 01111 be arrived at by deducting from the gross proceeds from any such additional sources (except magazine and book publication and newspaper syndication) all expenses incurred by us in the course of such promotion and exploitation.

By youraignatures below, you hereby confirm the foregoing arrangements and you hereby further confirm the following: •

1. That we, Detective Comics, Inc., are the sole and exclusive owners of the comic strip entitled *SUPERMAN" and the other comic strips entitled as above mentioned, and to all rights of reproduction of all said comic strips and the titles

DCC00007181

EXHIBIT 6 20


480 LEXINGTON AVE. NEW YORK, N. Y.

Publishers of

DETECTIVE COMICS MORE FUN COMICS NEW ADVENTURE COMICS ACTION COMICS NEW BOOK COMICS

Jerome Siegel & Joseph Shuster December 19, 1939

ee4e •

• and characters contained therein and the continuity thereof, including but not limited to the fields of magazine or other book publication, newspaper syndication, radio broadcast, television, motion picture reproduction and all other form of reproduction. We have all right of copyright and all rights to secure copyright registration in respect of all such forms of reproduction either in onr oun names or others at our exclusive option.

2. That you have not done or permitted any act or thing which might impair any of our aforesaid rights with respect to any of the aforesaid comic strips and that so far as you are concerned our full and complete ownership thereof and of ell reproduction rights in connection therewith are vested in us free and clear of the rights of any other persons or parties whatsoever.

3. That we have the unrestricted right to adapt, arrange, change, transpose, add to and otherwise deal with any or all said comic strips and the titles, characters and continuity thereof as we im our sole discretion may deem it necessary or advisable to do so.

4. That we have the unrestricted right to grant to others upon such bases as we in our sole discretion shall determine, any of the foregoing rights of reproduction with respect to any of theaforesaid comic strips and the titles, characters and continuity thereof.

You hereby agree to execute any and all further instruments which may at any time be necessary or advisable in connection with any of the foregoing rights and property now vested in us and for that purpose and for all other pur-poses hereunder you hereby designate us and our successors and assigns your agents and attorneys in fact irrevocably.

This modification shall become effective immediately upon your signing the same below and continue in full force and effect throughout the life of the agreement dated September 22, 1938 as the same has been modified hereby. Both you and ourselves hereby ratify and confirm the foregoing agreement dated September 22, 1938 as the same has been modified by this letter.

Very-truly.yeurs, DETECTIVr COMICS, IN

APPROVED AND ACCEPTED: B

DCC00007182

EXHIBIT 6 21


EXHIBIT 7


EXHIBIT 7 22


EXHIBIT 7 23


EXHIBIT 7 24


EXHIBIT 7 25


EXHIBIT 7 26


EXHIBIT 7 27


EXHIBIT 8


EXHIBIT 8 28


EXHIBIT 8 29


EXHIBIT 8 30


EXHIBIT 8 31


EXHIBIT 9


EXHIBIT 9 32


EXHIBIT 9 33


EXHIBIT 9 34


EXHIBIT 9 35


EXHIBIT 9 36


EXHIBIT 9 37


EXHIBIT 9 38


EXHIBIT 9 39


EXHIBIT 9 40


EXHIBIT 9 41


EXHIBIT 9 42


EXHIBIT 9 43


EXHIBIT 9 44


EXHIBIT 9 45


EXHIBIT 9 46


EXHIBIT 9 47


EXHIBIT 9 48


EXHIBIT 9 49


EXHIBIT 9 50


EXHIBIT 9 51


EXHIBIT 9 52


EXHIBIT 9 53


EXHIBIT 9 54


EXHIBIT 9 55


EXHIBIT 9 56


EXHIBIT 9 57


EXHIBIT 9 58


EXHIBIT 9 59


EXHIBIT 9 60


EXHIBIT 9 61


EXHIBIT 9 62


EXHIBIT 9 63


EXHIBIT 9 64


EXHIBIT 9 65


EXHIBIT 9 66


EXHIBIT 9 67


EXHIBIT 9 68


EXHIBIT 9 69


EXHIBIT 9 70


EXHIBIT 9 71


EXHIBIT 9 72


EXHIBIT 9 73


EXHIBIT 9 74


EXHIBIT 10


EXHIBIT 10 75


EXHIBIT 10 76


EXHIBIT 10 77


EXHIBIT 10 78


EXHIBIT 10 79


EXHIBIT 10 80


EXHIBIT 10 81


EXHIBIT 10 82


EXHIBIT 10 83


EXHIBIT 10 84


EXHIBIT 10 85


EXHIBIT 10 86


EXHIBIT 10 87


EXHIBIT 10 88


EXHIBIT 10 89


EXHIBIT 10 90


EXHIBIT 10 91


EXHIBIT 10 92


EXHIBIT 10 93


EXHIBIT 10 94


EXHIBIT 10 95


EXHIBIT 10 96


EXHIBIT 10 97


EXHIBIT 10 98


EXHIBIT 10 99


EXHIBIT 10 100


EXHIBIT 10 101


EXHIBIT 10 102


EXHIBIT 10 103


EXHIBIT 10 104


EXHIBIT 10 105


EXHIBIT 10 106


EXHIBIT 10 107


EXHIBIT 10 108


EXHIBIT 10 109


EXHIBIT 10 110


EXHIBIT 11


EXHIBIT 11 111


EXHIBIT 11 112


EXHIBIT 11 113


EXHIBIT 11 114


EXHIBIT 11 115


EXHIBIT 11 116


EXHIBIT 11 117


EXHIBIT 12


EXHIBIT 12 118


EXHIBIT 12 119


EXHIBIT 12 120


EXHIBIT 12 121


EXHIBIT 12 122


EXHIBIT 12 123


EXHIBIT 12 124


EXHIBIT 12 125


EXHIBIT 12 126


EXHIBIT 12 127


EXHIBIT 12 128


EXHIBIT 13


EXHIBIT 13 129


EXHIBIT 13 130


EXHIBIT 13 131


EXHIBIT 13 132


EXHIBIT 13 133


EXHIBIT 13 134


EXHIBIT 13 135


EXHIBIT 13 136


EXHIBIT 13 137


EXHIBIT 13 138


EXHIBIT 13 139


EXHIBIT 14


EXHIBIT 14 140


EXHIBIT 14 141


EXHIBIT 15


EXHIBIT 15 142


EXHIBIT 15 143


EXHIBIT 15 144


EXHIBIT 15 145


EXHIBIT 15 146


EXHIBIT 15 147


EXHIBIT 15 148


EXHIBIT 15 149


EXHIBIT 15 150


EXHIBIT 15 151


EXHIBIT 15 152


EXHIBIT 15 153


EXHIBIT 15 154


EXHIBIT 15 155


EXHIBIT 15 156


EXHIBIT 15 157


EXHIBIT 15 158


EXHIBIT 15 159


EXHIBIT 15 160


EXHIBIT 15 161


EXHIBIT 15 162


EXHIBIT 15 163


EXHIBIT 15 164


EXHIBIT 15 165


EXHIBIT 15 166


EXHIBIT 15 167


EXHIBIT 15 168


EXHIBIT 15 169


EXHIBIT 15 170


EXHIBIT 15 171


EXHIBIT 15 172


EXHIBIT 15 173


EXHIBIT 15 174


EXHIBIT 15 175


EXHIBIT 15 176


EXHIBIT 16


EXHIBIT 16 177


EXHIBIT 17


te, -

WARNER COMMUNICATIONS INC.

August 8, 1988

MARTIN D PAY5ON or•.cc or r...e

ANO GCNCIRAL COUNSEL

Mr. Joseph Shuster 256 South Robertson Beverly Hills, CA 90211

Dear Joe:

I know from Joanne Siegel that she has kept you up to date as to the discussions and correspondence which have taken place between she, Jerry and I, and the new compensation arrangements which Warner Communications has agreed to for Jerry's and your benefit.

Retroactive to January 1, 1988, we will be making payments to each of you and Jerry at the rate of $80,000 per annum, plus an annual cast of living increase of up to 10%, commencing 1989 based upon the U.S. Department of Labor statistics for the cost of living applicable to the Los Angeles area. In addition we will make a one-time payment of $15,000 (less withholding taxes). We have also agreed to reimburse Jerry and. Joanne for the reasonable moving expenses which they will incur on their move to a new apartment. At the time such expenses are paid, we will make a similar payment to you, even though you will not be incurring any such expenses.

I am pleased to enclose a check in the amount of $11,550 representing the 1988 special payment of $15,000 Less withholding taxes.

Steve Ross, Deane Johnson and William Sarnoff join me in extending to you our best personal wishes.

1/1(Sin er 2 ly

Martin D. Payson

Enclosure

cc: Joanne Siegel

75 ROCKEFELLER PLAZA, NEW YORK, N.Y. 10019 212-484-6520

Confidential

W B005603

EXHIBIT 17 178


EXHIBIT 18


Ku0.1.1, r 111/.1 1011• 1

4\. 212

\ 1.1irlin D. 11 .on Chm.n.in

11+,1 GoicrilCounwl

TIME WARNER INC.

March 12, 1990

Mrs. Joanne Siegel 11928 Darlington Avenue, apt. 102 Los Angeles, CA 90049

Dear Joanne:

This is to let you know that the cost of living for the Los Angeles area for 1989 increased by 5.15% over 1988. Accordingly, I am instructing the payroll department to make the 5.15% increase, to be applied to Jerry and Joe's compen-sation retroactive to January 1, 1990.

With best wishes to you, Jerry and Joe.

C rd'al y,

Martin D. Payson

cc: Joe Shuster Elaine Klein

DCC00004908 EXHIBIT 18 179


EXHIBIT 19


%.5 R ocket -cller Plata

Ncw York, NY 10019 212 484 6520

Martin D. Payson \i,cr Chairman

TIME WARNER INC.

March 5, 1991

Mrs. Joanne Siegel 11928 Darlington Avenue, Apt. 102 Los Angeles, CA 90049

Dear Joanne:

Please be advised that the cost of living for the Los Angeles area for 1990 increased by 5.45% over 1989. Accordingly, I am instructing the payroll department to make the 5.45% increase, to be applied to Jerry and Joe's compensation retroactive to January 1, 1991.

With best wishes to you, Jerry and Joe.

Since

Martin D. ayson

cc: Joe Shuster Elaine Klein

DCC00005669

EXHIBIT 19 180


EXHIBIT 20


EXHIBIT 21


EXHIBIT 21 182


EXHIBIT 21 183


EXHIBIT 22


316 Horton Ln. NW Albuquerque, NM 87114 August 21, 1992

Marty Payson, Vice-President Time Warner 75 Rockefeller Plaza New York, NY 10019

Dear Mr. Payson,

This will be one of the most difficult letters I've ever written and one I wish I didn't have to write. As you know, your friend and my brother, Joe Shuster, died on July 30. Joe and I were very close. Every week we talked on the phone. Back in the late 1940's and 1950's when Joe was struggling, I helped support him by sending him a weekly check so he could go on creating new ideas and hopefully sell them. My brother Frank knows this because he took over supporting Joe after I married in 1955. I was happy to do this because I loved him. Joe always assured me that I would be taken care of after his demise.

I have just returned from Los Angeles where I spent a very stressful two weeks arranging for Joe's funeral, disposing of the belongings in his apartment and trying to get the financial affairs in order. In going through his papers I was shocked to learn that Joe did not only not have much money in the bank but that he had almost $20,000 in credit card debts and unpaid bills (copies of bills enclosed). He only had one active bank account at Security Pacific National Bank with $23,773 in it, in which he received his direct deposit checks from Time Warner. I do not have access to his account until the legal things are set-tled while the 20% interest continues to accrue on his credit card debt. I could not find any other assets except two dormant bank accounts with $167 and $11 in them. I thought Joe might have had a small life insurance policy through his pension to pay his final debts and expenses. Unfortunately, he did not.

As heir to his Will, I am responsible for paying off his credit card debts, along with any bills that will be coming in and forwarded to me-- utilities, half month's rent, unknown credit debts, legal fees, etc. Today I received another bill from the County Coroner. Thankfully, Paul Levitz said Time Warner would cover it.

I find myself in a financial plight. How could Joe Shuster end up with an estate of almost nothing? And what if more debt and bills come in? His estate may not even be able to cover it. It's bad enough to lose a family member with whom you are close but it's devastating when they leave a burden of large unpaid debts and bills which the estate can barely cover. On top of this, my son and I had great expenses flying out to California, staying at a motel, renting a car, etc. My husband and I are of modest means. We live on my husband's modest pension and this was very expensive for us. In addition, we still don't know how much the legal fees will be. The estate may not cover it at all.

EXHIBIT 22 • DCC00006477 184


This is very embarrassing for me to have to write to you this way. It's unbelievable to me that Joe could have so little considering the generosity shown by Time Warner in raising the pension income of Siegel and Shuster. Through his 1991 tax return and 1992 pay memos, I found out he was receiving $2,627 twice a month after withholding or $63,000 a year after taxes. I had my son itemize Joe's 1992 checks and bank statements to see where his money went. We've been able to account for most of his checks. From January of 1992 to the middle of July, we found he wrote almost $31,000 in checks, plus there are other checks still unaccounted for. In a little over six months, he spent everything he took in.

Almost $1,500 a month went for rent. Almost $500 for utilities. We also found that over $1,200 a month was being paid to Joanne Siegel for some kind of commission for including him in the pay raise. It appears that for quite a few years, she has been taking 20% of his income as an agent's commission for getting pay raises for Siegel and Shuster. All of this consumed about $3,200 a month. The rest went for groceries (home delivered), personal and health items, and lots of clothes and stereo systems that filled his large apartment from floor to ceiling which he gave to charity at the end.

Joe was very generous. He likeito spend on himself and he liked to give things away. In Joe's interview by a reporter from the Toronto Star who came to Joe's apartment, he wrote, "Ohe corner of his apartment is jammed with stereo components--three turntables, several tapedecks, and a dozen high-power speakers--that will be donated to the visually impaired." This must have cost thousands of dollars. Yet, when I came to his apartment, more equipment had been bought and every room was jamm-packed from floor to ceiling full of stereo components and speakers. This time he promised this to the Music Department of the Los Angeles Valley College. When they came to take the equipment, they showed me a letter authorizing them to get it for this good cause. This equipment must have cost thousands and thousands of dollars. He also had every closet stuffed full of jackets and clothes piled everywhere.

Joe's ladyfriend admitted to me how generous he had been to her and her son. Her son is a psychology professor and I asked if he could tell me why Joe spent so much money. He said that Joe was a compulsive buyer triggered by years of deprivation, so when he had a chance, he went on shopping sprees. He was also very generous and gave when he heard there was a need.

I am glad Joe spent the last years of his life happy. Joe Shuster was a kind, generous, and creatively brilliant man. He made great contributions to this world. Unfortunately, Joe left his family with a crushing burden of unpaid debts and bills and only a tiny estate to cover it. Joe did not like to deal with business. And now he has put a terrible burden on me which I know he never intended. The kindness and generosity of Warner Communications and now Time Warner has been demonstrated in the past. Any help that Time Warner could give to the family of Joe Shuster to pay his final debts and expenses would be warmly appreciated at this time of mourning. The Shuster family looks forward to seeing you at the memorial service on September 24.

-2-

EXHIBIT 22 DCC00006478 185


With warmest regards,

(-)

Jean Shuster Peavy

Enclosed: The bill from the County Coroner. A schedule of Joe's debts with copies of statements. His latest bank statement from Security Pacific. An itemization of the amounts of most of his checks written in 1992. The agreement with Joeanne Seigel to take 20% of his income and copies of the two latest checks to her.

EXHIBIT 22

DCC00006479

186


Schedule of Debts of Joe Shuster

Due Date Creditor Amount

8-24-92 Sears Charge $5,325.54

8-21-92 First Select VISA 5,280.76

8-21-92 BankAmericard VISA 2,742.75

as of 8-19-92 The Broadway 2,415.15

8-13-92 Circuit City Stores 1,161.--

8-14-92 Security Pacific Bank Card 1,061.18

7-9-92 JC Penney 101.16

8-13-92 Century Cable 103.02

July/August Electric bill based on 1-7-92 bill 200

8-7-92 Telephone bill 130

8-1 to 8-13 assessment for 1/2 month rent 750

1992 Final Tax Returns-Tax Counsel Assc. 300

Total Debts and Final Obligations $19,570

LEGAL/PROBATE FEES STILL UNKNOWN

EXHIBIT 22 DCC00006480

187


,32

‘156,00

August 24, 1992

,7 Ii Utiaige ( Liox Aeu Cll CUCAMGA CA 91729

1 111111011141111.111411111111111111 ■ 1111111311111111

JOSEPH M SHUSTER 11944 MONTANA AVE LOS ANGELES CA 90049-5033

TRANSACTIONS

Jul 11 PAYMENT - THANK YOU . . . — . . . . - $200.00

Jul 15 CAT07R354310, CATALOG SALE, 800-366.3000. ..... 5 41

SPECIAL ACCOUNT INFORMATION

The amount due shown above includes a past due amount, You

should send the entire amount duo now. If payment has been made recently, please disregard this request.

FINANCE CHARGE RATES Average ANNUAL

Date of charges

Daily fi:ii)fIce PERCENTAGE RATE

All

ver $000 19.2%

, '.cunt Number: 29 8 tlithnçj date: July 25, 1992

ACCOUNT SUMMARY

Previous balance $5,435,59 . 200.00

5.41 000

54

HELPFUL INFORMATION

Available Credit: 31,694

If the amount of Available Credit is not sufficient. or you have a question, call:

(800) 877-8498 M F 9-9, SAT 9-0

Mail any billing error notices to: P.O. BOX 5001

RCH CUCAMONGA CA 91729-0000

Please include your account

number with any correspondence.

SEARSCHARGE BONUS CLUB

Great Newsl Now the SearsCharge Bonus Club pays you back in money-saving certificates every time

your SearsChargo purchases build up

to $200 or more. You need only

$140.48 more in charges to earn your bones. It pays to shop at Sears!

Monthly Average FINANCE Periodic Rate Daily Balance CHARGE

1.6% $5,283.89 184_54

Total payments

Total charges

'fetal credits Finance charge

Now balance

Minimum due: Due date:

" $156.00 '01

August 24, 1882 ss, ^r *°

NOTE: See other side for important Information — — — — — — — — — —

Total $84.54

Tear elf and mail this coupon with your payment in

the enclosed ,:!nvelope. Your payment trust arrive

by the due (1.1:e to avoid additional finance charges.

Make check r.ayatrie to Sears, Roebuck and Co. and

include your account number on the check. 6490

SEARS PAYMENT CENTER P.O.;IrOX 860020

i'ASADENA CA 91186-0020

JOSEPH M SHUSTER

Account Number: 29 6 . 1

Billing data

July 25, 1992

New balance:

Minimum due::

Clue data:

Address change? Check In box below and

write your new address on the Clack.

EXA IT 21' 188

r, flfl

DCC00006481


NTS, r irau, ;vow my hem tle tavo VISA. aat)(1191 )1. VC' ION PI.A„,4 de.let.hed the I'lata &molar, w.Sicta tno.

,an snarl at axi } lone ! ,,tty, *N. fif.0 daya Meiribtrahip f01/ ,truait .0.13. on furtt, , ,

SICN IKE TO ENROLL frnnstcy Cafttlwideli

AUG 2_1,199

fT

FIRM' sf,1ECT VISA P.O. nox 0560

!ANCMSTER, NH 03108-9560

FIR'..“ SELECT VISA P.O. BOX 9560 relANCHESIER, NH 03108-9560

JOSEPH M SHUSTER 11964 MONTANA AVE LOS ANGELES CA 90049-5033

TO MIST

11111.111111.11 110 760 TACH HE

(ESCRIPTION PEFERENCENUWER

07-27'PAYMENT RECEIVED • THANK YOU 7-27 CREDIT PROTECTION

07-27 74168.512209000001410550 07-.27

126.16PY 20.12

FRrJTECT YOUR GOOD CREDIT t:I.TN =DT A C.TRWE or A PEN! SIGN THE BOX AT THE TOP or YOUR - STATEMENT AND PROTECT YOUR ACCOUNT AGAINST UNEMPLOYMENT OR DISABIL/TY. SEE ENCLOSED BROCHURE FOR DETAILS.

FOR CUSTOMER SERVICE ON YOURiFIRST SELECT VISA, CALL TOLL-FREE AT 1-8(0-964-6000.

AVERAGE DAILY BALANCE PERIDOIC AA DALY

_,00 ... 60000, 21.90

2 310.54____ 0600,0,0 219u The CAW, A....* 'OAK* mow I p/o.,0•0 fat your conomollalOK WI *MP hon. Ina and any What cash advsoc*Cneem yOu us* ael 10,411 Ma you nave Grail a,m1mOMI. You Cannel LrOO C.P,ock !ea on row m1.44 .cunt sOM FV64 0.000$ NatiMord C./9m Cud Bank Pkasa mans d voir Tor 'owns relined,.F DilhIq Errots.

See Reverse Side. i• TV

re DETACH HERE

CaT LINE

6,200, c MEW AVAILAIlle

912

unn3. * MLIJNO cnui

cuDsarm °Alt "'"Fit."....4Nots • JUL 27,1992 CM,, A4V.OttO. ioNOAUMI PATM011i OUE

$ 1Z4.1 PAYMENT ME DATE

laMANCIE

vmearti

a__ .84

1264_1_6 20.12

.00 101.96

EXHIBIT 22 189

DCC00006482


,

5oof

nkAmericarcl

111111111=.9 I cilithiclf OF ADDRESS

r I I c.rr!oNE NUM9FR HERE

01

Payment Got1

Q AV= magi laftat PI meMe ef Anti 'OPTS( Of 7111 IN ANC L *WO If

41r.(:VO1 TAINT x?CIiI IN( ham, No, rfT.tm? 'f.s.t H ,f31

.PEC4111 tssf ro co f mof

MINI 04 IMF

08-21-92 H1(9 AMOUNTOOZE qv. MARC(

MINIMUM PONES r IIUE

109.00

7-2

• (11.', -,C'o ,

V A

MELNII el Of Dog*

27403

XI EMI%) IsT Till* Mil

1.650 2.000 2.000

1.500 I.000

FINANCE CHARGE CALCULATION

ICO ELIrca

ott3.

t.vtalis

fiNatewits TO km*

l000rts 1008

Tda %court

19.8 Acovi Vfluakolftbmit

19.80

.00

ICCOLINT ACTIVITY

•'.reaLl laianCe

SERE /SLURS 11001P RES ID

91101 Ns,cmji,

OAT E AvRIL.ADLE

'IPA VITA

ACTIVITY SINCE LAST STATEMENT OA

ANNUAL PERCENTAGE RATE (%)

BANK CARD CENTER P.O. BOX 7042 PASADENA p CA

TO

6100 R LOST OR STOLEN CARO, cALL: I5U 00-423-3823

RTELP1.4ONE HUMBER TOTAL CHARGES TOTAL PAYME ANO CR FOI

CV000-06483

114.1Whildadnilddhulanliddd JOSEPH 11 SHUSTER 11944 MONTANA AV 305 W LOS ANGELES CA 90049-5026

BANK OF AMERICA CARO CENTER PASADENA, CA 91127

MAKE, C.HeCTC. PAYABLE 11/1.HIS OF Mar.:1mA N 13 V413 1 1 E YOUR ACCOUN! NUMBER ON YOUR OLE

• MAIL PAYMENT TO:

0105

90100109000274275402400469998790100109000274275 *3** 920038669

100 0 0 4 5 2 26E1 1,11°- 5 24 0 2 2 2501: 0 00 0 On , 0 0 0 0 0 RETURN PAYMENr COUPON WrfN YOUR CHECK ANO P rEP ME STATEMENT PORTION BELOW in YOUR PtC04.

1 , 01161; , 1Ficntr. c.I ■ ow,r f O1041 OF 1h4 1.1W ssLA$CE MUST SE PISCINE() H PAYMENT WA DATE. tilt MIN4MUM PP' M !eL TL' MET DUN W NOV MEMO IT THE pAimEN'T iI Com

901 Nmw. JOSEPH M SHUSTER hR,

4700 1957

BankAmericard•Statanxjft 072568192

c

08-21-s Conroor.fin,

CLYWI

45 32

LIMImum PrerNal Die

CHARGES

Caossfooilaf Afoot Ponottalf AN. 04

19.80

18.00 12.00

109!

109! PAYMENTS

AND CREDIT:

07;20 53252478 0 27 0727

YOUR BANKAMERICA PACIFIC ATMS I

PAYMENT - THAN CRED INS PREM, C

***FINANCE

RD ACCEPTED AT SECURITY N 11 WESTERN STATES!

K YOU ENTRAL STATES, OMAHA, NE CHARGE***

150 15 45

68 32

920038669 STATEMEIT NUMBER

pnoeii OE

PACIFIC TIME -1753 6:30 AM - 4:30 P

EXHIBIT- 22 190


9 Aa

.f. r4

10 01 tr

ACCOUNT NUMBER

1111111111978

'At

OUSLPH SHUSTER APT 305. 11944 MONTANA AVE W LOS ANGELES, CA 90049-

PAYMENT SHOULD BE

DECEIVED BY

26 AUG 03 92 sik r5214 .1 cou.oN wtt0 •()!:31 BA , Mt ft I '.s* •CCOUN/ Nt i 4f8Cri Oya OUR C. f0 CA

t • VI: li' ,f AI

AC f.o vw eALA...: -.k •c, , ,,, "6 tMEftt

.4 ,.:,,.. ■,..)Vi

PkrASE F NIFFI MCA:NT PAM

4,1% . 99.99 15.00 HOM 2276.32 TOTAL:7-2376.3

110.00 125.00

IFILbROADWAY P.O. BOX 52094

PHOENIX, AZ. 85072-2094

9V *43* WA106 ,A! 1AACt

003738319787 0012500023763120001500000999137

, ,, ir (:1-16 6C.E S , ,0 ,o0,tg 6 CREW S

0611

-

0170212'

TR VOL BR' CA

03214092031

—

-

IF 'NAY

— 0207517921

- _

11668

MING 11-us BROADWAY

IRNIA, SOUTHWEST

—

- 573 161

CARD

ARI'ONA,

— — YOUR CHARGE ACCOUNTECTRONIC SERVICES

- -YOUR HOMEMAKER ACCOUNT----- AUDIO SYSTMS & COMPNTS MAIL PAYMENT-THANK YOU

SUMMER? DON'T FORGET YOUR CARD IS ACCEPTED AT WEINSTOCKS, CONVENIENTLY LOCATED THROUGHOUT NEVADA, NEW MEXICO, UTAH

.

-—————

99.99

707.00

- - EMPORI

AND CO

- —

- -

210,00

AND

ORADO.

CfC1E 10

1:

A

1

,C

,,

",

C

,

T,

,

,,G Esa 16 Q2, ACC NI J OF t4 •A YU( 00

4

SHOW.°

A 7 00 6 Na o 9 4NANCE '

NolymAJ6 VAIMENa

I „,... 6 6LANCE

sitkl.C

._

K

_A

Q

PC

S_

: 4 I

P ut s A

A

Cy6EW

NM

AOP

O.L

A.

KN K V C E CHARGE

Ai

"A' Now not

HA -40M

,OQ 1743.31

99,99 707.00

.0.0 210.00

.00 2182.21

.0# 99, 2276A

15,J)0 110,00 i25.0d

36, rgr 1743,31 806 .9' 1 0 . 2192.21 36

• ,* cay at .0.1 1,0 n,r1.01.,M Vit y ln.st S t' s , ••, 7S St 51, 0 0 N E W BA AniCE, Of 95 *4* ,• ...wet 30 ,r, , Ir • 1,, MS

C p,. Claie s• 0100 ■As A*. a*. .001 te A•A C.A0146 AAA1 ISs ts catsi2.1.4 •es,I, ma ,..et,ce e AMCE 10,00,004‘. 01,* • of 1 GS% 3,,,t6t.mts is ALL

..^4 N/A . anlourts 5* • c *ss 04 N/A , 45. 00.4tc* pat ca•iaga ,t IS 80% N/A iv B +1.nsse404 0 ,6,9* of 50g Pitt '.0' S7iorp Attin ,144 tit Iw,

NOI10E. Sow trolo 5. ode 14' f 00nAlti

EXHIBIT 22

DCC00006484

191


400 RRB 7 13 3

SECUPITY PACIFIC BANK, N.A. BANKCARD SERVICES PO BOX 2930 PHOENIX, ARIZONA 85038

1111111111.11 00•■■ ruct_t ,)

I it I1 RI S) In 1.cc.ocNr-

DCC00006485 EXHIBIT 22 192

• .. „ • "

,,aa , u,71 ,«

4100

BANKCARD SERVICES BANKCARD PROCESSING PASADENA CA 91052-0002

e0604L2e 1 524022250 1:

3 vh•ra- •.4..

. . tv.,,m t ,... t ■ no'

Imrrili 1'19 14 A, )11tAa aim Rana Erskti ‘littnirom 4- 4 nelirliitt = l'Imelti flw.iiii Ne \ mow% Nce

01061.18 OB/1%'92

47 -2800

00000o/100000e

50.00

JOSEPH SHUSTER 11944 MONTANA LOS ANGELES

iiiiittikallItiothditimiddiatimisidifo,111,1

$0.00 00.0

wow

AVE APT 305 m..,

CA 90049-5026

1,:totitt 7.40that

410

CreJitlim Ma Ikuhle Ciedit

Nqin !VIM-it Cycle tiling Date hyment Due Dye r4nt," I":"olue

51438 7/20/ 08/14192 . 0 0

it nc Nioniber •‘„11 iri Sinir 1-1,4 SlalerlIVIrlt 4.(120(411 8,

07

.,

PMMAIS

079

...o ; ,,t'L'•..'".;%f. bLae

7407000JG0029BYW3 "FINANCE CHARGE" '

4 4,1 ,

1nLii PasTA, C.

PAYMENT - THANK YOU

_.; _ ■ I. .

hamuttaakamn r

100.00 - 16.95

$1144.23 5100.00 f I044.23 $0.00 $0.00 816.95061. A ft amount fah m cd I w- a rnsm.A I/ ( is a I„ ftUi4 tn a craz)Ait I—arance.

TO OBTAIN THE MOST CURRENT BALANCE, CREDIT LIMIT OR LAST PAYMENT, CALL THE LOCAL PHONE NUMBER ABOVE. USE YOUR ACCOUNT NUMBER AND THE LAST 4 DIGITS OF THE PRIMARY SOCIAL SECURITY NUMBER. PRESS 1 AND THEN 4. IT'S EASY TO USE!

scridinquc...sto, BANKCARD CUSTOMER SERVICE, P0 BOX 52327, PHOENIX AZ, 850 72

,...ts 31KM •

Averota.nalac t Corrrni 00

1 , t fl ,

, lnce hai If t"1111 1101OC WMt (N) Al "0 01.567

0 18 • 80 018.80

.--,U;;II,Nai, A.AlNIM, PARt.A.NtAt.f. NA 1 l ( %)

0.00 1081.74 MM AI PERCENTACE RATE (%)


Cn--PEc.r Pf PAY1011411

12.00

T DUE TODAY.

c- I

00 , (

01-08!

A FRIENDLY REMINDER...HE HAVE NOT YET RECEIVED YOUR:PAYMENT.

CA1CH THE SUPER BOWL ON A 016; SCREEN IV!

REFERENCE NUMBER

PLEASE PAY THE A

cf.

AvERAGE LACNATHLN DAILY BALANCE PEUOOPC FLAT

— 1,070.2 1.6500%19.80%5 .0Q 1.6500419.80%$ .00 .0000' 0.00$

SEND INDIA:US$ TO

CIRCUIT CITY STORES, INC. P.O. BOX 11768 RICHMOND, VA 25230

nV" TELE"0"E" 800-477-6761 4011E: Ste ROVO,S4 Sib! I. IrEponsn* 1,000f1

•SEE ES

ACCOUNT NUMBER

wmWMO,

In.GI 34$ 134.00 CLOSOAD DAT2 ITATNENT LA,Ak DATE

P.S , 11/41(11

7.00 OLAI Dos cy

UN PA TINNTBIA

67.00

JAN 08,199ZFE0 02,1222 To sYoNI AA ed0 halal Finsoos Charge per .iite New Etafffinctr by P./ANNA Duo Cow

7.6 .00 -omoa

. 00, . r cAllovu 50

DE SCRIP UON

ATE PAYMENT CHARGE

EXHIBIT 22

DCC00006486

193


NokKe■

SWIY

Account Statement P.O. BOX 4444 BUENA PARK CA 90624 (114) 228 - 1200

ACCOUNT NUMUER 111111111 37-8

CURRENT BILUNG DATE 06 - 13 - 92

! PAGE 01 OF 01 to Av A01410,01 FinalKe Char9e., Pay New EllianCe Bv It• 07-09 ' 92

nc 1,anie TvCC McnIOYSCM44yet

LATE CHARGE

; Oats

06-

OUR ACCOUNT I PAST DUE. PLEASE PAY THE AMOUNT DUE OF $48.80 ODAY.

BALANCE SUMMARY

PREVIOUS VALANCE

PAYMENTS ANL) CREDITS

MAJOR 98.79 .00

OTHER .0 0 .00 TOTAL 98.79 .00

char le Pr,'

+ FINANCE CHARGE

+ CHARGES +NEW BALM=

100.36

',MUM YMENT

48.80

.00 48.80

". rerfr,t Ce It ' rrtant Otomustion and fiu ,arkir, et

1.57 .00

.00 .80

1.57 .80

JCPenney C2ustott;er Se/vice is Our Number One Priority

SAL TYPE

ON BALANCE OF AS OF

.TN aALANCE ii , fiv $

kwrltmi i t AiODIC PAIEiSI%

ANNUAL PERCENTAGE RATE(S) %

ON BALANCE OYER E

vOr41101 ` E "OfaIC '`Al"*)*

ANNUAL PERCENTAGE RATE(S) %

M B 95.44 06 - 92 ALL 1.65 19.8

Your Finance Charge Method is (see reverse)

PLEASE DETACH AND RETURN TWS STUB WITH YOUR PAYMENT

ACCOUNT MOANER: II S7 - 81

PSSYMENT SHOULO REACH HS EY: 07-09-92

Indicate Address/Telephone Changes Here

CAt•. &a*. Ey C.d.

Mosses* km Cods

WRITE BALANCE MINIMUM AMOUNT

TYPE

PAO

MAJOR

101.16

48.80

TOTAL

101.16

48.80

ZIP + 4 PRESORT JOSEPH SHUSTER 11944 MONTANA AV 305 4580 PARADISE BLV NW LOS ANGELES CA 90049 - 5026 ALBUQUERQUE NM 87201 66

0004562

198 6741347378 30 00048800010116

EXHIBIT 22

DCC00006487

194


YOUR PHONE SERVICE WILL BE TEMPORARILY DISCONNECTED

UNLESS WE RECEIVE PAYMENT OF '0 .1 JR PAST DUE BILL BY AUGUST 14,1992 ::f 111 ■11 1:0DE 62 01325 00580

(40 C'.7,1iforlIi=i PA I E.: 1(•(2

8-07-92 820-2446

AM I rilic 130.00 01 1717 8202446 880309 03

I rif )1111111m cr I) RN' 11 1 11%1\1 1 q' 1 wi..10 if , 1

yui , l; 51 F EmrofiAfm I . DISC' 'WU' 011 EE REQUIRED TO PAY THE FOLLOWING tAu0E.s IN AUDI I ION 10 1HE FULL M.101..crl PuE !:1:f CL:E I I IE TELEPHONE WILL BE RECONNECTED:

IIEGONNEC I CNA! DEPOSi I

23.00

10 AVOID 'THESE MCI RONAL CHARGES, FL PAYMENT TODAY. AN ENVELOPE IS ENCLOSED FOR nuR CONvEt HENCE. ALLOW 5 DAYS FOR upc:Firi Or MAIL cR CONTACT A COMPANY REPRESENTATIVE AT THE

CUSTOMER BILLING CEM ER TO OBlAIN THE fE,'• I IFST IN-PERSON PAYMENT LOCATION BY CALLING TOLL FREE TO:

PLEASE BRING THE ENTIRE NOTICE WHEN PA,/No IN PERSON. 1 800 223-6177

PERrIANEN T DISCONNECTION

ACCOUNTS ARE IEMPOFIARILY LASCONNEC I Ell re.)11 (JULY SEVEN CALENDAR DAYS. AFTER WHICH TIME THE SERVICE Is PERMANEN1Ly DISCONNECTED. uNLF: , :s SPECIAL ARRANGEMENTS ARE INITIATED BY THE SUBSCRIBER AND AGREED TO BY THE COMPANY. IF THE SE livi(:E IS PERMANENTLY DISCONNECTED, AN APPLICATION FOR NEW SERVICE WILL BE REQUIRED, WHICH WILL REQUIRE rAvinc; NEw SERVICE CONNECTION CHARGES IN ADDITION TO THE DELINQUENT AMOUNT DIJE AND THE rirrnsiT BEFORE SERVICE WILL BE INSTALLED.

72517 82002446 880309 702620 7 00013000 6 08 11

"fillS LOWER PORTION Wfi47.51:iiii3AS;MENT

01 1717 8202446 880309 03 AMOUNT DUE S

GTE CALIFORNIA PAYMEN PriOr..:Ef'zSING

SHUSTER, JOS. 71? 11944 MONTANA AV, APT 305 LOS ANGELES CA 90049-5026

72517 82002446 880309 702620 7 00013000 6 08 11

SEE REVERSE SIDE FORM 90003489 (4.911

EXHIBIT 22

DCC00006488

195

ri Nu' it 'I! , 1 \if I , • , ! !It


JO 21 00 0

CE NT URY .,*7 CABLE

2939 NEBRASKA AVENUE SANTA MONICA CA 90404-4028

DATE DUE

08/13/92 CENTURY CABLE COMMITTED TO COMMUNITY SERVICE!

PLEASE RETURN THIS TOP PORTION ONLY, WITH REMITTANCE TO --N PLEASE MOICATE

AMOUNT ENCLOSED

000-07-92-A-C

10 xxl ZP 7.26440.DS 24 JOE SHUSTER 1 11944 MONTANA AVE APT 305

LOS ANGELES CA 90049-5026

CENTURY CABLE PO BOX 10201 VAN NUYS CA 91401-0201

08614 213457 01 5 8 010302

CENTURY CABLE ACCOUNT NUMBER

2939 NEBRASKA AVE 08614-213457-01-5 SANTA MONICA, CA

FOR- 11944 MONTANA AVE APT 305

6/30 PREVIOUS BALANCE 103.02

7/11 PAYMENT -THANK YOU 103.02- 8/01- 8/31 BASIC SERVICE 24.20 8/01- 8/31 ADD'L OUTLET 4.75 8/01- 8/31 DISNEY TRAP X FREE * 8/01- 8/31 CONVERTER RENTAL 2.75 8/01- 8/31 CONVERTER RENTAL 2.75 8/01- 8/31 VCR FREE * 8/01- 8/31 ADD'L PREM. SVC 5.72 8/01- 8/31 PREMIUM SERVICES 62.85

SHOWTIME,DISNEY CINEMAX HBO MOVIE CHANNEL

7/31 AMOUNT DUE 103.02

AUG 01 THRU AUG 31, 1992

BILLED FROM BILLED TO DATE DUE imci=1"11

8/01/92 8/31/92 08/13/92 7/27/92

BILLING/REPAIR: 453-2233

MON-FRI 7AM-9PM AND SAT 8AM-9PM LOBBY: MON-FRI 8AM-6PM, SAT 8AM-4:30PM

**RATES MAY INCLUDE FRANCHISE FEES WHERE APPLICABLE*.*

OUR BUSIEST TIMES ARE MONDAYS AND THE DAY AFTER BILLS ARE DELIVERED. OUR LEAST BUSY DAYS ARE WEDNESDAY AND THURSDAY. IF YOU HAVE A BILLING QUESTION, PLEASE TRY TO CALL DURING THESE LESS BUSY TIMES.

EXHIBIT 22

DCC00006489

196


1 .1/7.: t •• ■ ‘• ,•11.1i rrvr " p . - • •• i

JOSEPH M SHUSTER

11944 MONTANA AV 305 ACCTIT 4-04-61024-11944-00-0305-3-01

BILL ISSUE DATE 01/09/92 AMOUNT OF PREVIOUS BILL 112.54 PAYMENTS SINCE 11/04/91 S 112.54-

ELECTRIC RESIDENTIAL RATE R1A SERVICE DATES 10/31/91 TO 01/07/92

SERVICE CHARGE 2 MONTHS X $ 0.30/MO $ 0.60 ENERGY USED 1,850 KWH X $ 0.06624 122,54 ENERGY COST ADJUSTMENT 1,850 KWH X $ 0.02520 46.62 LOW INCOME SUBSIDY CHARGE 1,850 KWH X $ 0.00083 1.54

METER 01-ELECTRIC TOTAL $ 171.30

CHARGES IMPOSED BY NON-DWP AGENCIES CITY UTILITY TAX 171.30 X 10.0% STATE ENERGY SURCHARGE 1,850 KWH X $ 0.00020

PLEASE PAY THIS AMOUNT NOW DUE ■ 188.i112) METER USAGE INFORMATION

METER TYPE METER NUMBER READS CURRENT PREVIOUS CONSTANT 01 E 6-596677 78177 76327 1

$ 17.13 0.37

USAGE 1850

METER

01

DAYS THIS YR LAST YR

68 67

USAGE

THIS YR LAST YR

1850 2118

DAILY AVERAGE

THIS YR LAST YR

27 32 KWH

EXHIBIT 22 197

DCC00006490


;AN V10EN E-BUNDY OFFICE 1.1q80 SAN VICENTE BLVD .0S ANGELES CA 90049

IA*

**I JOSEPH SHUSTER 11944 MONTANA AVE APT 305 LOS ANGELES CA 10049-5026

1 . 7

(310) 247-2800

1,4 o

JUt4 19 92 - JUL

AUG 19 92

CHECKING ACTIVITY

21 92 7,

tium(IFIt

4 11111■11111N

t f.

TYPE DATE AMOUNT TYPE DATE AMOUNT TYPE DATE AMOUNT

1154 JUL06 150.48 1186 JUL02 210.00 1202m JUL13 200.00 1177* JUN19 250.00 1188* JUL01 100.00 1203 JUL13 103.02 1131). JUN25 1245.00 1190* JUL09 100.00 1226* JULI4 31.30 11834 JUN29 250.00 1191 JUL06 61.24 1227 JUL16 59.32 1184 JUN23 98.79 1192 JUL06 1423.00 1228 JUL20 131.44 1185 JUN24 125.44 1193 JUL20 1211.00 1229 JUL20 150.00

ELECTRONIC ACTIVITY

COMPANY NAME

HARMER C OMANI C A

WARNER COMIUNIC A WARNE 01) 14,NI C A

DAILY BALANCES

TRANSACTION DESCRIPTION

PAYROLL DO PAYROLL OD PAYROLL DO

COMPANY IDENTIFICATION DATE NUMBER

920619 552-49-7503 420703 552-49-7503 920717 552-49-7503

POST DATE AMOUNT

JUN19 irscor JUCl7 _

2627.60 2627.60 f 2627.60

DATE BALANCE DATE BALANCE DATE BALANCE DATE BALANCE

JUN19 24173.84 JUN29 22454.61 JUL06 23131.49 JUL16 22643.85 JUN23 24075.05 JUL01 22354.61 JuL09 23037.49 JUL17 25271.45 JUN24 23949.61 JUL02 22144.61 JUL13 22734.47 JUL20 23773.01 JUN25 22704.61 JuL03 24772.21 JUL14 22703.17

CHECKING ACCOUNT SUMMARY

BEGINNING BALANCE . . . . . . • • * • * • • • • • • •

TOTAL Of 3 DEPOSITS

TOTAL Of 18 CHECKS/OTHER DEBITS.

SERVICE CHARGE. . .

LUDING BALANCE. .

21796.24

7882.80

5906.03

.00

R01E ATMS FOR EASIER BANKING. NOM YOU CAN USE YOUR READYDANKINO CARD TO GET CASH AT BANK OF AMERCIA YERSATELLER ATMS HITH NO NETHORK CHARGE.

EXHIBIT 22 198

DCC00006491


* 18-8060C 11411.

+ ZC-9LCC + ZS-10C17 + 89-58C17 + L5•8065

C6-CLZ17 1

+ 16.L017C + 176.t75Z5

* • 0

* ZC.9LCC + 00•051 + 1717•LCL

+ ZC•65

+ OC•IC + ZO.001 + 00-00Z + 00.11,Z1

+ + 172.'9

661. Z6t79000000G

ZZ 118IHX3

+ £6.£L • 15.181 + 00.LL + OO.ZC • 00•L61. • 60•L9 • 00•86 • 69.LZ1 + 00.006 • 00•05 • 9.5917 • LZ.51' + 00•1.121 • 17L•011. • 00•£6171.

+ Z5•t0Pri • 00.001. • 00.00t

• 00.01Z +

+ 69•501

• 00.517Zt + 517•CL + 00•511 + E8.55 • 00.05Z • LZ•9Zt + 8t7.051 + ZO.001. + 017.111 + 00-0C/7"

* 09.58C17 • 00.11Z1 • 6L•86 • 00-05Z • 00-t7tZ • L5.96

• ZZ•9Zt

•

O•C01 • 00.00Z • 00.001 • 5L-08

• 00•17C

• 00•051 • o0•c1 • £86Z

• 16•L0 • 00.11L • 00•17,11. • £0 •Z IC • 00 •85 • LL.LOL • 00 •CZI" • lZ • 001 • 06•

+ 15-8065 • 8C-VOC

• 00•1ZI

• ZO•C01 • 00:i • 001.1L + C9.ZIC + 05.Z171

• 99•65 • 00..I

+ 00-05 + VL.OZI + 00.00Z • 09.L8t • tt.98t + 0•IC • 00.00Z + VZ-5111 • 5L-1,17 • tZ•1751. • 90.LZ

• 50L3 + + 00-00Z • Z17-15 • LZ•9ZI

• 61..tfl7 • o0-t1 +

• 1"6.175Z5 • 00•11Z1

• 00•05 • OZ-L17

• 00.00' • 00.00Z • 00-00Z

• 00.05" • GZ-5L

• 00.005'

• 00.9C • 5L-51t

• L5.19 • L9.17V • 05•017

3J


Joseph Shuster 1)944 Montana Ave Apt. 305 Los Angeles, CA 90049 May 27, 1986

11928 Darlington Ave Apt. 102 Los Angeles, CA 90049 May 27, 1986

Dear Joe,

Your commission check to me dated May 15, 1986, which we thought had gotten lost in the mail, finally arrived. As you have given me another check to replace this one, I am returning this one to you as you requested on the phone.

To avoid future conflision, please make a notation in your checkbook that this one was returned to you.

Enclosed also are 3 copies each of the two documents you requested as a favor to you,( I made a special trip to have these xeroxed for you). One document is dated April 21, 1979 and the other March 23,1983, covering your agreement to pay me 20% of all bonuses and /or increases in lifetime income from D.C. Comics and/or Warner Communications which I have secured (and shall in the future secure) on your behalf. I hope these copies will be helpful to you.

From now on, would you please mark your commission checks to me,"Re: percentage fee for income increase negotiation", or if applicable, "Re: percentage fee for bonus'', rather than putting the inaccurate "manager's commission", Or "agent's commission", as you have in the past?

This will accurately state that I only negotiate bonuses and income increases for you on your lifetime income, and do not seek employment for you.

darmest regards.

As ever,

Joanne Siegel

P.S. I will go to the W.L.A. postoffice to mail this with signed receipt requested to make sure your enclosed check and the documents reach you safely.

EXHIBIT 22 DCC00006493 200


EXHIBIT 23


EXHIBIT 23 201


EXHIBIT 24


EXHIBIT 24 202


EXHIBIT 25


EXHIBIT 25 203


EXHIBIT 25 204


EXHIBIT 25 205


EXHIBIT 25 206


EXHIBIT 25 207


EXHIBIT 25 208


EXHIBIT 25 209


EXHIBIT 25 210


EXHIBIT 25 211


EXHIBIT 26


EXHIBIT 26 212


EXHIBIT 26 213


EXHIBIT 26 214


EXHIBIT 26 215


EXHIBIT 26 216


EXHIBIT 26 217


EXHIBIT 26 218


EXHIBIT 26 219


EXHIBIT 26 220


EXHIBIT 27


EXHIBIT 27 221


EXHIBIT 27 222


EXHIBIT 27 223


EXHIBIT 27 224


EXHIBIT 27 225


EXHIBIT 27 226


EXHIBIT 27 227


EXHIBIT 27 228


EXHIBIT 27 229


EXHIBIT 28


EXHIBIT 28 230


EXHIBIT 28 231


EXHIBIT 28 232


EXHIBIT 28 233


EXHIBIT 28 234


EXHIBIT 28 235


EXHIBIT 28 236


EXHIBIT 28 237


EXHIBIT 28 238


EXHIBIT 29


EXHIBIT 29 239


EXHIBIT 29 240


EXHIBIT 29 241


EXHIBIT 29 242


EXHIBIT 29 243


EXHIBIT 29 244


EXHIBIT 29 245


EXHIBIT 29 246


EXHIBIT 29 247


EXHIBIT 30


EXHIBIT 30 248


EXHIBIT 30 249


EXHIBIT 30 250


EXHIBIT 30 251


EXHIBIT 30 252


EXHIBIT 30 253


EXHIBIT 30 254


EXHIBIT 30 255


EXHIBIT 30 256


EXHIBIT 31


EXHIBIT 31 257


EXHIBIT 31 258


EXHIBIT 31 259


EXHIBIT 31 260


EXHIBIT 31 261


EXHIBIT 31 262


EXHIBIT 31 263


EXHIBIT 31 264


EXHIBIT 31 265


EXHIBIT 32


Aug-l 4-06 I 2:08pm Fron- T-935 P.003/006 t-542

IOU{T vErvuRE AGREEMET{n

AGREEMEM rnade as of Novernb er zj,200lby and between pacific picruresCorporation ("PPC") with offices at 23852 Pacific Coast Highway, Suite 555, Malibu,CA 90265 ; tel. (3lO) 589-5151; fax: (310) SE9-51i2 and Jean A. peavy and her sooMark wancn Peary (tklaMark wanen peary) (individualty and collcctively,'Claimants") located at 51 Carnino Cabo, Santepe, New Mexico g750g; tel. / fax: (505)466-4551, regarding thc foroatiou of r joint venfiue for thc purpose of rerrieving,enforcing and oxploiting all of Joe Shuster'e, and his estatc's rights, glaims, copyrights,property, utle and intercsts in and to Joe Shuster's creations (hereinafler, such rights,proPerty aud clairns, ue individually and collectively rcforrcd to as tbe "Rights,').

t. Thc Rights sball includc witbout li'nitetior\ all currcnt and future rights,claiuts, title, copyrighte and intereets in and ro each chfiracter, s0ory clement, and indiciaossociated wit[ and all rights ro proceeds frorn,,supERlVIAN,,, or the !.supERIv[AN'stories and comic books, such as, without timitation, ,,Superman," ..clark Kenl" ,T.oisLaDe," "Iimmy Olsen;lf "I-ex Luther,"'T,anlLan$,"..Mr. Mxy4plk,",,Suporboy,r,"supergirl,"'"Ihe Daily Planet," "Kryptoq" "Kryptonitci'and.,smailville."

i r. r'. 2, , In consideration of tbe munral covenanls contained hirein and othor goodand valuabtq consideration, PPC and Glaimaqts hercby form a joint veo$rc (rhe"V€nhrc") to investigate, retrieve, enforce and exploit tho Rights, including withoutIimitation, via the establishment of Joe Sbuster's e8tato and the estate,s tefbinationpursuant to section 3oa (c) of thc u.s. copyright Law Clitlo l?, u.s,c.) of any and allgant or ransfen by Joe Shustcr of any copyrighr interest in his creations. Inconsidcration for PPC'S contibutions to the Venturc and the mu$al covenants containedherein Clairnants hereby transfcr and assign to the Vennrrc their rights, titlc aod interestsb Oe Rights.'The name of tbe Vennrre shall be the "foe Shuster Venh[e." Thc Venture'sofEcc address shall be the carfonria addrBss sct forth above.

3, PPC *ill pay any and all costs and expenses of rho Veuture, including thelcgal fecs and costs of sening up Ioe Shuster's estare, U,S. copyright office costs sucb a^odoctrment retrieval costs and filing fecs, researeh costs, and any and all attomcys' fees,costs and disbursements in connection witb any legal actions or disputes conceming thecnforcemeut and/or defense. of the Rigbts and tbe Vennrc. Iq additiou to attomeys, fees,PPC will bc responsible for tbe paymqnt of any legal filing fees, expert witness fees,subpoena and service of pmcess fees, jury fees, deposition hanscript costs, photocopying,

134

EXHIBIT 32 266


iuc-14-06 l?:06pn Frora- T-935 P.004/006 t-342

Page2Joint Venturc Agreemcnt / Joc ShustcrntzStor

postage' long distance telephone and fax ch.arges, computenzed legal researsh, rcporter,sfees, costs for preparation of exhibits and demonsbuive evidencc, travel costs outside ofthe Los Angeles area if required, and uessenger fees. Any and all anomeys, fees payableon a contingency basis will be paid solcly out of PPC'S sharc of Proceeds set forth inparagraph 5 below.

4, The rerms of any and alt agreemente regard.ing any of the Rights, io *yrespect, sball be subject to the express wrinen appncvrl of Clainraut and ppg. Tboparties eacb warant and represent that after signing this Agreemcnt 15ey will not withouttho express writtcn conscnt of all the pafties transfer, limit or cncumber tho Rigbts io anyrsq)ect.

5. Any and all moneys and proceeds rcceived frou the enforcement,scttlcmeot orcxploitation of ury of the Rights, including without rimi13d6a, Frxed andcontingent compensatiou, settlemeat orjudgrnent amounts, purchase prices, option orquitclaim fees, and/or royalties (" proceeds"), wi11be sbare4 divided aud payabre: fifrypercent (Sovo) to claim.ants and fiftypcrcenr,5o%)to ppc. The parties will use allrcasonable efforts to have Joe Shuster's estate/ad-inisbator and third party payors, ifaly' direc0y pay to the ClaiE nts and PPC their respective fifty percent (50%) shffe ofProceeds, hiorto the above dishibution of hocecds, PPC will be entitled to recoup all ofits out'of-pockct oxpcnses under this Agrccmcnt subject to thc presenarion 16 elaimnntsof a rcasonable accouutiug and receipts for said exlrcnscc.

6' All aotices, cor.rsspondencc and paymcntr to cach party under thisAgreemeut shall !s sent to tbe respectivc addrusses sot forth on pagc I of rhis Agrecmentrrnlsss either party nodfies irre otber of an addrcss cbaagc in writing.

7' The Venturc and/or the Esiate of Joc Shustcr (to be establisbed hercunder)will relpin Marc Toberoff, Esq. to rcnder legal sendces in counection witb the B-:6hr andtho Venture, includi"S in connection witn all legal dieputes, titigascn, arbitation andlorrnediatiou regarding tbc Righb; to implement, enforte and prosecute the Rights; and tohandlo the negotiation of any contracts regarding erploitation of tbe Righa.

r"n^a@l]ppf.+r-

135

EXHIBIT 32 267


i u r -14-06 l2 :08pm From-T-035 P.005/00s F-542

Page 3Joint Venture Agreement / Joe Shustertlt27tOl

8' The term ("Termu ) of the Venhue shall extend for the firll duratioa of theRighs and any cxploitatioa of the Rigbts. Upon tbc cxpiration of the Tcrm and thcwinding-up of thc ventuc or in the evcnt of terminatiou of tbe venturp for any r3ason,all Rights, propefiy or assee of the venture will bc held fifty porcent (so%)by theQtainenk and frfty percent (5070\ by ppC as tenanis in commoa, and Cleimenrs 8!d ppcwill cach be entitled to reccive and continue 0o receivo fifty percon t (s}%)of all hoceedsderived from the Rieha afier rrnrinatiou of thc venhr€.

9' To cover tbe unlihely event that Marc Toberoff die s or is disabled; ppCwill pdor to servicc of any noricc of termination regarding tbc Rights (pursuant !o Section30a (c) of tbc u's. Copyright Law) eitber (a) anango for a suitablc replaccncnt Bnomeyexperienced in copyright litigation and willing to enforce tho Rights on solely agsptingent fee basis: or O) if no such replacembnt attoruey is arranged [6 6[rnin .!gynan" iusuraoce for Mr. Toberoff in thc arnount of gls0,Om payabte solely to Claimaats.

10. All parties sgree to executc such furtber documents and to pcrform suchfurther acts as may be reasonab\t necessaf,y or desirablc to carry out the purpoees andeffect of this Agreement, including without timihlisp an irrcvocable letter of authori[insuusring tbe administrator of Joe shuster's EstaE to divide and disbune alt hocecdsfrom the Rights as set forth in paragraph 5 above. wben required bercunder, consent sballnot bc unreasonably witbheH by any party regarding the businese of the Vcnturc. Theparties hereby aDDrove Michael Catron for appoioment as the adrrinistrator of JoeShushr's Estatc, oncc it is cstab[shcd"

I I' This Agrecment containc thc frrll understanding of the part!:s andsup:rsedes all prior or conlemporaoeous uoderstandings whether written or oral withrespect to thc subject nlattcr bercof and may not be modified except in nrritins signed bythc pafty to be bowrd. By counteniguing thie Agreeoent tho parries each rchowledgethat tbey clearly trndcrstand thc terms and conditione of tlus Agrecment; and hrve agreedto rhess terms and conditions after detailcd aad mature dcliberafon. The parties firtheracknowledge that thcy have not signcd this Agreement in reliancc on any promise orrepresenution Dot expreasly set forth in this Agreemcnt.The parties have mutuallyparticipated in the negotiation and iuzfting of this .lgreemeniand agree that the tenns ofthis Agreement sball not be construed more favorably to cne party than the orher. To tbcextent any provilon of this Agr,eement is found invalid, said provision sball be stricken

utlnD lar ,,7

136

EXHIBIT 32 268


' Aug -14 -06 lZ :0Epn

Page 4Joint Venfure Ageemcnt / Joe Shusternt23t0l

and shdl not affect the validity of the remaiaing p,rovisioos bereof, TLis Agreemont shallbind aud in'rp to the bcncfit ol tn, partics, their reopective hcirs, successor' and assigns.Executed f66imilg copies of this ag."n nt shall be valid acceptable substitutcs forexecuted originals.

ll' * 1*:renrshalr

be governed by the raws of california appricablc toagrecmcnts madc and to be performcd thereh.

Agreed, understood and accepted;

Pacifi c Picnrres Corporation

ftt7.'-a---Dale: tllar. ZA. ZooT-

Dac: Q-oa I

Datn: tlnv-"|X,Z=,*s|

T-03t P.006/008 t-542

137

EXHIBIT 32 269


EXHIBIT 33


J ^ ?aR' i i"`

.^ ,.. - ^^

Î ^/ '^'v''Jl) ^.^ 1 ^^ ',^9^ '1'.':11

^^ ^^J^2T USE C7NLY

_Jt^HN D. PETT^<I F:, L=sq. (^;É;N ^_ s-1 ι ^,}RÓD1, PßLLOCK, PETTKER, GALI^^?AITH ^ CANILL

'Â Law Corporation ,^ í L + -^444 South Plower Street , Suite 1 X00 .. -^ .)_' ^C^^^Tu.'SßK` ti υ г ^Los Angeles , California 90071 -2901 ^ S At^tGElr¡

,4T70RNËY εΡÓR Name ; MARK WARREN ^?EARY`

OURT F CALIFORO}

1λ 1 J ^ JSUPERI R C O NIA ; COUNTY OF Los Angeles . „Ui}^}

sтRεεт aввRεss _ 111 N. Hí11 StreétâûNOanoRess : 111 N Hí11 Street

^^JAHN /^^ ^^^^=.

G^^Y ANO ziP cÔ^ : Los Angeles , CA 90012BRANGH NAME: Central Dlstrlct

''

^^ E, ^^Ê^^ rц ' 4

ESTATE of (tvame}: JOSEPH SHUSTER , also k^^^wn as JOE 'SHUSTER

jl^^ s t ÊCED^N^^Ç__) Probate of Wí11 and for Letters Testamentary case Nuê^^^:

PETITION FOR ^ Probate of Wí11 and for Letters of Administration ^^^^_^^^with Will Annexed

__H εΡ^R^^c Â^F,.

Letters of Admïnïstratíon t, λJ

^г fem,

^ / ^ ^Letters of Special Administration,

; Àuthorízatïon to Administer Und e r the Independent °EP7-

^^^^^^: .-r

^^ η

Administration of Estates Act ^_^ I with limited authority ' ^}

1. Publication will be in (specify game ^fnewspaper): DAILY JC}URNRLa. CX _^ Publication êquest^d. b. ^ Publication to be arranged.

2. Petitioner (name of each): MARK WARREN PEARYa. i^J decedent's will and codicils, if any, be admitted to probate.

b. _X^ (name): MARK WARREN PEARYbe appointed {1 } ^ executor

(2} ^^ adminïstâtor wïth will annexedand Letters issue upon qual^ficatían.

(3} ^¡ adrninistrator

(4} L^ special administrator

.,Γ.Y.u

έ.η^,

c. _X ^ that (___^ full !,^ limited authońty be granted to administer under the Independent Administration of Estates Act.d. (1} ^ bond not be êquíred far the reasans stated in item 3d.

{2} ^ $ bond be fixed. It will be furnished by an admitted surety insurer or as otherwise provided by law.(Spec^ry reasons ^^ Attachment 2 ^f the amount ís different from the max/mum req^red by P^bate Code sectân 8482.)

(3} '^ $ in deposits in a blocked account be allowed. Receipts wí11 be filed. (Specify ínstítutίon aid location):

3. a. Decedent died on (dafe): July 30, 199 2 at (place): West Los Angeles, California(1} ^^ a resident of the county naméd above.(2} ^ a nonresident of California and left an estate ín the county named above located at (specify location perm^tt^ng

pubtícatíaπ ^n the newspapernamed i^ item 1):

b. Street address, city, and county of decedent's residence at Time of death (specify): 11944 Montana Avenue #305, West LosAngeles, County of Los Angeles, California 9 0049

c. Character a пd estimated value of the property af the estate:(1} Personal property: ^ None(2} Annual gross income from

(a} real property: $ None ^' '" ^, ^" `'^rri a:« ^- ^ n ^(b} personal property: ^ None ^ ^' ^ ^ ' ^rÿí w. c`^

Total: ^ None rî ^ ^= -+-(3} Real property: ^ None

d. (1) 0

(2) [^

e.

Wí11 waives bond.

r ¡ ^ ^ +..'. ^7 .;^ ,^ ^ ßr7(If futt authority underthe lndepeпdeп tAdmínistrafίorx^pfsØte^Rίt fs rû^sféd,state fhe fair market value of the real pâperty less eпcι эbra ιês.) ^ xc^+

Special administrator is the named executor and the wí11 waives b2fnd. -' `' `^; ^^^_í ^ _^.

All beneficiaries are adults and have waived bond, a пd the will does not require a bond. (A^x waver as^tt^c^^.in^^rtßd(2).)All heí^s at law are adults a пd have waived bond . (Affix waver as Attachment ßd(3).)Soie personal representative is a corporate fiduciary ar an exempt government agency.Decedent died intestate.Copy of decedent's will dated: 6!28/19 88 ^ codicils dated:

(^ The will and all codicils are self-proving (Prob. Code, § 8220).(Continued on reverse)

requests

ι..ε w• ι^-ίt7 I" 1

,-,r.,.a

^:й^: "_

г.., ι-,.г:ч ст 2

are affixed as Attac^^îiënt ße(2}.

rorm^P^Ved^yme PETITION FOR PROBATE I.,ØdI ° §§Probate Cod_, 8002, 1Ø5OJudicial Coúx^cil of Galdornia

^ εΡ-111 jRev;:^laûar^ ^, 1^s^[ SO^üi~l ^S"Ma^tlatory Use [1/1/2000] Ø PUS

EXHIBIT A 4

Case 2:10-cv-03633-ODW -RZ Document 334-7 Filed 10/24/11 Page 2 of 15 Page ID #:22027

EXHIBIT 33 270


Ín the Matter of the Estate of' J(7SEPÎ SHU^TEIR, Øe^:edentEos Aneles Connty, Calífornía, Superïor Court -Central Dístrêt

ι^TT ι CHME1^tT 2cRepueзted 4ddítíonal Pвwer

l.' ^^^t^^sted ^cïditiç^nal PowerP^:^ i ^ i^^ner r^ûe^^s that the court grant hïm the following power ^^ addition

to thé general jio^ ers conferred upon hirr^ by law and under the IndependéntAdministration al f ââ^^s Act: the power to terminate prïor transfers ^^f the decedent`scopyrigf^t(s) p^rsuunt to Section ^3(l4(e} of the Cnited States Copyright Act, 17 U.SC.,^30^(c)(2)^D), and ta maintain and defend ^^n behalf of the decedent and the estate allpr^ce^'^^^^^<_^.,^ n^cessar^ or ap^^ropriate in connection with this action.

EXHIBIT A 5


EXHIBIT 33 271


Yn the Matter of the Ostate of JC?SE^'Î HHUT^R, DecedentLos Angeles County, California, Superior Court -^- Central hJistríct

ATTACf3[MENT 2d{1}, ^{c} aná 3{d){1}, {2) ιι п εl {З)

I`â bond should be required of petitioner to act ^ ^ I ^: ^^ ^ c utor, or íf a bond ísrequired by the Court, it should be for á nominal amount, for tl^c Iollowing reasons.

L The first Warned Executor, Jean Adele T'• °; ^ vy, h u ^ ; í smed and fled aDeclirâtian to Act as Personal Represen^^^t^ve ánd Waive ul l,ond of Mark WarrenPeary as Personal Representative. Jean Ade1c Peavy, who is the sister of the decedent, isalso the sole benefïcíary under the dec^^tc^t's Wíll and the sole heir aí law of thedecedent's estate under the laws of intestacy.

2. Petitioner ís the alternate named )^;s^^^cutor under the decedent's Wi11, andthe decedent's Will waives bond.

3. Petitioner, who is the son of lean Adele Peavy, is the nephew of thedecedent.

4. A probate proceeding with respect to the decedent's estate would beunnecessary but for the fact that a personal represéntative of his estate needs to beappointed for tlê purpose of terrnínati^g prior transfers raf the decedent`s copyright(s)pursuant to Section ,^304(c) of the United States Copyright net, I7 U.S.C. ^304(c)(2)(I^).This right of the personal representative of the décedent's estate to terminate priortransfers of the decedent's c^pyríght{s) was enacted into federal law as part of the SonnyBoni Copyright Act effective October 21, 1998. The purpose of such new law, enactedaver six years after the decedent's death, ^^ to give authors and théír estates tlê power torecover previously assigned capyńghts within time lïmíts dél^neated in the stat^^te.

5. All assets of the decedent, with the exception of the decedent's interest ínand to the e^^pyrights, which c^^rrently have an undetérmined válue, were of minimalvalue and transferred through a § 13101 affidavit by Jean Adele Peavy shortly after thedecedent's death on July 3 ^, 1992.

Dated: ^^^ ^ ^/ ^ ^^ , 2003

261503_1.doc

EXHIBIT A 6


EXHIBIT 33 272


^n the Matter of the l^;sta[e of,I^JSEPH SHUSTET^, DecedentLos Angeles County, Califurnia , Superior Court -Central Distrïct

ATTACHMENT 3e(2)(Zâst) Last Wíll and Testament

^ ^^^^û7ds ±^^^^ ^1^^^^^s,,ít^^ ^^t^ 1 ^,^ Will1 ί ^ c d^ cedent died more ^ l r ^ ^^ 10 yéars ago o ι3 July ^ ß, 1992. Petitioner

and athc^^ ^^û^^ly members have made a diligent and extensive search for the original Willexecuted by the decedent on June 28, 1988, but have been unable to find it. Petïtïonerhas only found a copy of such Wï11, which he is sub^xîtting for probate as the decedent'slost Will. Petítïon^;r believes that the o^ïginal of such Will has been lost or inadvertentlydéstroyed. There would be no reason for the decedent to háve revoked such Wi11 bydestroying it, because the terms of the Will replicate the result íf the decedent died

intestate. Under both the Wí11 and the 1a^vs on intestacy, petitioner's mother, Jean AdelePeavy, who is the decedent's sister and sole surviving heir at law, would be the solebeneficiary of the decedent's estate and, but for her declïnátïon to act, would be entitled tobe appointed personal representative. Furthér, under both the decedent's 1äi11 and thelaws of intestacy, by reason of the declïnatïons to act that háve been isled concurrentlywith this petition, petitioner is entitled to be appointed personal representative.

The decedent never married and never had any ïssue.

261503 1.doc

EXHIBIT A 7


EXHIBIT 33 273


тн^

Dat

sd

EXHIBIT A 8


EXHIBIT 33 274


IÂIOW A1L I'EI250N^ BY T^-iEÊ PRESIa^+ITS;

That, ^ JCIEPH SHUSTER

of ^ Gl . h_o_^, , ^ ι:^^_2es, â1^.êr^^зз.a ^F .being of sound and dispös^ng mind and memory, and nöt acting under duress, menace, fra^.ic^ or theundue influence of any peson whömsoever, dö make, publish and declare this my Last Wí11 andTestament. ^ '

I.

I herei^y declare that I am the brother of JEAN^F PF:AV`^

at the time of the execu#ïan of this Will.

IL

I make ô bequest , gift or devise tØ my children named in Paragráph I, or to any other child o^^híldrén hereafter born to or adopted by me, except as hereïnafter stated, knowing their

Î^^ will provide for them. ,- '(mother, or fuihe^

it

I hereby direct aid order that all just debts for which proper claims are filed against my estàte,and the expenses of my last illness and funeral, be paid by my execut ri X as soon after my deathas ís practicable; provided, however, that this direction shall not authorize any creditor t'o requirepayment of any debt or obligation prior to its normal maturity ín due course.

I V.

I give, devise and ^^queath unto JEAN A.ÊZF L'FAVY all of the rest, residue and

remainder of my estate, whether real o^ personal, aid wheresoever situated. In the event that

Jean Adele Peary shall predecease me, or ^^ the event that both

Jean Adele Peay and I shall die as a result of a common accident, illness or

disaster, then I give, devise and bequeath the residue and remainder of my estate to my nephe^^, (:

^!IARK WARREN PEARY `. 1•

V.

I hëreby nominate and appoint my s.^ ^1:Rr ^' Jean. Adele Peaty- ,

exec^^t^'í ^ of this my Last Wí11 and Tesia ττleп t, tó aFt withoùt ^árid . 'n the. event that my

sifter , , is,fór: any reason:unable,or unwíliiiig to aci as executr.:^_x__hereof, I nominate

and ; ppoint ''^ Mark Warren Peá^^y ^^ ^ ^ to act as

execul^r _. also without h^_^.d. ι ^ ιι

EXHIBIT A 9


EXHIBIT 33 275


VÎ; `

her direct that my estate be settled wïthàut the intervention of any court , except ta theextent requireel by law, and thàt my execut.^..ï^._ settle my estate ïn such a mánner as shall seem

best aid mast canvenïently to ^_..^,.and I hereby empower my executrí.,κ__ to rrârtgage, leasesell, exchangé and Canvey the pe^sanal áñd real property of my estate without an order of courtfir that purpose and wíthout natïce, approval a^ confïrr^ïatïon aid ïn all other respects to admínï-ster and settle my estate wïthaut the intervention of court..

. ? τ ^ τ

EXHIBIT A 10


EXHIBIT 33 276


Vil. ^^ _ _ ^ ^ 'xI hé:г^6y revoké any anç ί ^^l fάrmer Wí1ls and Codícils thereto пYade by me and declare this my

In Witness Wher^^^^f I have hereunto set my hand this __`^`^ ^ day af

Z.ast ^^lrll and 1 ^^°;1 ^^^ênt^

ι:.

^TAT)^ C7F CALÎF ί1RNIA; ",

Cau п ty a

Each of tt-h-e^ undersigned, being first duly sworn on ^âth, states that on this ^ day af

(1}lam over the age of eighteen (18} years and competent to be a Witness to the Wíl1 of

JOSEPH SH^JSTER • ' ' (the Testaïo^.._);

(Z} The Testatc^^ , in my presence aпd in the presence of the other Witnesses whose signaturesappear below:

(a) Declared the foregoing instrument cansístï^g of nn^^ pages, of which this ís the lastto be hip Wí11;

(b) Requested me and the other Wítêsses ta aci as Witnesses to h i^ Will aпd to makethïs affidavit, aпd

(c) Sïgêd such i^sirume^t;

(3) I believe the Testat ^r to be of sound mind, and that ín so declaring a пd signing, hPwas not acting under anÿ duress, me^^äê,-frond; o^^ undue ïnfluence;- -

(4} The other witnesses aпd I, í^ the presence of t`he Testat ^r aпd af each other now affixour signatures as Witnesses tó thé Will and make thí,a affídav^tt: -

Wit-τ гss ^ ^W't

^^ т ц C^Ù2f`^t,^^-^ μ ^ ^è.. ^^ c.i υ ^ f^-^ ^7°^À^^.^ ^ (1Add^ssл

^ t^- Ø^ Âdd^ r sse 1 ^

ff ^ ςς t^λ г ^f' Гt-^ '^ λt C c ^b rt i,.ι t :6 ?^ δÚ^¡r ς

ι ιι з i11t ε I ιι.ι; г ^; ι t ι.ι . .,1 , . .1.ι; г ,τ.r,-li _.. . .. ^¡ t ιι

Witness

Address

лrплsaètвл+ro^F ι+v ιaι sεaι _.

F. PATRICI{ HAGERTYNOTARY PUBLIC-CAUFORNIA

PR1N1ClP0.4 OFFtC Σ; îN • - ^

LO5 ANGELES COUNTY

mission Expíres Apríi 23, I99лв+s++

:.^, ^ ..,.

i1ιι

EXHIBIT A 11


EXHIBIT 33 277


Ín t1 ► c цlatter of the ]^' ц tate ι Σ etti l^.i'l1 S^^TER, Deeedent][^,πs Λ ► ,êlcs County> CaCïfornia, Sup ε^ г íαr Cεз ιxrt - Central DíStrïct

1TT^1C11;î1{;.Λ T ^^ ^l^π nreî гê ►^гt π1' ('alifπ r п i^ι υ n λ 1 'er пι anerιt Addre55

I, Mar^ Warren PØary, the prupυsc ι ^, ιι ^^^-, ι ^ ι ^ ι1 rcpгcêntative, am a noп-resideпt ofCalïfarnia. f resïde ín the State af New ^lcxica at the 1u11awínØ resideпce address:

51 Camino CaboSanta Vie, NM 8750$

I hereby ca^sent to act as the personal representative af the estate af my uncle,Joseph Shuster.

Dated^ _...ì ^ т 1: Ч' (^,`^ , 2003

261503_1.doc

EXHIBIT A 12


EXHIBIT 33 278


In the ^^latter of the Estate of JOSEP^I SHUSTEi2 , DecedentLos 1rt;.;clc,^ County, California , Superior Court -Central District

ATTACHIØNT 8

The failawing ïs á lïst af the names, relatïonshíps, ages , and addresses, s^ far ^^ knawn toar reasonably ascertainable by petitioner , af (1) all persons naØed in decedent's will andcodicils, whether lïving ar deceased , (2} all persons named ar checked ín items 2, 5, 6,and 7, and (3) all beneficïańes öf ^ Øvisee trust in whíeh the trustee and personal

}^rc,^ c ^^ ^ átive are the same persen:

Name and. Address ^Relationshii^

Mark Warren Peary51 Camino CahaSanta Fe, NM 87S0ß

Jean Adele Peavy^ I Camina Cal^öSanta Fe, NM 87508

Dawn L. Peavy11405 Lake NemiEl Pass, Texas 74936

Petitiöner^Nephew

Sister

Níece

^

Adult

Adult

Adult

гь ι saз_1.aoε

EXHIBIT A 13


EXHIBIT 33 279


1

JJ

_<tüØгHz

2

З

4

5

6

7

3

9

10

11

12

aб ^^^Г^ш ^

^^_.^,^„ma ε-=d^ 13

^^^^ φâ И °^ 14ιu ^

^ ΰ ^^zш ^^ ^ 15o-g° ώ áY Q^-^ ^C J

Z W tW-

° ^z 16© od^ ^ uι^s ^ -'0 17

18

19

20

21

22

23

24

-;25

^^^2б

_>; 27

^^ 28

RODI. P ΠI I OC`T^, T'ÉTTKÉR, GALBRЛITΣ-I& C; ι 1 Э I1. F.. A L^ ι ιч CorporationJOI 1 г^ 1). 1' 1â ^ 1^111 ^ 1^(S$N 42346)444 ô ιιι l ι 1 ^lu ιτ cι 5 treet, Suite 1700Los ,1 n^^ ι:1 c;, California 9007 ^-2901Telephc>п c: (2^3) 895-4900Pacsimi 1 ^ ^{21 ^ ) 395-4921

Attorneys for MARK. WARREN PËARY

SUPERIOR COURT OF THE STATE OF CALIFORhÎA

F'OR THE COÚNTŸ OF LOS ANCÉI_ÊS, CENTRAL

In re the Matter of the Estate of

JOSEPH SHUSTER, also known asJOE S Σ-IUSTER

Decedent.

CASÉ NO. ^^

DECLINATIÓN TC} ACT AS PERSC}NALREPRESENTATIVE AN^J WAIVER OF BONDOF MARK. WARREN PEAKY AS PERSONALRÉPRESENTATNE

I, JEAN ADELE PEAVY, state as follows

1. I am the only sibling of the decedent, JOSEPH SHUSTÉR. The decedent"s and my

parents are both deceased, having predeceased the decedent. I have two children, both of whom

survived the decedent. They are Marlc Warren Peary and Dawn L. Peavy.

2. I am the sole beneficiary under the decedent's Vt'ill dated June 28, 1988, and am

nominated to act as Executor under such Wí11.

3. I hereby decline to serve as personal representative of the decedent's estate, whether

as Executor of the decedent's Wí11 or Administrator of his estate.

4. I hereby waive the requirement of a bond by Mark Warren Peary, whether acting as

DECLINATIQN TO ACT AS PERSQNAL R^PRESENÂTIVE AND WAIVER OF SOND OF ^L42K VÂRREN PEØY AS PERSONALREPRESENTATIVE

EXHIBIT A 14


EXHIBIT 33 280


1

2

3

6

7

8

9

10

áo ..

^ °°Ø ^" 12^ ^^

y б б

^и

^ mZ

Φ^tλh.1"YÑ

^^^^ м^° ;°_^- 14ш rv,

^ó^-' ίιίή ü ^ Ú Z

Ш ô ° 15^-^.^ Ш á

Y 4 Ш J Û yWtW-

° ^z 1^; á¢Δ ^ó

170^

1û

19

20

21

22

23

261 з04 1.doc

rat`s ^^%i11 ór λdn1ίnistratór πf his éslate.

2llECL1NATÍON TO ACT AS PERSONAL REPRESENTATIVE AND WAIVER OF BOND OF MARK WØREN PEØY AS PERSONAL

REPRESENTATIVE

EXHIBIT A 15


EXHIBIT 33 281


1

= oû ^^Ø WN^ ^^^ Ф

и °^ ^, ,m^ Ш Q й 1 з^^^^Ø^ Δ. И 4N 14^4^^ ιϋ

w^û^ 15Δ. ¢^ Й d

Y 4u`-^ Û 2 Шή

^ ^2 1^^ OdςL ^ cЛ

p' ^ ^ 170^

18

RODI, POLLOCI^ _ PE"1 TKER, GALBRAITΣI& CAHILL, A Law CorporationJOI-IN D. PE^`1^ K 1^:1: f^ BN 42З4б^444 Sвuth flвwer Strc ι t, Suite 1700Los t^ιι rrclc;. Ca1Îiзrτз ^ ιι 90071 -?901Te1e^>h ι ^nc: Γ213) 895 -4900I^^tc^,i ι nilc: (? 1 >} 895-4921

3

4

Att^rlê^s lì^r MARK WARREN PEARY5

6

7

SliPERIOR COURT OF THÉ NATE OF CALIFORNIA8

FOR THE COUNTY OF LOS ANGELES, CENTRAL9

10

11

12In re the Matter ^f the Estate of

JOSEPH SI-ILTSTER^ also known asJOE SI-TUSTEK

Decedent.

CASE NO.

NOMINATION OF PERSONAL REPRESENTATIVE,DECLINATION TO ACT, AND WAKER OP BONDOF MARK WARREN PEARY

I, DAWN L, PEARY, state and declare as follows:

1. I am the niece of JOSEPH SHUSTER (the "decedent"), the decedent named herein,

being the daughter ^f the decedent's sister, Jean Adele Peavy. My brother ís Mark Warren Peary.

2. If the decedent's Will ís not admitted to probate and an Executor thereof ís not

appointed and íf my mother, Jean Adele Peavy, declines to act as personal representative of the

decedent's estate, I am a person entitled to equal priority for appointment as the personal

representative of the decedent's estate with my brother, MARK WARREN PEARY.

19

20

21

22

23

24

25

^. If for any reason MARK WAØN PEARY is not appointed by the Court as

Executor of the decedent's Will, I hereby nominate MARK WARREN PEØY of Albuquerque,

New Mexico, to serve as the personal representative of the decedent's estate without the

1NOMINATION OF PERSONAL REPRESENTATIVE, DECLINATION TO ACT, AND WAÍVER OF BOND OF MARK WØREN PEARY

EXHIBIT A 16


EXHIBIT 33 282


l

d4 ^h ^^ ^

J

_4

^

Ø

_~ ^ O p

Z Иaι m ^^^ ^ v

mö^jQui

¢¢ m

^^YÇC^^o ι-o^ Ï4ώ ^^^^

Y O^-^úi

réquiremént of any bond, pursuant to the authority provided tó mé under Sections 841 and 845

of thé California ^'robate Cade, and I décline tc^ act as such pérsonal représentat^vé.

4: My intent in mating thïs nomination is t^^ ensure thé appointment of a person that I

trust ta serve as thé personal representative of nay ui^ ^^ l ^^ ^ ^; ^::; [ate,

I declare undér penalty of perjury undér the laws of the State of Caüforr^ia, that the

foregoing is true and correct.

3

4

S

7

8

9

10

l 1

l 2

υ ^;ε z

1&

l 5

19

2Q

21

22

Executéd on

26I505_Ldoc

23

24

=25

::- 2б

'^ 27^

^ 28

, 2QO^, in Él Paso, Téxas.

2ÑOMINATION OF PERSONAL REPRESENTATIVE, DECLINATION TO ACT, AND WAIVER OF BOND OF MØK WARREN PEAKY

EXHIBIT A 17


EXHIBIT 33 283


EXHIBIT 34


1

г ^^^ φo _

Ш' 0. И (yrvW ^

^ Ú ^ ^ Zώ ^^U^α- α a гń á

шŸ ^ ^ J W

u τ Ш ^

з4

5

б

7

8

9

10

11

12

1 З

14

1S

F^ " 16^ Ф id ии

7 ^^ 7 -^ ^ ^^^

19

20

21

22

23

'`24

_25

д 26

27

28

RODT , POLLOCT^, PETTKER, GALI3RAITH& CANIT:L, h. Ì.aw CorporationJOHN ^. l'ETT1^ 1áR (SBN 42346)444 South Flower Street, Sete 1760Las Angeles, CA 90ßl ^ -29ß ^Telephone: 213-895-49ßßFacsimile: 21 3-895-4 7Sß

Attorneys far MARK. W^ØEN PEÁRY,Petitíaner

SUPERIOR COURT OF TAE STATE OF CALIFO A

FOR THE COUNTY OF LOS ANGELES

In the Matter of the Estate of

JOSEPH SHUSTER, also known as JOESHUSTER,

Deceased.

NO. BP-080635

ORDER ADMITTING WILL TOPROBATE, APPOINTING EXECUTORAND AUTHORIZING INDEPENDENTADMINISTØTION OF ESTATE WITHLIMITED AUTHORITY

Hearing Date : 8-25-03Dept. 5 at 9:15 a.m.

Petitfoner, MARK WARRÉN PERRY, filed his petitfon far probate of will and for letters

testamentary and for autharizatïon to administer estate under the Independent Administration of

Estates Act with limited autharíty of the estate of Jasøph Shuster, also known as Joe Shuster,

deceased (the "decedent"), and such petitfan came on regularly for hearing and approval by the

Court at 9:15 a.m. on August 25, 20ß3, in Department 5 of the above-entitled Court, the

Honorable H. RONALD HAUPTMAN, Judge Pro Tem presiding. JOHN D. PETTKER of Rodi,

Pollock, Pettker, Galbraith & Cahill, A Law Corporation, appeared as the attorney for petitfaner,

and no ane appeared in opposition.

On evidence given to the satisfaction of the Court, THE COURT FINDS THAT:

1. All notices required by law have been given.

ORDER ADMITTING WILL TO PROBATE , APPOINTING EXECUTOR AND AÚTHORIZING IAEA W^I'H LØITED AUTHORITY

EXHIBIT B 18


EXHIBIT 34 284


1 2.

af Calif^rnía.

The d^^t^cîeâ ^1íed an July 30, 1992, a resident ©f the County ^f Las Angeles, State

3 3. The decedent died testate , leaving a will dated June 28, 198$. This will has never

4 b^^^^^ r^;voked but was last ar inadvertently destroyed . Such wí11 is adrnítted to probate by Minute^°'

5 C)rder on August 2^, 2003, as the decedent's last Will, and its pr^vísions are as follows:

^ LAST WILT:., AND TESTAMENT OF

7 KNC}W ALL PERSENS BY TÎESE PRESENTS:

$ I

9 That, I JØSEPH SI -ILTSTER, af W. Las Angeles, California, being of sound and disposing mind

IO and mern^^^ y, and not acting under duress , menace , fraud or the undue influence of any person

^^ whomsoever , do make , publish and declare this my Last Will and Testament.^ б^` GзШ " I2

^ ^ ^-a ^ ó ;^z^^vm^â и^^ ιu-^,,^ шг ®^^^ó:"_^^ ИШ ^^^^;

I3

4

I heréby declare that I am the brother of JEAN ADELE PEAVY at the time of the

xeeutían of ttιis Wi11.

'^^s"°=^^^ И ^^Ш

15 IlУ ¢ ^-J.. .ι

° ^`^^ 16 gift or devise to my children named in Paragraph I, or to any otherI make no bequest; ©^

,^ ^^ ^. ^^° 17 child ar children hereafter born to or adopted by me, except as hereinafter stated, knowing their^

18 N!A will provide far them.

19 I^

20 I hereby direct and order that all just debts for which proper claims are filed against my

21 estate, and the expenses of my last illness and funeral, be paid by my executrix as soon after my

22 death as ís practicable; provided, however, that this direction shall not auth^ ńze any creditor to

23 require pa^rnent ^f any debt ^r obligation prior to its normal maturity ín due course.

2 N

25 I give devise and bequeath unto JEAN ADELE PEAVY all ^f the rest, residue and

^26 remainder of my estate, whether real or personal, and wheresoever situated. I^^ the event that Jean

27 Adele Peavy shall predecease me, or in the event that both Jean Adele Peavy and I shall die as a

28 / / /

2ORDER ADMITTING WILL TO PROBATE, APPOINTING EXECUTOR AND AUTHORIZING IAEA WITH L^vIITED AUTHORITY

EXHIBIT B 19


EXHIBIT 34 285


1

3

4

^

б

7

8

9

10

11^ ®(^ á O

Ø `^ " 12^ ^w

^^®^^ и°°m^ ώ <ε ^ 1 З

'^ кшг m

ω ^"'^^^ `"^^!^^ ωω? ^^^^^a и n

I4

5^ d^-_!

á ^^ 1^á °^^ и ^

^ó^^ ^^ 170^

18

19

2fl

21

22

23

"24^ ;^^ ^á;^:,,^25

^i;,'; ;26

27

28

result of a common accident , illness or disaster, then I give, devise and bequeath the residue ánd

remainder ofmy estate to my nephew , MA.RI^ WAl2.rE2EN PEØY.

V

I hereby nominate and appoint my sister, Jean Adele Peavy, executrix ofthis my Last Wí11

and Testament, to act without bond. In the event that my sister ïs for any reason. unablé or

unwilling to act as executrix here^^ I nominate and appoint Mark Warren Peary to act as executor,

also without bond.

VI

I further direct that my estate be settléd without the intervention of any court, except to the

extent re^luíred by law, and that my executrix settlé my estate in such a manner as shall seem best

and most conveniently to her, and I hereby empower my executrix t^ mortgage, lease, sell,

exchange and convey the personal and real property of my estate without an order of court for that

purpose and without notice, approval or confirmation and in all other respects to administer and

settle my estate without the intervention of court.

VII

I hereby revoke any and all former Wills and Codicils thereto made by me and declare this

my Last Wíli and Testament.

Ire Witness Whereof I have hereunto set my hand this 28^ day Of June, 1988.

JOSEPH SHUSTERTestator

STATE OF CALIFORhIIA) ss.

COUNTY OF LOS ANGELES }

Each of the undersigned, being first duly sworn on oath, states that on this 28t" day of June,

1988:

(1} I am over the age of eighteen (18} yearsand competent to be a Witness to the Wí11

of JOSEPH SHUSTER (the Testator};

(2} The Testator, in my presence and ín the presence af the other Witnesses whose

signatures appear below:

3ORDER ADMITTING WILL TO PROBATE, APPOINTING EXECUTOR AND AUTHORIZING IA EA WI`^H LLдΛITED AUTHORITY

EXHIBIT B 20


EXHIBIT 34 286


1

s ^ ήз ^и °

2

3

4

5

6

7

8

9

10

11

12

φ ^ μ4 ^°' °' 13^^ Ш _¢WzШ °^° _^ 14_O ^ ^«,

^^á^r 15^- J J ^ ^.χ 4 ^ J J

ó ^ú^ 16^ ó τ^ иИ

^ ^,^ ^ -^ 170

18

19

20

21

22

23

°24

25

^26

27

28

ι

Dc^^?^^^c^l i1^e foregoing insin^ment co^^;ïsti^^g ofone pages, ofwhich this is the

last to be his

(b) Requested me and the other Witnesses ta act as Witnesses to his Wí11 and to

make this affidavit, and

(c) Signed such instrument;

(3) I believe the Testator to be of sound ^nínd, and that in so declaring and signing, he

was not acting under any duress, menace, fraud, or undue influence;

(4) The other witnesses and I, in the presence of the Testator and of each other now

affix our signatures as Witnesses ta the Wïll and make this affidavit.

Tom Fenaughty Robert Williams

3374 C7verland Ave., #1 3545 Mentone Ave. #3

Los Angeles, CA 90064 Los Angeles, California 90034

SÜBSCRIBED & SWORN to before me this 28t" day of June, l98$.

[NOT.AR7AT. SEAL]F. PATRICK HAGERTYNotary Public ín and far the State of California,residing at Santa Monica, Calíi

THE COURT ORDERS^-

1. MARK WARREN PEAKY is appointed Executor af the decedent's Will recited

above, and letters testamentary shall issue on qualification...^

2. The Executor is granted limited authority to administer the estate under the

Independent Administration of Estates Act (there ís no authority, without court supervision, to (1)

sell or exchange real property or (2) grant an option to purchase real property or (^) borrow money

with the loan secured by an encumbrance upon real property).

3. The EXecutor ís also granted the following special power ín addition to the general

powers conferred upon him by law and under the Independent Administration af Estates Act:

The power to terminate prior transfers of the decedent's copyright(s) pursuant ta Section §304(d)

of the United States Copyright Act, 17 U.S.C. §304(d), inca^porating without limitation 17 U.S.C.

§304(c)(2)(D), and to maintain and defend on behalf of the decedent and the estate all proceedings

necessary or appropriate ín connection with this action.

4aRllER ADMITTING WILL `^O PROBATE, APPOINTING EXECUTOR AND AUTHORIZING IAEA WITH LIMITED AUTHORITY

EXHIBIT B 21


EXHIBIT 34 287


1 4. BOпd ís Γ ^; c ιt a

Øáted:

з

5

б

7

9

18

19

?a

21

22

23

`24

°;25

x г5

27

гв

Judge Pra Tem of the Superfor ^OUrt

264438_1.doc

^

^s,aoa.ao.

N. ^t{^NALD HAiîPT Γt4^Al,

JUDGE PSC} TEM

5ORDER ADMITTING WILL TO PROBATE, APPOINTING EXECUTOR AND AUTHORIZING IAEA WITH LIMITED AUTHORITY

EXHIBIT B 22


EXHIBIT 34 288


EXHIBIT 35


;(}FdYATT.RNEY oR P^rrv wmrcw enoilffii. . b@

loPJ;_3gLLOCtr, PET?KER, cAr,BRArrH

t iEioner

!_-qlryL.L, A raw CorporaEroHN D. pErrKER rseir aiJaij-_444 SouElr Flower.StreeE,

-S,r i t " fZOOLos Angetes, cal i fo in iJ ' godi i_2901

rE lEp l to i rErK! . : 213-g9S-4900 Fo(M, . fop ,ba . r } 213-895_4921 faxE-UAlt AOORESS ( Ogtryl.lt :

DE-147FAR COURT USE ONLY

$UPHHi#l; r;iil:'i r0ci I 2083

oRlclhlp,[. Fi!=F#

You must manage lhe estate assets *91h" care of a prudent ?e.Fo,l dearing with someone else,s property. Thismeans that you must ba cautious and may not make i'iv rp"*r"tive investments.

b. Keep estate assets separateYou must keep the Tgne.y and propefi! tris estate separate lloT ?Irvolg else,s,.inctudlng your own. when youopen a bank account for ihe esiate, thi account name niust indicate thliiii, *

"Jtute .account and not your personalaccount' Never deposit estate trnds in your personal account or otremriie-mi*'tiir with your or anyone else.si[3:8:

sectrities In thb estate must aiso d ilH il;;# that shows rhey are estare properry and nor your personal

c' lnteresttearrng accounts ani other rnvestmentstrxcept tor checking accounts intended for 9rd!na1y administration expenses, estiate accounts must eam interest. youil:il'ff:0fi:r?,fl: $iffJ:#:"tiaccounts in nriancrai in-"trtuuonJ.-uuild fi;[ consurt witr an atiomey before

d. Other reit iaionsThere are many otPt-1:^tbig,9ns on Siur authority to dealwith estate qropep. you shoutd not spend dny of the restate's money unless you have receveo p"-ir"i"n t'Jr ne cou.t or-have b-een advised to do so by an attomey.You nay reimburse yourself for offieiai court costs paio ui vou t9 the county aJ[ ano ror the premt,:n on your bond.without prior order of the court, )d;;i nol Ray re""s to-voiiself or io your attomey, if 1ou have one. rf you do notobtaln the court's permission wtrln it is iequireo, y"u;;ii;iemoyeg as peronal'rpresontative or you may berequired to reimburse-the,estate.fot voyt own personal-funds, or both. you srrouto consult with an ittomeyconcemtng the lesatresutrements affectins,"1"r, r""r&:;;'g"g;;;;il;;;;;ts of esrele property.

a. Prudent Investments1. MANAGTNG THE ESTATE'S ASSETS

Locate thc estate,s property 2' INVENTORY OF ESTATE PROPERTY

vou must ailempt to loeate and take possession of alt the decedent's property to be administered in the estate.Datermfne lhe value of the propertyYou must atrange to navC-a-co[rt-iilpointeo referee determine he value of the property unless the appointment isyfl)'gr?rhffiu1hl,ihtf,?] ttraiihe'rerete", rlrt arid#ine ttre vafue or ceftain "cish items.' eriltto, ey can

fiillnly"1loJy an-! a ppratsaftlnln tour months after Letters are first iss.ugd t9 v,ou as personal representative, you must file with the court aninventory and appraisat of aiihei".iti'i,iin" estate.

rr rsPrttse'rreruve' you t ^J

m Adoflcd tor Msndabfy l.EaudrcEt Coundl of CCtbrnb:-147 lRa/. J.nusry t,2OO4

DUTIES AND LIABILITIES OF PERSONAL REPRESENTATMEG'(probare) S"EB

supERroR couRT oF cALrFoRNrl counrv offisrREEr^loRE$* 111 North HiIl StreeEMATUNG^DoRESs: 111 North Hill SEreet

crr!^NozpcoDe Los Ange1es, CA 900L2

ESTATE OF (Neme):- U.]OE SHUSTER

DUTIES AI.TD LIABILITTES OF PERSONAL REPRESENTATIVEand Acknowledgment of Receipt

CISENUMAER

8 P 0 8 0 5 3 5

EXHIBIT

+a

EXHIBIT C 23


EXHIBIT 35 289


ESTATEOF(Nane): qggElH s- ..JTER, also knoh,n asJOE SI{USTER

d. File a change of ownershipAl tha time you fil" !: inventory and appraisal, 1ou must also file a change of ownership stratement with the countyrecorder or assessor in each county whlre the iecedent owred reaf proptrty a1-ine rme of death, as provided insection 480 0f he canfomia Revenue and raxation coae.'-

You must maita notice or administration to.J;ht3.*t:rJ.?,":*?J:3nnt within rour months aner your appointmenras personal representatlve- lf the decedent received Medi€al aJrt-;;, 1ou rr.in"trrv the state Director of HealthServices within 90 dap after appolntment.

4. INSURANCEYou should determine that there.isappropriate bnd adequate insurance covering the assets and risks of the estate.Maintain the insurance in force Ouring tfri entire perioJdin"

"Otinistration.

'evrg s' 'v ' re^- v' r's

a. Keep accounts 5. RECORD KEEPINGYou must keep complete and accurate records of each financlal transacilon affecting the estate. you will have toprepare an account of^all money.and property you hare received, what you tTavilfent, and the date of.eachlransaction. You must describe in detail utrai you ha;; i;ft;ft;ih;;;y,r.,;nfoi"ip"n".r.

b. Gourt reviewYour account will be reviewed by the court.. save your receipts because the court may ask to review them. lf you do notfile your accounts as required, the court witl oraer pu to ;;!;. you may be removed as personal representauve if youfai l to comply.

vL rv"rv' ' |

rf vou have an atromev,l:i:l1ylg "*oi;,:;qil:rlt#lis"fr 3ilLtS:fJ, and your attomey are responsibre forcompleting the estate administration as promp0y as possible. wrren In doubt, contact your attomey.

1 .

2. - t v . )

P::j:1j:,f:{:"1 v9"'duties "'

to '"""t t;;;;ffi;tie court may reduce yourI:,::.":li:1::I:::1111:p'."entative ls sov"in;J uv1n" taw itsetf and not by this summary.

1 .

2.

ACKNOWLEDGMENT OF RECEIPTI have petitioned the court to be appointed as a personar representative.Myaddressandtelephonenumber are(specify).: 51 camino cabo, santa Fe, New Mexico 8750g

, . , , . Te lephone: 50S_4G6_455L

I acknowledge that I have received a copy of this statement of the duties and liabitities of the office of personalrepresentative.

Date: September f,.!}., 2OO3

[N?E OR PRINT NAME}

Date:

3.

rrYPE OR PRINT NAME)

\D7

GoNFIDENnAL INFoRMATIoN: lf requlred to do so by local court rule, l,ou must provtde your date of birth and driver.sllcense number on supprementar Form DE-r47s. (pro6. c;e;siiio+tri.i

DUTIES AND LTABILITIES OF PERSONAL REPRESENTATIVE(Probate)

DE-l.7 lRer. Jrnu.ry 1,200e

107

EXHIBIT C 24


EXHIBIT 35 290


EXHIBIT 36


Plcnrc Prcrunrs ConroRATroN23852 Pacific Coast Highwan Suite 555

Malibu, CA 90265Tel: (310) 5895151Fax: (310) S89-S1S2

October 27,2W3

Mark Warren Peary (tlklaMark Warren Peavy)ExecutorEstate of loseph Shuster51 Camino Cabo,Sante Fe, New Mexico 87508

Dear Warren:

We are pleased to welcome you ("Client") as a client of Pacific Pictures Corp.("PPC"). This letter is intended to supplement the joint venture agreement dated as ofNovember 23,2001between PPC and you and your mother, Jean Peavy, and to confirmthe agreement regarding your engagement of our company as the Executor of the recentlyprobated Estate of Joseph Shuster.

1. Client hereby engages PPC as its exclusive advisor for the purpose ofretrieving, enforcing and exploiting all of Joe Shuster's, and his estate's rights, claims,copyrights, property, title and interests in and to Joe Shuster's creations (hereinafter, suchrights, property and claims, are individually and collectively referred to as the "Rights,).The Rights shall include without limitation, all current and future rights, claims, title,copyrights and interests of Client in and to each character, story element, and indiciaassociated with, and all rights to proceeds from "SUPERMAN," or the "SIIPERMAN"stories and comic books, including, without limitation, Client's copynght terminationinterest in "SUPERMANI' pursuant to section 304(d) of the u.s. Copyright Iaw.

2. In furtherance of this exclusive agreement, PPC (which is not a law firm)shall engage the services of attorney Marc Toberoff ("Toberoff') to furnish directly toClient all legal services required by Client in connection with the Rights, including inconnection with all legal disputes, litigation, arbitratjon and/or mediation regarding theRights; to impiement, enforce and prosecute the Rights; and to handle ihe negctiation ofany contracts regarding exploitation of the Rights. PPC may engage additional outsidecounsel to assist Client, but only at ppC,s sole expense.

3. PPC has paid and will continue to pay any and all costs and expensesincurred by it in connection with this agreement, including the legal fees and Costs ofsetting up Joseph Shuster's Estate, U.S. copyright oifice costs such as document rEtrievalcosts and filing fees, research costs, and any and all attomeys' fees, costs anddisbursements in connection with any legal actions or disputes concerning the

Initials: 4-,1a2ld

125

EXHIBIT 36 291


Pacrnc Prcrunps ConpourroNPage2Estate of Joseph ShusterOctober 27,2003

enforcement and/or defense of the Rights and the Estate of Joseph Shuster. In addition toattorneys' fees, PPC will be responsible for the payment of any legal filing fees, expertwitness fees, subpoena and service ofprocess fees,jury fees, deposition transcriptcosts,photocopying, postage, long distance telephone and fax charges, computerized legalresearch, reporter's fees, costs for preparation of exhibits and demonstrative evidence,travel costs outside of the l.os Angeles area if required, and messenger fees. Any and allattorneys' fees payable on a contingency basis will be paid solely out of PPC's share ofProceeds set forth in paragraph 5 below.

4. The terms of any and all agreements regarding any of the Rights, in anyrespect, shall be subject to the express written approval of Client and PPC. The partieseach warrant and represent that after signing this Agreement they will not without theexpress written consent of all the parties transfer, limit or encumber the Rights in anyrespect.

5. Any and all moneys and proceeds, irr cash or in kind, received from theenforcement, settlement or exploitation of any of the Rights, including without limitation,fixed and contingent compensation, settlement or judgment amounts, purchase prices,option or quitclaim fees, and/or royalties (" Proceeds"), will be shared, divided andpayable: fifty percent 6A7o) to Client and fifty percent (50Vo) to PPC. Prior ro the abovedistribution of Proceeds, PPC will be entitled to recoup all of its out-of-pocket expensesunder this Agreement subject to the presentation to Client of a reasonable accounting andreceipts for said expenses. The parties hereby acknowledge and agree that the duepayment to and receipt by Client of hoceeds hereunder shall constitute the due receipt ofProceeds by Jean P"ffy and Warren Pefi,respectively, pursuant to paragraph 5 of theJoint Venture Agreement, in full satisfaction of PPC's obligations under said paragraph.

6. All notices, conespondence and payments to each party under thisAgreement shall be sent to the respective addresses set forth on page I of this Agreementunless either party notifies the other of an address change in writing.

7. The term ("Term") of this agreement shail extend for the full duration ofthe Rights and any exploitation of the Rights. Upon the expiration of the Term or in thee','ent of termination by Client of this agreement for any r€rillor; all Rights will be heldfifty percsnt (50%) by the Client and fifty percent (507o) by PPC as tenants in eommon,anC Client and PPC will each be entitled to receive and continue to receive fifty percent(50Vo) of all Proceeds derived from the Rights after termination, if any.

Initiats: "r.'lw/

126

EXHIBIT 36 292


Pacnryc PrcrunBs ConroRATroNPage 3Estate of Joseph ShusterOctober 27,2003

8. To cover the unlikely event that Marc Toberoff dies or is disabled; PPCwill prior to service of any notice of termination regarding the Rights (pursuant to Section304 (d) of the U.S' Copyright Law) either (a) anange for a suitable repiacement attorneyexperienced in copyright litigation and willing to enforce the Rights on solely acontingent fee basis; or (b) if no such replacement attorney is arranged to obtain .,keyman" insurance for Mr. Toberoff in the amount of $150,000 payabli solely to Client.

g, All parties agree to execute such further documents and to perform suchfurther acts as may be reasonably necessary or desirable to carry out the purposes andeffect of this Agreement. When required hereunder, consent shall not be unreasonablywithheld by any party regarding actions conducted under this agreement.

10. This Agreement contains the full understanding of the parties andsupersedes all prior or contemporaneous understandings whether written or oral withrespect to the subject matter hereof and may not be modified except in writing signed bythe party to be bound. By countersigning this Agreement the partiis each ackiowledge

-

that they clearly understand the terms and conditions of this Agreement; and have agreedto these terms and conditions after detailed and mature deliberation. The parties furtheracknowledge that they have not signed this Agreement in reliance on any promise orrepresentation not expressly set forth in this Agreement. The parties have mutuallyparticipated in the negotiation and drafting of this Agreement and agree that the terms ofthis Agreement shall not be constnred more favorably to one party than the other. If anyprovision of this Agreement is found to be unenforceable for any reason, the remaindershall be enforced as fully as possible and the unenforceable provisions shall be deemedmodified to the limited extent required to permit its enforcement in a manner most closelyrepresenting the intention of the parties expressed herein. This Agreement shall bind andinure to the benefit of the parties, their respective heirs, ru.rcsrots and assigns. Executedfacsimile copies of this Agreement shall be valid acceptable substitutes for ixecutedoriginals.

I l. This Agreement shall be govcrned by the laws of California applicable toagreements made anci to be performed therein.

If the terms and conditions of this agreement are acceptable to you, please

ututi i ti l l

Initials: '{,M

127

EXHIBIT 36 293


Plcmrc Prcrunns ConpoRATroNPage 4Estate of Joseph ShusterOctober 27,2W3

acknowledge your acceptance by signing below.

Approval of Engagement of pacific pictures Corp.

I have read the foregoing agreement and I agree to its terms.

The Estate of Joseph Shuster

Date: /a& --p_}-

I have read the foregoing agreement and agree to its terms to the extent any of myinterests are concerned.

Very truly yours,

/GMarc ToberoffPresident

Date: /O = 7o-o j

By: Mark Waren peary, E:(f/Ua Mark Warren peavy)

128

EXHIBIT 36 294


EXHIBIT 37


, NOTICE OF TERMINATION OF TRANSFERCOVERING EXTENDED COPYRIGHT RENEWAL TERM

OF "SUPERMAN''

To: Time Warner Inc,75 Rockefeller plazaNew York, Ny 10019Attn: Richard D. parsonsChief Executive Officer

Time WarnerEntertainment Company, L.p.75 Rockefeller plazaNew York, Ny 10019Attn: Barry M. MeyerChairman & C.E.O.

Warner Bros. Entertainment Inc.4000 Warner BoulevardBurbank, CA 91522Attn: John A. SchulmanV.P & General Counsel

Warner Bros. Inc.4000 Wamer BoulevardBurbank, CA 91S22Attn: John A. SchulmanV.P. & General Counsel

Warner Communications Inc.c/o Time Warner, Inc.75 Rockefeller plazaNew York, Ny 10019Attn: PaulT. CappuccioE.V.P. & Generaf Counsell,^,rarner B ros. Television4000 Warner BoulevardBurbank, CA 91S22Attn: Peter Roth, president

Warner Music Group75 Rockefeller pfazaNew York, Ny 10019Attn: Roger AmesChairman & C.E.O.

Warner Bros. WorldwideConsumer Products4000 Warner BoulevardBurbank, CA 91S22Attn: Dan Romanelli, president

Warner Publisher Services, Inc.135 W. 50th Street, 7th FloorNew York, NY 10020Attn: Rich Jacobsen, president

Time Warner Book Group, Inc.1271 Avenue of the AmericasNew York, NY 10020Attn: Laurence J. Kirshbaum, CEO

Warner Books, Inc.'1271 Avenue of the AmericasNew York, NY 10020Attn: Laurence J. Kirshbaum, CEO

Little, Brown and Company, Inc.1271 Avenue of the AmericasNew York, NY 10020Attn: Laurence J. Kirshbaum, CEO

DC Comics, Inc.1700 Broadway, 7th FloorNew York, NY 10019Attn: Pau! LevitzPresident & Publisher

DC Comics, a General partner.ship1700 Broadway, 7th FloorNew York, NY 10019Attn: Faul LevitzExecutive V.P. & Publisher

DC Directc/o DC Comics1700 Broadway, 7th FloorNew York, NY 10019Attn: Pauf Levitz, E.V.p. & publisher

EXHIBIT 37 295


Milton Bradley Co.Division of Hasbro Inc.433 Shaker RoadEast Longmeadow, MA 0102gAttn: David E. Wilson, president

Hasbro, Inc.1027 Newport AvenuePawtucket, Rl 02961Attn: Alan HassenfetdChief Executive Otficer

Wildstorm productions888 Prospect Street, Suite 240La Jolla, CA 92097Attn: Jim LeeEditor & Director

Wildstorm productionsc/o DC Comics17oO Broadway, 7th FtoorNew York, Ny 10019Attn: Paul LevitzPresident & publisher

Dark Horse publications10956 S.E. Main St.Mifwaukie , OR 97222Attn: Michael RichardsonPresident

Cantharus Productions, N.V.8965 Bay Cove Ct.Orlando, FL 92919Attn: llya Saikind

llya Salkind and pierre Spengler12 Chiswick LaneLondon W4 2JE, EnglandAttn: Albion Gee, Esq.Albion Gee & Co.

Hallmark Entertainment, fnc.1325 Avenue of the Americas21tt FloorNew York, NY 10019Attn: Robert Halmi, Jr. Chairman

Marvel Entertainment Group. Inc.10 East 4oth Street, gth FloorNew York, NY 10016Attn: F. Peter CuneoPresident & C.E.O.

Golden Books Publishing1540 BroadwayNew York, NY 10096Attn: Amy JarashowAssociate Publisher

Random House Golden Books forYoung Readers1540 BroadwayNew York, NY 10096Attn: Kate KlimoVice President & publisher

Random House, Inc.1745 BroadwayNew York, NY 10019Attn: Katherine J. TragerSenior V.P, & General Counsel

Inkworks432A De[a Lake Dr.Raleigh, NC 27612Attn: Aflan CaptanPresident & CEO

Penguin Group, (USA) Inc.375 Hudson StreetNew York, NY 1 0014Attn: David Shanks, C.E.O.

DK Publishing, Inc.375 Hudscn StreetNew York, NY i 0014Attn: Christopher Davis, publisher

Scholastic, Inc.557 BroadwayNew York, NY 10012Attn: Richard RobinsonChairman & CEO

10EXHIBIT 37

296


PLEASE TAKE NOTICE that pursuant to Section 304(d) of the United States Copyright

Act (17 U'S.C. S304(d)) and the regufations issuedlhereunder by the Register of

Copyrights,3T c.F.R. 5201.10, the undersigned MarkWarren peary,being the person

entitled to terminate transfers pursuant to said statutory provisions, hereby terminatesthe grant of the transfer of renewal copyright(s) (to the extent of author JosephShuste/s ownership share of the renewal copyright(s)) in and to the copyrighted work(s)entitled'SUPERMAN" made in those certain agreements allas identified below, and theundersigned sets forth in connection therewith the following:

1' The names and addresses of the grantees and/or successors in tilewhose rights are being terminated are as follows: Time warner Inc., 75 RockefellerPlaza, New York, NY 10019, Attn: Richard D. Parsons, Chief Executive officer; Timewarner Entertainment company, L,P., 75 Rockefefler plaza, New york, Ny 1001g, Attn:Barry M. Meyer, Chairman & C.E.O.; Warner Bros. Entertainment Inc., 4000 WarnerBoulevard, Burbank, cA grs22, Attn: John A. schurman, v.p. & Generar counser;warner Bros. Inc., 4000 warner Boulevard, Burbank, cA 91522, Attn: John A.Schufman, V.P. & Generaf Counsel; Warner Communications Inc., c/o Time Warner,fnc., 75 Rocke.teller plaza, New york, Ni'i001g, Attn: paulr. cappucio, E.V.p. &General Counsel;Warner Bros. Television, 4000 Warner Boulevard, Burbank, CA91522, Attn: Peter Roth, President; warner Music Group, 75 Rockefeller pfaza, NewYork, NY i00ig, Attn: RogerAmes, chairman & c.E.o.; warner Bros. woriciwideconsumer Products, 4000 warner Boulevard, Burbank, cA91522, Attn: Dan Romaneffi,President; warner pubrisher services, 195 w. soh street, 7h Floor, New york, N.y.10020, Attn: Rich Jacobsen, President; Time warner Book Group, Inc., 1271 Avenue of

11EXHIBIT 37

297


the Americas, New york, Ny 10020, Attn: Laurence J. Kirshbaum, c.E.o.; warnerBooks, lnc.,1271Avenue of the Americas, New york, Ny 10020, Attn: Laurence J.Kirshbaum, c.E.o.; Little, Brown, and Company, 1 271 Avenue of the Americas, NewYork, NY 10020, Attn: Laurence J. Kirshbaum, c.E.o.; Dc comics Inc., .l700

Broadway, 7th Floor, New york, Ny 10019, Attn: paut Levitz, Executive v.p. &Publisher; DC comics, A General Partnership, 1200 Broadway, 7h Ftoor, New york, Ny10019, Attn: paul Levitz, Executive V.p. & publisher; DC Direct, c/o DC Comics, 17AOBroadway, 7th Floor, New York, NY 10019, Attn: paul Levtiz, E.V.p. & publisher; MiltonBradley co', Division of Hasbro, tnc., 433 shaker Fload, East Longmeadow, MA 0102g,Attn: David E. Wilson, president; Hasbro, lnc., 1O2T Newport Ave., pawtucket, Rl02861' Attn:Alan Hassenfefd, chief Executive officer; witdstorm productions, gggProspect Street, suite 240, LaJoila, cAg2o37, Attn: Jim Lee, Editor & Director;wildstorm Productions, c/o DC comics, 1700 Broadway, 7h Floor, New york, Ny10019' Attn: Paul Levitz, President & Publisher; Dark Horse publications, 10gs6 s.E.Main st., Mirwaukie, oR g7222,Attn: Michaer Richardson, president; cantharusProductions, N.v.' g965 Bay Cove ct., orrando, FL 32g1g, Attn: rfya sarkind; ilyasafkind and Pierre spengler, 12 chiswick Lane, London w42JE,England, Attn: AtbionGee, Esq., Albion Gee & co.; Harfmark Entertainment, Inc., rs2s Avenue of theAmericas, 21't Froor, New york, Ny 10org, Attn: Robert Harmi, Jr., chairman; Man,elEntertainment Group, !nc., 10 East 40h street, gh Ffoor, New york, Ny i0016, Attn: F.Peter Cuneo, president & c.E.o.; Gofden Books pubrishing, 1540 Broadway, NewYork, NY 10036, Attn: Amy Jarashow, Associate pubfisher; Random House GordenBooks for Young Readers, 1540 Broadway, New york, Ny 10036, Attn: Kate Kilmo,Vice President & pubrisher; Random House, Inc., 1 74s Broadway, New york, Ny

12EXHIBIT 37

298


10019' Attn: Katherine J. Trager, senior v,P. & General counsel; fnkworks, 4g2oDettaLake Drive, Rareigh, Nc 27612, Attn: Afran capran, president & c.E.o.; penguin Group(usA) Inc., 375 Hudson street, New york, Ny 10014, Attn: David shanks, c.E.o.; DKPublishing, tnc., 37s Hudson street, New york, Ny r0014, Attn: christopher Davis,Publisher; scholastic, Inc., 5s7 Broadway, New york, Ny 10012, Attn: RichardRobinson' chairman & c.E.o. Pursuant to 37 c.F.R. section 201.10(d), service of thisnotice is being made by first class mail, and additionaily service of this notice is beingmade by certified mail, return receipt requested, to the above grantees or successors atthe addresses shown

2. The works (individually, ,Work;,,collectively, the ,Works,,) to which this

Notice of Termination applies are as followsl: The title of the original copyrighted workto which this Notice of Termination applies is supERMAN, an illustrated comic bookstory constituting a front cover and pages 1-13, inclusive, in the body of Action comics,Vor, 1, No. 1 , June, 1g3g issue, which was pubrished on Aprir 1g, 1g3g. This work wasregistered for copyright under registration No. Bgzgrgz and copyright was originally

1 This Notice of rermination applies as wefl to each and every element of each work, includingwithout limitation, the story or'siories, character oi.r,'.Lr*,.the lnterpl_ay of such characters,theme or themes, settings or locates,'and includer, ouiL:nor.limited to, superman, his originsand escape as an infantlo Earth in a rocka.rnip,iiJirilr strengrh, ni'slnvulnerability (bulletsbounce otf his chest and he's lmpervious to *rei,'tris rrirt speed, his ability to feap greatdistances in a single bound, his ielescopi" uirioii,'n[ r,i*p?r hearing and sense of smerf, hissense of humor' his c'tean-cut good loors., hir high;";;H ethjcs and compassion, his missionas a crime fighter a.lo as a chjmpio" "llri.rrJil;;:'il stytized

"ortrrl.nd cape, thediamcnd shaped "s" insignia on his trt"t1, rris secreill"ntitvl alter ego as the mild manneredbespectacled newspaper reporter, Cta* *e;i, ih;f"i;i;.no .nr"r,iv6 female reporter foveinterest' Lois Lane,.the love'tri"ryito".1*r"n bup_"m"ir,-i.oi, Lane and clark Kent, clark Kent,sboss / newspaper Editor (a.k.a. e-erry wn't";, th;ilffirinet newsp"p"i (f*.". the Dairy star)where clark Kent' Lois Lane and the eljlor it"tk,.th;;i# rrys.raper metroporis where thesecharacters tive (a.k.a.i4:lr?egris): superman's scientilti.n", (a:!.a. Jor L) and superman,sbirthplace -a highry advanced oui ooomed distant pranet (a.k.a. Krypton).

13EXHIBIT 37

299


secured in this Work as of its April 18, 1938 publication date. This Work was written by

Jerome Siegel and illustrated by Joseph Shuster. Renewalof the copyright in and tothis work was made on June 1, 1965, in the name of National periodical publications,

Inc' claiming as proprietor of copyright, under renewal registration No. R3621gg. Thiswork was based upon, incorporated, and constituted a slighfly revised version of, thsfollowing works to which this Notice of Termination also applies: twenty-four days (i.e.,four six day weeks) of previously unpublished SUPEHMAN newspaper comic strips,created c' 1934, written by Jerome Sieget and illustrated by Joseph Shuster.2 Theremaining works to which this Notice of Termination applies are:

Title Nameof Autho( @ coovriqht Reo. No.SUPERMAN story .lerome sieger work created c.1938 N/Agin comic book form Joseph Shuiter

t In , the court found that Jerome SiegefandJosephShus te rwere , theecar tooncnarac te rSupermanand

ol the title superman and first crelted cartoon material in which said character and title firstappeared in 1934"'," and further found that this tti"ri"las incorporated in Action Comics No. 1constituted: 'the formula for the continuing SUCERMANieries to come. lt depicted andnarrated the origin of the character sufEHMAN, il';;riained u .orpr"tlJetineation of thepictorial representation of SUPERMAN, of his r,,iuitsino character, of the superhuman powersand attributes with which SUPERMAN was endowed and of the sphere of public good whichSUPERMAN exploits were to enhance.".Findings of-ract ano Conclusionr'oi t"r by Referee J.AddisonYoung,f l1|8,22(November1,^1,947);9." ; ;*Pub..|nc.eta|.,opiniono|RefereeJ.A.ddisonYod;,;;ff i t ionedmateria|]certainly contained the fulldelineation gf the.clgract#5ri,g-"n and though the story orcontinuity might vary in the future fromtime.to-time, ii oio,'i believe constituie a formula for thecon t inu ingser ies tocome. . . ' , ) . | n , theSecondCircuitcoy'lofAppea|sreverseoffi inationthatActionComicsNo.1was a work-for-hire and held: "superman and his miraculous powers were completelydeveloped long before the e-mploiment refationship was instituted. The record indicates that therevisions directed by the oetendants w91e_gimnlv tb accomodate superman to a magazineformat." 508 F.zd 909, 91 4 (2* Circuit 1974).'

'

3 The second and third works listed in this table as welf as the above-referenced 24 days ofpreviously unpublished SUPERMAN newspaper comic strips were first published in a somewhatrevised form on Aprir 19, lggg as Action cbmics, v"r. r, ivl. r, June, 1ggg, which wasregistered for copyright under registration Nto. gizgzgz'ano renewed under registration No.R362188. -

14EXHIBIT 37 300


&15 SUPERMANdaily comic strips(12 strips and 3scripts)

Action Comics #2 a

Action Comics #B

Action Comics #4

Action Comics #5

Action Comics # 6

Action Comics # 7

Ngmp of A,uthor

Jerome SiegetJoseph Shuster

Date Cooyriqht Sgcurqd

Work created c.1934

Qop,vfiqht Bgq. No,

N/A

Jerome Siegel May 25, 19ggJoseph Shuster

Jerome Siegel June 25, l gggJoseph Shuster

.lerome Siegel July 25, lgggJoseph Shuster

Jerome SiegelJoseph Shuster



August25, lgg8

September 2G, 1g3B

October 25, 1938

8379788

8385466

8387907

B,394784

8394866

8399214

3' This Notice of rermination applies to the following grants, assignments,transfers and/or agreements to the extent each grants, transfers or assigns the renewalcopyright (or any interest in or to the renewal copyright) to any work identifiedhereinabove:

(a) A one page agreement between Detective Comics, lnc., on the onehand and Jerome siegel and Joe Shuster, co-authors of the comic book/stripSUPERMAN, on the other, executed on or about March 1, 1g3g;

a Action comics Nos^.-!'_6 were reprinted in superman Nos. 1 and 3 (copyright Reg. Nos.M299871 and 8443035, respectivety) to which this Notile of Termination, therefore, alsoapplies.

15EXHIBIT 37

301


(b) A two page agreement of purported employment between Detective

Comics, lnc., on the one hand, and Jerome Siegel and Joe Shuster, co-authors of thecomic book/strip SUPERMAN, on the other, executed on or about Decembe r 4, 1g37:

(c) A three page tetter agreement between Detective Comics, fnc., onthe one hand, and Jerome Siegel and Joseph Shuster, co-authors of the comicbooustrip SUPERMAN, on the other, executed on or about septembe r 22,1g3g;

(d) A three page fetter agreement between Detective Comics, Inc. andThe Mcclure Newspaper Syndicate, on the one hand, and Jerome Siegel and JosephShuster, co-authors of the comic book/strip SUPERMAN, on the other, executed on orabout September 22, 1g3g;

(e) A two page tetter agreement between Detective Comics, Inc,, onthe one hand, and Jerome Siegel and Joseph Shuster, co-authors of the comicbook/strip SUPERMAN, on the other, executed on or about December 1g, 1g39;

(f) A seven page agreement or stipulation between National GomicsPublications, Inc., Independent News co., Inc,, The Mcclure Newspaper syndicate,Harry Donenfeld, Jacob S. Liebowitz, Paul H. Sampliner and wayne Eforing, on the onehand, and Jerome siegel and Joseph shuster, co-authors of the comic book/stripSUPERMAN, on the other, executed on or aboui May 19, 194g;

(g) A twelve page tetter agreement (with additional pages for exhibits)between Warner Communications !nc., on the one hand, and Jerome siegelandJoseph shuster, co'authors of the comic booustrip supERMAN, on the other, executedon or about December 23,1975.

The effective date of termination shall be octobe r 26,2013.

16EXHIBIT 37

302


5. No prior termination of the grants of rights in the copyright of the

aforementioned Works for their renewal copyright term has been eiercised by the

author, Joseph Shuster, or his statutory heirs or representatives pursuant to Section

304 (c) of the United States Copyright Act (17 U.S.C. $30a(c)).

6. Joseph Shuster died on July 30, 1992. There is no living widow, child or

grandchild of Mr. Shuster. The undersigned, Mark Warren Peary is the Executor of the

Estate of Joseph Shuster; and, as such, is the person entitled to exercise Joseph

Shuster's termination interest pursuant to 17 U.S.C. g 904 (d), incorporating without

limitation 17 U.S.C. S 304 (c)(2)(D), as to the grants of the transfers described herein.

To the best knowledge and belief of the undersigned, this notice has been signed by all

persons whose signature is necessary to terminate said grants under Section 304(d) of

Title 17, United States Code.

Dated: NovemberZ,z003Mark Warren PearyExeeutor of the Estate of Joseph Shusterc/o Marc Toberotf, Esq.9595 Wilshire Boulevard, Suite 811Beverly Hiils, CA 90212

9 17EXHIBIT 37

303


CERTIFICATE OF INVESTTGATION

I hereby certity that before serving the foregoing document described as NOTICE

OF TERMINATION OF TRANSFER COVERING EXTENDED RENEWAL TERM OF'SUPERMAN", and pursuant to 37 C.F.R. Section 201,10(d), I caused a reasonable

investigation to be made as to the current ownership of the rights being terminated,

including a search of the records in the U.S. Copyright Office.

I decfare under penalty of periury that the foregoing is true and correct. Executedrl

this /,'day of November, 2003, at Los Angeles, Calitornia.

Marc Toberotf, Esq.9595 Wilshire Boulevard, Suite 811Beverly Hills, CA 90212

Counsel for the Estate of Joseph Shuster

18EXHIBIT 37

304


CERTIFICATE OF SERVICE

I hereby certify that I caused a true copy of the foregoing document described as

NOTICE OF TERMINATION OF TRANSFER COVERING EXTENDED RENEWAL

TERM OF'SUPERMAN'to be served tnis tday of November, 2003, by First Class

Mail, postage prepaid, upon the following:

To: Time Warner lnc.75 Rockefeller plazaNew York, NY 10019Attn: Richard D. parsonsChief Executive Otficer

Time WarnerEntertainment Company, L.p.75 Rockefeller plazaNew York, NY 10019Attn: Barry M. MeyerChairman & C.E.O.

Warner Bros. Entertainment tnc.4000 Warner BoulevardBurbank, CAglSZzAttn: John A. SchulmanV.P. & General Counsel

Wamer Bros. Inc.4000 Warner BoulevardBurbank, CAg1S22Attn: John A. SchulmanV.P. & General Counsel

Warner Communications Inc.c/o Time Warner, Inc.75 Rockefeller plazaNew York, NY 10019Attn: PaulT. CappucioE.V.P. & General eounsel

Warner Bros. Television4000 Warner BoulevardBurbank, CA 91S22Attn: Peter Roth, president

Warner Music Group.75 Rockefeller PlazaNew York, NY 10019Attn: Roger AmesChairman & C.E.O

Warner Bros, WorldwideConsumer Products4000 Warner BoulevardBurbank, CAglSZzAttn: Dan Romanelli, president

Warner Publisher Services, Inc.135 W. 50th Street, 7h FloorNew York, NY 10020Attn: Rich JacobsenPresident

Time Warner Book Group, Inc.1271 Avenue of the AmericasNew York, NY 10020Attn: Laurence J. Kirshbaum, CEO

Warner Books, Inc.1271 Avenue of the AmericasNew York, NY 10020Attn: Laurence J. Kirshbaum, CEO

Liitle, Brown and Companyr, !nc.1271 Avenue of the Americas

New York, NY 10020Attn: Laurence J, Kirshbaum, CEO

DC Comics, Inc.1700 Broadway, Zth FloorNew York, NY 10019Attn: Paul LevitzPresident & Publisher

l l19

EXHIBIT 37 305


D_C Comics, a General partnership1700 Broadway, 7th FloorNew York, Ny 10019Attn: Paul LevitzExecutive V.p. & publisher

DC Directc/o DC Comics1700 Broadway, 7h FloorNew york, Ny i 0019Attn: Paul LevitzE.V.P. & pubfisher

Milton Bradtey Co.Division of Hasbro Inc.433 Shaker RoadEast Longmeadow, MA O1O2gAttn: David E, Wilson, president

Hasbro, Inc.1027 Newport AvenuePawtucket, Rl 02961Attn: Alan HassenfeldChief Executive Officer

Wildstorm productions888 Prospect Street, Suite 240La Jofla, CAgZOgTAttn: Jim LeeEditor & Director

Wifdstorm productionsc/o DC Comics1700 Broadway, 7rh FfoorNew York, Ny 10019Attn: Paul LevitzPresident & pubtisher

Dark Horse publications10-q56 S.E. Main St.Milwaukle , OR 97222Attn: Michaef Richardson,President

Cantharus productions, N.V.8965 Bay Cove Ct.Orlando, FL g2g1gAttn: llya Salkind

flya Salkind and pierre Spengter.12 Ghiswick LaneLondon W4 ZJE, EnglandAttn: Albion Gee, Es(.Afbion Gee & Co

Haffmark Entertainment, Inc.1325 Avenue of the Americas21st FloorNew York, Ny 10019Attn: Robert Halmi, Jr.Chairman

Marvef Entertainment Group, Inc..10 East 4orh Street, gth Floo;

-

New York, Ny 10016Attn: F. Peter CuneoPresident & C.E.O

Golden Books publishing1540 BroadwayNew York, Ny 10036Attn: Amy JarashowAssociate publisher

Random House Gofden Books forYoung Readers1540 BroadwayNew York, Ny 100g6Attn: Kate KlimoVice President & pubfisher

Random House, fnc.1745BroaciwayNew York, Ny 10019Attn: Katherine J. TragerSenior V.p. & General Counsel

Inkworks432A Delta Laka Dr.Raleigh, NC 27612Attn: Allan CaplanPresident & CEO

l_enguin Group (USA) Inc.375 Hudson StreetNew York, Ny 1 OO14Atln: David Shanks, C.E.O.

20EXHIBIT 37

306


DK Publishing, Inc.375 Hudson StreetNew York, NY 10014Attn: Christopher Davis, publisher

Scholastic, Inc.557 BroadwayNew York, NY 10012Attn: Richard RobinsonGhairman & CEO

I declare under penalty of perjury that the foregoing is true and correct. Executedthis rc(^y of November, 2003, at Los Angeres, carifornia.

----------)-

,Z7-*tVMarc Toberoff, Esq.9595 Wilshire Blvd., Suite g11Beverly Hills, CA 9A212

Counsel for the Estate of Joseph Shuster

21EXHIBIT 37

307


EXHIBIT 38


EXHIBIT 38 308


EXHIBIT 38 309


EXHIBIT 38 310


EXHIBIT 38 311


EXHIBIT 38 312


EXHIBIT 38 313


EXHIBIT 38 314


EXHIBIT 38 315


EXHIBIT 38 316


EXHIBIT 39


EXHIBIT 39 317


EXHIBIT 39 318


EXHIBIT 39 319


EXHIBIT 39 320


EXHIBIT 39 321


EXHIBIT 39 322


EXHIBIT 39 323


EXHIBIT 39 324


EXHIBIT 40


\

1 WEISSMANN WOLFF BERGMAN COLEMAN GRODIN & EV ALL LLP

2 Michael Bergman (SBN 37797) Anjani Mandavia (SBN 94092}

3 9665 Wilshire Boulevard, Ninth Floor Beverly Hills, California 90212

4 Telephone: 310-858-7888 Fax: 310-550-7191

CONFORMED COpy

CJ -< C}

I o::.:~ r-.:> = ~:.:- = "' ~-, ........ .. -~ .,,~ ::.... :.r-" ..

~

.. ~ v :r~. ) :::0 ... - ~. - : ." ;;~:::;2 w "::;IVf~-'''! a r {.,'j-t,~ !

rr1 5~}=:-~ -0 ft1~Ir.::; ~ 0

(j --~ -5 FROSS ZELNICK LEHRMAN & ZISSU, P.C.

I »0 .. rC.J

U1 6 Roger L. Zissu (Admitted pro hac vice) 866 United Nations Plaza

7 New York, New York 10017 Telephone: 212-813-5900

8 Fax: 212-813-5901

9 PERKINS LAW OFFICE, P.C. Patrick T. Perkins (Admitted pro hac vice)

10 1711 Route 9D Cold Spring, NY 10516

11 Telephone: 845-265-2820 Fax: 845-265-2819

-'I,' :, ....

~W N

-I

12

13 Attorneys for Defendants and Counterclaimant

UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION

15 JOANNE SIEGEL and LAURA SIEGEL LARSON,

16

17

18 vs.

Plaintiffs,

TIME WARNER INC., WARNER 19 COMMUNICATIONS INC., WARNER

BROS. ENTERTAINMENT INC., 20 WARNER BROS. TELEVISION

PRODUCTION INC., DC COMICS, 21 and DOES 1-10,

22

23

24

25

26

27

Defendants.

AND RELATED COUNTERCLAIMS. 28 I~ ________________________ __

Case Nos. [Consolidated for Discoveryl CV 04-8400 SGL (RZx) CV 04-8776 SGL (RZx) Hon. Stephen G. Larson, U.S.D.J. Hon. Rafph Zarefsky, U.S.M.J.

DECLARATION OF PAUL LEVITZ IN SUPPORT OF DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Time: 10:00 a.m. Date: July 16, 2007 Courtroom 1 Judge Stephen G. Larson

T"\n,-..T A Tl A TTr\'l\..T r\T.' n A TTT T n"'( TT'T''7

EXHIBIT 40 325


1

2

( (

DECLARATION OF PAUL LEVITZ

3 I, PAUL LEVITZ, declare:

4 1. I am the President & Publisher of DC Comics ("DC"), a defendant

5 and counter-claimant in this action. My business address is 1700 Broadway, New

6 York, New York 10019. The facts set forth in this Declaration are within my

7 personal knowledge except where stated to be on information and belief, and as to

8 those latter facts I am informed and believe them to be true and correct. If called

9 as a witness I could and would testify competently as to the facts contained in this

10 Declaration.

11 2. I first started working for DC over 30 years ago, initially as a free-

12 lancer while I was still in high school. Since then I have held a number of

13 positions at the company, rising from Assistant Editor to Vice President, to my

14 current position as President & Publisher. I have been in charge of developing the

15 vision that has guided DC's growth over the past five years, and for the previous

16 two decades was one of the two principal executives with that responsibility. In

17 my current position, I participate in the daily operations of DC and also delegate

18 authority to DC executives and employees to oversee those daily operations.

19 3. This Declaration will address the corporate history of DC and its

20 relationship with defendants Time Warner Inc. ("TWI") and Warner Bros.

21 Entertainment Inc. ("WBEI"). It also will set forth some of the background of the

22 Superman property, and DC and its predecessors' relationship with Jerome Siegel

23 ("Siegel") and Joseph Shuster ("Shuster"), who together created the original

24 Superman character. Because this history and the parties' relationship reach back

25 almost 70 years, some of the facts stated in this Declaration are necessarily on

26 information and belief and/or are based on the records and files of DC and its

27 predecessors. However, this early history is part of the acknowledged background

28 of Superman, and is non-controversial.

1


EXHIBIT 40 326


/

( (

'"

1 The Creation and Development of Superman and Superboy

2 4. I am informed and believe that in the 1930s, Plaintiffs' predecessor,

3 Siegel, along with his creative partner, artist Shuster, jointly conceived of and

4 created a cartoon strip that ultimately became the first Superman story. Their.

5 proposed syndicated strip of Superman was rejected numerous times over several

6 years by a number of different publishers; but in 1938, Detective Comics, Inc.

7 ("Detective"), the predecessor-in-interest to DC, agreed to publish Superman in its

8 upcoming new comic book series, Action Comics. Siegel and Shuster had been

9 providing Detective with comic book features since late 1935, and had entered into

10 an agreement with Detective in December 1937, which provided that "any new and

11 additional features which [Siegel and Shuster] produce for use in a comic

12 magazine are to be first submitted to [Detective]." Siegel and Shuster submitted

13 their Superman strip to Detective under the December 1937 agreement.

14 5. On March 1, 1938, Siegel and Shuster executed an assignment to

15 Detective of all of their rights in Superman and in any previously created work

16 employing that character. At Detective's direction, Siegel and Shuster adapted and

17 expanded their existing Superman strips into a format suitable for a comic book,

18 and Detective announced the debut of its Action Comics series, and Superman, in

19· full page announcements in its May, 1938 issues of some of its existing

20 publications. Thereafter, the first Superman story was published by Detective on

21 April 18, 1938 inAction Comics No.1, which had a cover date of June 1938.

22 6. The }nitial graphic representations of the Superman character in 1938,

23 in a simple cartoon style, presented his adventures with a limited number of

24 characters in settings that had the look and feel of that particular period. In the

25 almost 70 years since the pUblication of Action Comics No.1, DC has authored or

26 supervised the creation of, and has published and distributed, thousands of other

27 comic books and syndicated newspaper comic strips containing the adventures of

28 Superman throughout the United States and abroad in many millions of copies. In

2

DE CLARA TION OF PAUL LEVITZ

EXHIBIT 40 327


( ( \

1 addition, it has overseen the creation, development and licensing of the character in

2 a variety of media, including but not limited to, radio, novels, live action and

3 animated motion pictures, television, live theatrical productions, merchandise and

4 theme park exploitations. In these tens of thousands of iterations, DC has changed

5 Superman's appearance and has added decades of new material to further define,

6 update and develop the character in an ongoing flow of new exploits and

7 supporting characters resulting in the creation of an entire fictional Superman

8 "universe."

9 7. The presentations of Superman since 1938, provided first by Detectiv

10 and then DC, were not a static depiction but an ever-evolving portrayal, featuring

11 new super-powers, new villains and new components to the Superman universe

12 and back-story. Significantly, many of Superman's powers that are among his

13 most famous today did not appear in Action Comics No. 1 but only appeared in

14 later publications. These include his ability to fly; his super-vision which enables

15 him to see through walls ("x-ray" vision) and across great distances ("telescopic"

16 vision); his super-hearing which enables him to hear conversations at great

17 distances; his ability to survive in space without atmospheric protection; and his

18 "heat vision," the ability to aim rays of extreme heat with his eyes. Also absent

19 from Action Comics No.1 was any reference to some of the more famous story

20 elements now associated with Superman but at the time not yet created, such as

21 "Kryptonite" or the name of Superman's home planet, "Krypton," the "Fortress of

22 Solitude," and the "Daily Planet." In addition, some of the most famous

23 supporting characters associated with Superman do not appear in Action Comics

24 No.1, including Jimmy Olsen and villains Lex Luthor and Brainiac. Unlike many

25 creative properties developed for media in later decades, in its early days there was

26 no Superman "bible" which explored aspects of the property not yet presented in

27 the comics. On information and belief, the Superman story and characters evolved·

28 on an episode-by-episode basis as directed by the editors of DC for decades.

3

DE CLARA TION OF PAUL LEVITZ

EXHIBIT 40 328


1 8.

( \

In November, 1938, Siegel sent to Detective a letter "pitching" the

2 idea of a comic strip starring a juvenile Superman, and in December, 1940

3 submitted a script, under the byline of Siegel and Shuster, titled "Superboy," and

4 containing some episodes depicting Superman's parents on Krypton, and

5 Superman on Earth as a baby, a toddler, and an elementary school-age boy. By the

6 time the script was submitted, Superman's "origin story" on Krypton, and his

7 childhood with his adopted Earth parents, the Kents, had been explored in a series

8 of daily and Sunday comic strips, and in the comic book Superman No.1,

9 published in 1939. Superman's childhood continued to be depicted thereafter, by

10 DC and its licensees, including in a 1941 animated cartoon from the Max Fleischer

11 studios, in a May 31, 1942 Sunday comic strip and in a 1942 novel by George

12 Lowther called The Adventures a/Superman.

13 9. Detective did not proceed with either of Siegel's "Superboy"

14 submissions. However, in November, 1944, without Siegel's or Shuster's

15 participation, Detective published a comic strip entitled "Superboy" in More Fun

16 Comics No. 101. Detective continued to publish "Superboy" comic strips - again

17 without Siegel's or Shuster's participation - bi-monthly until 1946 and monthly

18 thereafter for many years.

19 10. Throughout the almost 70 year history of Superman, DC has built up

20 strong trademark rights in the name and mark "Superman" and in certain key

21 symbols and indicia of origin in connection with, and to identify all authorized

22 uses of, the Superman character in print and all other media. Indeed, DC owns

23 dozens of federal trademark registrations for Superman related indicia across a

24 broad array of goods and services. These include, inter alia, Superman's

25 characteristic outfit, comprised of a full length blue leotard with red cape, a yellow

26 belt, and the "S" emblem, as well as certain key identifying phrases. Most notable

27 among the latter is "Look! ... Up in the sky! ... It's a bird! ... It's a plane! ...

28 It's Superman!" first used in the introduction to the 1940 radio program The

4


EXHIBIT 40 329


( (

1 Adventures of Superman, and thereafter repeated in Superman television

2 programming and used on Superman licensed products.

3 11. All of these Superman symbols and indicia of origin have been used

4 on and in connection with a wide variety of publications and licensed goods and

5 services, as they have been added to the Superman character and mythology under

6 DC's and/or its predecessors' supervision and direction, since as early as 1938.

7 The development of one particularly strong trademark corresponded with the

8 evolution of the appearance of the emblem on the chest of Superman's costume. I

9 Action Comics No.1, the emblem was a small yellow inverted triangle bearing the

10 letter "s" shown in yellow and sometimes in red. Thereafter, the emblem changed

11 significantly, and today is a large yellow five-sided shield, outlined in the color

12 red, and bearing the letter "s" in the middle, also in the color red (the "S in Shield

13 Device"). The S in Shield Device, as transformed by DC and its predecessors, has

14 become a strong symbol, standing alone, of all goods and services relating to

15 Sl.lperman and his sole source, DC and its predecessors.

16 Corporate History and Relationships

17 12. The company now known as DC Comics began in the 1930s as

18 "National Allied Publishing." Through a series of name changes, mergers, and

19 acquisitions in the 1930s and 1940s, National Allied Publishing became Detective.

20 Comics, Inc., then "National Comics Publications, Inc." and then "National

21 Periodical Publications, Inc." ("NPP"). In 1967, NPP was purchased by Warner

22 Communications, Inc. ("WCI"). In 1976, NPP's name was changed to DC

23 Comics, Inc. (the "DC" standing for "Detective Comics").

24 13. In 1993, DC Comics, Inc. was dissolved and converted to a New York

25 general partnership called "DC Comics" and has remained in that same form

26 through the present. Since the formation of the DC Comics partnership in 1993, its

27 partners have undergone one change. From 1993 through March 2003, the

28 partners of DC were WCI and Time Warner Entertainment Company, L.P.

5


EXHIBIT 40 330


( (

1 ("TWEC"), a Delaware limited partnership, and each held a one-half interest in the

2 partnership. In March, 2003, Time Warner Inc. ("TWI") completed a restructuring

3 of TWEC, and in connection with that restructuring WCI contributed its 50%

4 interest in DC to E.C. Publications, Inc. ("EC") and TWEC "distributed its assets,

5 including its partnership interest in DC, to WCI. As a result, today the partners of

6 DC are EC and WCI, each holding a one-half interest. EC is also a subsidiary of

7 WCI, and is the publisher of magazines and comic books such as Mad Magazine.

8 WBEI has no ownership or partnership interest in DC. A true and correct chart of

9 the current corporate structure and affiliations between DC, WBEI and TWI is

10 attached to this Declaration as Exhibit A.

11 14. DC is in the business of creating, publishing, and licensing comic

12 book stories and characters. DC publishes scores of titles, amounting to an output,

13 of hundreds of different comic books and graphic novels annually. DC is not in

14 the business of producing movies, television shows, or animated programs. For

15 that reason, DC enters into license agreements to exploit its intellectual property

16 through those and other media outlets. DC and its predecessors have entered into a

17 number of license agreements over the years - with both affiliates and non-

18 affiliates - that involve the rights to market or exploit Superman. Some of the

19 agreements grant exclusive licenses to Superman in certain markets or media, and

20 some grant non-exclusive rights. For example, in November, 1974, NPP entered

21 into a production agreement for movies based on the Superman property with Film

22 Export A.G. ("Film Export"), an independent party not affiliated with any TWI

23 entity. The agreement granted Film Export the exclusive right to produce, exhibit?

24 and distribute movies based on Superman for a period of up to twenty-five years.

25 Over the years, WBEI acquired - from Film Export and its representatives -

26 certain of the rights that Film Export had acquired from NPP.

27 15. Since April 16, 1999 (the purported effective date of Plaintiffs'

28 Superman Termination Notices), and prior to the restructuring ofTWEC in 2003,

6


EXHIBIT 40 331


( (

1 DC entered into several license agreements with various divisions ofTWEC

2 concerning Superman, including agreements for the production and distribution of

3 the motion picture Superman Returns and of the television series Smallville. Both

4 the motion picture and the television episodes note that the characters in the movie

5 and the programs are the copyright of DC.

6 16. The agreement for Superman Returns is an "Option Purchase

7 Agreement" dated as of November 6, 1999, pursuant to which DC granted to

8 Warner Bros., a division ofTWEC, the exclusive right to produce a feature motion

9 picture utilizing the Superman property. The agreement for Smallville is a "Rights

10 Option and Assignment Agreement" dated as of December 5,2000, as amended

11 September 5,2002, pursuant to which DC granted Warner Bros. Television

12 Production, a division ofTWEC, the exclusive license to produce a live action

13 episodic television series based on "the stories and adventures of the comic book

14 character known as 'Clark Kent" or 'Superman'." DC approved the name

15 "Smallville" for the series, which was contemplated to be an hour-long dramatic

16 action series focusing on Clark Kent as a teenager, before he became Superman.

17 After the 2003 restructuring of TWEC, those license agreements were ultimately

18 assigned to WB Studio Enterprises Inc., an indirect wholly-owned subsidiary of

19 WBEI.

20 17. While DC has in the past, and continues to have, a business

21 relationship with WBEI, DC and WBEI are in separate businesses and establish

22 their own business plans; have separate offices; maintain separate bank accounts

23 and other books and records; and have mostly different executive officers. For

24 financial reporting purposes, both DC and WBEI fall within the "filmed

25 entertainment" group of TWI companies - which also includes New Line Cinema

26 Corporation and Castle Rock Entertainment - and for operating management

27 purposes, DC reports to its ultimate corporate parent through WBEI. Accordingly,

28 I report to and obtain approvals from WBEI's President and Chief Operating

7


EXHIBIT 40 332


· '

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(

Officer before making significant acquisitions or certain financial decisions or

investments that are outside the scope of DC's customary acquisitions and

investments; before implementing meaningful strategic changes; and before

embarking on something substantially outside DC's normal course of business.

However, neither WBEI nor TWI has day to day involvement in DC's core

creative or business decisions and operations other than in areas where they

provide administrative support, such as real estate services; DC does not

commingle its funds and assets with those of WBEI or TWI, and DC is not used as

a mere shell or conduit for the affairs of either WBEI or TWI.

I declare under penalty of perjury under the laws of California and of

the United States that the foregoing is true and correct and that I executed this

Declaration this ~~ay of April, 2007, at New York, New ork

8


EXHIBIT 40 333


EXHIBIT A

EXHIBIT 40 334


/

Q

EXHIBIT 40 335


EXHIBIT 41 Part 1 of 2


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



JOANNE SIEGEL and LAURA SIEGELLARSON,

Plaintiffs,

v.

WARNER BROS. ENTERTAINMENTINC.; TIME WARNER INC.; and DCCOMICS,

Defendants.

))))))))))))))

CASE NO. CV-04-8400-SGL (RZx)

[Consolidated for pre-trial and discoverypurposes with CV-04-8776-SGL (RZx)]

ORDER GRANTING IN PART ANDDENYING IN PART PLAINTIFFS’MOTION FOR PARTIAL SUMMARYJUDGMENT; ORDER GRANTING INPART AND DENYING IN PARTDEFENDANTS’ MOTION FOR PARTIALSUMMARY JUDGMENT

The termination provisions contained in the Copyright Act of 1976 have aptly

been characterized as formalistic and complex, such that authors, or their heirs,

successfully terminating the grant to the copyright in their original work of authorship

is a feat accomplished “against all odds.” 2 WILLIAM F. PATRY, PATRY ON COPYRIGHT

§ 7:52 (2007).

In the present case, Joanne Siegel and Laura Siegel Larson, the widow and

the daughter of Jerome Siegel, seek a declaration from the Court that they have

overcome these odds and have successfully terminated the 1938 grant by Jerome

Siegel and his creative partner, Joseph Shuster, of the copyright in their creation of

the iconic comic book superhero “Superman,” thereby recapturing Jerome Siegel’s

half of the copyright in the same. No small feat indeed. It requires traversing the

Case 2:04-cv-08400-SGL-RZ Document 293 Filed 03/26/2008 Page 1 of 72

EXHIBIT 41 336


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

281 A fanzine is a publication, usually distributed at no or nominal cost,

produced by fans of a particular topic (such as comic books, opera, murdermystery stories, etc.) for others who share their interest.

2

many impediments — many requiring a detailed historical understanding both

factually and legally of the events that occurred between the parties over the past

seventy years — to achieving that goal and, just as importantly, reckoning with the

limits of what can be gained through the termination of that grant.

Any discussion about the termination of the initial grant to the copyright in a

work begins, as the Court does here, with the story of the creation of the work itself.

In 1932, Jerome Siegel and Joseph Shuster were teenagers at Glenville High

School in Cleveland, Ohio. Siegel was an aspiring writer and Shuster an aspiring

artist; what Siegel later did with his typewriter and Shuster with his pen would

transform the comic book industry. The two met while working on their high

school’s newspaper where they discovered their shared passion for science fiction

and comics, the beginning of a remarkable and fruitful relationship.

One of their first collaborations was publishing a mail-order fanzine titled

“Science Fiction: The Advance Guard of Future Civilization.”1 In the January, 1933,

issue, Siegel and Shuster’s first superman character appeared in the short story

“The Reign of the Superman,” but in the form of a villain not a hero. The story told

of a “mad scientist’s experiment with a deprived man from the breadlines” that

transformed “the man into a mental giant who then uses his new powers — the

ability to read and control minds — to steal a fortune and attempt to dominate the

world.” (Decl. Michael Bergman, Ex. HH at 1126). This initial superman character

in villain trappings was drawn by Shuster as a bald-headed mad man.

A couple of months later it occurred to Siegel that re-writing the character as

a hero, bearing little resemblance to his villainous namesake, “might make a great

comic strip character.” (Decl. Michael Bergman, Ex. HH at 1126). Much of Siegel's

desire to shift the role of his protagonist from villain to hero arose from Siegel's

exposure to despair and hope: Despair created by the dark days of the Depression


EXHIBIT 41 337


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

and hope through exposure to the “gallant, crusading heros” in popular literature

and the movies. (Decl. Michael Bergman, Ex. HH at 1126). The theme of hope

amidst despair struck the young Siegel as an apt subject for his comic strip:

“Superman was the answer — Superman aiding the downtrodden and oppressed.”

(Decl. Michael Bergman, Ex. HH at 1126).

Thereafter, Siegel sat down to create a comic book version of his new

character. While he labored over the script, Shuster began the task of drawing the

panels visualizing that script. Titling it “The Superman,” “[t]heir first rendition of the

man of steel was a hulking strongman who wore a T-shirt and pants rather than a

cape and tights.” (Decl. Michael Bergman, Ex. HH at 1129). And he was not yet

able to hurdle skyscrapers, nor was he from a far away planet; instead, he was

simply a strong (but not extraordinarily so) human, in the mold of Flash Gordon or

Tarzan, who combated crime. Siegel and Shuster sent their material to a publisher

of comic books — Detective Dan — and were informed that it had been accepted

for publication. Their success, however, was short-lived; the publisher later

rescinded its offer to publish their submission. Crestfallen, Shuster threw into the

fireplace all the art for the story except the cover (reproduced below), which Siegel

rescued from the flames.


EXHIBIT 41 338


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

Undaunted, Siegel continued to tinker with his character, but decided to try a

different publication format, a newspaper comic strip. The choice of crafting the

material in a newspaper comic strip format was influenced both by the failure to get

their earlier incarnation of the Superman character published by Detective Dan in a

comic book format, and by the fact that, at the time, black-and-white newspaper

comic strips — not comic books — were the most popular medium for comics. As

one observer of the period has commented:

It is worth noting the extent to which early comic bookswere conjoined with newspaper strips of the day. Theearliest comic books consisted of reprints of thosenewspaper strips, re-pasted into a comic book pageformat. When original material began appearing incomic book format, it was generally because companiesthat wished to publish comic books were unable toprocure reprint rights to existing newspaper strips. Thesolution to this . . . was to hire young [comic strip artists]to simulate the same kind of newspaper strip material.


EXHIBIT 41 339


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

(Decl. Mark Evanier, Ex. A at 5-6).

On a hot summer night in 1934, Siegel, unable to sleep, began brainstorming

over plot ideas for this new feature when an idea struck him: “I was up late counting

sheep and more and more ideas kept coming to me, and I wrote out several weeks

of syndicate script for the proposed newspaper strip. When morning came, I

dashed over to Joe [Shuster]’s place and showed it to him.” (Decl. Michael

Bergman, Ex. HH at 1129). Siegel re-envisioned his character in more of the mythic

hero tradition of Hercules, righting wrongs in present-day society. His inspiration

was to couple an exaggeration of the daring on-screen acrobatics performed by

such actors as Douglas Fairbanks, Sr., with a pseudo-scientific explanation to make

such fantastic abilities more plausible in the vein of Edgar Rice Burroughs’ John

Carter of Mars stories, and placing all of this within a storyline that was the reverse

of the formula used in the Flash Gordon serials. The end product was of a

character who is sent as an infant to Earth aboard a space ship from an unnamed

distant planet (that had been destroyed by old age) who, upon becoming an adult,

uses his superhuman powers (gained from the fact that his alien heritage made him

millions of years more evolved than ordinary humans) to perform daring feats for the

public good.

Siegel named his character “Superman.” Unlike his previous incarnation,

Siegel’s new Superman character’s powers and abilities were much more

extraordinary and fantastic: Superhuman strength; the ability to leap 1/8th of a mile,

hurdle a twenty-story building, and run faster than an express train; and nothing less

than a bursting shell could penetrate his skin. Siegel placed his character in a very

cosmopolitan environment that had the look and feel of mid-thirties America. He

also humanized his character by giving his superhero an “ordinary person” alter

ego: Mild-mannered, big-city newspaper reporter Clark Kent. Siegel developed

this concept of Superman’s secret identity both as a means for his superhero to

maintain an inconspicuous position in everyday society and as a literary device to


EXHIBIT 41 340


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

introduce a conflict — and the potential for story lines centered around that conflict

— between the character’s dual identities, a conflict played out no more

dramatically than in the love “triangle” between the character’s dual identities and

another newspaper reporter, Lois Lane.

Shuster immediately turned his attention to giving life and color to Siegel’s

idea by drawing illustrations for the story. Shuster conceived of the costume for

Siegel’s Superman superhero — a cape and tight-fitting leotard with briefs, an “S”

emblazoned on an inverted triangular crest on his chest, and boots as footwear. In

contrast, he costumed Clark Kent in a nondescript suit, wearing black-rimmed

glasses, combed black hair, and sporting a fedora. He drew Superman and his

alter ego Clark Kent with chiseled features, gave him a hairstyle with a distinctive

curl over his forehead, and endowed him with a lean, muscular physique. Clark

Kent hid most of these physical attributes behind his wardrobe, which he could

quickly doff revealing his Superman costume underneath when he was called to

action by someone in need of his superpowers. One of the earliest of Shuster’s

sketches of Superman and Clark Kent from this 1934 or 1935 period are depicted

below:


EXHIBIT 41 341


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

The two then set about combining Siegel’s literary material with Shuster’s

graphical representations. Together they crafted a comic strip consisting of several

weeks’ worth of material suitable for newspaper syndication. Siegel typed the

dialogue and Shuster penciled in artwork, resulting in four weeks of Superman

comic strips intended for newspapers. (Decl. Michael Bergman, Ex. H at 1). The

art work for the first week’s worth “of daily [comic] strips was completely inked” and

thus ready for publication. (Decl. Michael Bergman, Ex. H at 1). The “three

additional weeks of ‘Superman’ newspaper comic strip material” differed from the

first week’s material “only in that the art work, dialogue and the balloons in which

the dialogue appeared had not been inked,” instead consisting of no more than

black-and-white pencil drawings. (Decl. Michael Bergman, Exs. G at 2 & H at 1-2).

Siegel also wrote material to which Shuster provided no illustrations: A

paragraph previewing future Superman exploits, and a nine-page synopsis of the

storyline appearing in the three weeks of penciled daily Superman newspaper

comic strips. (Decl. James Steranko, Ex. A at 4; Decl. Michael Bergman, Ex. H at


EXHIBIT 41 342


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

2).

The two shopped the character for a number of years to numerous

publishers but were unsuccessful. As Siegel later recalled: One publisher

“expressed interest in Superman,” but preferred that it be “published in comic book

form where it would be seen in color” rather than “a black-and-white daily strip,” a

suggestion to which he and Shuster balked given their earlier experience with the

comic book publisher of Detective Dan. (Decl. Michael Bergman, Ex. H at 2).

In the meantime, Siegel and Shuster penned other comic strips, most notably

“Slam Bradley” and “The Spy,” that were sold to Nicholson Publishing Company.

When Nicholson folded shop in 1937, Detective Comics acquired some of its comic

strip properties, including “Slam Bradley” and “The Spy.”

On December 4, 1937, Siegel and Shuster entered into an agreement with

Detective Comics whereby they agreed to furnish some of these existing comic

strips for the next two years, and further agreed “that all of these products and work

done by [them] for [Detective Comics] during said period of employment shall be

and become the sole and exclusive property of [Detective Comics,] and [that

Detective Comics] shall be deemed the sole creator thereof . . . .” (Decl. Michael

Bergman, Ex. A). The agreement further provided that any new or additional

features by Siegel and Shuster were to be submitted first to Detective Comics, who

was given a sixty-day option to publish the material.

Soon thereafter Detective Comics decided to issue a new comic book

magazine titled Action Comics and began seeking new material. Inquiry was made

of many newspaper comic strip publishers, including McClure Newspaper

Syndicate. Amongst the material submitted by McClure to Detective Comics was

the previously rejected Siegel and Shuster Superman comic strip. Detective

Comics soon became interested in publishing Siegel and Shuster’s now well-

traveled Superman material, but in an expanded thirteen-page comic book format,

for release in its first volume of Action Comics.


EXHIBIT 41 343


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

On February 1, 1938, Detective Comics returned the existing Superman

newspaper comic strip material to Siegel and Shuster for revision and expansion

into a full-length, thirteen-page comic book production. Detective Comics’ desire to

place Superman in a comic book required that Siegel and Shuster reformat their

existing Superman newspaper material by re-cutting the strip into separate panels

and then re-pasting it into a comic book format.

An issue emerged due to Detective Comics’ additional requirement that there

be eight panels per page in the comic book. Siegel and Shuster’s existing

Superman newspaper material did not have enough drawings to meet this format.

In response, portions of the thirteen-page comic went forward with fewer than eight

panels per page, and in the remaining pages Shuster either trimmed or split existing

panels to stay within the page size, or drew additional panels from the existing

dialogue to meet the eight-panel requirement. As Shuster later recounted:

The only thing I had to do to prepare Superman forcomic book publication was to ink the last three weeks ofdaily strips which I had previously completely penciled indetail. In addition, I inked the lettering and the dialogueand story continuity and inked in the balloons containingthe dialogue. Certain panels I trimmed to conform toDetective’s page size. I drew several additional picturesto illustrate the story continuity and these appear onpage 1 of the first Superman release. This was done sothat we would be certain of having a sufficient number ofpanels to make a thirteen page release. Finally, I drewthe last panel appearing on the thirteenth page. Detective’s only concern was that there would be panelssufficient for thirteen complete pages. Jerry told me thatDetective preferred having eight panels per page but inour judgment this would hurt the property. I specificallyrefer to the very large panel appearing on what would bepage 9 of the thirteen page release. We did not want toalter this because of its dramatic effect. Accordingly, onthis page but six panels appeared.

(Decl. Michael Bergman, Ex. G at 2). Siegel similarly recollected:

Upon receiving word from Detective that we couldproceed, Joe Shuster, under my supervision, inked theillustrations, lettering and dialogue balloons in the threeweeks of daily strips that had been previously penciled. In addition, he trimmed certain pictures to meetDetective’s panel specifications and extended others. To assure ourselves of having the proper number of


EXHIBIT 41 344


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

panels we added several pictures to illustrate the storycontinuity, I had already written. Added as well for thisreason was the scientific explanation on page 1 of therelease and the last panel at the foot of page 13.

(Decl. Michael Bergman, Ex. H at 5).

On or around February 16, 1938, the pair resubmitted the re-formatted

Superman material to Detective Comics. Soon thereafter Detective Comics

informed Siegel that, as he had earlier suggested to them, one of the panels from

their Superman comic would be used as the template (albeit slightly altered from the

original) for the cover of the inaugural issue of Action Comics. (Decl. Michael

Bergman, Ex. I).

On March 1, 1938, prior to the printing of the first issue of Action Comics,

Detective Comics wrote to Siegel, enclosing a check in the sum of $130,

representing the per-page rate for the thirteen-page Superman comic book release

and enclosing with it a written agreement for Siegel and Shuster’s signatures. The

agreement assigned to Detective Comics “all [the] good will attached . . . and

exclusive right[s]” to Superman “to have and hold forever.” (Decl. Michael

Bergman, Ex. F). Siegel and Shuster executed and returned the written assignment

to Detective Comics.

This world-wide grant in ownership rights was later confirmed in a September

22, 1938, employment agreement in which Siegel and Shuster acknowledged that

Detective Comics was “the exclusive owner[]” of not only the other comic strips they

had penned for Nicholson (and continued to pen for Detective Comics), but

Superman as well; that they would continue to supply the artwork and storyline (or

in the parlance of the trade, the “continuity”) for these comics at varying per-page

rates depending upon the comic in question for the next five years; that Detective

Comics had the “right to reasonably supervise the editorial matter” of those existing

comic strips; that Siegel and Shuster would not furnish “any art copy . . . containing

the . . . characters or continuity thereof or in any wise similar” to these comics to a

third party; and that Detective Comics would have the right of first refusal (to be


EXHIBIT 41 345


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

exercised within a six-week period after the comic’s submission) with respect to any

future comic creations by Siegel or Shuster.

Detective Comics announced the debut of its Action Comics series with full

page announcements in the issues of some of its existing publications. Specifically,

in More Fun Comics, Vol. 31, with a cover date of May, 1938, Detective Comics

placed the following black-and-white promotional advertisement on the comic’s

inside cover, which reproduced the cover of the soon-to-be published first issue of

Action Comics, albeit in a greatly reduced size:

Similarly, Detective Comics, Vol. 15, with a cover date of May, 1938, had a

full-page black-and-white promotional advertisement on the comic’s inside cover

which contained within it a reproduction of the cover (again in a reduced scale) of

the soon-to-be published first issue of Action Comics:


EXHIBIT 41 346


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12

To provide some context and contrast, the cover of the first issue of Action Comics

is notable for its difference from the promotional advertisements both in its scale

and its colorized format.


EXHIBIT 41 347


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13

Superman itself was published by Detective Comics on April 18, 1938, in

Action Comics, Vol. 1, which had a cover date of June, 1938. A full reproduction of

the original Superman comic contained in Action Comics, Vol. 1, is attached as an

addendum to this Order. See Attachment A to this Order. The Superman comic

became an instant success, and Superman’s popularity continues to endure to this

day as his depiction has been transferred to varying media formats.

The Superman character has evolved in subsequent works since his initial

depiction in Action Comics, Vol. 1. These additional works have added decades of

new material to further define, update, and develop the character (such as his

origins, his relationships, and his powers and weaknesses) in an ongoing flow of

new exploits and supporting characters, resulting in the creation of an entire fictional

Superman “universe.” For instance, absent from Action Comics, Vol. 1, was any


EXHIBIT 41 348


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

reference to some of the more famous story elements now associated with

Superman, such as the name of Superman’s home planet “Krypton.” Many of

Superman’s powers that are among his most famous today did not appear in Action

Comics, Vol. 1, including his ability to fly (even through the vacuum of space); his

super-vision, which enables him to see through walls (“x-ray” vision) and across

great distances (“telescopic” vision); his super-hearing, which enables him to hear

conversations at great distances; and his “heat vision,” the ability to aim rays of

extreme heat with his eyes. The “scientific” explanation for these powers was also

altered in ensuing comics, initially as owing to differences in gravity between Earth

and Superman’s home planet (the latter being much larger in size than the former),

and later because Krypton orbited a red sun, and his exposure to the yellow rays of

Earth’s sun somehow made his powers possible. In a similar Earth-Krypton

connection, it was later revealed that Superman’s powers could be nullified by his

exposure to Kryptonite, radioactive mineral particles of his destroyed home planet.

Aside from the further delineation of Superman’s powers and weaknesses,

many other elements from the Superman story were developed in subsequent

publications. Some of the most famous supporting characters associated with

Superman, such as Jimmy Olsen and rival villains Lex Luthor, General Zod, and

Brainiac, were created long after Action Comics, Vol. 1, was published. Moreover,

certain elements contained in Action Comics, Vol. 1, were altered, even if slightly, in

later publications, most notably Superman’s crest. In Action Comics, Vol. 1, the

crest emblem was a small, yellow, inverted triangle bearing the letter “S” in the

middle, shown throughout the comic as solid yellow in most instances and as a red

“S” in two instances. Thereafter, the emblem changed, and today is a large yellow

five-sided shield, outlined in the color red, and bearing the letter “S” in the middle,

also in the color red.

The acclaim to which the release of Action Comics, Vo. 1, was greeted by

the viewing public quickly made Superman not only the iconic face for the comic


EXHIBIT 41 349


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15

book industry but also a powerful super-salesman for his publisher. Detective

Comics oversaw the creation, development, and licensing of the Superman

character in a variety of media, including but not limited to radio, novels, live action

and animated motion pictures, television, live theatrical productions, merchandise

and theme parks. From such promotional activity, Detective Comics came to “own[]

dozens of federal trademark registrations for Superman related indicia, such as

certain key symbols across a broad array of goods and services.” (Decl. Paul Levitz

¶ 10). The most notable of these marks that are placed on various items of

merchandise are “Superman’s characteristic outfit, comprised of a full length blue

leotard with red cape, a yellow belt, the S in Shield Device, as well as certain key

identifying phrases[,]” such as “‘Look! . . . Up in the sky! . . . It’s a bird! . . . It’s a

plane! . . . It’s Superman!” (Decl. Paul Levitz ¶ 10).

Meanwhile, Siegel continued to submit other comic book characters to

Detective Comics that were also published. Sometimes these submissions were

without Shuster serving as an illustrator and sometimes, such as in the case of

Superman’s youthful persona “Superboy,” see Siegel v. Time Warner Inc., 496 F.

Supp. 2d 1111 (C.D. Cal. 2007), without illustrations accompanying the submission.

Among these subsequent creations was “The Spectre,” a comic written by Siegel

and illustrated by Bernard Baily, which first appeared in 1940 in Detective Comics’

More Fun Comics, Vol. 52. The comic told the story about a superhero with a

supernatural bent — the character being the spirit of a police officer killed in the line

of duty while investigating a gangland overlord and who, after meeting a higher

force in the hereafter, is sent back to Earth with nearly limitless abilities but offered

eternal rest only when he has wiped out all crime.

With Superman’s growing popularity, a growing rift developed between the

parties. Siegel and Shuster believed that Detective Comics’ poached the artists

apprenticing out of Siegel and Shuster’s studio in Cleveland by moving them in-

house to its New York offices, and further believed that Detective Comics had not


EXHIBIT 41 350


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 Under the Copyright Act of 1909 (the “1909 Act”), which was in effect atthe time of Siegel and Shuster’s creation of Superman and later assignment ofrights in the same to Detective Comics, an author was entitled to a copyright in hiswork for twenty-eight years from the date of its publication. See 17 U.S.C. § 24,repealed by Copyright Act of 1976, 17 U.S.C. § 101 et seq. Upon the expiration ofthis initial twenty-eight year term, the author could renew the copyright for asecond twenty-eight year period (the “renewal term”).

16

paid them their fair share of profits generated from the exploitation of their

Superman creation and from the profits generated from copycat characters that

they believed had their roots in the original Superman character. As a result, in

1947, Siegel and Shuster brought an action against Detective Comics’ successor in

interest in New York Supreme Court, Westchester County, seeking, among other

things, to annul and rescind their previous agreements with Detective Comics

assigning their ownership rights in Superman as void for lack of mutuality and

consideration.

After a trial, official referee J. Addison Young issued detailed findings of fact

and conclusions of law wherein he found that the March 1, 1938, assignment of the

Superman copyright to Detective Comics was valid and supported by valuable

consideration and that, therefore, Detective Comics was the exclusive owner of “all”

the rights to Superman. The parties eventually settled the Westchester action and

signed a stipulation on May 19, 1948, whereby in exchange for the payment of over

$94,000 to Siegel and Shuster, the parties reiterated the referee’s earlier finding

that Detective Comics owned all rights to Superman. Two days later, the official

referee entered a final consent judgment vacating his earlier findings of fact and

conclusions of law, and otherwise reiterating the recitals contained in the stipulation.

The feud between the parties did not end after the Westchester action. In

the mid-1960s, the simmering dispute boiled anew when the expiration of the initial

copyright term for Superman led to another round of litigation over ownership to the

copyright’s renewal term.2 In 1969, Siegel and Shuster filed suit in federal district

court in New York seeking a declaration that they, not Detective Comics’ successor


EXHIBIT 41 351


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17

(National Periodical Publications, Inc.), were the owners of the renewal rights to the

Superman copyright. See Siegel v. National Periodical Publications, Inc., 364

F.Supp. 1032 (S.D.N.Y. 1973), aff’d by, 508 F.2d 909 (2nd Cir. 1974). The end

result of the litigation was that, in conformity with United States Supreme Court

precedent at the time, see Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S.

643, 656-59 (1943), in transferring “all their rights” to Superman in the March 1,

1938, grant to Detective Comics (which was reconfirmed in the 1948 stipulation),

Siegel and Shuster had assigned not only Superman’s initial copyright term but the

renewal term as well, even though those renewal rights had yet to vest when the

grant (and later the stipulation) was made.

After the conclusion of the 1970s Superman litigation, the New York Times

“ran a story about how the two creators of Superman were living in near destitute

conditions”:

Two 61-year-old men, nearly destitute and worried abouthow they will support themselves in their old age, areinvoking the spirit of Superman for help. Joseph Shuster,who sits amidst his threadbare furniture in Queens, andJerry Siegel, who waits in his cramped apartment in LosAngeles, share the hope that they each will get pensionsfrom the Man of Steel.

Mary Breasted, Superman’s Creators, Nearly Destitute, Invoke His Spirit, N.Y.

TIMES, Nov. 22, 1975, at 62.

Apparently in response to the bad publicity associated with this and similar

articles, the parties thereafter entered into a further agreement, dated December

23, 1975. See id. (“‘There is no legal obligation,’ Mr. Emmett[, executive vice-

president of Warner Communications, Inc.,] said, ‘but I sure feel that there is a

moral obligation on our part’”). In the agreement, Siegel and Shuster re-

acknowledged the Second Circuit’s decision that “all right, title and interest in”

Superman (“including any and all renewals and extensions of . . . such rights”)

resided exclusively with DC Comics and its corporate affiliates and, in return, DC

Comics’ now parent company, Warner Communications, Inc. (“WCI”), provided


EXHIBIT 41 352


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

18

Siegel and Shuster with modest annual payments for the remainder of their lives;

provided them medical insurance under the plan for its employees; and credited

them as the “creators of Superman.” In tendering this payment, Warner

Communications, Inc. specifically stated that it had no legal obligation to do so, but

that it did so solely “in consideration” of the pair’s “past services . . . and in view of

[their] present circumstances,” emphasizing that the payments were “voluntary.”

The 1975 agreement also made certain provisions for Siegel’s spouse Joanne,

providing her with certain monthly payments “for the balance of her life if Siegel”

died before December 31, 1985. Finally, Warner Communications, Inc. noted that

its obligation to make such voluntary payments would cease if either Siegel or

Shuster (or their representatives) sued “asserting any right, title or interest in the

‘Superman’ . . . copyright.” As the years went by Warner Communications, Inc.

increased the amount of the annual payments, and on at least two occasions paid

the pair special bonuses.

As the time grew nearer to the December 31, 1985, cutoff date for surviving

spouse benefits, Joanne Siegel wrote the CEO for DC Comics expressing her

“terrible worry” over the company’s refusal to provide Jerome Siegel life insurance

in the 1975 agreement. (Decl. Michael Bergman, Ex. NN). She voiced her concern

that, should anything happen to her husband after the cutoff date, she and their

daughter “would be left without any measure of [financial] security.” (Decl. Michael

Bergman, Ex. NN). The parties thereafter agreed by letter dated March 15, 1982,

that Warner would pay Joanne Siegel the same benefits it had been paying her

husband if he predeceased her, regardless of the time of his death. (Decl. Michael

Bergman, Ex. OO). Jerome Siegel died on January 28, 1996, and Joanne Siegel

has been receiving these voluntary survival spouse benefits since that time.

In the meantime, changes in the law resurrected legal questions as to the

ownership rights the parties had to the Superman copyright. With the passage of

the Copyright Act of 1976 (the “1976 Act”), Congress changed the legal landscape


EXHIBIT 41 353


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 Although the present case only concerns the Siegel heirs’ efforts toterminate the 1938 grant, it has come to the Court’s attention that the estate ofSuperman co-creator Joseph Shuster has recently filed termination notices toreclaim the rights to the Superman copyright. According to documents filed withthe United States Copyright Office, Mark Warren Peary, the son of Shuster’s sisterand the court-appointed representative of the Shuster estate, has given notice ofthe estate’s intent to terminate the 1938 grant of the Superman copyright toDetective Comics and its successors effective 2013. As executor of the Shusterestate, Peary is entitled, under changes made to the 1976 termination provisionsby the 1998 Sonny Bono Copyright Term Extension Act, to make the sametermination claims for the Superman copyright that Shuster or his heirs would havebeen entitled to bring beforehand. See 17 U.S.C. § 304(c)(2); 3 NIMMER ONCOPYRIGHT § 11.03[A][2][a] at 11-40.1 (noting that when the 1976 Act wasoriginally passed if an author died without leaving heirs before exercising the rightto termination “the result was that no one could exercise [that] right,” but this“harsh result” was “ameliorated” through the passage of the 1998 Act by providingthat, “instead of lapsing,” the termination right could be exercised by “the author’sexecutor, administrator, personal representative, or trustee”).

19

concerning artists’ transfers of the copyrights in their creations. First, the 1976 Act

expanded by nineteen years the duration of the renewal period for works, like the

initial release of Superman in Action Comics, Vol. 1, that were already in their

renewal term at the time of the Act’s passage. See 17 U.S.C. § 304(b).

Second, and importantly for this case, the 1976 Act gave artists and their

heirs the ability to terminate any prior grants of the rights to their creations that were

executed before January 1, 1978, regardless of the terms contained in such

assignments, e.g., a contractual provision that all the rights (the initial and renewal)

belonged exclusively to the publisher. Specifically, section 304(c) to the 1976 Act

provides that, “[i]n the case of any copyright subsisting in either its first or renewal

term on January 1, 1978, other than a copyright in a work made for hire, the

exclusive or nonexclusive grant of a transfer or license of the renewal copyright or

any right under it, executed before January 1, 1978, . . . is subject to termination . . .

notwithstanding any agreement to the contrary . . . .”

It is this right of termination that Joanne Siegel and Laura Siegel Larson now

seek to vindicate in this case.3 In pursuing such a claim, the two heirs, initially

sought the legal assistance of a highly regarded copyright expert, Mr. Arthur J.


EXHIBIT 41 354


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

284 Before going into private practice, Mr. Levine served as General Counsel

for the United States Copyright Office and also as Executive Director for theNational Commission on New Technological Uses of Copyrighted Works.

20

Levine, in compiling the information necessary to draft the termination notice itself.4

On April 3, 1997, the two heirs served seven separate notices of termination

under section 304(c) of the 1976 Act, purporting to terminate several of Siegel’s

potential grant(s) in the Superman copyright to defendants, including the March 1,

1938, assignment; the May 19, 1948, stipulation; and the December 23, 1975,

agreement. The termination notices also specified that they covered hundreds of

works, with the added proviso that the intent was for the termination notice to apply

“to each and every work . . . that includes or embodies” Superman, and the failure

to list any such work in the notice was “unintentional and involuntary.” Each of the

termination notices had an effective date of April 16, 1999. A flurry of settlement

discussions between the parties quickly ensued, but just as quickly fizzled out.

Nearly two years then passed without much discussion between the parties.

The day before the purported termination was to take effect, defendants sent

a letter to Siegel’s counsel, Mr. Levine, rejecting “the validity and scope” of the

termination notices. (Decl. Marc Toberoff, Ex. Q at 171). The same day DC

Comics Executive Vice President and Publisher Paul Levitz wrote to Joanne Siegel

that his company would “continue to provide the income and insurance benefits you

. . . have been receiving under the 1975 agreement, without prejudice to [the

company’s] rights under that agreement, as long as we all continue to pursue the

goal of working together.” (Decl. Michael Bergman, Ex. P).

Not long after the termination notices’ effective date passed, the Siegel heirs

retained new counsel and the parties re-entered into settlement discussions to

resolve their respective claims to the Superman copyright. Towards that end, DC

Comics (and its “successors, past and present subsidiaries or affiliates”) and the

Siegel heirs executed a tolling agreement on April 6, 2000, whereby it was agreed

that neither would “assert any statute of limitations . . . defense[] relating to . . . the


EXHIBIT 41 355


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

21

[Termination] Notices” based on “the passage of time during the period from the

date hereof until cancellation of this Tolling Agreement pursuant to paragraph 7

hereof (the ‘Tolling Period’)” while the parties attempted “to find an amicable

resolution in respect of the [Termination] Notices.” (Reply Decl. Marc Toberoff, Ex.

A at 1). The agreement further provided that the tolling period would remain in

effect “until 10 business days after the earlier of: (a) one of the parties terminating

negotiations, in writing, relating to the [Termination] Notices, or (b) the parties

reaching an amicable resolution of the disputes between them relating to the

Notices.” (Reply Decl. Marc Toberoff, Ex. A at 2).

At some point the broad outline of a global settlement concerning the

copyright to the Superman material, as well as to other works Siegel either authored

or contributed material to Detective Comics (notably, Superboy and The Spectre

properties), was reached. Specifically, on October 19, 2001, counsel for Joanne

Siegel and Laura Siegel Larson sent a six-page letter to Warner Bros.’ General

Counsel confirming and summarizing the substance of the settlement. The letter

concluded that “if there is any aspect of the above that is somehow misstated,

please let me know by [October 22, 2001] at 2:00, as I will be out of the office —

and likely difficult to reach — for the following four weeks.” (Decl. Marc Toberoff,

Ex. BB).

A week later, on October 26, 2001, Warner Bros’ General Counsel John

Shulman responded with a letter, stating that he had “reviewed” the summary set

forth in the October 19 letter, and then “enclose[d] . . . a more fulsome outline of

what we believe the deal we’ve agreed to is”; the outline was five pages long.

(Decl. Marc Toberoff, Ex. CC). The letter concluded that Warner Bros. was

“working on the draft agreement” so as to “have this super-matter transaction in

document form.” (Decl. Marc Toberoff, Ex. CC).

A few months later, on February 1, 2002, outside counsel for Warner Bros.

provided a copy of the promised draft agreement (spanning fifty-six pages), with the


EXHIBIT 41 356


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

22

proviso that, “[a]s our clients have not seen this latest version of the agreement, I

must reserve their right to comment.” (Decl. Marc Toberoff, Ex. DD). Mention was

also made in the draft agreement for the need of certain “Stand Alone Assignments”

that had as yet not been finalized, something which Warner’s outside counsel

promised would be forthcoming. (Decl. Marc Toberoff, Ex. DD).

Three months later, on May 9, 2002, Joanne Siegel wrote a letter to Time

Warner’s Chief Operating Officer Richard Parsons, recounting that she and her

daughter had “made painful concessions and reluctantly accepted John Shulman’s

last [settlement] proposal [in October, 2001],” but upon reading the proposed draft

agreement learned that they had been “stabbed in the back,” as it “contained new,

outrageous demands that were not in the [October, 2001] proposal,” such as

“condition[ing] recei[pt of] financial compensation for our rights on demands which

were not in the proposal we accepted.” (Decl. Michael Bergman, Ex. Z). The letter

concluded that “[a]fter four years we have no deal and this contract makes an

agreement impossible.” (Decl. Michael Bergman, Ex. Z).

Time Warner’s CEO quickly responded with a letter of his own on May 21,

2002, expressing shock and dismay as “each of the major points covered in the

draft agreement . . . accurately represented the agreement previously reached” by

the parties. (Decl. Michael Bergman, Ex. AA). The letter continued by

acknowledging that, as with all lengthy negotiations, Time Warner “expected” that

the submission of the draft agreement would result in further “comments and

questions on the draft” by Siegel family’s representatives that “would need to [be]

resolve[d].” (Decl. Michael Bergman, Ex. AA). The letter concluded by reaffirming

Time Warner’s continued interest “that this agreement can be closed based upon

the earlier discussions with [the Siegel family’s] lawyers.” (Decl. Michael Bergman,

Ex. AA).

Not long thereafter, the Siegel heirs’ lawyers submitted for the family’s review

and approval a re-draft of the February 4, 2002, agreement the lawyers had crafted.


EXHIBIT 41 357


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

23

(Decl. Marc Toberoff, Ex. AA). The Siegel heirs, on September 21, 2002, rejected

the redraft and fired their attorneys. (Decl. Marc Toberoff, Ex. AA). That same day

Joanne Siegel and Laura Siegel Larson sent a letter to DC Comics’ General

Counsel Paul Levitz notifying the company that they were “stopp[ing] and end[ing]

negotiations with DC Comics, Inc., its parent company AOL Time Warner and all of

its representatives and associates concerning” their rights to, among other things,

Superman. (Decl. Michael Bergman, Ex. DD).

Joanne Siegel and Laura Siegel Larson thereafter filed the present action,

with the assistance of new counsel, Marc Toberoff, on October 8, 2004. Both sides

have since filed cross-motions for partial summary judgment.

Reduced to their essentials, the legal questions at stake in the parties’ cross-

motions are two-fold:

(1) The validity and enforceability of the termination notices in light of

(a) whether any copyrightable Superman material contained in the promotional

advertisements for Action Comics, Vol. 1, lies outside the reach of the termination

notice (and hence, the termination notice is not enforceable against it); (b) whether

certain portions of the Superman comic in Action Comics, Vol. 1, are in the nature of

a work for hire (and hence, not subject to termination); (c) whether the failure to list

the 1948 consent judgment in the notices as one of the grants sought to be

terminated materially affects the notices of termination; (d) whether the post-

termination receipt of benefits under the 1975 agreement acts as a novation to re-

grant the Superman copyright; (e) whether the statute of limitations ran out before

the instant action was instituted thereby forestalling this lawsuit; and (f) whether the

settlement negotiations that took place between the parties resulted in an

enforceable agreement disposing of the claims asserted in the present action; and,

(2) The parameters of what was recaptured (and the rights flowing therefrom)

through the termination notices, namely, (a) whether plaintiffs have a right to

defendants’ post-termination foreign profits from the exploitation of the Superman


EXHIBIT 41 358


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

24

copyright; (b) whether plaintiffs are entitled to profits from any of the various

trademarks that defendants have procured since the grant in marketing Superman;

(c) whether plaintiffs are entitled to profits from the derivative works of the

Superman material published by Detective Comics and its successors in interest

prior to the termination notice’s effective date; and (d) whether any recovery of

profits extends beyond those made through DC Comics’ exploitation of the

Superman copyright to that of its corporate siblings and parent who are licensees to

that copyright’s movie and television rights, be it based on an alter-ego theory or

other notion of equity.

I. Validity and Enforceability of Termination Notices

The 1976 Act created a new right allowing authors and their heirs the ability

to terminate a prior grant to the copyright in their creations. See 17 U.S.C.

§ 304(c). The 1976 Act also set forth specific steps concerning the timing and

contents of the notices that had to be served to effectuate the termination of a prior

grant. One of the most important steps was placing a limit on the temporal reach

such a notice could have on what was subject to being recaptured. Specifically, the

“[t]ermination of the grant may be effected at any time during a period of five years

beginning at the end of fifty-six years from the date copyright was originally

secured.” 17 U.S.C. § 304(c)(3) (emphasis added). Moreover, the notice is

required to be “served not less than two or more than ten years before” its effective

date.

Taken together, someone seeking to exercise the termination right must

specify the effective date of the termination, and that effective date must fall within a

set five-year window which is at least fifty-six years, but no more than sixty-one

years, from the date the copyright sought to be recaptured was originally secured,

and such termination notice must be served two to ten years before its effective

date. The purpose of this time window for terminating pre-1978 grants was so that

the only rights to the copyright affected thereby were those to the 19-year extension


EXHIBIT 41 359


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

25

in the renewal term created by the 1976 Act, leaving undisturbed the grantee’s

vested interest to the original 28-year renewal term as set forth in the 1909 Act, the

governing statute at the time the grant itself was made.

Additional procedures required to be followed to make the termination notice

effective were specified as well: The author or his or her heirs had to serve “an

advance notice in writing upon the grantee or the grantee’s successor in title”; the

notice had to be signed by the author or his or her heirs; the notice was required to

“state the effective date of the termination”; and the notice must be “recorded in the

Copyright Office before the effective date of termination.” 17 U.S.C. § 304(c)(4).

Beyond these statutory requirements, the notice was also required to

“comply, in form, content, and manner of service, with [the] requirements that the

Register of Copyrights . . . prescribe[s] by regulation.” 17 U.S.C. § 304(c)(4)(B).

Toward that end, the Register promulgated regulations implementing this statutory

proviso. See 37 C.F.R. § 201.10. Among those regulations was one requiring the

terminating party to identify in the notice “each work as to which the notice of

termination applies.” 37 C.F.R. § 201.10(b)(1)(ii).

As one noted author has commented, “[i]t is difficult to overstate the

intricacies of these [termination] provisions, the result of which is that they are

barely used, no doubt the result desired by lobbyists for assignees.” William Patry,

Choice of Law and International Copyright, 48 AM. J. COMP. L. 383, 447 (2000);

see also Burroughs v. Metro-Goldwyn-Mayer, Inc., 683 F.2d 610, 621 (2nd Cir.

1982) (commenting that the steps necessary to make a termination effective

oftentimes create “difficult, technical questions”). Those intricate provisions

oftentimes create unexpected pitfalls that thwart or blunt the effort of the terminating

party to reclaim the full measure of the copyright in a work of authorship. This case

is no different.


EXHIBIT 41 360


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5 Defendants also contend that the promotional advertisements are noteffected by the termination notices because plaintiffs failed to list those works intheir notices. As the Court finds that the promotional advertisements fall outsidethe five-year window during which those notices could effectively terminate thegrant in the copyright contained in them, the Court will not pass on theconsequences, if any, stemming from plaintiffs’ additional failure to list thosepromotional announcements in their notices.

26

1. Promotional Announcements

Plaintiffs gave notice that the effective date of the termination notices was

April 16, 1999, meaning that, backdating from that date sixty-one years, the

termination notices would leave unaffected (or better said, beyond their reach) any

statutory copyright that had been secured in the Superman material before April 16,

1938. Defendants contend that the promotional announcements for Action Comics,

Vol. 1, featuring a graphical depiction of Superman, fall just a few days outside the

five-year effective window of plaintiffs’ termination notices; therefore, they argue,

any copyright material contained in those promotional announcements, notably the

illustration of Superman on the cover of Action Comics, Vol. 1, is unaffected by the

termination notices and remains theirs to exploit exclusively. As defendants frame

it, section 304(c)(3)’s five-year effective window “is tantamount to a statute of

limitations[;] . . . if any work falls outside the five-year window established by the

[termination] effective date, it cannot be recaptured, and the original copyright grant

remains in force for that work, allowing the grantee to continue exercising the

granted rights without liability.” (Defs’ Mot. Partial Summ. J. at 29). Thus, any work

that was published with notice prior to April 16, 1938, i.e., sixty-one years before the

stated effective date, remains untouched by the termination notice.5

Plaintiffs do not dispute the legal consequence section 304(c)’s five-year

window has in this case on the effective reach of their termination notices. As

drafters of the notice, Siegel’s heirs were given carte blanche in identifying the

termination notices’ effective date. Once they chose a date, certain consequences

flowed therefrom, the most important of which is to cabin the five-year window


EXHIBIT 41 361


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

27

within which the notice can recapture any copyright secured in the material to which

the grant was directed. A copyright in a work statutorily secured even just days

outside this five year window is beyond the effective reach of the termination notice,

in much the same way a tardily-filed renewal registration has been held to be

ineffective. Cf. 3 NIMMER ON COPYRIGHT § 9.05[b][1] at 9-44 (“a variance of even

several days is fatal and that the purported renewal is void to rescue the subject

work from the public domain, whether filed after expiration of the one year or prior to

its initiation”). A leading treatise supports such a calculation and the consequences

flowing from it:

The appropriate dates for termination notices aremeasured from “the date copyright was originallysecured, or beginning on January 1, 1978, whichever islater.” In the case of pre-January 1, 1978 works,“secured” means the actual date the work was firstpublished with notice (or in the case of unpublishedworks, the date of registration), e.g., April 15, 1970, notDecember 31, 1970. Failure to pay attention to thedifferences between the date the copyright was originallysecured for purposes of section 304(c) termination oftransfer and section 305 expiration of term may lead toan untimely notice of termination.

2 PATRY ON COPYRIGHT § 7:43; see also 3 NIMMER ON COPYRIGHT § 11.05[B][1] at

11-40.11 (“Suppose that statutory copyright for a song were first secured on May

21, 1925. Based on the statutory provision that termination may be effected

‘beginning at the end of fifty-six years from the date copyright was originally

secured,’ the first effective date for termination should be May 21, 1981”); 3 JAY

DRATLER, JR. AND STEPHEN M. MCJOHN, INTELLECTUAL PROPERTY LAW: COMMERCIAL

CREATIVE AND INDUSTRIAL PROPERTY § 6.04A[3][a] (2008) (“If the year in which a

work was so published predates the current year by more than sixty-one years, then

the termination right [to that work] under section 304(c) has expired. The statute

apparently requires calculation of all these termination periods from the exact date

of publication, rather than from the end of the publication year, as is appropriate for

determining copyright terms under the 1976 Act”).


EXHIBIT 41 362


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

28

It is in this sense that one can say whether a termination notice is timely or

not, a question that does not go to the notice’s validity (the notice remains valid with

respect to a copyright in works that was secured during the five year window) but as

to its enforceability against a copyright in a particular work pre- or post-dating that

window. Thus, the key in deciding this timeliness question begins with a

determination of when the copyright in the work in question was secured, and not

when the work itself was created.

The determination of when the copyright in a work is secured is when the

material was protected by statute, meaning when the copyright in such a work

secured protection under this country’s copyright laws. Under the 1909 Act, “works

could have obtained statutory copyright . . . , without the necessity of registration,

simply by the act of publishing copies of the work bearing a proper copyright notice.

As to such works, registration did not create the copyright, but merely recorded it.”

2 NIMMER ON COPYRIGHT § 7.16[A][2][b] at 7-148 (emphasis added); see also 17

U.S.C. § 10 (repealed). Thus, the initial question is whether the comic books

containing the promotional announcements bore such a copyright notice upon

them.

Section 19 of the 1909 Act delineated what constituted proper notice: “The

notice of copyright required by section 10 of this title shall consist either of the word

‘Copyright’, the abbreviation ‘Copr.’, or the symbol ©, accompanied by the name of

the copyright proprietor, and if the work be a printed literary, musical, or dramatic

work, the notice shall include also the year in which the copyright was secured by

publication.” If the comic books in question contained such a notice, then the date

of publication is also the date the copyright in the material contained therein was

secured. If not, then any of the copyrightable material in the works (including the

promotional announcements) was never secured (absent evidence that the material

had been registered beforehand with the Copyright Office when it was in an

unpublished state) but instead was injected into the public domain.


EXHIBIT 41 363


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6 Defendants’ suggestion that the addition of section 304(a)(4)(B) by theCopyright Amendments Act of 1992 somehow altered this rule by extending theprima facie imprimatur to renewals like those in this case is simply mistaken. (Defs’ Reply at 40 & n.16). That section provides that, so long as the renewaloccurred “within 1 year before [the] expiration” of the initial term, then “thecertificate of such registration shall constitute prima facie evidence as to the . . .the facts stated in the certificate.” However, the 1992 Act’s provisions placed onevery important proviso on its applicability — its provisions applied only where aparty was filing a renewal registration to the “extended term of copyright in a work.” Thus, the amendments’ provisions were limited to renewal claims to works thatwere still in their initial term when the 1976 Act became effective, January 1, 1978,meaning for copyrights whose first term of copyright was secured on or afterJanuary 1, 1950. That is to say, section 304(a)(4)(B)’s provisions only applies toworks that had yet reached the time for renewal before the 1976 Act extended theterm of the renewal period (unlike Superman in Action Comics, Vol. 1, or thecomics containing the promotional announcements). For those works, the 1992amendments allowed such renewal to be made at anytime, but provided incentivesfor prompt renewal, the most notable being the extension of the prima facie rule tosuch promptly filed renewal claims. See 2 PATRY ON COPYRIGHT § 7:50 (“Effective

29

Here, the material submitted by defendants (the cover page for the magazine

and the page on which the promotional announcements is displayed) does contain

such a notice. At the bottom of the promotional announcement itself is the

following: “Entire contents copyright 1938 by Detective Comics, Inc.” (Decl.

Michael Bergman, Ex. C at 10 & Ex. D at 14). Thus, the copyright for any of the

works contained in the comic books in question was secured on the date they were

published.

This leads to the next question: What are the publication dates for the two

comic books that contained the promotional announcements for Action Comics,

Vol. 1, featuring an illustration of Superman? Defendants have submitted the initial

copyright registrations for these comics, which indicate that More Fun Comics,

Vol. 31, was published on April 5, 1938, eleven days before the effectiveness of the

plaintiffs’ termination notices, and that Detective Comics, Vol. 15, was published on

April 10, 1938, six days outside the temporal reach of the termination notices.

Under the 1909 Act the initial (as opposed to the renewal) copyright registration

constituted prima facie evidence of the publication date for a work.6 See 17 U.S.C.


EXHIBIT 41 364


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

June 26, 1992, Congress abolished the requirements that works in their first termof copyright published or registered between 1964 and 1977 must be timelyrenewed in order to enjoy the (now) 67-year renewal term. Instead, these worksare now automatically renewed for the full term of 75 years. Copyrights whosefirst term of copyright was secured between January 1, 1950, and December 31,1963, still had to have been renewed according to the requirements of the 1909Act. Failure to do so resulted in the work falling into the public domain. . . . Renewal claims may still be filed at any time during the renewal period, and anumber of incentives have been added to encourage filing. [One such] incentive[]for renewing provided in the Copyright Act of 1992 are the prima facie status thatis accorded to the validity of the work”). Given that none of the comics in questionfall within the class affected by section 304(a)(4)(B), that section’s expansion ofthe prima facie status to renewal claims does not apply here.

30

§ 209 (repealed) (providing that a “certificate of registration” issued by the Register

of Copyrights “shall be admitted in any court as prima facie evidence of the facts

stated therein”); see also Epoch Productions Corp. v. Killiam Shows, Inc., 522 F.2d

737, 745-46 (2nd Cir. 1975); 5 PATRY ON COPYRIGHT § 17:115 (observing that the

reason that renewal certificates issued during the 1909 Act were not accorded

prima facie status was because of the “minimal attention” the Register of Copyrights

paid to the information contained therein; “[a]s long as original registration for a

work has been made, the Copyright Office accept[ed] it at face value”).

Plaintiffs attempt to refute this prima facie evidence through expert testimony

and by legal argument.

As to the latter, plaintiffs seek to discredit the value of the initial copyright

registration for More Fun Comics, Vol. 31, because Detective Comics’ successor

did not obtain that registration until nearly 28 years after its publication, on the eve

of the expiration of the initial copyright term. The 1909 Act required that, once

copyright had been secured by publication with notice, “there shall be promptly

deposited” the required copies of the published work and the registration claim

itself. 17 U.S.C. § 13 (repealed). Plaintiffs suggest that such a “late” initial

registration raises questions as to the trustworthiness of any of the information

contained in that registration. (Pls’ Opp. at 48-49). Plaintiffs correctly point out that

Professor Nimmer in his treatise has commented that, “where there was a failure to


EXHIBIT 41 365


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

31

promptly register and deposit, under the 1909 Act, some questions as to the viability

of the copyright might be raised.” 2 NIMMER ON COPYRIGHT § 7.16[A][2][b] at 7-150.

But Professor Nimmer’s comments as to the collateral consequences flowing from

such a delay were not geared toward the validity of the copyright itself, but to the

existence of an impediment to bringing an action for infringement. See id. at 7-149

(noting that Supreme Court’s Washingtonian decision effectively read the “words

‘promptly deposited’ in Section 13 . . . not . . . as a condition subsequent that, if not

satisfied, would result in destruction of the copyright,” but rather “[t]he deposit . . .

requirement was (as it still is) clearly a condition precedent to the right to bring an

infringement action”).

Although the general line of reasoning plaintiffs seek to draw from such a

“late-in-time” registration makes sense from a policy perspective, plaintiffs have

cited no authority that such long delays in registration vitiates or otherwise

diminishes the statutorily conferred prima facie presumption to which such

registration claims (and the information contained therein) are entitled, especially

once a registration has (as here) been tendered. Moreover, even were the Court to

entertain plaintiffs’ invitation, there remains the initial registration for the other comic

book in question — Detective Comics, Vol. 15 — which was obtained shortly after

that comic book’s publication and, hence, the problem pressed by defendants with

the promotional announcement contained therein falling outside the effective reach

of the termination notice remains.

Plaintiffs next contend that the copies of the registration certificates

submitted by defendants have not been authenticated by the declarant to whose

declaration they are affixed, and hence, are not admissible as proof of the comic

books’ publication date. (Pls’ Opp. at 48-49 (“the certificate is not properly

authenticated, but is merely attached to the declaration of defendants’ attorney, who

appears to have no personal knowledge of it”). Such extrinsic evidence of

authenticity by the declarant is unnecessary for these copyright registration


EXHIBIT 41 366


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

32

certificates. Under Federal Rule of Evidence 902(1), a “document bearing a seal

purporting to be that of the United States . . . or of a . . . department, officer, or

agency thereof,” with “a signature purporting to be an attestation or execution,” is

considered self-authenticated. Close inspection of the copyright registration

certificates submitted by defendants clearly reveals the seal issued by the United

States Copyright Office, signed by the Register of Copyrights, and bearing the

following legend: “[A]ttached are additional certificates for the [comics in question]

which were registered in accordance with provisions of the United States Copyright

Law.” (Decl. James Weinberger, Ex. B & C). The requirements of Rule 902(1)

have been met, rendering the copies of the copyright registration certificates as self-

authenticated and, thus, admissible.

The obscure nature of these promotional announcements does not alter this

analysis. It is undoubtedly true that the existence of these announcements was not

widely recognized even by comic book aficionados. That, however, does not

change the effect their existence has vis-à-vis the termination notices’ effective

reach. Once a termination effective date is chosen and listed in the notice, the five-

year time window is an unbendable rule with an inescapable effect, not subject to

harmless error analysis. See 37 C.F.R. § 201.10(e) (limiting application to

“[h]armless errors in a notice” that does not “materially affect the adequacy of the

information”) (emphasis added). That good cause may have existed for failing to

structure the termination notices so as to sweep the announcements within its reach

does not obviate application of the rule itself.

The importance such promotional announcements may have on the reach of

a termination notice that has been tendered was not lost on plaintiffs’ counsel, Mr.

Levine, who drafted the termination notices in this case. He also drafted plaintiffs’

termination notice with respect to The Spectre copyright, and structured it in such a

way so as to include among the works affected by the notice’s five-year window a

promotional announcement for The Spectre contained in a comic published a month


EXHIBIT 41 367


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

33

before the one containing the first comic book story of the character. (Decl. Michael

Bergman, Exs. WW-YY (termination notice describing among the works affected by

the notice the promotional announcement as “Spectre character appearing in

costume in an ad in issue No. 51 of More Fun Comics, copyrighted November 28,

1939, as Copyright Registration No. B437786, publication date January 1940”) &

Decl. Paul Levitz, Ex. A (containing picture of The Spectre ad)).

Having provided prima facie evidence of the comic books’ publication dates,

the burden shifts to the plaintiffs to produce some evidence calling into question

those dates. The burden of production is not a heavy one (in large measure owing

to the fact that so little is proffered by the applicant or scrutinized by the Copyright

Office in the application process to procure the registration in the first instance), but

it is one that must be met nonetheless. See 3 PATRY ON COPYRIGHT § 9:14 (“the

Copyright Office has no ability to verify facts stated in the certificate, and not

surprisingly makes no effort to do so. . . . At the most, the Office can take notice of

any inconsistent facts that appear on the deposit copy and request clarification from

the claimant . . . . In any event, [the opposing party] should be required to present

only a small degree of evidence calling into question the fact at issue in order to

rebut the certificate’s presumption”).

On that point all that plaintiffs have submitted is the opinion of a comic book

historian, Mark Evanier, who was retained by DC Comics in the 1970s to, among

other things, assist it “in attempting to determine approximate dates of past

publication” of its comics. (Decl. Mark Evaier ¶ 12). From this particular

experience, as well as his long history in the comic book industry, Mr. Evanier seeks

to cast doubt on the veracity of the asserted publication dates for the comics

containing the promotional announcements. The general thrust of his expert

opinion is that, outside the first printing of certain famous comic superheros such as

Superman in Action Comics, Vol. 1, a particular “run of the mill” comic book’s exact

date of publication during the 1930s and 1940s is difficult to determine, rendering


EXHIBIT 41 368


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

34

the dates listed on the certificates as nothing more than “mere guesstimates” by the

publisher. (Decl. Mark Evanier ¶ 10). Furthermore, Mr. Evanier downplays the

significance of the fact that the comic books in question contained promotional

announcements for Action Comics, Vol. 1, as necessarily meaning that their

publication must have preceded Action Comics publication. As Mr. Evanier

explains, the dates provided by publishers were often the dates initially scheduled

or intended for publication, but the actual dates often varied with printing, delivery,

and other delays. (Decl. Mark Evanier ¶ 11).

Mr. Evanier’s expert opinion is chalk full of information on the publication of

comic books in general during this time period, but is void of any specific evidence

or opinion as to the publication of the particular comic books in question in this

case. He offers no evidence of any specific printing, delivery, or other problems that

may have affected the publication of More Fun Comics, Vol. 31, or Detective

Comics, Vol. 15. His general opinion thus does not sufficiently refute the prima

facie evidence set forth in the initial copyright registration certificates for these

particular comic books. At most, his opinion raises some doubts as to the precision

of the dates contained in initial copyright registrations for comic books in general

from this period. However, those copyright notices were completed at a time which,

by Mr. Evanier’s own opinion, the copyright holder was attempting to be as accurate

as possible in listing those dates and long before any incentive to provide

inaccurate dates by virtue of contemplating this present litigation or the termination

provisions of the 1976 Act existed. Plaintiffs evidence does no more than inform the

Court that, despite efforts to be precise about publication dates for comic books

during this particular period, mistakes could be made; it is not at all probative on the

issue of whether mistakes were in fact made with respect to the information

contained in the particular registration certificates at issue in this case. The Court

therefore finds that the promotional announcements containing an illustration of

Superman from the cover of Action Comics, Vol. 1, are outside the effective reach


EXHIBIT 41 369


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

35

of the termination notices.

Perhaps anticipating this finding, plaintiffs next seek to downplay the

significance of the promotional announcements themselves by arguing that, legally

and factually, little, if any, copyrightable Superman material is contained in those

announcements. Specifically, plaintiffs submit that Siegel and Shuster’s material

was an indivisible joint work, and that the advertisements were a derivative work of

the authors’ material. Thus, they claim that none of the Superman material

contained in the promotional announcements (namely, the cover artwork from

Action Comics, Vol. 1) could be copyrighted, and thus, defendants cannot continue

to exploit the same, regardless of the termination notice. As framed by plaintiffs:

“Defendants’ entire argument is falsely premised on the erroneous assumption that

they can take the cover of Action Comics, No. 1, one of many illustrated panels in

Siegel and Shuster’s first ‘Superman’ comic book story, rip it from this copyrighted

joint work, and own a separate copyright in the illustration in the form of a mere ‘in

house announcement’ depicting a reduced image of the illustration. [Moreover,]

Detective’s ‘in-house announcements,’ at best, are derivative works based on the

pre-existing cover and interior panel of Siegel and Shuster’s pre-existing

‘Superman’ story.” (Pls’ Opp. at 44, 46).

This emphasis on the joint nature of Siegel and Shuster’s Superman material

is rendered nugatory by the fact that Siegel and Shuster granted the copyright in

their material to Detective Comics on March 1, 1938, well before the promotional

advertisements were published by Detective Comics in April of that year. Thus, by

the time the promotional announcements were published, Siegel and Shuster’s

Superman material was owned solely by Detective Comics to do with it as it saw fit,

whether it be as a full-length comic or as artwork in its advertising. That Siegel and

Shuster intended their work to be combined together and depicted as a unitary

whole is a separate and distinct question from whether, in later using some of

Shuster’s artwork from that combined material it had acquired, Detective Comics


EXHIBIT 41 370


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

36

somehow unraveled the copyrightability in that portion of the work. The manner of a

work’s authorship is entirely separate from the way in which an assignee may

exploit that material once it has acquired exclusive ownership of the same and,

correspondingly, whether there were anything copyrightable in the work the

assignee subsequently published using only parts of that material.

In this respect it is important to remember that a joint work can consist of

either inseparable or interdependent parts, the latter example of which include “the

collaborative musical works of Gilbert and Sullivan . . . ., [t]hese works are the result

of the interdependent contributions of the collaborators, i.e., one person wrote the

lyrics and the other the music, either of which could on its own [stand] as an

independent work, but which, when combined, form a single[, separate]

‘interdependent’ joint work.” 2 PATRY ON COPYRIGHT § 5:6. The original Superman

material was the product of the story and dialogue written by Siegel and the art work

drawn by Shuster; each on its own could have been a work in its own right subject

to copyright protection, but when merged together they formed a single new and

unified interdependent work. See Siegel v. Time Warner, Inc., 496 F.Supp.2d 1111,

1145 (C.D. Cal. 2007) (where this Court held, in regard to Superboy, “the copyright

to [the same] (if a joint work) would be considered comprised of interdependent

parts — Siegel’s dialogue and storyline . . . and Shuster’s artwork giving life and

color to those words”).

At most, Detective Comics took a part of Shuster’s independently

copyrightable art work out of the joint work and utilized it, in conjunction with other

material (namely, the advertising slogan), in a promotional announcement. There is

no rule preventing a publisher or others from publishing portions or excerpts of

works, joint or otherwise, that it solely owns, and then seeking a separate copyright

in the same. Indeed, the opposite is true — the holder of a copyright is expressly

entitled to prepare derivative works based upon a copyrighted work it owns or to

utilize portions of that work in other materials. See 17 U.S.C. § 106(2); see


EXHIBIT 41 371


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

37

generally 17 U.S.C. § 1 (repealed). Detective Comics could just as well have

decided to split up the Superman material for publication into two or three

installments as it could (and did) decide to publish a portion of that material in an

advertisement to promote the comic.

This leads to plaintiffs’ contention that the “derivative nature” of the

promotional advertisement itself works to exclude any of the copyright in the pre-

existing Superman material (notably, the art work for the Action Comics, Vol. 1

cover) contained therein from enuring to the benefit of the defendants to continue to

exploit. Generally, if an author contributes additional original material to a pre-

existing work so as to recast, transform, or adapt that work, then the copyright

protection afforded to the author of that derivative work extends only to that

additional material and in no way extends to the underlying, pre-existing material.

See 17 U.S.C. § 103(b) (specifying that a derivative work’s copyright does not

extend to any part of that work using “preexisting material in which copyright

subsists”); 1 NIMMER ON COPYRIGHT § 3.03, at 3-10. Thus, it is asserted that the

author of the pre-existing material work (here Siegel and Shuster) would continue to

retain ownership in the same despite its use in the derivative work (the promotional

announcement).

Even assuming that the changes made to the cover page for Action Comics,

Vol. 1, in the promotional announcements is not merely a reproduction, but

sufficiently “recast, transform, or adapts” the pre-existing material so as to be

considered a derivative work thereof (e.g, the cover is shown in black and white

instead of color, the scale of the artwork itself is diminished, and text is placed

alongside the artwork), there remains a complicating wrinkle. At the time the

promotional announcements were placed in Detective Comics’ existing comic book

publications, the underlying pre-existing Superman material from which a portion of

the announcements were derived (again the artwork for the cover) had yet to be

published, and, hence, copyright in the same was protected at the time under state


EXHIBIT 41 372


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

38

common law. See 17 U.S.C. § 2 (repealed).

Given that the portion of the pre-existing material at issue had yet to achieve

statutory copyright protection when it was first published in More Fun Comics, Vol.

31, and Detective Comics, Vol. 15, it was injected into the public domain upon the

publication of the promotional announcements themselves, absent investiture of

statutory copyright protection through its publication. See 17 U.S.C. § 10

(repealed). That is to say, the copyright in the cover of Action Comics, Vol. 1, itself

first achieved statutory protection, if at all, upon its publication in the

announcements, not its later publication in Action Comics, Vol. 1. See 2 PATRY ON

COPYRIGHT § 6:35 (“where an investitive publication occurs, the derivative work

copyright covers the unpublished material”).

This fact has repercussions on plaintiffs’ derivative works argument, as it

alters the general rule described above. Once Detective Comics published a

portion of the previously unpublished pre-existing material — as was its right as

owner of the material at that time — its continued protection resided exclusively

under statutory copyright in the derivative work itself lest that portion of the pre-

existing material (the art work for the cover) be injected into the public domain. See

Batjac Productions Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223, 1233 (9th

Cir. 1998); 2 PATRY ON COPYRIGHT § 6:35 (“to the extent that previously unpublished

material is included in an authorized published derivative work, the derivative work

publishes the previously unpublished material”). As Professor Nimmer explains:

Because a derivative work by definition to some extentincorporates a copy of the pre-existing work, publicationof the former necessarily constitutes publication of thecopied portion of the latter. Of course, an article thatmerely describes a pre-existing work but does notincorporate any substantial portion of it is not aderivative work and hence, does not publish the pre-existing work. Unless the basic work is reproduced inthe published work, it is not published. If only the broadoutlines or other fragmentary portion of the pre-existingwork are copied and published in the derivative work,then only to that extent is the pre-existing workpublished.


EXHIBIT 41 373


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

39

1 NIMMER ON COPYRIGHT § 4.12[A] at 4-59 to 4-60; see also id. § 4.13[A] at 4-73

(“any work published prior to January 1, 1978, was not only thereby divested of

common law copyright; it was also injected into the public domain, unless at the

moment of publication copies of the work bore a proper copyright notice”).

Thus, included in defendants’ right to continue to exploit the copyright in the

derivative work (the promotional announcements) is the right to the copyright in that

part of the pre-existing work (the illustration from the cover) that was published for

the first time in that derivative work.

The cases cited by plaintiffs as standing for the contrary are all

distinguishable, as either the act of publication in question fell within the “limited“

publication exception because the material was distributed for promotional purposes

to members in the trade and not, as here, the general public itself, see Rushton v.

Vitale, 218 F.2d 434 (2nd Cir. 1955); Hub Floral Corp. v. Royal Brass Corp., 454

F.2d 1226 (2nd Cir. 1972); or because the underlying work reproduced in the

derivative work was itself in the public domain (unlike here where the underlying

material was in an unpublished state protected by common law copyright), thereby

mooting any question about divestiture of the underlying work through publication.

See Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2nd Cir. 1951).

Here, the promotional announcements represent the first time Superman

appeared to the public, and consequently, the first time any of Siegel and Shuster’s

Superman material was protected by statutory copyright, albeit in conjunction with

the other material contained in the advertisement itself. Thus, all of the material in

the promotional announcement (which included the graphic depiction of Superman

later portrayed on the cover of Action Comics, Vol. 1) obtained statutory copyright

protection before the earliest possible date covered by the plaintiffs’ termination

notices. The Court therefore finds that the publication date for at least one of the

comics containing the promotional announcements falls outside the reach of the

termination notice and, therefore, any copyrightable material contained therein


EXHIBIT 41 374


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

40

(including that found in the cover to Action Comics, Vol. 1, as depicted in those

announcements) remains for defendants to exploit.

This leads to the question of the scope of the copyrighted material remaining

in defendants’ possession by way of the promotional announcements, a question

that defendants themselves acknowledge “is most obviously answered by [looking

at] the ads which speak for themselves” and that does not require some “special

‘lens’” to resolve. (Defs’ Reply at 44).

The Court begins by observing what is not depicted in the announcements.

Obviously, nothing concerning the Superman storyline (that is, the literary elements

contained in Action Comics, Vol. 1) is on display in the ads; thus, Superman’s

name, his alter ego, his compatriots, his origins, his mission to serve as a champion

of the oppressed, or his heroic abilities in general, do not remain within defendants

sole possession to exploit. Instead the only copyrightable elements left arise from

the pictorial illustration in the announcements, which is fairly limited.

The person in question has great strength (he is after all holding aloft a car).

The person is wearing some type of costume, but significantly the colors, if any, for

the same are not represented, as the advertisement appears only in black and

white. The argument that the “S” crest is recognizable in the promotional

advertisement is not persuasive. What is depicted on the chest of the costume is

so small and blurred as to not be readily recognizable, at best all that can be seen is

some vague marking or symbol its precise contours hard to decipher. The Court

thus concludes that defendants may continue to exploit the image of a person with

extraordinary strength who wears a black and white leotard and cape. What

remains of the Siegel and Shuster’s Superman copyright that is still subject to

termination (and, of course, what defendants truly seek) is the entire storyline from

Action Comics, Vol. 1, Superman’s distinctive blue leotard (complete with its

inverted triangular crest across the chest with a red “S” on a yellow background), a

red cape and boots, and his superhuman ability to leap tall buildings, repel bullets,


EXHIBIT 41 375


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

41

and run faster than a locomotive, none of which is apparent from the

announcement.

2. Work Made for Hire Aspect of Portions of Action Comics, Vol. 1

Under the 1976 Act, an author’s (or his or her heirs’) ability to terminate a

prior grant in the copyright to a creation does not apply to a “work made for hire,”

because the copyright in such a creation was never the artist’s to grant, belonging

instead to the one who employed the artist to create the work. See 17 U.S.C.

§ 304(c); Playboy Enterprises, Inc. v. Dumas, 53 F.3d 549, 554 (2nd Cir. 1995)

(“Once it is established that a work is made for hire, the hiring party is presumed to

be the author of the work”). The manner in which Siegel and Shuster’s Superman

material was submitted, then re-submitted in a reformatted version, and finally

accepted for publication by Detective Comics raises questions about the work for

hire status of the re-formatted material (but not the initial material submitted to the

publisher) later published in Action Comics, Vol. 1.

Defendants argue that portions of the copyrightable material contained in

Action Comics, Vol. 1, are unaffected by the termination notice because those

portions belong exclusively to them as “works for hire,” arguing that certain material

found in the comic book was created by Detective Comics’ in-house employees, or

that the material was added to the underlying Superman material by Siegel and

Shuster at the publisher’s direction. (Defs’ Opp. at 27). Specifically, the alleged

“additional” material provided by Detective Comics’ in-house employees is the color

choices made throughout the comic, notably, the red color of the letter “S” on

Superman’s crest and the art work for the cover to the magazine itself (albeit

modeled after a interior panel in the Superman comic illustrated by Shuster).

Similarly, the additional material supplied in response to the publisher’s February 1,

1938, letter is Shuster’s admitted (and as acknowledged by Siegel) drawing of

“several additional pictures to illustrate the story continuity” appearing “on page 1 of

the first Superman release” and “the last panel appearing on the thirteenth page.”


EXHIBIT 41 376


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

42

(Decl. Michael Bergman Ex. G at 2 & Ex. H at 5).

The thrust of defendants’ argument was made and rejected by the Second

Circuit in the 1970s Superman copyright renewal litigation, and is thus precluded as

a matter of collateral estoppel here. In that litigation, defendants’ predecessors-in-

interest presented much of the same evidence now submitted in this case to argue

that this additional material transformed the entirety of Siegel and Shuster's

pre-existing Superman material published in Action Comics, Vol. 1, into a work

made for hire. The Second Circuit rejected this argument, elaborating: "In the case

before us, Superman and his miraculous powers were completely developed long

before the employment relationship was instituted. The record indicates that the

revisions directed by the defendants were simply to accommodate Superman to a

magazine format. We do not consider this sufficient to create the presumption that

the [comic book] strip was a work for hire.” Siegel, 508 F.2d at 914. This

conclusion forecloses any further litigation on the point of whether Shuster’s

additional drawings when reformatting the underlying Superman material into a

comic book format or other facts related to such a theory such as the colorization

process for Action Comics, Vol. 1, or the party responsible for the illustration of the

cover to the magazine, rendered all or portions of the resulting comic book a work

made for hire.

Defendants seek to avoid the collateral estoppel effect of the Second

Circuit’s decision by arguing that the only issue concerning the work for hire status

of Action Comics, Vol. 1, related to Siegel and Shuster’s 1934-1935 “contributions,”

and not what was “added to the first Superman story by Detective’s employees,”

amongst whom defendants count Siegel and Shuster after they executed the

December, 1937, contract. (Defs’ Opp. at 36). Such a reading conflicts with the

record. The evidence that was proffered during the 1970s litigation in the trial court

on the work for hire question included declarations from Siegel and Shuster

discussing what took place during the reformatting process. This is the same


EXHIBIT 41 377


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

43

evidence that defendants now seek to use in this case to argue that the reformatted

material was a work made for hire.

Moreover, the circumstances surrounding the reformatting of the underlying

Superman material was not only mentioned by the Second Circuit, but discounted

by that court in passing on the work for hire nature of Action Comics, Vol. 1, itself,

not just the initial contributions made by Siegel and Shuster back in 1934 and 1935.

It would be incongruous for the Court, in respecting as it must the Second Circuit’s

judgment, to now hold that, while that reformatted material did not transform the

entirety of the material in Action Comics, Vol. 1, into a work made for hire, some

subpart thereof (and, indeed, a very limited subpart, consisting of but a few panels)

was somehow excised out and should be accorded work made for hire status. The

litigation of the larger question sweeps within it defendants’ opportunity to litigate a

subpart thereof.

A contrary holding would transgress certain core principles of collateral

estoppel: “A new contention is not necessarily a new issue. If a new legal theory or

factual assertion raised in the second action is relevant to the issues that were

litigated and adjudicated previously, the prior determination of the issue is

conclusive on the issue despite the fact that new evidence or argument relevant to

the issue was not in fact expressly pleaded, introduced into evidence, or otherwise

urged.” 18 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE § 132.02[2][c] at 132-25

(3rd ed. 2007). Significantly, much of the evidence underlying defendants’

arguments was presented in the Second Circuit litigation (notably Siegel and

Shusters’ declarations submitted in that litigation) or, if not, was certainly available

to be used in that case (the colorization process for the initial printing of

Action Comics, Vol. 1, or that in-house employees supposedly drew the cover to the

magazine). “A party may be precluded from re-litigating an issue if evidence

supporting the party’s position on the issue could have been submitted in previous

litigation but, for whatever reason, was not properly raised. Evidence that is not the


EXHIBIT 41 378


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

44

result of a different factual situation or changed circumstances, but is instead

historical in nature and could have been admitted at the first trial if properly

submitted, cannot be introduced in subsequent litigation of the same issue.” Id. §

132.02[2][d] at 132-25 to 132-26 (citing Yamaha Corp. v. United States, 961 F.2d

245, 257 (D.C. Cir. 1992)).

Nowhere have defendants explained why they did not bring up the question

of the colorization process for Action Comics, Vol. 1, or the cover art work for the

magazine, before the courts handling the 1970s Superman litigation. The question

about the legal effect the reformatting of the underlying Superman material had on

the work for hire question was litigated by the parties and resolved by the courts

during the 1970s Superman matter. Similarly, the question about the colorization

and cover art work (and who was responsible for the same) could have been raised

in conjunction with the work for hire question, but defendants failed or decided not

to do so. Having litigated the question and having the opportunity to present all the

evidence that pressed on the issue, defendants are now barred from seeking to

relitigate it anew even under the purported limited guise that it is now being offered.

Some noted treatise writers have commented that the Second Circuit's

analysis focusing on the work for hire nature of the additional reformatted material

should have been analyzed as a derivative work, that is, that the additional material

was derivative of the underlying Superman material. See 1 NIMMER ON COPYRIGHT

§ 5.03[B] [1][b][I] at 5-33 n.92. (“The Siegel decision . . . may be understood as

holding that the first expression of the Superman character was the underlying

work, and the later development of the character was a derivative work. Because

only the derivative work was produced in a for-hire relationship, the underlying work

remains the property of the creators”). However, this analysis does not benefit

defendants.

First, no additional literary material was supplied in re-formatting the

underlying Superman material into a comic book format. All the dialogue and


EXHIBIT 41 379


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

45

storyline contained in Action Comics, Vol. 1, was present before Detective Comics

requested the pair to provide a reformatted version of the material, and that literary

material remained unchanged through the reformatting process. All that is left was

supplying some additional illustrations by Shuster, the precise ones specified in his

declaration. From the Court’s review of these additional illustrations, it appears that

the material is completely derivative of other panels in the Action Comics, Vol. 1,

comic, with its origins in the underlying Superman material. Thus, for instance,

while the final panel on page 13 shows Superman’s crest with a red “S” on a yellow

background, so, too, does another panel containing the underlying, pre-existing

material. Similarly, while the panels on the first page to the comic show Superman

leaping skyscapers, running at high rates of speed, and demonstrating feats of

great strength, so, too, do other panels containing the pre-existing material. Indeed,

the earliest sketches by Shuster from 1934 and 1935 demonstrate that the graphical

depiction of Superman was well on its way to being completely developed before

the re-formatted material in question was created some three years later. Thus,

even if the additional material in question was tendered as a derivative work that

was made for hire by Shuster, all the potentially copyrightable material contained

therein is completely derivative of the pre-existing material and, hence, is not

subject to independent copyright protection in the first instance. This, then, lends

strong support to the Second Circuit’s observation: “Superman and his miraculous

powers were completely developed long before the employment relationship was

instituted.” Siegel, 508 F.2d at 914.

Defendants also argue that the coloring for Action Comics, Vol. 1, was not

created or chosen by Siegel or Shuster, but was instead the product of some of

Detective Comics’ in-house employees working in the printing department. Even if

this argument was not otherwise precluded by collateral estoppel, the evidence

produced in support is less than persuasive. According to “eye-witness” Jack Adler,

the material contained in comic books “at the time” was provided by artists to the


EXHIBIT 41 380


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

46

Detective Comics’ production staff in black and white. (Decl. Jack Adler ¶ 3).

“Typically,” members of the staff then decided upon the color that would be applied

throughout the magazine, something that defendants argue is an additional element

added to the underlying Superman material that is itself subject to copyright

protection. (Decl. Jack Adler ¶ 3). Defendants’ argument depends entirely upon

Mr. Adler’s declaration, which is not as clear as they suggest.

Mr. Adler does not state that he worked on the colorizing of Action Comics,

Vol. 1, itself. Instead he states that he “worked for the engraving company that

made the metal plates for printing of, among other things, comic books for Detective

Comics.” (Decl. Jack Adler ¶ 3). He then states that, “[a]t the time, comic book

artists . . . submitted drawn and inked comic book work in black and white.” (Id.).

Mr. Adler further states that the black-and-white pages “were then photographed by

the engraver and a photo print was hand[-]colored by staff at Detective and by the

engravers.” (Id.). Of course, nothing in this statement precludes the possibility that,

even if the Superman material was so submitted, Siegel and Shuster may have also

placed certain color directions with their material to be utilized in the engraving

process. In fact, that the earlier incarnation of Superman as hulking strongman in

the tradition of Tarzan was created by the pair as a comic book with color

illustrations lends to the possibility that they already had pre-conceived color

choices in mind for the later comic if it were later reformatted into a comic book,

rather than a newspaper comic strip.

Moreover, viewed in context, Mr. Adler’s declaration appears to describe

procedures generally employed in the printing process, not as evidence of what

actually occurred with respect to the printing of Action Comics, Vol. 1, itself. His

statement (and, in fact, the entire Adler declaration) is of dubious evidentiary value

in light of his candid admission that he has “no knowledge of Siegel and Shuster

selecting any of the color in Action Comics, No.1.” (Id. ¶ 4). Mr. Adler attempts to

temper his admission of lack of knowledge by stating, without any basis, that he is


EXHIBIT 41 381


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

47

“aware that Detective staff member, Ed Eisenberg, selected the color for

Superman’s ‘S’ in Shield on his costume.” (Id.) Of course, Mr. Adler’s statement on

this point is inadmissible as it is based on hearsay. Without any direct link between

Mr. Adler’s work and the printing of Action Comics, Vol. 1, in particular, there exists

an insufficient evidentiary foundation for his conclusions concerning the manner in

which the Superman material was supplied to the printer and the colorization of the

same was handled.

Finally, defendants argue that the cover for Action Comics, Vol. 1, was drawn

by Detective Comics’ in-house artists. However, the scant evidentiary basis

provided in support of this argument is ambiguous. In a letter sent to Jerome Siegel

dated February 22, 1938, Detective Comics’ editor, Vin Sullivan, enclosed “a

silverprint of the cover of Action Comics,” with the observation that Detective

Comics “used one of those panel drawings of SUPERMAN, as you suggested in

your recent letter.” (Decl. Michael Bergman, Ex. I). The inference sought to be

drawn by defendants is that when Mr. Sullivan stated that the publisher “used” an

interior illustration from the Superman comic for the cover artwork he was stating

that one of the publisher’s in-house artists saw the interior panel in question and

then drew the cover using the interior panel as inspiration. Of course, given the

limited nature of the information contained in the passage it could also be argued

that, in his earlier letter, Siegel enclosed an illustration by Shuster as a suggestion

for the comic book’s cover and Detective Comics decided to “use” this suggestion.

This alternative reading is not implausible. As demonstrated by the pair’s attempt to

have their earlier incarnation of Superman published by Detective Dan, Shuster had

in the past drawn exemplars for the cover illustration for his comics well before they

were ever accepted for publication.

In conclusion, the Court finds that the question of the work-for-hire nature of

certain portions of the Superman material published in Action Comics, Vol. 1, is

precluded from further litigation by operation of the 1974 Second Circuit decision.


EXHIBIT 41 382


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

48

Accordingly, the binding nature of that court’s decision leads to the conclusion that

all the Superman material contained in Action Comics, Vol. 1, is not a work-made-

for-hire and therefore is subject to termination.

3. Failure to Include 1948 Consent Judgment

Among the regulatory requirements promulgated by the Register of

Copyrights concerning the termination notice’s “form, content, and manner of

service,” 17 U.S.C. § 304(c)(4)(B), is the requirement that the notice must

“reasonably” identify “the grant” to which it applies. 37 C.F.R. § 201.10(b)(1)(iv).

Thus, if the author entered into five separate grants of rights for the same work, and

a notice of termination identifies only four of those grants, the fifth grant remains

“intact,” and the grantee’s rights thereunder remain unaffected. See 3 NIMMER ON

COPYRIGHT § 11.06[B] at 11-40.22(1) n.63 (“if a grant was not effectively terminated,

then the rights licensed under such grant remain”).

Here, defendants argue that plaintiffs’ failure to identify the 1948 consent

judgment from the Westchester action is fatal to their attempts to terminate their

grant to the copyright in Superman, as that consent judgment was among the

grants leading to the transfer of ownership from the artists to Detective Comics.

Such argumentation is predicated upon the notion that, notwithstanding the

plaintiffs’ act of identifying the stipulation between the parties from the Westchester

litigation that resulted in the consent judgment, identification of the consent

judgment from the Westchester action itself as (or part of) a “grant” was necessary

because it constituted the final step in “effectuat[ing] the transfer to [Detective

Comics] of the sole and exclusive ownership of all rights relating to ‘Superman’”;

“without it the rights identified in the Stipulation would not have been transferred.”

(Defs’ Opp. at 39). The Court disagrees.

Although the 1976 Act nowhere defines the term “grant,” the central question

raised is plainly one of transfer: Did Siegel and Shuster transfer any rights to

Superman through or in conjunction with the 1948 consent judgment? If so, then it


EXHIBIT 41 383


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

49

operated as a grant by the artists in the same.

On that point, the 1976 Act is helpful as it defines a “transfer of copyright

ownership” as “an assignment, mortgage, exclusive license, or any other

conveyance, alienation, or hypothecation of a copyright.” 17 U.S.C. § 101; see

Melville B. Nimmer, Termination of Transfers under the Copyright Act of 1976, 125

U. PA. L. REV. 947, 951-52 (1977) (“In general, the termination provisions apply to

any ‘transfer’ of copyright and to nonexclusive licenses of copyright or of any right

comprised in a copyright. [Thus, a] ‘transfer’ includes not only assignments (as

understood under the [1909] Act), but also exclusive licenses and any other

conveyance of copyright or of any exclusive right comprised in a copyright”).

The consent judgment at issue did not effectuate any transfer of rights from

Siegel and Shuster to Detective Comics. If any rights were transferred as a result of

the Westchester action, such a transfer was effectuated by the execution of the

earlier stipulated agreement of the parties, not a document created two days later

which simply memorialized the transfer that the stipulation itself had accomplished.

The binding nature of the transfer contained in the stipulation was completed the

moment that agreement was executed. The consent judgment was a mere

formality whose execution (or lack thereof) did not detract from the otherwise

binding nature of the parties’ earlier agreement. It merely parroted what was

already agreed to by the parties in the stipulation itself.

Finally, even if the 1948 consent judgment is a “grant” separate and apart

from (or part and parcel with) the 1948 stipulation, the regulations recognize that not

all errors in compliance with its terms impact the validity of the termination notice:

“Harmless errors in a notice that do not materially affect the adequacy of the

information required to serve the purposes of . . . section 304(c) . . . shall not render

the notice invalid.” 37 C.F.R. § 201.10(e)(1). Here, viewing the issue in the light

most favorable to the defendants, the 1948 consent judgment simply served to

culminate or otherwise finalize the transfer of the Superman copyright achieved


EXHIBIT 41 384


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

50

through the stipulation the parties reached two days earlier. That plaintiffs only

identified the latter rather than the former does not materially affect defendants’

understanding of the “grant” sought to be affected by the notice. Indeed, courts

have required much less in meeting the regulation’s requirement of providing “a

brief statement reasonably identifying the grant being terminated.” See Music Sales

Corp. v. Morris, 73 F.Supp.2d 364, 378 (S.D.N.Y. 1999) (holding that description of

the grant in the termination notice as the “grant or transfer of copyright and the

rights of the copyright proprietor ” was sufficient as “it appears to be boilerplate on

termination notices customarily accepted by the Register of Copyrights”); see also 2

PATRY ON COPYRIGHT § 7:45 (approving Music Sales). Nowhere do defendants

argue why the harmless error rule should not apply in a situation such as this where

one document that is a part in the process leading to the “transfer” of rights is

identified, but its necessary corollary was not.

Accordingly, the Court concludes that, even if the consent judgment is

viewed as integral to the transfer of rights, plaintiffs’ failure to identify it as a grant

subject to the termination notice was a harmless error that did not diminish the

notice defendants received regarding the nature of the grant (and resulting transfer

of rights) that plaintiffs intended to terminate.

4. Continued Acceptance of Benefits Under 1975 Agreement

Defendants argue that Joanne Siegel’s continued acceptance of benefits

under the parties’ 1975 agreement constitutes, “as a matter of equity,” a de facto

post-termination grant of rights in the Superman copyright to defendants under the

terms of that agreement (or as phrased by defendants, plaintiffs have “effectively re-

accepted the terms of the grant”). (Defs’ Opp. at 41). The legal premise of their

argument is that the 1976 Act recognizes that, once a termination notice has been

served and thereby vested, see 17 U.S.C. § 304(c)(6)(B), the terminating party is

free to make “a further grant . . . of any right covered by a terminated grant” to the

original grantee or its successor in title. 17 U.S.C. § 304(c)(6)(D). The Court


EXHIBIT 41 385


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

51

ultimately rejects this argument as unpersuasive because it mistakenly assumes the

1975 agreement was a “grant” to the Superman copyright.

A look at the context leading up the execution of the 1975 agreement

illuminates in what way the parties believed (and just as importantly did not intend)

for that agreement to bind them. The 1975 agreement appears to have been

drafted in response to bad publicity (apparently due to the juxtaposition of the

creators’ misfortune and the Superman character’s commercial success), and not

as a means to transfer or convey the party’s rights to the Superman copyright. The

agreement observed that nothing therein should be construed as undermining the

rights defendants had been conferred by virtue of the March 1, 1938, assignment,

rights which were later vindicated in the Westchester action and the 1970s Second

Circuit litigation. Indeed, the agreement reaffirmed defendants’ existing rights to

Superman and provided plaintiffs with annual payments, medical insurance, and

screen credits. Such conferral of benefits was identified in the agreement as a

“voluntary” act by defendants in recognition of Siegel and Shuster’s “past services.”

The 1982 codicil, in turn, removes the condition for the promised benefits to Siegel’s

widow on the timing of her husband’s death.

This context and the language in the agreement itself demonstrate that the

1975 agreement was not a “grant.” The agreement’s execution did not result in the

transfer or assignment of the Superman copyright. Indeed, the agreement itself

expressly disavows such an interpretation by including language that the conferring

of benefits by defendants to Siegel and Shuster was simply a “voluntary” act in

recognition of the pair’s “past services,” and that nothing therein should be

construed as undermining the rights defendants had been conferred in the March 1,

1938, assignment as vindicated in the Westchester action and the 1970s Second

Circuit litigation. Thus, by its own terms, no rights were transferred through the

execution of that agreement. A reaffirmation of existing rights without more is no

more “an assignment” or “conveyance” of rights to a copyright than it would if


EXHIBIT 41 386


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

52

Detective Comics had instead issued a press release declaring that previous court

rulings had recognized its existing ownership rights to that copyright.

Similarly, the 1982 codicil under which Joanne Siegel continued to receive

annual payments and benefits did not transfer any rights. The codicil consists of

five paragraphs. The first merely notes that the letter is in response to a letter

written by Joanne Siegel to the company’s executive officer regarding her concern

over how she would provide for herself after her husband’s death. The second

referenced the 1975 agreement, noted the increase in the amount of the annual

payments from $20,000 to $50,000 thereunder, and the payment of an additional

bonus. The third clarified a royalty policy that applied to creators other than Siegel

and Shuster. The fourth set forth the agreement to continue to pay benefits to

Joanne Siegel for the balance of her life in the event her husband predeceased her

before 1985. The fifth and final paragraph merely wishes Joanne Siegel and her

family well. Nowhere in these five humble paragraphs is a transfer of rights to be

inferred, much less explicitly found.

Thus, even if Joanne Siegel’s continued receipt of the benefits of the bargain

contained in the 1975 agreement post-termination somehow operated as a de facto

re-acceptance of the agreement itself (and the obligations flowing thereunder),

nowhere among those re-accepted “obligations” or “commitments” in that

agreement was there a grant to the Superman copyright. Defendants protest the

Court drawing this conclusion, arguing that plaintiffs have admitted in their

pleadings (their complaint, and by filing a termination notice directed at the 1975

agreement) that the 1975 agreement contained a grant to the Superman copyright.

It certainly is true that “[f]actual assertions in pleadings and pre-trial orders . . . are

considered judicial admissions” that bind the party who made them. American Title

Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). That being said,

“courts still have discretion not to apply the doctrine in particular cases.” 18 JAMES

WM. MOORE, MOORE’S FEDERAL PRACTICE § 134.33[6] at 134-84 (3rd. ed. 2007)


EXHIBIT 41 387


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

53

(citing New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (“Because the rule is

intended to prevent ‘improper use of judicial machinery,’ judicial estoppel ‘is an

equitable doctrine invoked by a court at its discretion’”)).

As noted at the outset, the termination provisions contained in the 1976 Act

are among the most complex and technical ones in the statute. Given this

complexity, it is not surprising that a party seeking to harness its machinery may,

out of an abundance of caution, be more “over-inclusive” in terms of listing the

possible “grants” it seeks to terminate. To penalize a party for being over-inclusive

rather than under-inclusive is all the more inequitable given the high hurdles the

termination provisions put in place. Here, plaintiffs were represented by highly

experienced counsel who decided to list the 1975 agreement as a “grant” so as to

leave no stone unturned; an approach all the more justified given the extremely

technical and arcane arguments that have been advanced in this litigation

concerning the efficacy and enforceability of the termination notices themselves.

The Court therefore concludes that in these circumstances discretion counsels

against applying the judicial estoppel doctrine in the manner advocated by

defendants.

Accordingly, the Court concludes that Joanne Siegel’s continued receipt of

payments and benefits under the 1975 agreement and 1982 codicil thereto does not

constitute a “further grant” or “an agreement to make a further grant” pursuant to 17

U.S.C. § 304(c)(6)(D).

5. Statute of Limitations

Defendants contend that the present action was filed untimely. The statute

of limitations itself is clear enough. The Copyright Act of 1976 provides that “[n]o

civil action shall be maintained under the provisions of this title unless it is

commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). The

issue raised by defendants implicates the latter clause and requires the Court to

determine when plaintiffs’ claims accrued.


EXHIBIT 41 388


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7 One could quibble with whether any date other than the terminationeffective date itself can serve as the accrual date in a case involving the right totermination of a grant. Much like having to await a judicial determination whetherone is a heir (as opposed to instances when an ownership claim is based onwhether or not someone is a creator) has been held to be the earliest instant foran accrual date, see Stone v. Williams, 970 F.2d 1043 (2nd Cir. 1992) (HankWilliams' putative daughter's claim to be an owner had to await judicialdetermination that she was in fact his daughter and heir, thus accrual date was nottriggered when Hank Williams' first contested her putative status but instead whenstate court made determination that she was his heir), so too a claim of ownershipby way of termination of a grant cannot be realized unless and until after thetermination's effective date. Stated another way, a party's status as a creator is afactual question subject to being challenged by the other putative co-owner at anytime, and hence, the accrual date for the same would begin at that instant. Thesame, however, is not true of a putative co-owner by way of termination. Theirstatus as co-owner is not predicated upon a pre-existing factual scenario, likewhether they were involved in jointly creating the material per se. Instead, theirstatus as a co-owner is predicated upon a legal mechanism — the exercise of a

54

At the outset, a clarification of terms is in order. The instant matter, although

couched in terms of terminating the 1938 grant, is in effect one for co-ownership of

the copyright in the Superman material contained in Action Comics, Vol. 1,

because, if successful, plaintiffs would gain only a joint ownership interest in that

material with DC Comics, owing to the fact that Shuster left no heirs who could

simultaneously seek to terminate his half of the grant in the material. Claims of co-

ownership accrue when there is a “plain and express repudiation of co-ownership

. . . communicated to the claimant.” Zuill v. Shanahan, 80 F.3d 1366, 1369 (9th Cir.

1996).

Here, defendants assert that such a repudiation was expressed by a letter

submitted to plaintiffs’ counsel dated December 18, 1997, during the whirlwind of

negotiations that took place between the parties shortly after the submission of the

termination notices. The Court finds to the contrary. As explained more fully below,

although the letter stated a position that the termination notices were “defective,” the

letter addressed only the scope of the rights that could be recaptured by the

termination notices and left unchallenged the notices’ validity and enforceability,

thus falling short of the required repudiation.7


EXHIBIT 41 389


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

new statutory right revoking an earlier transfer in the copyright in question, be itone they solely or jointly created — that takes place at a certain defined point intime. Unless and until that legal triggering point is passed, there is nothing for theother co-owner to reject or challenge. This is particularly the case given thattermination notices can be served up to ten years before the effective terminationdate. Defendants' position would, as a matter of logic, countenance scenarioswhere due to an early "rejection" of the termination notice, the passage of thelimitations period would occur well before the termination effective date evenarrived (and with it the putative co-owner's rights even vested). Nonetheless, theCourt need not resolve this question as the letter in question does not constitute aplain and express repudiation of plaintiffs' termination notice (and, hence, its rightto co-ownership to the copyright in the Siegel and Shuster Superman material).

55

Specifically, the letter upon which defendants rely notified plaintiffs’ counsel,

Mr. Levine, that they considered “the Superman Notices to be defective in several

respects.” (Defs’ Opp. at 50). What is telling is that the areas of defect elaborated

upon in the letter did not relate to the validity or enforceability of the termination

notices themselves, but pointed to areas curtailing the scope of what could be

recaptured even assuming the notice to be properly presented. These defects thus

did not call into question plaintiffs asserted right to termination contained in the

notices. For example, the letter remarks that defendants would still retain its rights

in trademarks that it had secured over the years to certain Superman-related

material, and that the termination would not give plaintiffs access to an accounting

of the foreign profits defendants gained from exploiting the copyright. Far from

repudiating plaintiff’s co-ownership to the copyright, the letter acknowledged the

validity of that ownership interest. Thus, the letter remarked that, “if the Siegels do

not execute a re-grant to DC, beginning in April of 1999, DC and the Siegels will be

joint owners of the United States copyright in the ‘Superman’ comic published in

Action Comics No. 1 in June, 1938.” (Decl. Michael Bergman, Ex. U at 2).

Even more telling was DC Comics’ subsequent conduct. The parties’

negotiations quickly broke down and not much of substance was communicated

between the parties thereafter. Then, the day before the termination effective date,

DC Comics sent a letter to plaintiffs’ counsel denying the validity of the termination


EXHIBIT 41 390


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

56

notice, proclaiming:

The absence of any steps towards negotiation for twoyears, particularly on the ‘eve’ of the April 16, 1999purported ‘effective’ date of the termination, leaves usconcerned. Thus our client has no alternative but tomove to the stage of putting your clients on clear notice,as set forth below, of DC Comics’ rights and of itsdetermination, if it becomes necessary, to take allappropriate and necessary steps to protect those rights. First, your clients are hereby put on notice that DCComics rejects both the validity and scope of the Notices. . . .

(Decl. Marc Toberoff, Ex. Q (emphasis added)).

If, as defendants contend, such notice of intent had been so clearly and

unmistakably communicated over a year and half earlier, it is odd for them to have

to repeat it and then state that they were “putting” plaintiffs “on notice” about it.

Accordingly, the Court finds that the present action seeking declaratory relief

regarding plaintiffs’ termination of the 1938 grant accrued on April 16, 1999, the

effective date of that termination. DC Comics’ submission of the letter the day

before that date denying the validity of the termination notice gave a plain and

express indication to plaintiffs that a claim for declaratory relief vis-à-vis the validity

of their termination notice was now ripe. See 28 U.S.C. § 2201 (“In a case of actual

controversy within its jurisdiction, . . . any court of the United States, upon the filing

of an appropriate pleading, may declare the rights and other legal relations of any

interested party seeking such declaration, whether or not further relief is or could be

sought.”)

Applying both the date of the accrual of the claim, the parties’ tolling

agreement to the three-year statute of limitations, and the filing date of this action,

the Court concludes that it is timely. The effective date of the termination notice,

and therefore the date of accrual, is April 16, 1999. The parties entered into a

tolling agreement on April 6, 2000, which amounts to nine days less than one year


EXHIBIT 41 391


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8 Defendants’ argument that the tolling agreement does not apply toplaintiffs’ claims against Time Warner, Inc., and Warner Bros. Entertainment, Inc., because neither was a “party to” or bound by that agreement is disingenuous. (Defs’ Opp. at 52). The tolling agreement expressly provides that its terms boundnot only DC Comics but also its “past and present subsidiaries or affiliates.” (Decl.Marc Toberoff, Ex. Z). Being the parent company (Time Warner, Inc.) or corporatesibling (Warner Bros. Entertainment, Inc.,) of another (DC Comics) certainlyqualifies as a corporate affiliate to the same; a point defendants later admit whenspeaking to the alter ego question presented in the pleadings. (Defs’ Mot. Summ.J. at 79 (“the following is a chart of the current corporate structure and affiliationsbetween DC, WBEI and TWI”)). Moreover, representatives for both companieswere actively involved in the settlement negotiations themselves, furtherundermining any suggestion that they were bystanders to the process.

9 Defendants argue that the tolling period concluded much earlier based onthe parties earlier having reached “an amicable resolution of the dispute.” (Defs’Opp. at 51 (emphasis in original)). Given that the Court finds that no such“resolution,” as opposed to a naggingly close potential for the same, occurredthrough the parties settlement discussion post-termination, see infra A.6, theirargument is without merit.

57

that the limitations clock ran before being tolled.8 The tolling agreement lasted until

ten business days after plaintiffs’ September 21, 2002, letter providing written notice

that they were ending settlement negotiations, that is, October 4, 2002, at which

time the limitations clock started ticking once more.9 The present action was filed

two years and four days later, on October 8, 2004. Adding the periods of time the

limitations period was running together, it is clear that they add up to a period of

time just short of the three-year period set forth in § 507(b).

Accordingly, the Court concludes that the present action is timely.

6. The 2001-2002 Settlement Negotiations

Defendants contend that plaintiffs’ termination notice is no longer effective as

the parties’ settlement negotiations led to them entering into a binding post-

termination agreement that resolved the issues presently before the Court. A brief

review of the time line regarding those negotiations is helpful to the Court’s analysis

of the present issue:

October 19, 2001 Pursuant to the parties’ negotiations, plaintiffs’ counselsent to defendants’ counsel a six-page letter outliningthe substance of a settlement offer from defendants that


EXHIBIT 41 392


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

58

was “accepted” by the plaintiffs.

October 26, 2001 Defendants responded, noting they were working on adraft agreement and enclosing “a more fulsome outline”of “what” they “believe the deal” they have “agreed” to is.

February 1, 2002 Defendants’ counsel provided a fifty-six page draftagreement that reserved the right to have their clientscomment upon it and noted that certain, related “standalone” assignments were in the process of beingfinalized.

May 5, 2002 Plaintiffs responded to defendants’ draft by stating thatthe proposed agreement contained new, unacceptableterms to which they had not agreed.

May 21, 2002 Defendants sent a letter to plaintiffs stating that theybelieved that each of the major points in the settlementhad already been agreed upon.

Sept 21, 2002 Plaintiffs rejected their counsel’s proposed draftagreement and advised defendants in writing that theywere ending negotiations.

The parties are in agreement that California law should be applied in

deciding this question, but disagree as to its application. “California law is clear that

there is no contract until there has been a meeting of the minds on all material

points.” Banner Entertainment v. Superior Court, 62 Cal.App.4th 348, 358 (1998).

The failure to reach a meeting of the minds on all material points prevents the

formation of a contract even if the parties have orally agreed upon some of the

terms, or have taken some action related to the contract. Grove v. Grove Valve &

Reg. Co., 4 Cal.App.3d 299, 311-12 (1970). Similarly, the terms proposed in an

offer must be met exactly, precisely, and unequivocally for its acceptance to result

in the formation of a binding contract. See Panagotacos v. Bank of America, 60

Cal.App.4th 851, 855-56 (1998); Apablasa v. Merritt & Co., 176 Cal.App.2d 719,

726 (1959). A qualified acceptance constitutes a rejection terminating the original

offer and the making of a counteroffer to the original offeror, which must also be

unequivocally accepted by the former offeror for a binding contract to form. See

Panagotacos, 60 Cal.App.4th at 855-56; Glende Motor Co. v. Superior Court, 159

Cal.App.3d 389, 396 (1984) (“California law has generally held that a qualified


EXHIBIT 41 393


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

59

acceptance . . . affects the viability of the offer itself, so that ‘a qualified acceptance

amounts to a new proposal or counteroffer putting an end to the original offer’”); In

re Pago Pago Air Crash, 637 F.2d 704, 706 (9th Cir. 1981); see also CAL. CIV. CODE

§ 1585 (“A qualified acceptance is a new proposal.”).

The parties disagree over whether the terms contained in plaintiffs’ October

19, 2001, letter differ in substance from those set forth in defendants’ later letter of

October 26, 2001 (and accompanying outline), such that there was no unequivocal

acceptance of an offer and, thus, no agreement. As with much in both life and law,

materiality is in the eye of the beholder. From the Court’s reading of the parties’

correspondence, it is clear that the parties went well beyond reaching a settlement

in principle regarding their respective positions to the Superman property. Rather,

as suggested by the time line above, the parties’ correspondence, and the actions

taken in response thereto, illustrates that they found themselves in the all-too-

familiar situation in which verbal settlement negotiations result in what the parties

believe to be an agreement on all the major points of dispute, but which, upon

further discussion, falls short of the agreement needed to resolve their dispute. The

devil, as it often is, was in the details.

That material details remained is evidenced by defendants’ response to

plaintiffs’ initial letter, enclosing “a more fulsome outline” of what it “believed the

deal” they had “agreed to.” Moreover, defendants’ February, 2002, draft

agreement was not even considered final by its authors, who reserved the right for

their clients to “comment” on it, and would also require the further submission of a

number of “stand alone” agreements yet to be finalized. Indeed, Time Warner’s

CEO later commented that submission of the draft agreement was “expected” to

result in further “comments and questions” from the Siegel heirs that “would need to

be resolved.”

This give and take reveals that the parties, while close to agreeing to a

complete and comprehensive settlement of their dispute, had not passed the


EXHIBIT 41 394


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

60

threshold where they had finalized and assented to all material terms of such a

settlement. Rather, as they attempted to sketch in the finer details of a settlement

from the broad outlines contained in the October 19 letter, more and more issues

arose upon which they could not reach agreement, resulting in the negotiations

falling apart. In this respect, the present case is not unlike Callie v. Near, 829 F.2d

888 (9th Cir. 1987), and Weddington Prods. v. Flick, 60 Cal.App.4th 793 (1998), in

which the courts held that no enforceable agreement was reached when the parties

had agreed to a rough outline of an agreement, but were thereafter unable to reach

agreement on the finer details and the negotiations fell apart.

Defendants’ argument to the contrary is premised on the notion that they can

limit the scope of the legal analysis to the October 19, 2001, letter and call it a

contract, regardless of their materially different October 26, 2001, letter in reply (“I

enclose . . . a more fulsome outline of what we believe the deal . . . is”) and their

vastly different February 1, 2002, draft, which were both part and parcel of the same

settlement negotiation. Ignoring these contemporaneous communications is at

odds with the requirement in contract formation that courts must consider “all the

surrounding circumstances.” Donovan v. RRL Corp., 26 Cal.4th 261, 271 (2001).

These subsequent efforts to sketch in a more fulsome outline of the parties’ alleged

agreement provides context and meaning as to the understanding the parties had

about the effect of the October 19 letter itself.

Defendants further seek to create issues of fact through post hoc testimony

and rationalizations. None of this subjective belief is sufficient to defeat the

objective manifestation of the parties’ intent relayed in the documents referenced

above that aptly demonstrate that there was no “meeting of the minds” on all

material terms. See Meyer v. Benko, 55 Cal.App.3d 937, 942-43 (1976) (“The

existence of mutual consent is determined by objective rather than subjective

criteria, the test being what the outward manifestations of consent would lead a

reasonable person to believe. Accordingly, the primary focus in determining the


EXHIBIT 41 395


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

61

existence of mutual consent is upon the acts of the parties involved”); Stewart v.

Preston Pipeline Inc., 134 Cal.App.4th 1565, 1587 (2005) (“mutual assent to a

contract is based upon objective and outward manifestations of the parties”); CAL.

CIV. CODE § 1639.

One need only review the language of the parties’ correspondence, their

conduct in reaction thereto, and the numerous material differences between the

terms relayed in the October 19 and 26, 2001, letters and the February 1, 2002,

draft to reach the conclusion that the parties failed to come to an agreement on all

material terms. See Grove v. Grove Valve & Reg. Co., 4 Cal.App.3d 299, 311-12

(1970) (failure to reach meeting of the minds on all material points prevents contract

formation even though parties orally agreed on many terms, or have taken action

relating to the contract). Far from signifying that the parties’ “negotiations . . .

result[ed] in a binding contract” leaving nothing more than the drafting of more

formal documentation memorializing that agreement, see Louis Lesser Enterprises,

Ltd. v. Roeder, 209 Cal.App.2d 401, 404 (1962), these submissions between the

parties went far beyond that by adding in or further refining areas from what was

contained in the October 19 letter. That after the submission of the October 19

letter defendants began the process of creating a settlement trust account and the

parties negotiated about providing Siegel and Shuster screen credits in the then

upcoming movie Superman Returns could as much be seen as goodwill gestures

on defendants’ part while the negotiations continued as it could reflect an indication

on their part that they thought they were contractually bound to do the same.

From all of this there is no document or set of documents reflecting

agreement by the parties to singular, agreed terms. Defendants cannot explain to

the Court what from the parties’ differing exchange constitutes this purported

contract; rather, it appears that defendants wish to take the plaintiffs’ “acceptance”

reflected in the October 19 letter and either festoon upon it all the terms contained

in the February 1, 2002, draft settlement agreement (even though Joanne Siegel


EXHIBIT 41 396


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

62

clearly and unequivocally rejected that latter draft agreement), or have the Court

perform that task. The Court’s responsibility is not to create a patch-quilt agreement

by stringing together certain expressions of assent made at one point (October 19),

and attaching to it material terms spelled out later in time (and to which the

supposedly assenting party promptly rejected). See Industrial Indemnity v. Superior

Court, 224 Cal.App.3d 828, 832 (1990) (“courts will not write a new contract”).

Accordingly, the Court concludes that the parties’ settlement negotiations did

not result in an enforceable agreement resolving the issues presently before the

Court.

B. Limitations on Scope of Recaptured Rights

The principal purpose behind the creation of the termination right was to give

authors (and their heirs) a chance to retain the extended renewal term in their work

and then re-bargain for it when its value in the marketplace was known. See H.R.

REP. NO. 1476, 94th Cong., 2d Sess. 124 (recognizing as the justification for the

termination right “safeguarding authors against unremunerative transfers . . .

because of the unequal bargaining position of authors, resulting in part from the

impossibility of determining a work’s prior value until it has been exploited”).

The need for such a second bite at the apple flowed from the fact that the

1909 Act created a dual term in the copyright to a work, one realized upon the

work’s publication and the second occurring twenty-eight years later with the

copyright’s renewal. Justification for this splitting of terms was based, in part, on the

understanding that an author’s ability to realize the true value of his or her’s work

was often not apparent at its creation, but required the passage of time (and the

marketing efforts by a publisher) to materialize. The renewal term in the copyright

to the work thus served as a mid-course re-valuation tool allowing the author, by

giving him or her the right of renewal in the work, leverage in re-negotiating a better

deal with the original grantee or any other suitor who desired to continue to market

the copyright. See Patry, Choice of Law, 48 Am. J. Comp. L. at 446 (“The main


EXHIBIT 41 397


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

63

theory behind a dual system of term was that it gave the author or the author’s heirs

a ‘second bite at the apple;’ when the renewal term came around, the value of the

copyright would be better known than at the time of initial publication. With this

information, a new bargain could be struck that would more accurately reflect the

market rate”). This re-valuation mechanism provided by the renewal term under the

1909 Act was largely frustrated by the Supreme Court’s decision in Fred Fisher

Music, 318 U.S. at 656-59, allowing authors to assign away at the outset all of their

rights to both the initial and the renewal term.

Although the termination right contained in the 1976 Act sought to correct the

damage done by Fred Fisher to an author’s ability to renegotiate through the

reversion of rights, it did not revert to the author the full panoply of rights he or she

would have enjoyed upon renewal under the 1909 Act. Owing in large measure to

objections by publishers seeking to minimize the disruption to “existing contracts

and authorized derivative works already in distribution” that such a recapture right

would engender, see 2 PATRY ON COPYRIGHT § 7:43, Congress placed certain

limitations on what authors (or their heirs) gained from exercising the termination

right. It is to these limits on the termination right that the Court now turns.

1. Foreign Profits

Section 304(c)(6)(E) to the 1976 Act provides that “[t]ermination of a grant

under this subsection affects only those rights covered by the grant that arise under

this title[, Title 17 of the United States Code, governing copyrights], and in no way

affects rights arising under any other Federal, State, or foreign laws.” Defendants

read from this a statutory limitation on the scope of any accounting arising from the

termination notices in this case to those profits realized by the domestic exploitation

of the Superman copyright contained in Action Comics, Vol. 1, excluding those

realized from foreign sources. The Court finds this argument persuasive.

Although the Court can locate no case that has specifically addressed the

issue of accounting profits from the foreign exploitation of a copyright that is subject


EXHIBIT 41 398


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

64

to a valid termination notice, the statutory text could not be any clearer on this

subject. Through this section, Congress expressly limited the reach of what was

gained by the terminating party through exercise of the termination right;

specifically, the terminating party only recaptured the domestic rights (that is, the

rights arising under title 17 to the United States Code) of the grant to the copyright

in question. Left expressly intact and undisturbed were any of the rights the original

grantee or its successors in interest had gained over the years from the copyright

through other sources of law, notably the right to exploit the work abroad that would

be governed by the copyright laws of foreign nations. Thus, the statute explains

that termination “in no way affects rights” the grantee or its successors gained

“under foreign laws.”

Such a reading is supported by leading commentators, who are in agreement

as to the effect of § 304(c)(6)(E) has in a case such as this.

Professor Nimmer states:

A grant of copyright “throughout the world” isterminable only with respect to uses within thegeographic limits of the United States. Becausecopyright has no extraterritorial operation, arguablyAmerican law is precluded from causing the terminationof rights based upon foreign copyright laws. A responseto this argument is that the nonextraterritoriality ofcopyright is irrelevant because the question here is oneof contract law, not copyright law, in that it concerns theeffect of a contract granting certain rights. The contractlaw of one nation may be applicable in another nationunder the latter’s conflict-of-laws rule. The conclusiveanswer to this problem lies in the text of the terminationprovisions of the Copyright Act, which expressly providethat statutory termination “in no way affects rights arisingunder . . . foreign laws” — that is, under foreign copyright(not contract) laws. Thus, even if the conflicts rule of aforeign nation were to call for application of the Americantermination rule as a rule of contract law, that rule by itsown terms excepts from termination the grant of thoserights arising under foreign copyright laws.

3 NIMMER ON COPYRIGHT § 11.02[B][2] at 11-19.

Professor Patry agrees: “Accordingly, where a U.S. author conveys

worldwide rights and terminates under either section, grants in all other countries


EXHIBIT 41 399


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

65

remain valid according to their terms or provisions in other countries' laws.” 7

PATRY ON COPYRIGHT § 25:74.

Plaintiffs argue, however, that the section also allows for the possibility that

the terminating party gains not only the domestic rights to the copyright in question

(the “rights covered by the grant that arise under this title”), but also retains

whatever other rights it may have under “Federal, State, or foreign laws.” From this

premise, plaintiffs argue that, because an accounting between co-owners in a

copyright is governed by state law, and California state law allows for the sharing of

foreign profits between tenants in common, so, too, should defendants be forced to

account for their foreign profits. This argument misses the fact that all plaintiffs

have gained from the termination right is a recapturing of the domestic copyright in

the Superman material published in Action Comics, Vol. 1. Defendants continue to

hold, unaffected, separate rights to that copyright arising under foreign copyright

laws. This distinction is important for two reasons.

First, such an open effort to extend the reach of U.S. copyright law overseas,

as plaintiffs’ reading of the statute avows, would be in direct contradiction to not only

the plain terms of the statute (stating that termination does not affect another

parties’ rights arising under the copyright laws of “foreign” nations), but stands in

stark juxtaposition to the longstanding rule “that the copyright laws [of this country]

have no application beyond the U.S. border.” Los Angeles News Serv. v. Reuters

TV Intern., 340 F.3d 926, 931 (9th Cir. 2003). If Congress contemplated the ability

to attach or otherwise force the accounting of foreign profits to which the original

grantee or its successors are legally entitled under the copyright laws of other

nations through the backdoor of applying state law tenant in common principles,

one would have expected such an intention to have been made expressly, and

certainly with some explanation given the incongruity that arises from the statutory

language’s notation that termination did not affect another’s rights under “foreign

laws.”


EXHIBIT 41 400


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

66

Second, the cases cited by plaintiffs requiring one co-owner to account to the

other for both domestic and foreign profits involved parties who were co-owners to

the “world-wide” copyright in the work and, not as with the termination right, to only

the domestic copyright. See Goodman v. Lee, 78 F.3d 1007, 1010 (5th Cir. 1996)

(noting that declaratory action was filed after other co-owner obtained a “renewal of

the copyright” listing himself as the sole author in the song “Let the Good Times

Roll”). Plaintiffs have directed the Court to no case wherein a co-owner of the

domestic copyright in a work was allowed an accounting of a co-owner’s foreign

profits. See 3 NIMMER ON COPYRIGHT § 11.02[B][1] at 11-17 (“Only such rights as

were originally the subject of a grant will revert upon the termination of that grant.

[T]o the extent that a grant includes rights based upon federal law other than the

Copyright Act, state law, or foreign law, such rights are not subject to termination”).

Accordingly, the Court holds that the termination notice affects only the

domestic portion of Siegel’s and Shuster’s 1938 worldwide grant (“all rights”) to

Detective Comics of the copyright in the Superman material contained in Action

Comics, Vol. 1. The termination notice is not effective as to the remainder of the

grant, that is, defendants exploitation of the work abroad under the aegis of foreign

copyright laws. Thus, although defendants retain the unfettered right to exploit the

works (and retain the profits derived therefrom) in foreign nations, they may do so

domestically only as a co-owner (through Shuster’s share) of the works. See Oddo

v. Ries, 743 F.2d 630, 632-33 (9th Cir. 1984) (““[E]ach co-owner has an

independent right to use or license the use of the copyright. . . . . A co-owner of a

copyright must account to other co-owners for any profits he earns from licensing or

use of the copyright . . . .”). As such, defendants must account to plaintiffs only for

the profits from such domestic exploitation of the Superman copyright.

2. Trademark Rights and Ownership of Pre-Termination Derivative

Works

As noted in the previous section, the right to termination leaves undisturbed


EXHIBIT 41 401


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

67

the original grantee or its successors in interests rights arising under “federal law.”

17 U.S.C. § 304(c)(6)(E). Among the rights based on federal law that defendants

secured over the years were several trademarks that utilized or incorporated

portions of the copyrighted material found in Action Comics, Vol. 1. Defendants

seek a declaration from the Court that, even if successful in terminating the

Superman copyright contained in Action Comics, Vol. 1, plaintiffs cannot share in

defendants’ profits “purely attributable to [Superman] trademark rights.” (Defs’

Reply at 11). Plaintiffs admirably concede the point in their briefs, but argue that

they are “entitled to profits from mixed trademark uses to the extent such exploit

recaptured copyright elements (e.g., ‘Superman costume’).” (Pls’ Reply at 49 n.28).

Similarly, defendants seek a declaration that, to the extent plaintiffs are

entitled to an accounting as a result of their successfully terminating the 1938 grant,

it should not include any profits attributable to the “post-termination exploitation of

derivative works [of Action Comics, Vol. 1,] prepared prior to termination.” (Defs’

Mot. Summ. J. at 28). Again, plaintiffs concede, as they should, this point. (Pls’

Reply at 49 n.28). Section 304(c)(6)(A) provides that derivative works created

during the grant (meaning up until the termination effective date) may continue to be

exploited after termination. Again, however, plaintiffs hold out as a separate

question the existence of pre-termination derivative works that are “altered so as to

become post-termination derivative works.” (Pls’ Reply at 49 n.28).

Given that these contentions by plaintiffs — the recapture or accounting from

the mixed use of trademark and copyright and what to do with any alteration in pre-

termination derivative works — are not the subject of the present motion, the Court

will not address them in this Order. Even though it is clear that these issues will

impact the accounting of profits in some manner, they cannot be fully adjudicated

based on the narrow record currently before the Court and absent a full briefing of

the particular mixed uses or altered pre-termination derivative works that are

specifically at issue.


EXHIBIT 41 402


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10 It appears to the Court that because TWI is not a licensee of the works, itmay not have any profits to account for; however, absent evidence of this fact fromeither side (or the representation that such is not the case), the Court cannot ruleon this issue at this time.

68

Accordingly, the Court holds that the profits defendants garner from the use

of Superman trademarks that “are purely attributable to [those] trademark rights,”

and from its use of unaltered pre-termination derivative works are not subject to

accounting.

3. Accounting for Profits of Warner Bros. Entertainment, Inc., and Time

Warner, Inc.

The parties are in disagreement over whether plaintiffs may directly share in

the profits from the exploitation of the works by DC Comics corporate sibling,

Warner Brothers Entertainment, Inc. (“WBEI”), and its corporate parent, Time

Warner, Inc. (“TWI”). The genesis for this claim stems from certain inter-corporate

transactions amongst these actors concerning the Superman copyright. In the

same year that plaintiffs’ termination notices became effective, DC Comics

executed an exclusive license in favor of WBEI (and a year later a separate

exclusive license with WBEI’s television division) to exploit the Superman copyright

for the remainder of its extended renewal term in certain media formats, notably

movies, television, and home video. (Decl. Marc Toberoff, Exs. E & F). Defendants

contend that, as co-owners of the joint works at issue, plaintiffs are entitled to an

accounting of the profits made by DC Comics (in the form of the licensing fees it has

collected), but that plaintiffs are not entitled to an accounting of the profits WBEI has

made pursuant to the license.10

Defendants’ argument is not without support. The Court starts with the

general principle that “each co-owner has an independent right to use or license the

use of the copyright[, but that a] co-owner of a copyright must account to other

co-owners for any profits he earns from licensing or use of the copyright.” Oddo,

743 F.2d at 633. Licensees, on the other hand, are accountable only to their


EXHIBIT 41 403


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

69

licensors, and owe no duty of accounting to the non-licensor co-owner of a

copyright the licensee exploits. See Ashton-Tate Corp. v. Ross, 916 F.2d 516, 523

(9th Cir. 1990).

Plaintiffs, however, take a different view of the licenses, arguing that “Warner

has stepped exclusively into DC’s shoes with respect to such motion picture and

television copyrights.” (Pls’ Opp. at 30). In other words, the exclusive license had

the net effect of substituting WBEI for DC Comics as a joint owner with plaintiffs

(assuming the successful termination of the 1938 grant) insofar as the exploitation

of the copyright in the mediums in which those licenses are concerned.

This theory, however, requires large legal leaps that are not countenanced

by current law. To begin, in order for an exclusive license in the entirety of the

interest in a joint work itself (such as Superman) to be effective, the consent of both

joint owners in the copyrighted work is required. See 2 PATRY ON COPYRIGHT § 5:7

(“A joint author (or co-owner) may not, however, transfer all interest in the work

without the other co-owner’s express (and written) authorization, since that would

result in an involuntary transfer of the other joint owner’s undivided interest in the

whole”). The same requirement for prior consent holds true even with respect to the

wholesale transfer of exclusive licenses in subparts to a copyright, such as a license

transferring all the stage rights (not just the joint owner’s rights) to a novel but not

the movie or literary rights. Cf. 1 NIMMER ON COPYRIGHT § 6.12[C][3] at 6-38.8 to 6-

39.

Such consent simply did not occur here. DC Comics unilaterally sought to

give an exclusive license to the entirety in the Superman property’s movie and

television rights to WBEI post-termination. As a result, the attempt to provide an

exclusive license was ineffective. At best, all that was conveyed was a non-

exclusive license, and, at worst, a license agreement whose terms are null and void

absent ratification by plaintiffs. See 3 NIMMER ON COPYRIGHT § 10.03[A][7] at 10-51.

Applying these principles in a vacuum, the Court would readily reach the


EXHIBIT 41 404


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

70

conclusion championed by defendants: WBEI, as a licensee, is answerable only to

DC Comics as its licensor; that DC Comics is the only entity that must account for

profits to plaintiffs; and, absent exploitation of the works by DC Comics itself, that

DC Comics’ accounting to plaintiffs is limited to those profits derived from licensing

the Superman copyright to WBEI.

However, the Court’s analysis does not occur in vacuum; rather, it must take

into account the relevant facts of this case, particularly given that the accounting

sought by plaintiffs in this action is an equitable remedy, and the Court must

conduct its inquiry accordingly. See Oddo, 743 F.2d at 633 (“A co-owner of a

copyright must account to other co-owners for any profits he earns from licensing or

use of the copyright, . . . but the duty to account does not derive from the copyright

law's proscription of infringement. Rather, it comes from equitable doctrines

relating to unjust enrichment and general principles of law governing the rights of

co-owners.”) (internal quotation marks and citations omitted).

Here, the relatedness of the transferor and the transferee entities cannot be

ignored. The evidence before the Court reveals that the relevant entities are all

closely related entities — parent corporations, wholly and partially-owned

subsidiaries, partners, sibling business entities (owned directly or indirectly by the

same parent) — although it is not entirely clear to the Court exactly what those

relationships have been at all relevant times. This fact alone raises a specter of a

“sweetheart deal” entered into by related entities in order to pay a less than market

value fee for licensing valuable copyrights. If such were the case, the related entity

might be able to exploit the copyrights without the responsibility of answering to the

co-owner of a joint work, and the licensor co-owner would thereby be relieved of the

responsibility of accounting for any profits (other than a greatly reduced licensing

fee) to the non-licensor co-owner. This result would be inequitable.

This concern is bolstered by the declaration of Paul Levitz, President and

Publisher for DC Comics, which states that under the post-2003 corporate


EXHIBIT 41 405


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11 Because the Court concludes that defendants’ motion for summaryadjudication of this issue must be denied for the reasons stated above, the Courtdoes not at this time resolve other arguments raised by plaintiffs regarding thisissue.

71

restructuring of Time Warner’s business, “for operating management purposes, DC

reports” not to immediate corporate parent WCI, but to its sibling corporation

“WBEI,” the licensee of the rights at issue in this action. (Decl. Paul Levitz ¶ 17).

As Levitz explains, “I report to and obtain approvals from WBEI’s President and

Chief Operating Officer before making significant acquisitions or certain financial

decisions or investments that are outside the scope of DC’s customary acquisitions

and investments; before implementing meaningful strategic changes; and before

embarking on something substantially outside DC’s normal course of business.”

(Id.). Although this is not evidence of what occurred at the time of the license, it is

still probative evidence of the relatedness of the licensee and licensor that could

result in an extremely favorable licensing arrangement that works to the detriment of

the non-licensor co-owner. These open issues also touch upon factors to be

considered in analyzing alter ego claims. See Sonora Diamond Corp. v. Superior

Court, 83 Cal.App.4th 523 (2000); Mesler v. Bragg Management Co., 39 Cal.3d 290

(Cal.1985) (“The essence of the alter ego doctrine, in which it is claimed that an

opposing party is using the corporate form unjustly, is that justice be done. What the

formula comes down to, once shorn of verbiage about control, instrumentality,

agency and corporate entity, is that liability is imposed to reach an equitable result”).

Whether the license fees paid represents the fair market value therefor, or

whether the license for the works between the related entities was a “sweetheart

deal,” are questions of fact that are not answered on summary judgment, certainly

not without the benefit of expert testimony which has not been presented by either

party on this topic. The Court therefore concludes that summary judgment on this

issue is inappropriate at this time.11


EXHIBIT 41 406


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

72

CONCLUSION

After seventy years, Jerome Siegel’s heirs regain what he granted so long

ago — the copyright in the Superman material that was published in Action Comics,

Vol. 1. What remains is an apportionment of profits, guided in some measure by

the rulings contained in this Order, and a trial on whether to include the profits

generated by DC Comics’ corporate sibling’s exploitation of the Superman

copyright.

DATE: March 26, 2008

STEPHEN G. LARSONUNITED STATES DISTRICT JUDGE


EXHIBIT 41 407


ADDENDUM A

Case 2:04-cv-08400-SGL-RZ Document 293-2 Filed 03/26/2008 Page 1 of 2

EXHIBIT 41 408



EXHIBIT 41 409



EXHIBIT 41 410



EXHIBIT 41 411



EXHIBIT 41 412



EXHIBIT 41 413



EXHIBIT 41 414


EXHIBIT 41 Part 2 of 2



EXHIBIT 41 415



EXHIBIT 41 416



EXHIBIT 41 417



EXHIBIT 41 418



EXHIBIT 41 419



EXHIBIT 41 420



EXHIBIT 41 421


EXHIBIT 42


MINUTES FORM 90 Initials of Deputy Clerk: jh CIVIL -- GEN 1

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

3470 Twelfth Street, Riverside, CA 92501CIVIL MINUTES -- GENERAL

Case No. CV 04-08400-SGL (RZx) Date: September 26, 2008

Title: JOANNE SIEGEL, an individual; and LAURA SIEGEL LARSON; an individual -v-WARNER BROS. ENTERTAINMENT INC., a corporation; TIME WARNER INC., acorporation; DC COMICS INC., a corporation; and DOES 1-10

===========================================================================PRESENT: HONORABLE STEPHEN G. LARSON, UNITED STATES DISTRICT JUDGE

Jim Holmes None PresentCourtroom Deputy Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:

None present None present

PROCEEDINGS: ORDER REGARDING ESCROW DOCUMENTS

The Court has been called upon to resolve a dispute over the disposition of certaindocuments (hereinafter “escrow documents”) in the possession of attorney Mr. David Eisen at thelaw firm Arnold & Porter. Given the passage of time, some background is in order.

In June, 2006, three employees at Warner Bros. Entertainment, Inc. (including thecompany’s then general counsel, Mr. John Schulman) received packages containing documentsrelating to the present litigation (the aforementioned escrow documents) from an anonymoussource. The documents in question contained embarrassing and potentially questionable conductby plaintiffs counsel in this case. The Vice President for Warner Bros., Mr. Wayne Smith,thereafter undertook the following steps: (1) He reviewed each document but ceased such reviewwhen it became apparent that the document was privileged, (2) contacted plaintiffs’ counsel andadvised him that the documents had been received, and (3) refrained from using any information inthe documents unless and until there was either an agreement with opposing counsel or the courthad determined how to proceed with the document’s disposition. Moreover, Mr. Smith and Mr.Schulman further decided to turn the documents over to a neutral third party pending resolution ofthe disposition of the escrow documents, either pursuant to the agreement of the parties or orderof the Court.


EXHIBIT 42 422



Magistrate Judge Zarefsky was the discovery judge in this matter at the time the escrowdocuments in question were received by company employees at Warner Bros. On June 30, 2006,the escrow documents were turned over to the escrow agent. The escrow agent thereafter Bates-stamped a set of the escrow documents and then sent a copy of the same to plaintiffs’ counsel, Mr.Toberoff. The originals remained in the agent’s possession in escrow.

On August 7, 2006, defendants served a request on plaintiffs for the production of theescrow documents, requesting, in particular, “[a]ll Writings referenced in the July 5, 2006 letterfrom [the escrow agent] to, among others, Marc Toberoff, Esq. and which were attached to orenclosed with the July 18, 2006, letter from [the escrow agent] to Marc Toberoff, Esq.” Plaintiffs’thereafter filed a response on September 6, 2006. Subsequently, in connection with anotherdiscovery matter, Magistrate Judge Zarefsky ordered that plaintiffs “produce all privilege logs,including any revisions, by September 29, 2006.” In the subsequently-produced privilege log,plaintiffs’ counsel allegedly did not assert privilege in the escrow documents. At this point,defendants filed a motion to compel plaintiffs and their counsel to produce all non-privilegedescrow documents not identified on any privilege log.

Defendants’ motion to compel was heard by Magistrate Judge Zarefsky on April 30, 2007. During the hearing, plaintiffs’ counsel asserted that, except for two documents, all of the escrowdocuments had been either previously produced to defendants or had been listed on a privilegelog:

COURT: The question is: Have you otherwise produced [thedocuments]? That’s all that’s all at issue, isn’t it?

MR. TOBEROFF: I have, your Honor. I have put in a declarationunequivocally that even though I’m not obliged to do so, and jumpthrough hoops of having to respond and own up to documents stolenfrom my legal files, an obligation that does not apply to the defendantsin this case and does not apply to parties under Rule 34, I nonethelesswent through every single one of those documents, which they, insteadof returning the originals, returned to me with Bate stamps, checked itagainst our production, and found two documents that were non-privileged that hadn’t been produced that consisted of letters fromplaintiffs to DC Comics, which I produced.

COURT: See, your declaration doesn’t quite say that, Mr.Toberoff. I read your declaration.

MR. TOBEROFF: The intention of the declaration is to sayexactly what I’m saying now; that I went through my files, not just theplaintiffs’ files, which is all the motion pertains to, but all my files, all thethird-party witness files —


EXHIBIT 42 423



COURT: Forgive me for interrupting. Your declaration does saythat. What your declaration doesn’t say is that you went through these,let’s call them [escrow] documents, even though that may not be anaccurate statement, you went through these [escrow] documents, andthat you verified that each of the [escrow] documents either had beenproduced or had been listed on the privilege log. It doesn’t say that.

MR. TOBEROFF: That is the case, your Honor, and that wascertainly my intention to say that, and I’m saying that now.

COURT: All right, then we can get that cleared up immediately.

MR. TOBEROFF: I’d be happy to take an oath and say that,because that is precisely what I did.

That during the hearing, Magistrate Judge Zarefsky, noting thatthe previously provided declaration was unclear, issued the followingOrder:

COURT: Now I told you, Mr. Toberoff, that I saw a little wiggleroom in your declaration. You tell me you didn’t mean for there to beany. So, here’s what I’m going to do. Not later than May 7th, that’s aweek from today, I want you to submit a declaration that does identifyby the Bates numbers of the escrow documents and the correspondingBates numbers of documents already produced, those among theescrow documents which are unprivileged and have already beenproduced.

So, you take the Bates numbers of the escrow documents andsay, “Here are the corresponding Bates numbers of the documents that have already been pro

and correspond to the listings on the privilege log of the documents which have not been producedbecause they were privileged. All right? So, put that in your declaration.

Then the escrow holder . . . is to return to the plaintiffs anydocuments which are identified in the declaration as being privilegedand having been identified on the privilege logs.

The others can be delivered to trial counsel for defendantsbecause they’re either unprivileged, or, if they were privileged, privilegehas been waived because they weren’t listed on the privilege log

. . . .

Do you understand what I’ve ordered you to put in the


EXHIBIT 42 424



declaration?

MR. TOBEROFF: I do, your Honor.

(emphasis added). Magistrate Judge Zarefsky then repeated the outline of his Order to plaintiffs’counsel towards the end of the hearing: “Privileged documents get returned. The privilegedocuments that were listed on the privilege log get returned. The others get sent to defensecounsel.” (emphasis added).

On May 21, 2007, plaintiffs’ counsel produced the declaration required by Magistrate JudgeZarefsky. The declaration asserted privilege for the first time for a number of documents in escrowthat had neither been listed previously on a privilege log nor had been previously produced. Thatplaintiffs’ counsel’s declaration went beyond the bounds of Magistrate Judge Zarefsky’s order wasmade plain by a cover letter attached to his May 21, 2007, declaration: “Any documents notidentified in my declaration as listed in a privilege log or as previously produced to defendants areto be produced to defendants, with the exception of the clearly privileged litigation communicationsidentified in my declaration.” (emphasis added).

Not surprisingly a dispute quickly ensued between the parties over whether plaintiffs’counsel’s declaration sought to exclude from production to defendants categories of escrowdocuments ordered to be produced by Magistrate Judge Zarefsky’s Order. The matter waspresented to this Court when Magistrate Judge Zarefsky had to step aside from serving as thediscovery judge in this matter due to attend to personal matters.

The Court ordered the escrow agent to submit the particular escrow documents in question(the ones plaintiffs’ counsel was asserting privilege for the first time) for an in camera review andordered plaintiffs’ counsel to submit a declaration “setting forth the grounds for any claim ofprivilege relating to said documents.” Both steps were eventually done and the Court is now in thepossession of both.

Upon reflection the Court finds that plaintiffs’ counsel’s newly asserted claims for privilegeare not well-taken. Pursuant to Magistrate Judge Zarefsky’s order, any claim of privilege notpreviously asserted before that Order was deemed “waived.” Although plaintiffs suggest that sucha reading of Magistrate Judge’s order as not a fair one and lacks common sense, the language ofhis order is clear and unambiguous: Any escrow document not matching up to the privilege log orthe declaration’s list of previously-produced documents was to be produced to defendants; anyassertion of privilege to such documents to be produced was deemed “waived.” That plaintiffs’counsel may have a basis to assert such privilege or otherwise challenge the propriety ofproducing such material on relevance grounds, etc., is inapposite. If plaintiffs wished to press suchnew claims of privilege or any other basis for challenging production of the same, Magistrate JudgeZarefsky’s Order deemed them waived. What plaintiffs’ counsel should have done at that point topreserve such assertions was to appeal Magistrate Judge Zarefsky’s Order to this Court, inparticular that section of his Order deeming any previously un-asserted grounds of privilege to be“waived.” Plaintiffs did not do so, and the time to appeal Magistrate Judge Zarefsky’s Order to this


EXHIBIT 42 425


CV 04-08400-SGL (RZx)JOANNE SIEGEL, an individual; and LAURA SIEGEL LARSON; an individual v WARNER BROS.ENTERTAINMENT INC., a corporation; TIME WARNER INC., a corporation; DC COMICS INC., acorporation; and DOES 1-10MINUTE ORDER of September 26, 2008


Court has long since expired. See Local Rule 72-2.1.

Magistrate Judge Zarefsky’s Order is now the law of the case in this matter. Plaintiffs’argument that the parties had reached an agreement beforehand that any post-litigation attorney-client communications did not have to be listed in a privilege log to preserve its privilege status is,as explained in defendants’ supplemental declaration to the Court’s Order, simply mistaken.

Accordingly, pursuant to the terms of Magistrate Judge Zarefsky’s Order, the escrow agentis ORDERED to produce to defendants’ counsel forthwith any escrow document not previouslylisted in a privilege log or as having been previously been produced. That is to say, the escrowagent is to match up the escrow documents with the privilege log entries and productiondocuments listed in Mr. Toberoff’s May 21, 2007, declaration. Thus, the nine documents producedby the escrow agent to the Court for in camera review are to be produced to defendants’ counselas those documents were not previously identified in a privilege log provided by plaintiffs.

IT IS SO ORDERED.


EXHIBIT 42 426


EXHIBIT 43


SUPF.RMAN --1^iÁRC TC}BE1ttJFF TTMELIIYE

*Ple^se read closely . We have enclosed several supportín , documents ín our package toyou, and very much hope you wí11 spend some time reviewing them before you came toany potential settlement with Marc Toberoff, who represents the Siegels end the Schusterheirs in the ongoing Superman legal dispute with Time Warner and DC Cornícs.

The below informatáon shouØ save Time Warner potentially míllíons and milXio^s ofdollars, and, ifyou so choose, - hive Marc Toberιз, ff suspended, disgraced, --- íf notultimately disbarred --- from pracricing law.

Toberoff being labeled яs the "relentless crыsяder for aпísts' rights" ís handdy theft hehas devised a strategy whereas he has ultimately claimed much ownership of theSuperman copyrightnerstτ,;^ц^tχ as he cяn. And of course, he has done so without theknowledge ^^d full dásclosure to the Siegels and Schuster heirs, creators of Superman.

As ít stG^nds right now, the sïngle ^,n wJ^^ wou^d stand Ø gain the MC1ST in asettlement with Time Warner regarding the ongoing SUPERMAN legal dispute w©u1dgat be the heirs themselves , but Marc Taberoff.

What you do with the below informatío^ ís up to you. you should most certainly conductyour own ínvestíg^tíon. We believe there are details within thás timeline that will be ofstrong interest to you.

Consider it an early holáday gift.

(Also, please be aware that this timeline is written with the assumptions that the readers}are Øare ofthe characters involved within the ongoing Supermin legal dispute betweenTirne Wa^пer/DC Comics. The heirs to the ,SUPERMAN copyrí^ht are: the Síвgels(Joanne, Laura & Miεhяel}, Jerry Siegel's heirs,. who collectively hяve elяíms to 50'® ofthe copyright to Superman, while the Schuster estate has claims on the other 30'x.) MarcToberoff currently represents both partí^s i^ ongoing litigation.

. ...........................................................................

In 2600 MT established a separate corporation entitled "Pacíñc Pictures CoØration"(PPC}, with an address of 23852 Pacific Coast Hwy, Suite 555,14talibu, CA 90265. Tel:(310}-589-5151. You wí11 see below that he established this business to solicit hisservices as an attorney.

In 2001, Marc Toberoff (MT} began researching Supe^ma^, who had rights, etc.

MT initially contticts Kevin Marks at Gang, Tyre, who represented Joanne and LauraSíegei with an offer for the Siegel rights. Marks discourages Toberoff from anyadvances, and does not tell Siegels initially of the ínteractic^n because he believes ít is natin their best interest.

1

Q 0001EXHIBIT 43

427


C}r^ Nav. 23, 2001, MT entered into a joint venture agreement between his own outsidecoØratíon Pacific Pictures Corp. (NOT a law fu^tr^), and Mark Warren Peavy, and hismother Jean Peavy, heirs ô the Joe Schuster estate. For the puØses ^f this document,we ô ô^ know the content of that agreement.

MT and Ärí Emanuel, partner and agent at Endeavor, contacts Kevin Marks at Gang,Tyrer, Rer, 8^ Brown again, (who represented Joanne and Lawa Siegel), on August S,20 0 2. MT approaches the Siegels, not as an ^ôrê^ but as n film producer stating thathe is "allied" with Emanuel, hapí^g such a claim will legítímiê him.

O^ August $Ø 2t^2, h^t"I' tells Marks that he and Emanuel have a billionaire ready to offer$15 míllio^ dollars up-front, plus what they promise to be meaningful pa^tícipation frimproceeds far exploitation of the 5íegels' ńghts to SUPERMAN and some continuedroyalties on an ongoing basis ín all media. Kevin Marks says to the Siegels, "Don't doít." Gang, Tyrer telis the Síegels that they believe MT has brokered a confidentialagreement with the Joe Schuster estate. Marks also tells the Siegels that the Schusterestate wí11 have termination rights ín approximately 2613. Schuster missed teØationnotices.

Within their offer, MT appeals to the Síegels' sense ^f ^wêrshíp and encowages them totake this deal. MT says he can help them make a movie ^n direct competition tco the onebeing made at Warner Brothers (MT makes this argument to Joanne and LauØ all thewhile knowing full weil that no one would ever ga near malting such an attempt; no otherstudio would go far it because af the division of rights, and no one outside ^f the studiosystem would attempt such an endeavor far all the enar^naus costs attributable ώ themaking, marketing and distribution of such a film.} In other wards, MT displays"predatory intent" in his initial approach to the Síegels from the very beginning.

In their very first conversation, Kevin Marks tells MT "no gd' --- that the Siegels havealready reached an agreement with Time Warner and DC Comics.

Marks conveys MT's offer t^ the Síegels, and Marks does say to the Síegels, ít ís a betteroffer than the one you have. However, Marks also tells the Siegels that he would testifyín court against the Siegels if they accepted this offer because he believes there hasalready been an agreement reached.

The Síegels are angry at Kevin Marks that he said he would testify against them íf theytook MT's offer, and relations break down between the Siegels and Gang, Tyrer. Theyfire Gang, Tyrer. And, because the Síegels believed that MT was sympathetic to theirplight, and because MT appealed to their sense of ownership of SUPERMAN, theydecide to enter into an agreement with Intellectual Properties Worldwide, otherwiseknown as "IPW ', Marc Toberoff's fiØ production company, for 10% for any kind ofdeal he got to make a movie ^r exploit the rights. (as you know, the Siegels submittedtermination notices on the Superman copyright in 1997).

2

Q 0002EXHIBIT 43 428


The Siegels' agreement with IPW ís an agreement that mirrors the earlier Pacific Picturesagreement that ^^tT makes wïth the heirs to Jae Schuster (see more í^formatïo^ o^ this

below). In other words, Marc Toberoff ís named as their attorney within the agreement(which ís masked as a retainer agreement) ín the event that they go to litigation overanything (please see enclosed document). Upon the Síegels signing the agreement, MTthen tells Joanne and Laura that his mysterious billionaire has decided to investelsewhere. In other words, MT makes himself the Siegels' attorney of record while hesolicited them as ^ film producer, violating the rule that no lawyer may directly solicitbusiness, with the double víalatían of doing, it under the auspices of daíng sepazatebusiness dealings. hfiT's sole intent was tc^ become the 5 ίegels' attorney, not Ø help theSiegels (as he had alleged) to make a movie ^n competition to Superrâ^ Returns, whichwas then in development at Warner Brothers. 14Î"^ also never divulges his previous directdealings with the Schuster heirs, and his Nov.23, 2001 joint agreement with the Peavys(the Schuster heirs) ín which he ís named their attorney of record.

In 2002, MT set his sights on acquiring the passive interest to Michael Síegel' ^ rights,who, as you know, ^s Jerry Stegel's son from his first mamage, aØ is Laura's half-brother. Michael Síegel has an interest af 12.5°lo ín SUPERMAN and SUPERB4Y. The5ίegels total have 5 0°I° interest (Joax^rê holds 50°l°, Laura 25%. Michael 25 %). So, íêssence, Janne has 25%, Laura 12.5, Michael 12.5. MT used to his advantage thestrained relationship between Joanne and Laura, and Michael; as well as straíêdcommunication with the Schusters.

Here comes Arí Emanuel, and he is going to finance the purchase of Michael Síegel'sinterest. But Michael Síegel turns him down flat. MT discloses the intent to purchase toJoanne and Laura, a+drníttíng ít ís a possible conflict of interest. MT is fully maze ofwhat he ís doing ís wrong.

On December 16, 2002, there is another letter from MT and Arí Emanuel to Joanne andLáura Síegel, Øyíng they are re-approaching Michael again about purchasing his interest.MT tells Michael Síegel that they have an investor ready to buy out his í^terest, thoughthe amount ís significantly less than what DC showed as his share.

March 3, 2003 -letter from Paul LevítzlDC Comics to the Siegels, and MT ís messing uprelationships for his own personal benefit. DC ís trying ta understand why they backedout of the deal. The reason ís MT who ís interfering ín all the relationships up to thispoint.

May 2003 -- MT ís contírûíng to make business arrangements with the Schuster heirs,unbeknownst to Joanne and Laura Siegel .

May 13, 2003: Michael Síegel sends a very concerned letter to Laura Síegel about MazcToberoff's actions. (please see enclosed letter, this letter lays out well Ñl?"s scheme).Among other things, Michael Síegel tells her of how Toberaff ís now controlling thewhole of the SUPERMAN copyright, how he may have bought a substantial portlon ofthe Schuster interest for himself, and he brings to light MT's utter lack of opening a

3



dialogue with anyone regarding making another SUPERMAN movie, ín partnership withArí Emanuel. Also that MT has nut even made contact with Tíme Warner. Lastly,Michael conveys that MT seems to have an agenda of "someone" buying him out, andthat MT ís pressí^g fur an answer.

In May-June 2403. STATUE C}^ LIMITATIONS is coming close on far filing of theSUPERMAN complaint. Both Joanne and Laura Siegel are now very ill . MT startssaying to the Síegels that the statue of limitations is coming up, and they would havewaived their right to sue based on the termination notices, Thís ís the very seed MT meantto mine all al^^g. He sends them the research on the statue of limitations, and concerned,the Siegels contact Art Levine ^n Washíxigton, D.C. to have íiidependent research dune unthe matter. The research confirms that they should file by September.

In June, Arí Emanuel Through IPW is sá11 trying to buy Michael Siegel's interest butCan't Come t0 ÍermS on price.

End of June 2Ø3, MT gets a law firm to represent the Schusters to assist with theSUPER]^[AN copyrights. They detern^ne the value of the estate is $4, and CaliforniaProbate Code wí11 not be applicable, such that the estate attorney wí11 not be entitled toany future settlement regarding the Superman interest. Estate attorney ís only receivingan hourly rate. MT "graciously" pays a111egal fees.

In other words, MT helped probate the estate, but hired an attorney to du the dirty work.Fittingly, the Joe Schuster wí11 was "1©st", so the will had no vape. So, the court writesthe wí11 for him, and ^^cludes the rights to proceed with the tern^natían. And since thefirm receives an hourly rate, and the estate ís valued at $4, ít does not effect any futuresettlement. The estate attorney wí11 thereby not be entitled to statutory c^mpensatíon.Another example of showing that MT ís solely motivated at all times not by his clients'interests, but manipulating pieces of the puzzle so that he may receive the greatestpercentage from a very possible lame Time Warner settlement, through part ownershipand unconscionable fees (see below}.

Absolutely nothing is moving ahead with SiegeUSchuster rights and agreementsbecause MT was never intending to do anything wít^ rights other than litigate.

July 5, 24 43. Laura Siegel reveals her ignorance of To Ьeroff s dubious actions ín herreturn letter back to Michael --- MT has NOT told them he ís about to enter into the PPCagreement, whereby MT personally will have a 54 % of the Schuster interest ínSuperman. He wí11 shortly own equal to what Joanne owns (25% of entire Copyright), anddouble what Laura owns, but MT has failed to disclose this. The Schusters -through thePacíf^c Pictures Corp agreement -gave MT half of what they had. MT never had theintention to make a movie ^^ competition to the one at Warners - ít ís tantamount tothrowing $$$ away, but ít does appeal to the heirs' sense of lost ^wnershíp. MT neverdid want to make a movie, and exploit the rights. MT knows no one is going to invest inan outside movie project outside of Warner Brothers, though he uses Arí Emanuel, theagent, to legítmí^e his Claims. (please see enclosed letter)

4



Also, in the letter back to Michael Siegel, that MT helped LaшΡa Siegel draft --- inresponse to Michael's accusations of Taberoff, Laura clearly states that MT does n©thave a production company. (This is false -Marc Toberoff s IPW has been in existence,partly funded by Arí Emanuel, since at least 2^^2}. In the draft af the letter, MT crossedout the statement that he does not have ^ production company, and writes " MT has notplans to produce a SUPERMAN movie, nor is this feasible given the division ofownership af the rights." (please see enclosed letter}. This clearly delineates thatToberaff never had the intention of making a movie , and approached the Siegelsand Schusters separately ---- not for the exploitation of rights as he initially asserted,but to gain an unconscionable fee fram a very large possible settlement with TimeWarner.

August 7, 2^^^ --- Letter from Radí-Pollock, who ís the attorney ín the Schuster estate -whu says the Schuster Wí11 would be written by the court August 2S, 2^^3, since theSchuster Wí11 had been `°last".

Sept-4ct 2Ø3 ---- Letter with Ø Emanuel ín which he would receive $2.5 million flatfee for "negotiating services„

On 4ctaber 27, 203, MT uses PPC to enter into another agreement with the JoeSchuster's heirs: Mark Warren Peavy and Jean Peavy, in which PPC ís "engaged as theExecutor of the recently probated estate of Joeseph Schuster." The agreement purportsthat PPC ís the Peavys exclusive advisor °`for the purpose of retrieving, enforcing, andexpiating all of Joe Schuster's rights ....ín all of his creations...". In this agreement,MT also names himself their attorney for any and all litigation or questions that shouldarise in regards to these Rights. MT also clearly delineates that PPC is NflT a law fnm.And, lastly but most significantly, MT defines that any and all moneys and proceeds, incash ar ín kind, received from the enforcement, settlement, or exploitation of any of theRights, ....any monies would be split SOJS^. IN ESSENCE, MARC TOBEROFFNOW HAS A 25% STAKE IN SUPERMAN PERSONALLY BECAUSE OF HISDEAL WITH T^^iE SCHUSTERS THAT WAS MAIDS IN 2003 . He gets -under theguise of Pacific Pïctures Carp - the rights to retrieve and enforce and ezploít JaeSchuster's interest in SUPERIVIAN. MT's alleged "f^rewall" between film producingand soliciting business as an attorney comes tumbling down. {please see enclosed signedagreement, dated October 27, 2003).

In 2013 MT will awn Schuster's side af ít; but ít does nat matter, they will settle befare.

MT inquires into the legality of entering into the Pacific PictшΡes Corporation agreementwith the Peavys, heirs to Schuster estate, using law firm Armstrong, Hirsch, Jackoway,Tyerman, & Wertheimer. The inquiry raises strong eyebrows, and questions of legalityas to MT's actions in regards to the Schusters, and strongly dísco^ages fizrtherinvolvement with MT and this matter.

5

Q Oб05EXHIBIT 43 431


August 2003 -Michael Siegel wants an annuity of $204,000, which equaled $3.5 millian.MT tells him that "no investor is going to go for that." MT says Warners' estimation was$2 million less; such a bad risk far an investor, MT says. MT ís tenaciously going afterthe 12.5%, and af caurse, the ínvestar MT "has" ís himself. He ís trying to get Michaelta lower the price.

MT is also tryïng to convince Michael Siegel not to sell his interest to anotheroutside party. MT is lying to Michael Siegel to make sure he can still draw a feefrom Michael's 12.5°lo interest. If Michael went away , he would only draw fromremaining 37.5°l0, instead of 50%. In the ñnal letter, MT tells Michael Siegel thathe cannot sell without our approval because Mïchael dïd not take part in thetermination, but "we will give you (Michael Siegel) approval, ïf you sell it to a thirdparry, Øîtored by Marc T^ber^ff." IViT is lying to Michael Siegel about Siegel'sability to sell his interest in the SUPERMAN copyright.

Sígnîficantiy , MT admits to Laura Siegel that there never was a billionaire willing toinvest $15 million when he first approached them . But by then the SiegeL^ wereconcerned about appearing flaky far changing lawyers a few times . They decîde tostick it out.

C7ctober 2, 2004 -« MT files the complaint with the court against Tíme-Warner. There ísdísgruntiernent ín the Siegel camp, regarding the contingency fee. MT pushes hard for33.3% contingency fee t^ go up to 40% íf ít falls w^thín 60 days of trial (which, ofcourse, he would make sure that it would...). In the contingency agreement they signedfor SUPERMAN, IPW (Marc Toberoff's film production co^^pa^y} would have receiveda 10°la negotiating fee (thus most likely bolstering Arí Emanuel's take ín the settleme^tfrom Tíme Warner as well). Thus, Taberoff used the "film production arm" of hìscompany to use as a shell to elicit larger contingency fees from his clients despite the factthat Toberoff maintains that there ís a "fêwall" between his law fpm and his productioncompany. (see Jahn Lippman, Wall Street.7ûrnal article enclosed.)

"graciously" agrees to decrease IPW's take by 5°I°, which wí11 be deducted from the's % fee, applicable to the gross proceeds of any settlement ar outcome of the

litigations.

* * * *In other wards, MT decreases his contingency fee by 5% « instead af gettingSQ%, he will get 45%. Combined with the Schuster interest , the aggregate of anyoutcome ín SUPERMAN litigation for Marc Toberoff personally becomes 47.5% ofthe entire Superman interest. * * * * * It becomes clear at this juncture that MT thwartedthe earller deal with Time Warner and DC Comics ín 2002 for his awn personal gain.

And lastly, on the DLtKES OF Y[AZZAØ case, MT pocketed $8.5 million personally,more than any single plaintiff involved in the case (each plaintiff pocketed around $1.1million). According to the settlement amount, he received Ø unco^scí^âble 50%contingency fee.

6

Q бб06EXHIBIT 43 432


Very strong likelihood that Marc created an e^títy for the ,purposes of the_lawçuít(MØnru^ners Limited, or Moonrunners LLP^, which allegedly held the rights at issueand ultimately led to the injunction, Christensen-Miller, Kevin Leíchter, or the like needexplore ^n greater detail the existence of the entity in which the rights were allegedlyheld, It is strongly believed this entity was created only to bolster the lawsuit -that therights Were never conveyed at all.

MT had his President af Production of ØW, J. Todd Haras, leak the confidentialsettlement o^ the llI7KE5 OF HAZZAØ case â Variety (517.5 millian). He thencalled Larry Greenfield, another attorney in his af 'fice at the time who has since left,ô ever his tracks, "demanding» ô know who leaked the amount , and to act as íf hewas partrayi^^g shock and dismay at the leak. MT did It himself ta attract marebusiness ín town . At least ^ attorneys have come and gone at the Law ©ffices ofMarc TabeØff, and many have left due to ethical issues.

And lastly, MT is charging 5U°lo in another Allison Gïan^^ní case involving real estate.The reason this fact is included is to show a history of charging unconscí^nable fees.

It should be noted far those at Time Warner that Marc Toberoff has sá11 managed to setup SKYPCIRT as a producer at Warners , and he has a tangential hold on GILLIGAN'SISLA,NU. Fyï.

cc: Alan F. HornJeff Rob^novJohn SchulmanPatti Connolly

7



EXHIBIT 44


DECLARATION OF ADAM RONAN, MD

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Marc Toberoff (State Bar No. 188547) Nicholas C. Williamson (State Bar No. 231124) Keith G. Adams (State Bar No. 240497) TOBEROFF & ASSOCIATES, P.C. 2049 Century Park East, Suite 2720 Los Angeles, California, 90067 Telephone: (310) 246-3333 Fax: (310) 246-3101 [email protected] Attorneys for Defendants Mark Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele Peavy, Joanne Siegel, Laura Siegel Larson


CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

DC COMICS, Plaintiff, vs. PACIFIC PICTURES CORPORATION; IP WORLDWIDE, LLC; IPW, LLC; MARC TOBEROFF, an individual; MARK WARREN PEARY, as personal representative of the ESTATE OF JOSEPH SHUSTER; JEAN ADELE PEAVY, an individual; JOANNE SIEGEL, an individual; LAURA SIEGEL LARSON, an individual, and DOES 1-10, inclusive,

Defendants.

Case No: CV 10-03633 ODW (RZx) Hon. Otis D. Wright II, U.S.D.J. Hon. Ralph Zarefsky, U.S.M.J.

DISCOVERY MATTER DECLARATION OF ADAM RONAN, MD, IN OPPOSITION TO PLAINTIFF’S MOTION TO INITIATE DISCOVERY AND TAKE IMMEDIATE, LIMITED DISCOVERY OF TWO ELDERLY WITNESSES Complaint filed: May 14, 2010 Trial Date: None Set Date: September 20, 2010 Time: 10:00 a.m. Place: Courtroom 11


EXHIBIT 44 434


1

DECLARATION OF ADAM RONAN, MD

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECLARATION OF ADAM RONAN

I, Adam Ronan, declare as follows:

1. I am a resident of New Mexico, and am a Medical Doctor (MD),

licensed to practice medicine in New Mexico. The facts set forth herein are known to

me of my own firsthand knowledge and, if called as a witness, I could and would

testify competently to such facts under oath.

2. I received my medical degree from the Medical College of Wisconsin,

and then completed my medical training at the Loyola University Medical Center and

the University of Chicago Medical Center. I underwent fellowship training at the

Loyola University Medical Center. I am board-certified in Internal Medicine,

Echocardiography, Vascular Interpretation and Nuclear Cardiology.

3. I currently practice at the New Mexico Heart Institute, located at 502

Elm Street NE, Albuquerque, NM, 87102.

4. Jean Adele Peavy is under my care.

5. Jean suffered a stroke in May, 2009. Due to her stroke, she has an

aphasia. Due to this condition, Jean has difficulty speaking and also has difficulty

understanding spoken words. When I last saw Jean on August 5, 2010, she also

suffered from atrial fibrillation and hypertension.

6. I understand that a deposition involves providing live testimony before a

court reporter and often a videographer. I further understand that, in the absence of a

protective order, a deposition can last several hours, with only limited breaks, that it

involves sitting for long periods, and that it is often stressful for the deponent, who is

asked to recall numerous events and to review many documents.

7. It is my professional medical opinion that Jean is likely unable from a

neurological standpoint to participate in a legal deposition due to her aphasia. As

Jean is the victim of a recent stroke, the stress of a second deposition may also pose a

///

///


EXHIBIT 44 435


Case 2:10-cv-03633-ODW-RZ Document 64-4 Filed 09/13/10 Page 3 of 3 Page ID #:5026IO~SEP-IO 08:0~

Ssp-80-1tl 03t07om F(Q~

FROM-- T-D45 P.CD3/DOS F-li7

T-Z83 P.OQ4/005 F~2f~

1 aerioU$ health risk. It is my recommendation that she should not be subjected to it

Z second deposition of any duration.

3 I declare under penalty of perjury of the laws of the Dnited States of America.

4 that the foregoing is true and COXTOOt.

s ~

7

9

9

Executed on September .:L 2010. in Albuquerque, New Mexieo.

10

11

12

13

14

15

16

17

18

19

20

2\

2&

23

24

25

26

27

28

2

Adam Ronan" MD

/

DECLARATION OF ADMJf RONAN, MD R8~8ived Ssp-09-IO 03;37pm From= To- Pille 003

EXHIBIT 44 436


EXHIBIT 45


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DC COMICS’ RENEWED OPP. TO DEFS’

RENEWED MOTION TO DISMISS/STRIKE THIRD & SIXTH CLAIMS

DANIEL M. PETROCELLI (S.B. #097802) [email protected] MATTHEW T. KLINE (S.B. #211640) [email protected] CASSANDRA L. SETO (S.B. #246608) [email protected] O’MELVENY & MYERS LLP 1999 Avenue of the Stars, 7th Floor Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 PATRICK T. PERKINS (admitted pro hac vice) [email protected] PERKINS LAW OFFICE, P.C. 1711 Route 9D Cold Spring, NY 10516 Telephone: (845) 265-2820 Facsimile: (845) 265-2819 Attorneys for Plaintiff DC Comics



DC COMICS,

Plaintiff,

v. PACIFIC PICTURES CORPORATION, IP WORLDWIDE, LLC, IPW, LLC, MARC TOBEROFF, an individual, MARK WARREN PEARY, as personal representative of the ESTATE OF JOSEPH SHUSTER, JEAN ADELE PEAVY, an individual, JOANNE SIEGEL, an individual, LAURA SIEGEL LARSON, an individual, and DOES 1-10, inclusive,

Defendants.

Case No. CV 10-3633 ODW (RZx)

PLAINTIFF DC COMICS’ RENEWED OPPOSITION TO DEFENDANTS JOANNE SIEGEL AND LAURA SIEGEL LARSON’S RENEWED MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) (DOCKET NO. 147) (RE: THIRD AND SIXTH CLAIMS FOR RELIEF) Hon. Otis D. Wright II Hearing Date: TBD Hearing Time: TBD

Case 2:10-cv-03633-ODW-RZ Document 185 Filed 03/21/11 Page 1 of 32 Page ID #:13447

EXHIBIT 45 437


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 11 -

DC COMICS’ RENEWED OPP. TO DEFS’ RENEWED MOTION TO

DISMISS/STRIKE THIRD & SIXTH CLAIMS

Hartzheim v. Valley Land & Cattle Co., 153 Cal. App. 4th 383, 389 (2007);

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239 (1969) (“The existence of a

statutory right implies the existence of all necessary and appropriate remedies.”).

Where, as here, Congress has demonstrated its clear intent to create such a right,

supra at 7-10, the beneficiary of this right has standing to enforce it, CBOCS West,

Inc. v. Humphries, 553 U.S. 442, 457 (2008). Congress’ intent to confer such a

right can be inferred from “the language and focus of the statute, its legislative

history, and its purpose,” Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76

(1979)—all of which supports DC Comics’ third and sixth claims. Supra at 7-10.

IV. DC COMICS’ CLAIMS ARE NOT TIME-BARRED.

Third Claim. Defendants argue that DC Comics’ third claim is time-barred

because DC Comics knew about the Pacific Pictures agreements no later than

November 15, 2006, yet filed suit six months after the three-year limitations period

ended in November 2009. Mot. at 10. Not only does this assertion raise factual

questions, defendants are mistaken on the law and in describing DC’s actual claim.

DC Comics’ third claim expressly is premised on defendants’ continuing

course of conduct, which violated and continues to violate DC Comics’ rights under

the Copyright Act—and will continue to harm DC Comics though 2013 and

beyond. FAC ¶¶ 3, 101, 169-70. The statute of limitation only commences when

such a continuing harm ceases. E.g., Suh v. Yang, 987 F. Supp. 783, 795 (N.D. Cal.

1997) (“continuing wrong” doctrine delays accrual); Flowers v. Carville, 310 F.3d

1118, 1126 (9th Cir. 2002); Wyatt v. Union Mort. Co., 24 Cal. 3d 773, 788 (1979).

What DC Comics seeks in this case is a declaration bringing this course of

misconduct to a halt—invalidating all illicit consent agreements between and

among the Toberoff defendants and the Siegel and Shuster heirs. Defendants say

nothing about the continuing harm that DC Comics expressly alleges, FAC ¶¶ 3,

101, 169-70; instead, they misrepresent DC’s complaint and focus exclusively on

the Pacific Pictures agreements, Mot. at 10. But these agreements still affect DC


EXHIBIT 45 438


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 12 -



Comics’ rights today, supra at 2-4, are part of a pattern of misconduct, and all such

agreements will continue to harm DC through 2013 unless judicially declared void.

In addition, as DC Comics’ complaint makes clear, Toberoff’s overall pattern

of misconduct only came to light when Judge Larson ordered the Toberoff Timeline

produced to DC Comics in December 2008—less than two years ago. FAC ¶¶ 102-

04. The discovery rule postpones accrual of a cause of action until the plaintiff

discovers the facts underlying its claims. E.g., Polar Bear Prods., Inc. v. Timex

Corp., 384 F.3d 700, 707 (9th Cir. 2004); Norgart v. Upjohn Co., 21 Cal. 4th 383,

393 (1999). Defendants’ factual assertion that DC Comics knew of its claim no

later than November 2006—without any explanation how DC Comics’ receipt of

the Pacific Pictures agreements put it on notice of defendants’ continuing and

multi-faceted course of interference—is not proper argument on a Rule 12 motion.

Cf. In re Rubber Chems. Antitrust Litig., 504 F. Supp. 2d 777, 789 (N.D. Cal. 2007)

(statute-of-limitations question cannot be resolved on motion to dismiss because it

requires determination of fact-intensive issues); Fox v. Ethicon Endo-Surgery, Inc.,

35 Cal. 4th 797, 810 (2005) (“statute of limitations … normally a question of fact”).

Important facts about Toberoff’s misconduct only came to light as recently as this

year, infra at 16-19, and doubtless more still will be uncovered in discovery.

Sixth Claim. Knowing the discovery rule is a fatal to their statute-of-

limitation arguments, defendants assert the rule does not apply to DC Comics’ sixth

claim for unfair competition. Mot. at 10. Defendants cite Stutz Motor Car of Am.

v. Reebok Int’l, 909 F. Supp. 1353 (C.D. Cal. 1995), for this point, but shortly after

Stutz was decided, the California Supreme Court and Ninth Circuit both said it was

an open question whether the discovery rule applies. Grisham v. Philip Morris

U.S.A., Inc., 40 Cal. 4th 623, 635 n.7 (2007); Betz v. Trainer Wortham & Co., 236

Fed. Appx. 253, 256 (9th Cir. May 11, 2007). Since then, courts have held that the

discovery rule does apply in 17200 cases when fraud is alleged, as here. E.g.,

Broberg v. Guardian Life Ins. Co. of Am., 171 Cal. App. 4th 912, 920-21 (2009)


EXHIBIT 45 439


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 25 -



consideration.” This inquiry into a party’s intent is “an issue of fact.” Id. at 1251.

DC’s sixth claim for unfair competition is based in part on the illegal agreements

Toberoff engineered. FAC ¶¶ 187-88. Defendants assert that because DC Comics

learned of the consent agreements during a “Court-ordered settlement mediation”

on May 2, 2008, such communications are “absolutely privileged.” Mot. at 17.

This argument fails for three reasons. First, defendants ignore the PPC and

IP Worldwide Agreements, which contain the same illicit consent provisions—and

were never at issue in the mediation. Thus, the sixth claim survives. Bylin Heating

Sys., Inc. v. M & M Gutters, LLC, 2008 WL 744706, at *5 (E.D. Cal. March 18,

2008) (denying Rule 12 motion when defense applied only to part of claim).

Second, DC Comics does not sue defendants based on their conduct at the

May 2008 mediation or any related communication. The gravamen of DC’s claim

is contracts that illegally “traffic” in its rights. Because defendants are not being

sued for speaking words that revealed their misdeeds, their reliance on litigation-

privilege cases involving conduct at settlement talks is misplaced. Mot. at 16-18.

Third, defendants cannot immunize their consent agreements by asserting

they are “clearly communications made in the course of ‘judicial or quasi-judicial

proceedings….’” Mot. at 18. The agreements are rights-impairing contracts

designed to harm DC’s and the heirs’ interests—their purpose is not to advance

legitimate issues of public concern or litigation objectives, no matter what

defendants may now say to escape liability. Defendants’ assertions about their

intent are at best contested “issue[s] of fact,” unfit for resolution now. Supra at 25.

IX. CONCLUSION

Defendants’ motion should be denied.

Dated: March 21, 2011

Respectfully Submitted,

By: /s/ Daniel M. Petrocelli Daniel M. Petrocelli

CC1:846319


EXHIBIT 45 440


EXHIBIT 46


EXHIBIT 46 441


EXHIBIT 46 442


EXHIBIT 46 443


EXHIBIT 46 444


EXHIBIT 46 445


EXHIBIT 46 446


EXHIBIT 46 447


EXHIBIT 46 448


EXHIBIT 46 449


EXHIBIT 46 450


EXHIBIT 46 451


EXHIBIT 46 452


EXHIBIT 46 453


EXHIBIT 46 454


EXHIBIT 46 455


EXHIBIT 46 456


EXHIBIT 46 457


EXHIBIT 46 458


EXHIBIT 46 459


EXHIBIT 46 460


EXHIBIT 46 461


EXHIBIT 46 462


EXHIBIT 46 463


EXHIBIT 46 464


EXHIBIT 46 465


EXHIBIT 46 466


EXHIBIT 46 467


EXHIBIT 46 468


EXHIBIT 46 469


EXHIBIT 46 470


EXHIBIT 46 471


EXHIBIT 46 472


EXHIBIT 46 473


EXHIBIT 46 474


EXHIBIT 46 475


EXHIBIT 46 476


EXHIBIT 46 477


EXHIBIT 46 478


EXHIBIT 46 479


EXHIBIT 46 480


EXHIBIT 46 481


EXHIBIT 46 482


EXHIBIT 46 483


EXHIBIT 46 484


EXHIBIT 46 485


EXHIBIT 46 486


EXHIBIT 46 487


EXHIBIT 46 488


EXHIBIT 46 489


EXHIBIT 46 490


EXHIBIT 46 491


EXHIBIT 46 492


EXHIBIT 46 493


EXHIBIT 46 494


EXHIBIT 46 495


EXHIBIT 46 496


EXHIBIT 46 497


EXHIBIT 47


LAURA S[ECEL LARSON - j/2/201l

DC COMICS,

I IN [TED STATES OFSTRFCT COURT

CENTRAL DFSTRICT OF CALIFORNIA

„7. n

I 1

A") Y

P1aintitt,

VS.

PACIFIC PICTURES CORPORATION, [P WORLDWIDE, LLC, IPW, LLC, MARC TOBEROFF, an individual, MARK WARREN PEARY, as personal representative of the ESTATE OF JOSEPH SHUSTER, JEAN ADELE PEAVY, an individual, JOANNE SIEGEL, an individual, LAURA SIEGEL LARSON, an individual, and DOES 1-10, inclusive,

Defendants.

DEPOSITION OF:

LAURA SIEGEL LARSON

FRIDAY, JULY 22, 2011

9:45 A.M.

Reported by:

Kathleen E. McCarthy

CSR No. 4483

Case No.

CV-I0-3633 ODW (127,x)

Merrill Corporation

Los Angeles 800-826-0277

www.merillcorp.com/law

EXHIBIT 47 498


LAURA SIEGM, DAWION /22/".J

['due 22

documents?

2 A. Yes.

Q- How do you know that?

A. My mother told me.

5 Q. Do you know how much he charged?

6 A. IL was a very Low hourly rate.

7 Q. After this litigation document in 2004 that

O you entered into -- when I say "you," you know I'm

9 talking about really you and your mother.

10 A. Correct.

11 Q. Joanne Siegel.

12 A. Us as the Siegels.

13 Q. But I'm not talking about Michael Siegel.

14 A. No, no. He wasn't -- he had nothing to do

15 with that.

16 Q. We'll deal with him separately.

17 MR, TOBEROFF: I just want to for clarity,

18 when "you" does not refer to her and her mother and

19 refers just to her, you need to tell her.

20 MR. PETROCELLI: Fair enough. Fair enough.

21 I will try to be clear.

22 I forgot what I was asking. So it was a

23 clever device by good lawyers to get you off track.

24 What was I asking? Senior moment here.

25 (The record was read.)

10:01:01

10:01:05

10:01:05

10:01:07

10:01:10

10:01:12

10:01:17

10:01:22

10:01:24

10:01:28

10:01:29

10:01:30

10:01:31

10:01:33

10:01:36

10:01:37

10:01:39

10:01:41

10:01:45

10:01:47

10:01:50

10:01:55

10:01:59

10:02:06

10:02:22

Merrill Corporation - Los Angeles www.merillcorp.com/law 800-826-0277

EXHIBIT 47 499


LAURA :HEGEL LARSON - //22/20Il

Page 23

MR. PETROCELLI: Okay. There you go.

2 THE WITNESS: Okay.

3 BY MR. PETROCELLI:

Q. So afterhe litigation document that you and

5 your tamily entered into with Mr. Toberotf in 2004,

6 were there any other documents, to your knowledge,

7 that were sent to Mr. Zadrozny for his review related

to Superman?

9 A. I don't recall.

10 Q. You signed a document sometime in or about

11 2008 that the Shusters also signed, some agreement;

12 correct?

13 A. Yes.

14 Q. And Mr. Toberoff also signed that; correct?

15 A. Yes.

16 Q. Did Mr. Zadrozny, to your knowledge, review

17 that document?

18 A. Yes.

19 Q. Did he review that document prior to the time

20 you,signed it?

21 A. Yes.

22 Q. How do you know he reviewed it?

23 A. Because he and I spoke about it.

24 Q. How long before you signed it -- withdrawn.

25 Did you send him a copy of it before signing

10:02:22

10:02:24

10:02:25

10:02:27

10:02:31

10:02:34

10:02:40

10:02:41

10:02:44

10:02:49

10:02:52

10:02:53

10:02:54

10:02:57

10:02:59

10:03:05

10:03:05

10:03:07

10:03:10

10:03:11

10:03:14

10:03:20

10:03:27

10:03:33

Merrill Corporation - Los Angeles 800-826-0277


EXHIBIT 47 500


LAURA :;11,(;EL LARON - 1/22/2011

Page 24

1L?

2 A. Yes.

Q. Was he here in town with you or

4 A. No,

5 Q. He was living in Florida?

6 A. Yes,

7 Q. Has he Lived in Florida the whole time you've

8 been dealing with him?

9 A. Yes.

10 Q. Okay. Did any other attorney besides

11 Mr. Zadrozny review that document, to your knowledge,

12 before you or your mother signed it?

13 A. Which document are you speaking of?

14 Q. This 2008 -- we've been calling it a consent

15 agreement.

16 A. Oh. The -- no.

17 Q. How many documents have you or your mother

18 signed that the Shusters also signed, one or more

19 Shuster people?

20 A. Only one.

21 Q. Was the 2008 consent agreement the last

22 document you asked or your mother asked, to your

23 knowledge, Mr. Zadrozny to review related to Superman?

24 A. I believe so.

25 Q. Have you signed any other documents related

10:03:35

10:03:36

10:03:37

10:03:40

10:03:40

:10:03:42

10:03:42

10:03:45

10:03:45 '

10:03:51

10:03:53

10:03:57

10:03:58

10:04:00

10:04:04

10:04:05

10:04:11

10:04:15

10:04:19

10:04:20

10:04:32

10:04:41

10:04:44

10:04:49

10:04:52

Merrill Corporation

Los Angeles 800-826-0277 www.merillcorp.com/law

EXHIBIT 47 501


LAURA S1EGEL LARSON - 1/22/2011

Mge 25

to Superman after the 2008 consent agreement that you

signed together with the Shusters and Mr. Toberoff and

3 your mother?

4 A. L don't remember any other document.

5 Q. How did you obtain a copy -- withdrawn.

6 Did you or your mother send the draft uf the

7 2008 consent agreement to Mr. Zadrozny, or did someone

8 else send it on your behalf?

9 A. I believe my mother sent it.

10 Q. And do you know how Long before your signing

11 it your mother sent it to him?

12 A. I don't know. I would be guessing, but, you

13 know --

14 MR. TOBEROFF: Don't guess.

15 THE WITNESS: You know.


17 Q. On the subject of guessing, your lawyer said

18 don't guess, and I concur with that except that you

19 need to understand that there's a wild guess, which we

20 don't want to know about. Wild speculation we don't

21 want to know about. But if you have some basis to

22 estimate something or approximate something based on

23 your overall knowledge, we are entitled to that, just

24 so you keep that in mind. Okay?

25 A. Um-hum. Yes. You pointed --

10:04:56

10:05:02

10:05:05

10:05:07

10:05:22

10:05:26

10:05:29

10:05:33

10:05:36

10:05:40

10:05:48

10:05:52

10:05:54

10:05:55

10:05:56

10:05:57

10:06:00

10:06:02

10:06:06

10:06:08

10:06:12

10:06:14

10:06:19

10:06:22


EXHIBIT 47 502


LAURA SLEGEL LARSON - //22/2011

Page 13

MR. PETROCELLI: And to he cLear, with

2 respect to the Last several questions on which you

have instructed, you decline to allow the witness to

answer even were I to agree that it would not

5 constitute a waiver of any privilege?

6 MR, TOBEROFF: If you would agree -- in some

7 instances if you agree that it doesn't constitute a

8 waiver of privilege, I could allow her to answer

9 certain questions

10 MR. PETROCELLI: Okay.

11 MR, TOBEROFF: But --

12 MR. PETROCELLI: I notice you didn't extend

13 the offer with respect to some of those questions, but

14 you did on the Superboy, so --

15 MR. TOBEROFF: You know, there are a number

16 of issues here surrounding, you know -- also, you

17 know, when the answer to something is no, you're not

18 revealing the content, so it wouldn't actually be

19 privileged, but I don't necessarily know how the

20 witnesses is going to answer.

21 MR. PETROCELLI: Okay. Well, with respect

22 to -- with respect to my question, then, about

23 arrangements that you have with the Shusters regarding

24 the sharing in any Superman recoveries or proceeds, I

25 would like the witness to answer, and I will agree

10:29:38

10:29:40

10:29:45

10:29:52

10:29:55

10:29:59

10:30:02

10:30:04

10:30:10

10:30:11

10:30:12

10:30:12

10:30:14

10:30:16

10:30:18

10:30:20

10:30:25

10:30:27

10:30:30

10:30:34

10:30:35

10:30:38

10:30:40

10:30:43

10:30:49

Merrill Corporation



EXHIBIT 47 503


LAURA SLEGSL LARSON - 1/22/2011

Page 14

that her answer is not a waiver of any privilege.

MR. TOBEROFF: She already answered that

3 question. She said no.

/1 MR. PETROCELLI: Not with respect to

5 Superman. She did with respect to Superboy.

6 MR. TOBEROFF: I thought you said --

7 MR. PETROCELLI: Did I misspeak?

8 THE WITNESS: I kind of lost track for a

9 minute.

10 MR. PETROCELLI: Let me put it again for the

11 record, then.

12 MR. TOBEROFF: As to that question, we are

13 asserting privilege, and I'm instructing her not to

14 answer.

15 MR. PETROCELLI: Okay. So even though I

16 would agree that the answer would not affect the

17 waiver.

18 MR, TOBEROFF: Yes,

19 MR. PETROCELLI: Okay,

20 Q. And does the -- did you discuss with your

21 mother at any time whether or not to enter into an

22 agreement with the Shusters regarding the sharing of

23 recoveries or proceeds from Superman?

24 A. I believe we talked about it.

25 Q. Can you relate that discussion to me?

10:30:52

10:30:54

10:30:55

10:30:57

10:30:58

10:31:01

10:31:02

10:31:03

10:31:06

10:31:06

10:31:08

10:31:08

10:31:11

10:31:13

10:31:13

10:31:15

10:31:17

10:31:18

10:31:19

10:31:51

10:31:55

10:32:04

10:32:09

10:32:18

10:32:21

Merrill Corporation


EXHIBIT 47 504


LAURA S1EGEL [ARSON - //22/2011

Page 45

10:32:23

10:32:25

10:32:28

10:32:30

10:32:32

10:32:33

10:32:41

10:32:43

10:32:44

10:32:48

10:32:48

10:33:54

10:46:52

10:46:54

10:46:57

10:47:01

10:47:04

10:47:10

10:47:17

10:47:22

10:47:25

10:47:31

10:47:32

MR, TOBEROFF: T instruct you not to answer

2 based on the attorney-client privilege, joint client

3 privilege.


5 Q. And these were conversations just between

6 your mother and you; is that correct?

7 A. Yes.

8 Excuse me. May I take a bathroom break for a

9 moment?

10 MR. PETROCELLI: Sure. Let's stop right now.

11 THE VIDEOGRAPHER: Off the record. The time

12 is 10:32.

(A recess was taken.)

THE VIDEOGRAPHER: We're back on the record

15 at 10:46.


17 Q. I just want to follow up a bit on that last

18 area that we covered about the consent agreements and

19 the arrangements with the Shusters. Does -- do the

20 consent agreements -- I may have asked you this

21 already, but let me ask you again. Do the consent

22 agreement documents -- does the consent agreement

23 document make any reference at all to Superboy?

24 A. You did ask me that.

25 MR. TOBEROFF: Asked and answered. And I

13

14


EXHIBIT 47 505


LAI A I;LEGEL LAR;;ON 1/22/20it

Page 46

instruct you not to answer.

2 MR. PETROCELLI: It I agree that it's not a

3 waiver, do you continue to instruct on that?

4 MR. TOBEROFF: Yes.

5 MR. PETROCELLI: Okay.

6 Q. Are you currently able to enter into an

7 agreement with DC Comics without the consent of the

8 Shuster side, the Shuster family?

9

10 that.

MR. TOBEROFF: I instruct you not to answer

11 MR, PETROCELLI: Same objection? Privilege?

12 MR. TOBEROFF: Same objection. Privilege.


14 Q. Have you had any discussions with any member

15 of the Shuster family since 2008 when the both of you

16 signed the consent agreement about the marketing of

17 the Superman rights?

18 A. I can't recall any discussion.

19 Q. Are -- have any efforts been made on your

20

behalf or your family's behalf to market the Superman

21 rights since 2008?

22

MR. TOBEROFF: You can -- you could answer

23

that yes or no, a yes or no question, and you can also

24 answer it to the extent your knowledge does not reveal

25

the substance of your communications with counsel.

10:47:34

10:47:37

10:47:39

10:47:41

10:17:12

10:47:59

10:48:04

10:48:15

10:48:22

10:48:25

10:48:25

10:48:30

10:48:35

10:48:38

10:48:45

10:48:50

10:48:54

10:49:02

10:49:05

10:49:10

10:49:15

10:49:23

10:49:28

10:49:31

Merrill Corporation


EXHIBIT 47 506


[.&O R& SIEGEL LARSON - //22/20II

Page 47

1 THE WITNESS: Okay.

2 MR. TOBEROFF: So --

3 MR. PETROCELLI: To be clear, Marc, and we're

4 not going to settle this on the record, but I do want

5 to make clear that I disagree that all conversations

6 with you are privileged. They have to involve the

7 rendition of legal advice at the very minimum.

8 MR, TOBEROFF: Well, the marketing of her --

9 the subject of a litigation tor the past six now going

10 to the seventh year of rights wouldn't necessarily

11 entail legal advice.

12 MR. PETROCELLI: It you meet with Paramount

13 Pictures about the sale of Superman or you go to Fox

14 and you then report on the meeting, that's hardly the

15 rendition of legal advice.

16 MR. TOBEROFF: It's totally intertwined with

17 legal advice. Any studio would want to know the state

18 of the litigation, the odds of the litigation, the

19 odds on appeal. There's so much going on in this case

20 that would be relevant to the status of those rights

21 and which would -- it's just very closely intertwined.

22 If she has knowledge of that independent of her

23 discussions with me, I will allow her to answer.

24 Otherwise I would instruct you not to answer.

25 MR. PETROCELLI: It seems like it's

10:49:35

10:49:37

10:49:39

10:49:41

10:49:43

10:49:46

10:49:48

10:49:51

10:49:55

10:49:58

10:50:01

10:50:03

10:50:05

10:50:08

10:50:11

10:50:12

10:50:15

10:50:18

10:50:21

10:50:25

10:50:28

10:50:34

10:50:37

10:50:38

10:50:40

Merrill Corporation Los Angeles 800-826-0277 www.merillcorp.com/law

EXHIBIT 47 507


LAURA SLEGEL LARSON - 1/22/2011

Page 98

1 of them, have already been disclosed to us with

2 respect to the Litigation retainer agreement.

A. Oh, okay. Sometimes it gets contusing

4 because we're talking about so many agreements, you

5 know.

6 Q. Okay. So let me see if I can break it down

7 for you.

8 A. All right.

9 Q. If there were a transaction today for the

10 sale of your Superman rights, you would have to pay

11 Mr. Toberoff 33 to 40 percent based on your agreement;

12 is that correct?

13 A. I believe so.

14 Q. And would that be 33 or 40 percent? Do you

15 know? What range applies as of today?

16 A. I believe because we had an initial trial

17 before -- was that considered a trial with Judge

18 Larson?

19 Q. Well, Mr. Toberoff has -- would certainly

20 suggest that it was.

21 A. I mean, you know, what's the definition of a

22 trial, yes. Okay.

23 Q. So an argument could be made that the current

24 percentage of 40 percent is owed; correct? If that

25 were a trial?

l2:02:48

12:02: 51

12 :02:53

12 :02:55

12:02:57

12:02:58

12:03:00

12:03:00

12:03:01

12:03:03

12:03: 10

12:03:14

12:03:15

12:03:21

12:03:36

12:03:45

12:03:50

12:03:51

12:03:55

12:03:57

12:04:00

12:04:02

12:04:05

12:04:10

Merrill Corporation Los Angeles www.merillcorp.com/law 800-826-0277

EXHIBIT 47 508


LAURA SEEGEL LARS(N - //22/2011

Page 99

I A. It it were a trial., yes.

2 Q. Okay. :3o besides that 10 percent to

3 Mr. Toberoff, is there any other percent that would

4 have to be paid to Mr. Toberoff?

5 A. No.

6 Q. Is there any other fee that would have to be

7 paid to Mr. Toberoff?

8 A. No. I can't think of any.

9 O. Any other type of remuneration of any kind

10 thatwould be paid to Mr. Toberoff?

11 A. You know, I think that there were some

12 some costs that were advanced.

13 Q. Besides that.

14 A. Other than costs, no.

15 Q. Okay. Is there anything in the 2008 consent

16 agreement that would trigger additional remuneration

17 to Mr. Toberoff based on a transaction of the Siegel

18 rights?

19 MR, TOBEROFF: I -- I will allow you to

20 answer as to -- because what is not in the agreement

21 would not be privileged. Did I say that right?

22 MR. PETROCELLI: You did.

23 MR. TOBEROFF: Some things not in the

24 agreement we are not asserting privilege. We are

25 asserting privilege to what is in the agreement. So

12:01:10

12:04:12

12:04:22

12:04:26

12:04:31

12:04:32

12:04:35

12:04:38

12:04:39

12:04:42

12:04:44

12:04:47

12:04:49

12:04:50

12:04:51

12:04:56

12:05:01

12:05:05

12:05:06

12:05:09

12:05:13

12:05:18

12:05:18

12:05:20

12:05:24

Merrill Corporation Los Angeles www.merillcorp.com/law 800-826-0277

EXHIBIT 47 509


LAURA SLEGEL LARSON - //22/201L

Page LOO

to that extent, you can answer the question.

2 THE WITNESS: Well, there's no -- [ can never

3 say the word. What is it? Remuneration? There's

4 no -- you know what I'm talking about. There's no

5 additional percentage.


7 Q. To Mr. Toberoff.

8 A. To Mr. Toberoff.

9 Q. As a result of anything in the consent

10 agreement.

11 A. Correct,

12 Q. Correct?

13 A. Correct.

14 Q. Okay. And to your knowledge, would there be

15 any percentage -- in addition to the 40 to

16 Mr. Toberoff, would there be any percentage or any fee

17 payable to Ari Emanuel or any of his companies?

18 A. No.

19 Q. So to your knowledge, he would not

20 participate at all in any current transaction.

21 MR. TOBEROFF: Asked and answered.


23 Q. Is that correct?

24 A. Correct.

25 Q. Out of the 60 percent or other proceeds that

12:05:25

12:05:21

12:05:28

12:05:33

12:05:35

12:05:38

12:05:39

12:05:40

12:05:42

12:05:43

12:05:43

12:05:45

12:05:46

12:05:50

12:05:56

12:05:59

12:06:05

12:06:06

12:06:08

12:06:12

12:06:13

12:06:13

12:06:18


EXHIBIT 47 510


LAURA S1EGEL LARSON - 1/22/2011

Page 101

1 you would receive, putting aside Mr. ToberoEE's 10

2 percent, would you have to share any or those proceeds

3 with anyone else as a result of any contractual

4 arrangements that you currently have?

5 MR. TOBEROFF: I instruct you not to answer

6

to the extent your answer would necessarily reveal the

7

substance of the consent agreement held to be

8

privileged.

9

MR. PETROCELLI: May I just take one shot at

10

you on this, Marc, because what the court held was

11

that a particular document, at least on that record,

12

was not discoverable at this time. But the court did

13

not hold that any and all financial arrangements or

14

contractual arrangements between the parties or

15

between witnesses, and these parties are also

16

witnesses, are barred from discovery. It goes

17

directly, among other things, to motive and --

18

MR. TOBEROFF: I think --

19 MR. PETROCELLI: -- a host of other

20 credibility issues.

21 MR, TOBEROFF: I think I stated my

22 instruction, and if I wasn't clear -- I thought it was

23 clear.

24 MR, PETROCELLI: The existence of those

25 arrangements are relevant and would be discoverable in

12:06:22

12:06:27

12:06:31

12:06:34

12:06:36

12:06:38

12:06:45

12:06:48

12:06:50

12:06:51

12:06:56

12:07:03

12:07:07

12:07:11

12:07:18

12:07:22

12:07:26

12:07:31

12:07:32

12:07:33

12:07:34

12:07:36

12:07:38

12:07:39

12:07:41


EXHIBIT 47 511


1 any case.

MR. TOBEROFF: I said she can't disclose to

Lhe extent there is another agreement out there in

4 which she's sharing her proceeds. Other than anything

5 that speaks to that in the consent agreement she can

6 testify.

7 MR. PETROCELLI: I'm suggesting to you that

8 the court did not issue an order categorically ruling

9 that we are unable to discover financial or

10 contractual arrangements between the parties even if

11 reflected in the consent agreement.

12 MR. TOBEROFF: I -- the court doesn't have to

13 use those exact words.

14 MR. PETROCELLI: I didn't say it had to use

15 those exact words, but that's the essence of your

16 position.

17, MR. TOBEROFF: I disagree. There are

18 certain -- the court held that the contents of that

19 document are privileged, and that therefore, if your

20 question by necessity requires her to divulge -- or it

21 may or may not, but to the extent it requires her to

22 divulge contents of the consent agreement, I'm

23 instructing her not to answer.

24 MR. PETROCELLI: Okay. Well, to the

25 extent --

LAURA :;1- 1.X;EL LAW.;0N - /M/2011_

PAge LO2

L2:07:15

12:07:47

12:07:49

12:07:54

12:07:59

12:08:02

12:08:02

12:08:03

12:08:15

12:08:19

12:08:25

12:08:28

12:08:29

12:08:31

12:08:32

12:08:34

12:08:35

12:08:37

12:08:40

12:08:44

12:08:48

12:08:52

12:08:55

12:09:04

12:09:04

Merrill Corporation



EXHIBIT 47 512


LAURA SIEGEL LARSON - 7/22/2011

Page 341

STATE OF CALIFORNIA

2 ) ss.

3 COUNTY OF LOS ANGELES

4

5

6 I, LAURA SIEGEL LARSON, declare under the

7 penalties of perjury under the laws of the United

8 States that the foregoing is true and correct.

9 Executed this day of

10 2011, at , California.

11

12

13

14

15 LAURA SIEGEL LARSON

16

17

18

19

20

21

22

23

24

25

Merrill Corporation



EXHIBIT 47 513


1 STATE OF CALIFORNIA

2 ss.

3 COUNTY OF LOS ANGELES )

4 I, Kathleen E. McCarthy, Certified Shorthand Reporter

5 No. 4483 for the State of California, do hereby certify:

6 That prior to being examined, the witness named in the

7 foregoing deposition was duly sworn to testify the truth,

8 the whole truth, and nothing but the truth;

9 That said deposition was taken down by me in shorthand

10 at the time and place therein named and thereafter reduced

11 by me to typewritten form and that the same is a true,

12 correct, and complete transcript of said proceedings.

13 Before completion of the deposition, review of

14 the transcript [ J was [ J was not requested. If

15 requested, any changes made by the deponent (and provided

16 to the reporter) during the period allowed are appended

17 hereto.

18 I further certify that I am not interested in the

19 outcome of the action.

20

Witness my hand this

21

22

23

Kathleen E. McCarthy, CSR No. 4483

24

25

(4 day of 14

EXHIBIT 47 514


EXHIBIT 48


EXHIBIT 48 515


EXHIBIT 48 516


EXHIBIT 48 517


EXHIBIT 48 518


EXHIBIT 48 519


EXHIBIT 48 520


EXHIBIT 48 521


EXHIBIT 48 522


EXHIBIT 48 523


EXHIBIT 48 524


EXHIBIT 48 525


EXHIBIT 48 526


EXHIBIT 48 527


EXHIBIT 49


EXHIBIT 49 528


EXHIBIT 49 529


EXHIBIT 49 530


EXHIBIT 49 531


EXHIBIT 49 532


EXHIBIT 49 533


EXHIBIT 49 534


EXHIBIT 49 535


EXHIBIT 50


EXHIBIT 50 536


EXHIBIT 50 537


EXHIBIT 50 538


EXHIBIT 50 539


EXHIBIT 50 540


EXHIBIT 50 541


EXHIBIT 50 542


EXHIBIT 50 543


EXHIBIT 50 544


EXHIBIT 51


From: Seto, Cassandra Sent: Friday, July 13, 2012 1:34 PM To: [email protected] ; Pablo Arredondo ([email protected] ); '[email protected] ' ([email protected] ) Cc: Petrocelli, Daniel; Kline, Matthew Subject: MSJ Timing

Marc,

Please see the email below sent on Matt's behalf.

The schedule you proposed does not work on our end. We plan to file Monday and notice DC's motion for August 20. II and when you tile your cross motion or are unavailable for a hearing on August 20, we can discuss a possible revised hearing date. Matt

EXHIBIT 51 545


EXHIBIT 52


BEIJING

BRUSSELS

HONG KONG

LONDON

LOS ANGELES

NEWPORT BEACH

NEW YORK

1999 Avenue of the Stars, 7th Floor Los Angeles, California 90067-6035

TELEPHONE (310) 553-6700 FACSIMILE (310) 246-6779

www.omm.com

SAN FRANCISCO

SHANGHAI

SILICON VALLEY

SINGAPORE

TOKYO

WASHINGTON, D.C.

OUR FILE NUMBER

905900-321

WRITER’S DIRECT DIAL

(310) 246-6840

WRITER’S E-MAIL ADDRESS

[email protected]

June 21, 2012

VIA E-MAIL

Richard Kendall Kendall Brill & Klieger LLP 10100 Santa Monica Boulevard, Suite 1725 Los Angeles, California 90067 Marc Toberoff Toberoff & Associates, P.C. 22337 Pacific Coast Highway #348 Malibu, California 90265

Re: DC Comics v. Pacific Pictures Corp. et al., CV-10-3633 (ODW) (RZx)

Dear Counsel:

Pursuant to Federal Rule of Civil Procedure 56, DC is considering moving for partial summary judgment on its First Claim for Relief for the reasons discussed in the parties’ January 23, 2012, Joint Status Report, Docket No. 364 at 8-10, and is considering moving for partial summary judgment on its Third Claim for Relief for the reasons that have been extensively discussed and briefed, see Docket No. 90 at 4-13; Docket No. 185 at 4-13; Docket No. 334 at 11-17. These issues have been thoroughly discussed in prior briefs and meet and confers, see id.; Docket No. 89 at 5-17, 20-21; Docket No. 186 at 5-17, 20-21; Docket No. 334 at 5-10; Docket No. 364 at 8-10, but if you wish to meet and confer further, please let us know when you are available to do so Monday or Tuesday.

EXHIBIT 52 546


DC reserves all rights.

Very truly yours,

/s/ Matthew T. Kline

Matthew T. Kline of O’MELVENY & MYERS LLP

cc: Daniel M. Petrocelli, Esq.

EXHIBIT 52 547


siegel shuster superman superboy legal docs - petrocelli filing 07-16-12

Documents

correct copy

jerome siegel

estate of joseph shuster

siegel v

action comics

estate of joanne siegel

national comics

support of dc comics