Warner Bros got big judicial boost today in the case about who really owns the rights to Superman. First, the Court of Appeals Ninth Circuit unanimously rejected an attempt by Marc Toberoff, the lawyer for the estates of Superman’s co-creators, to use attorney-client privilege to keep documents pertinent to the long-ongoing copyright case secret. Then, while noting it wasn’t a matter before the court in this instance, Judge Diarmuid O’Scannlain took the rare step of specifically noting the “ethical and professional concerns raised by Toberoff’s actions” in playing the role of both lawyer and business adviser for the estates of Superman creators Joe Shuster and Jerry Siegel.
Toberoff has wanted to deny the studio legal use of material that Warner Bros claims clearly shows there was a competing joint venture between the heirs and Toberoff’s Pacific Pictures to eventually produce a new Superman movie among other things. Toberoff had cited attorney-client privilege on documents that had been stolen from his office in 2006 by former associate David Michaels and given to Warner Bros. In 2010, in the midst of his battles with the studio, Toberoff granted a “selective waiver” of the confidentiality privilege to the U.S. Attorney’s Office’s investigation of Michaels’ theft. O’Scannlain, writing the 16-page opinion for the three-judge panel, said, “given that Congress has declined broadly to adopt a new privilege to protect disclosures of attorney-client privileged materials to the government, we will not do so here.”
Today’s ruling made Warner Bros — which owns longtime Superman publisher DC Comics and is behind next year’s Zack Snyder-directed Man Of Steel – leap over a tall building in a single bound. “We are extremely pleased that the 9th Circuit unanimously found in our favor,” the studio said in a statement. “The ruling means that defendant Marc Toberoff must now turn over critical evidence in the pending litigation against him and others.” Toberoff said “we are disappointed in today’s decision which holds that such cooperation with law enforcement by the victims of a privacy crime, itself waives privilege as to stolen documents. However, nothing in this ruling or the documents at issue will affect the merits of this case. We are considering our options as to the ruling, and will continue to vigorously defend our clients’ rights.”
Warner Bros has long said that Toberoff has attempted to scuttle a deal they’d struck previously with the heirs over rights to Superman. A source close to the studio told Deadline that “a huge trove of evidence is going to emerge based on today’s ruling, and if our deal with the heirs gets upheld, they will get a big check from us but they will have gotten nothing from their relationship with Toberoff but seven years of litigation.”
In 2008, the estate of Superman co-creator Siegel recaptured half of the original Superman rights through the courts. The estate of co-creator Shuster is scheduled to be rewarded the same in 2013.