You got to give lawyer Marc Toberoff points for perseverance. Just under three weeks after the 9th Circuit Court of Appeals handed Warner Bros its seemingly final significant piece of the Superman copyright pie, the lawyer for the Man from Krypton co-creator’s heirs now wants a rehearing of the November 21 opinion by either the panel itself or the full court. “The Opinion warrants rehearing or rehearing en banc because it contravenes Congress’ clear objectives, and this Court’s carefully-circumscribed decisions,” says the 43-page petition (read it here) filed Tuesday, citing the 1976 Copyright Act. Last month’s 2-1 opinion reaffirmed a District Court decision supporting DC Comics and its corporate parent WB’s position that Mark Peary of Joe Shuster’s estate couldn’t file a copyright termination notice in 2003. WB claimed that a 1992 agreement with Shuster’s siblings, in which they were to be compensated $25,000 a year for life, already delivered all their Superman rights to the company. Leaning heavily on dissenting Judge Sidney Runyan Thomas’s opinion, Toberoff and fellow attorney Keith G. Adams say it isn’t that simple.
“The Opinion contravenes Section 304(c)(5) (of the Copyright Act), and this Court’s careful holdings … by construing a ‘boilerplate’ release in an irrelevant 1992 pension agreement with siblings, who held no termination rights, to eviscerate the Estate’s valuable termination right,” the wide ranging petition adds.
Regardless of where this goes or if it goes anywhere at all, WB still can move ahead with its Batman Vs. Superman sequel to this year’s Man Of Steel. Thanks to some swift production deadline moves by WB back in 2010, the previous recent rulings in the case between DC/WB, the Shuster estate and the heirs to Supe’s other creator Jerry Siegel had no hold on the first Superman reboot or its sequels. However, the question is whether the 9th Circuit would be willing to take another look at the case? Hard to call, but it is clear that the November 21 opinion certainly wasn’t kind to Toberoff personally — something WB, which has gone after the lawyer himself, enjoyed. Judges Stephen Reinhardt and John Sedwick were stern with the lawyer and the estates for not revealing from the beginning of the litigation that Toberoff’s Pacific Pictures was pursuing an effort with the heirs to create new Superman pics and properties if the courts granted them the rights back from WB. “We note that their failure (and that of Toberoff, their attorney and business partner) to disclose this information in the 2003 notice of termination itself appears to violate the relevant regulations governing notices of termination,” the majority opinion said. Bet WB’s lawyers Daniel Petrocelli and Matthew Kline of LA firm O’Melveny & Myers will note that in any response that they make in to this week’s petition.