On the verge of what could be a blockbuster court decision determining whether Warner Bros. and its sister company DC Comics can hold onto a good portion of the copyright over the lucrative Superman franchise, the studio has delivered a new twist.
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Warners is involved in a nasty, decade-long fight with Marc Toberoff, the attorney who represents the estates of Superman co-creators Jerry Siegel and Joe Shuster, which have been attempting to "terminate" the studio's control of the Man of Steel using a quirk in copyright law. In May 2010, Warners went on the counter-offensive against Toberoff, claiming that he had tortiously interfered with deals with the estates.
Now this week, as a judge prepared to hand down a decision pertaining to the validity of a termination notice served by the Shuster estate, Warner Bros. and its lead lawyer Daniel Petrocelli asked a California federal judge for terminating sanctions arising from alleged efforts by Toberoff to hide pertinent information in the case.
The motion for an evidentiary hearing seeks an opportunity to argue that "Toberoff has violated three court orders, submitted four false and misleading declarations, made misrepresentations to the Court, bogged down the Court for years in an effort to hid [sic] the ball, and otherwise subverted DC's right to a fair search for the truth in both this case and the Siegel case."
If accepted by the court, Warners' theory could tip the case in the studio's favor.
But Toberoff tells THR the move is another distraction by a studio on the defensive.
The dispute emanates from what happened back in 2001.
At that time, the heirs of the Superman co-creators were being represented by another attorney, Kevin Marks of Gang, Tyre, Ramer & Brown. At that time, Warners had been served with a termination notice from Jerry's daughter Laura Siegel and entered into negotiations with the estate to resolve the dispute and keep the Superman franchise. Warner Bros. offered $3 million and thought it had a deal.
But then Toberoff came along.
The Siegels and Shusters signed up with him, and the aggressive attorney unleashed fury on the studio, attaining success in 2008 when a federal judge in California determined that the termination notice from Siegel was valid, but only applied to the first editions of the Action Comics that first told Superman's story. (The scope of the termination is on appeal at the 9th Circuit.)
In the 2010 lawsuit, Warners hit back, saying that Toberoff lured the estates to sign up with him by touting a "mysterious billionaire" willing to pay $15 million for Superman rights. The studio further asserts that "seduced by Toberoff's false promises, the Siegels repudiated the deal with [Warner subsidiary] DC and signed a new one with Toberoff, his company IP Worldwide, and then his business partner, Ari Emanuel."
Since May, 2010, Petrocelli and Toberoff have gone back and forth on all of this, bringing motion after motion in the discovery stage, and at times, taxing the judge's patience.
The judge was all set to rule on the validity of a termination notice from the Shuster estate -- Warners contends it is ineffective because of a 1992 agreement with Shuster's sister Jean Peavy and last month, Toberoff got a judge to reconsider a tentative ruling accepting that position -- when Warners made its latest motion for termination sanctions.
The basis for the motion is letters and other evidence that the studio alleges has been concealed by Toberoff. One of the documents at issue, for example, is a July 2003 letter from Laura Siegel purportedly saying that Kevin Marks had told her in 2002 she had a deal with Warner and that she could not rightfully accept Toberoff's competing business offer.
Warners is now asking for termination sanctions, plus the appointment of a Special Master to investigate any misconduct.
Toberoff believes that Warners is attempting to dress up discovery requests into something nefarious. His opposition papers will be coming soon.
The Superman property is extremely important to Warner Bros. Not only is the studio in the middle of production on next summer's big-budget Man of Steel, directed by Zack Snyder and produced by Christopher Nolan, the character could be at the center of a new series of Justice League movies utilizing Warners' DC Comics characters in the same way Marvel has made successful films based on its universe.
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