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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
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`X
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`MARK WARREN PEARY, individually and
`in his capacity as executor of the Estate of
`Joseph Shuster,
`Plaintiff,
`-against-
`DC COMICS, INC., a New York corporation;
`DC COMICS, a New York general
`partnership; DC ENTERTAINMENT, INC.,
`a Delaware corporation; WARNER BROS.
`DISCOVERY, INC., a Delaware corporation;
`and DOES 1-10,
`Defendants.
`Index No. 155397/2025
`Commercial Division
`Part 43
`Justice Robert R. Reed
`Mot. Seq. No. 004
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`DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF
`MOTION TO DISMISS UNDER CPLR 3211(a)(5) & (7)
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`O’MELVENY & MYERS LLP O’MELVENY & MYERS LLP
`Daniel M. Petrocelli (pro hac vice) Natasha W. Teleanu
`Matt Kline (pro hac vice) Danielle Feuer
`Cassandra L. Seto (pro hac vice) 1301 Avenue of the Americas, Suite 1700
`1999 Avenue of the Stars, 8th Floor New York, NY 10019
`Los Angeles, CA 90067 Telephone: (212) 326-2000
`Telephone: (310) 553-6700 nteleanu@omm.com
`dpetrocelli@omm.com dfeuer@omm.com
`mkline@omm.com
`cseto@omm.com Counsel for Defendants
`DC Comics, Inc., DC Comics, and
`Warner Bros. Discovery, Inc.
`
`Dated: June 18, 2025
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`TABLE OF CONTENTS
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`I. INTRODUCTION ............................................................................................................. 1
`II. FACTUAL BACKGROUND ............................................................................................ 2
`A. Shuster and Siegel’s Agreements with DC ............................................................ 2
`B. Jean Peavy, as Shuster’s Sole Heir and the Executor of His Estate, Re-
`Granted Any and All Superman Rights to DC....................................................... 3
`C. Superman I: Judge Wright Upholds the 1992 Agreement. ................................... 4
`D. Superman II: The Ninth Circuit Affirms Judge Wright’s Rulings. ...................... 5
`E. Peary Seeks to Relitigate His Claims in New York. .............................................. 6
`III. ARGUMENT ..................................................................................................................... 7
`A. Peary’s Claims Are Barred by the Broad Release in the 1992 Agreement. .......... 7
`B. Peary Otherwise Fails to State a Claim................................................................ 11
`1. The 1992 Agreement Revoked the 1938 Grant—and Peary Is
`Estopped from Relitigating This Issue. .................................................... 11
`2. The 1992 Agreement Assigned “All” Copyright Interests to DC—
`and Peary Is Estopped from Relitigating This Issue. ............................... 13
`IV. CONCLUSION ................................................................................................................ 15
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
`Ackoff-Ortega v. Windswept Pac. Ent. Co. (Inc.),
`120 F. Supp. 2d 273 (S.D.N.Y. 2000), aff’d sub nom., 46 F. App’x 663 (2d Cir.
`2002) ......................................................................................................................................... 10
`Catskill Hudson Bank v. A & J Hometown Oil, Inc.,
`115 A.D.3d 1090 (3d Dep’t 2014) ............................................................................................ 14
`DC Comics v. Pac. Pictures Corp.,
`2012 WL 4936588 (C.D. Cal. Oct. 17, 2012), aff’d, 545 F. App’x 678 (9th Cir.
`2013) .................................................................................................................................. passim
`DC Comics v. Pac. Pictures Corp.,
`545 F. App’x 678 (9th Cir. 2013) ...................................................................................... passim
`Frazer Exton Dev., L.P. v. Kemper Env’t, Ltd.,
`2007 WL 756494 (S.D.N.Y. Mar. 13, 2007) .............................................................................. 6
`Glob. Mins. & Metals Corp. v. Holme,
`35 A.D.3d 93 (1st Dep’t 2006) ................................................................................................... 7
`James McKinney & Son, Inc. v. Lake Placid 1980 Olympic Games, Inc.,
`92 A.D.2d 991 (3d Dep’t 1983), aff’d as modified, 61 N.Y.2d 836 (1984) ............................. 10
`Meltzer v. Meltzer,
`41 A.D.3d 558 (N.Y. App. Div. 2d Dep’t 2007) ...................................................................... 13
`Paramount Pictures Corp. v. Allianz Risk Transfer AG,
`31 N.Y.3d 64 (2018) ............................................................................................................. 8, 12
`Peary v. DC Comics, Inc.,
`No. 1:25-cv-00910-JMF (S.D.N.Y.) ....................................................................................... 6, 7
`Skluth v. United Merchants & Mfrs., Inc.,
`163 A.D.2d 104 (1st Dep’t 1990) ............................................................................................... 7
`Trump v. Trump,
`77 Misc. 3d 543 (N.Y. Sup. Ct. 2022) (Reed, J.), aff’d, 217 A.D.3d 594 (1st
`Dep’t 2023) ........................................................................................................................... 7, 10
`Zion v. Kurtz,
`50 N.Y.2d 92 (1980) ................................................................................................................. 14
`Statutes
`Canadian Copyright Act, RSC 1985, c. C-42, § 14(1) ................................................................. 13
`Canadian Copyright Act, RSC 1985, c. C-42, § 2 ........................................................................ 13
`U.K. Act, c. 48, Sch. I, ¶ 27(1) ..................................................................................................... 11
`U.K. Act, c. 48, Sch. I, ¶ 27(2) ..................................................................................................... 13
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`TABLE OF AUTHORITIES
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`Other Authorities
`18 Moore’s Federal Practice, Civil § 132.03[3][e] (2025) ........................................................... 10
`Restatement (Second) of Judgments § 27 (1982) ........................................................................... 8
`Rules
`CPLR 3211(a)(5) ................................................................................................................... passim
`CPLR 3211(a)(7) .................................................................................................................. 1, 8, 11
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`Defendants (collectively, “DC”) respectfully submit this memorandum of law in support
`of their Motion to Dismiss the Complaint under CPLR 3211(a)(5) & (7).
`I. INTRODUCTION
`There are two ready reasons to dismiss this case with prejudice, established by conclusive
`rulings made in prior federal litigation between DC and Plaintiff Mark Peary. These findings
`cannot be relitigated, and courts regularly grant motions to dismiss on such grounds.
`Thirty-three years ago, Peary’s mother, Jean Peavy, approached DC Comics, where her
`brother Joe Shuster had worked on Superman. She advised DC that she was Shuster’s sole heir
`and executor and sought further compensation in light of Shuster’s death. DC agreed to do this,
`but only provided that Jean execute an agreement settling all Superman claims, forever, on
`behalf of Jean and Shuster’s family. The parties executed a straightforward, all-encompassing
`1992 Agreement. As confirmed by the federal district court and the U.S. Court of Appeals in
`2013, the 1992 Agreement fully settles and releases any and all claims that Jean or Shuster’s
`family might ever assert in Superman copyrights and grants any such rights, then or ever, to DC.
`In the early 2000s, Jean’s son, Mark Peary, tried to undo the 1992 Agreement and capture
`Superman copyrights. After years of litigation, the California federal courts rejected Peary’s
`claims, enforced the 1992 Agreement, and confirmed that the 1992 Agreement released any and
`all present or future claims to Superman copyrights.
`Since those rulings in 2012 and 2013, DC has continued to exploit the Superman property
`worldwide, as it had done for decades. Then in early 2025—with a new Superman movie set for
`release this July—Peary sought a do-over, seeking to undo the 1992 Agreement and evade the
`binding effect of the decisive California federal courts’ rulings enforcing it.
`No matter what forum Peary shops into, his latest complaint fails as a matter of law.
`First, under established rules of collateral estoppel and New York law governing contractual
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`releases, each of Peary’s claims is barred. The plain words of the 1992 Agreement—“any,”
`“all,” “fully settles,” “release,” and “forever”—mean what they say. What the federal courts
`conclusively determined was a “broad release” in the 1992 Agreement should be enforced, and
`this misguided case should be dismissed in its entirety, with prejudice.
`Second, and alternatively, applying those same collateral-estoppel rules and the copyright
`laws of the foreign countries that Peary invokes, he plainly has no claim. The 1938 copyright
`grant from which all of his reversion claims arise does not exist anymore, as confirmed by the
`California federal courts’ binding rulings. These and other defects are fatal to Peary’s claims.
`II. FACTUAL BACKGROUND
`The salient facts on this motion were conclusively decided in prior federal litigation. See
`DC Comics v. Pac. Pictures Corp., 2012 WL 4936588 (C.D. Cal. Oct. 17, 2012) (“Superman I”),
`aff’d, 545 F. App’x 678 (9th Cir. 2013) (“Superman II”). DC summarizes these key facts below,
`which come directly from those rulings.
`A. Shuster and Siegel’s Agreements with DC
`In 1938, Joseph Shuster (Peary’s uncle) and Jerome Siegel, co-creators of the Superman
`character, assigned to DC the “exclusive right to the use of the [Superman] characters and story”
`(the “1938 Grant”). Superman I, 2012 WL 4936588, at *1.1 The next month, DC published
`“Action Comics #1,” which featured an adapted version. Id. Siegel and Shuster continued to
`supply DC with draft Superman material under work-for-hire agreements. Id. By 1941, the pair
`reportedly stood to make over $2 million (in 2012 dollars) in the next year alone. Id.
`
`1 The Complaint incorporates the 1938 Grant, 1992 Agreement, and prior litigation records.
`See Compl. ¶¶ 4, 24-28, 35-37, 44; NYSCEF ## 3-4. “On a motion to dismiss, the Court may
`consider documents referenced in a complaint,” All. Network, LLC v. Sidley Austin LLP, 43
`Misc. 3d 848, 852 n.1 (N.Y. Sup. Ct. 2014), and “take judicial notice of undisputed court records
`and files.” Khatibi v. Weill, 8 A.D.3d 485, 485 (N.Y. App. Div. 2d Dept. 2004). The
`Affirmation of Matt Kline (“MKA”) attaches these materials.
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`In a 1975 agreement, DC provided Siegel and Shuster each $75,000 (in 2012 dollars),
`lifetime annual payments of $80,000, survivor payments for their heirs, insurance coverage, and
`“credits” on new Superman works. Id. In exchange, the pair acknowledged that DC owned all
`Superman-related copyrights. Id. Over time, DC voluntarily increased the annual payments,
`made cost-of-living adjustments, gave special bonuses, and paid to have the two families travel
`to Superman events. Id. at *2. All told, the Siegels and Shusters were paid over $4 million (in
`2012 dollars) under the 1975 agreement—not including medical benefits or bonuses. Id.
`B. Jean Peavy, as Shuster’s Sole Heir and the Executor of His Estate, Re-
`Granted Any and All Superman Rights to DC.
`On July 30, 1992, Shuster died in California. Id. He had no spouse or child, and his will
`named his sister, Jean Peavy (Peary’s mother), as sole beneficiary and executrix of his estate. Id.
`On August 17, 1992, Jean filed an affidavit in California probate court identifying herself as
`Shuster’s “successor” and sole heir, and requesting that his property “be paid, delivered or
`transferred to her.” Id. Four days later, Jean wrote to DC, identifying herself as “heir to [Joseph
`Shuster’s] Will” and asking DC to pay Shuster’s “final debts and expenses.” Id. Jean dealt with
`DC’s then-Executive Vice President, Paul Levitz. Id. DC offered to cover Shuster’s debts and
`increase the annual survivor payments under the 1975 agreement from $5,000 to $25,000. Id.
`In October 1992, the parties executed an agreement whereby DC would cover Shuster’s
`debts and pay Jean $25,000 annually for the rest of her life (the “1992 Agreement”). Id. In
`exchange, Jean and her brother Frank re-granted all of Shuster’s rights to DC and released all
`claims against DC concerning the rights. Id. The 1992 Agreement states:
`We [DC] ask you to confirm by your signatures below that this agreement fully
`settles all claims to any payments or other rights or remedies which you may have
`under any other agreement or otherwise, whether now or hereafter existing
`regarding any copyrights, trademarks, or other property right in any and all work
`created in whole or in part by your brother, Joseph Shuster, or any works based
`thereon. In any event, you now grant to us any such rights and release us, our
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`licensees and all others acting with our permission, and covenant not to assert any
`claim of right, by suit or otherwise, with respect to the above, now and forever.
`Id. at *4.2 DC’s Levitz told Jean and Frank that the 1992 Agreement “would represent the
`author/heir’s last and final deal with DC, and would fully resolve any past, present, or future
`claims against DC.” Id. at *2. Jean and Frank confirmed that they understood and agreed. Id.
`Over the next decade, DC maintained good relations with the Shusters, and Jean and
`Levitz corresponded regularly. Id. at *3. In some 60 letters between the two, Jean thanked DC
`for its generosity, reaffirmed the 1992 Agreement, and requested increased bonuses. Id. Upon
`learning that Siegel’s heirs had served a copyright termination notice on DC, Peavy reiterated her
`commitment “to honor” the 1992 Agreement. Id. In 1993, 1994, 1995, 1996, 1998, 1999, 2000,
`and 2001, DC paid Jean additional bonuses, ranging from $10,000 to $25,000. Id. DC clarified
`that, although Jean had no legal right to such bonuses, it would pay her a bonus anyway, for
`which Jean thanked DC. Id. Jean was of sound mind when she sent her letters to DC. Id.
`All of that changed in 2001, when Peary and his lawyer/business partner Marc Toberoff
`began looking for ways to claim an interest in Superman and entered into various business deals
`for that purpose. See Superman II, 545 F. App’x at 682. The pair initiated probate proceedings
`in California state court to have Peary installed as “substitute executor” of Shuster’s estate, and
`served a copyright termination notice on DC in 2003. Superman I, 2012 WL 4936588, at *1, *3.
`C. Superman I: Judge Wright Upholds the 1992 Agreement.
`In 2010, DC filed suit in the Central District of California seeking a declaration that
`Peary’s copyright termination notice was invalid. See Superman I, 2012 WL 4936588, at *1.
`After years of litigation, the parties cross-moved for summary judgment. DC argued that the
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`2 Unless otherwise noted, all emphases are added.
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`1992 Agreement revoked the original 1938 Grant of copyrights to DC and re-granted to DC all
`of Shuster’s copyrights in Superman, leaving no pre-1978 assignment to terminate. Id. at *4-9.
`The Hon. Otis D. Wright II agreed. The California federal court held: “[T]he 1992
`Agreement . . . superseded and replaced all prior grants of the Superman copyrights. The 1992
`Agreement thus represents the parties’ operative agreement and, as a post-1978 grant, it is not
`subject to termination[.]” Id. at *9. The court further held: The 1992 Agreement “expressly and
`unambiguously” re-granted “all rights” the Shuster estate had in Superman; was a “release to all
`claims” “under all prior agreements” or “otherwise”; and that its “broad and all-encompassing
`language . . . unmistakably operates to supersede all prior grants.” Id. at *5, 7.
`Judge Wright further rejected Peary’s arguments that the 1992 Agreement ran afoul of
`New York contract law, copyright law, and California probate law. He held that the agreement
`was not vague or unenforceable, see id. at *5, did not undermine the Copyright Act, see id. at *8-
`9, and that Jean plainly acted to bind herself and “all other heirs,” id. at *8 (“by entering into the
`1992 Agreement,” Jean “struck a deal that binds all other heirs”). Judge Wright made these
`rulings in response to extensive argument from Peary and DC on each of these points, including
`the California probate law points that Peary pressed late, and that DC showed he misstated. E.g.,
`MKA, Ex. F, at 7-8 (DC’s MSJ Reply); MKA, Ex. H, at 6-7 (Peary’s Cross-MSJ Reply).
`D. Superman II: The Ninth Circuit Affirms Judge Wright’s Rulings.
`The Ninth Circuit fully affirmed Judge Wright’s considered judgment:
`The district judge correctly held that the 1992 Agreement, as a matter of New
`York law, superseded the 1938 assignment of copyrights to DC, and therefore
`operated to revoke that assignment and re-grant the Superman copyrights to
`DC . . . . We agree with the district judge that, under the plain text of the 1992
`Agreement, which “fully settles all claims” regarding “any copyrights,
`trademarks, or other property right in any and all work created in whole or in part
`by [Shuster],” and further “now grants to DC any such rights,” it superseded the
`1938 assignment as a matter of New York law. We therefore hold that the
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`agreement created a new, 1992 assignment of works to DC—an assignment
`unaffected by the 2003 notice of termination.
`Superman II, 545 F. App’x at 680-81.
`In so holding, the panel likewise rejected Peary’s arguments that the 1992 Agreement ran
`afoul of New York contract law, copyright law, and California probate law. Id. & n.3. Peary has
`argued to this Court that neither Judge Wright nor the Ninth Circuit panel majority reached or
`rejected his California probate arguments. See NYSCEF #151 (Hr’g Tr. on Peary’s PI Mot.) (“PI
`Tr.”) at 7:6-18. That is decidedly untrue, as footnote 3 of the majority opinion makes plain. See
`Superman II, 545 F. App’x at 681 n.3 (“[Peary] argued explicitly below . . . that the 1992
`Agreement could not now bind the estate . . . . The district judge’s ruling implicitly rejected
`[Peary’s] argument . . . .”). Indeed, as the Ninth Circuit documented, see id., and this Court
`noted in denying Peary’s PI motion, Peary lost that probate argument at the trial court level and
`made the tactical choice to waive it on appeal, but because that ruling was plainly litigated and
`necessary to Judge Wright’s opinion, it binds him. See, e.g., PI Tr. 30:14-17 (“It was necessarily
`addressed by Judge Reinhardt because it was addressed by Judge Wright. They are saying that
`that contract gave DC all rights to the property wherever it might be in the world.”); see also
`Frazer Exton Dev., L.P. v. Kemper Env’t, Ltd., 2007 WL 756494, at *1 (S.D.N.Y. Mar. 13,
`2007) (“It is hornbook law that an affirmance by an appellate court ‘ratifies, confirms, and
`declares that the trial court judgment was correct . . . .’”).
`E. Peary Seeks to Relitigate His Claims in New York.
`In January 2025, Peary (who lives in New Mexico and litigated Superman I & II in
`California) filed suit in federal district court in New York. See Peary v. DC Comics, Inc., No.
`1:25-cv-00910-JMF (S.D.N.Y.). Citing the now-revoked 1938 Grant his uncle made to DC, see
`supra at 5-6, Peary argued he was entitled to copyright reversion rights in 10 countries, and that
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`DC infringed his rights. On DC’s motion, the federal court immediately dismissed Peary’s case
`for lack of subject matter jurisdiction. Id., Dkt. 63. Peary refiled in this Court and moved for a
`preliminary injunction, which the Court denied. See NYSCEF #145. After briefing and
`argument, the Court held that: (1) Peary had intentionally delayed in pressing his claims (PI Tr.
`15:5-16:3); (2) money damages were sufficient, if Peary could ever establish a claim (id. 37:14-
`25); (3) the balance of equities favored DC (id. 40:5-20); and (4) Peary was unlikely to succeed
`on the merits, given the binding, all-encompassing 1992 Agreement, e.g., id., 39:2-5 (“[T]he
`Ninth Circuit held that the 1992 agreement granted DC rights to resolve any existing and future
`copyright claims by the Shuster family and estate.”).
`III. ARGUMENT
`Peary’s entire Complaint is barred by the clear and unambiguous release of claims in the
`1992 Agreement. This purely legal issue can be resolved on a motion to dismiss, applying well
`established rules of collateral estoppel and reading the plain words of the Agreement. And
`although the Court need not reach the question, Peary’s causes of action also fail under foreign
`law. Peary pleads a different cause of action for each jurisdiction, but the result is the same in
`each country. Collateral estoppel rulings in Superman I & II bar his claims.
`A. Peary’s Claims Are Barred by the Broad Release in the 1992 Agreement.
`New York law is settled “that a valid release constitutes a complete bar to an action on a
`claim which is the subject of the release.” Glob. Mins. & Metals Corp. v. Holme, 35 A.D.3d 93,
`98 (1st Dep’t 2006). “A party may move for judgment [based on such a ] . . . release,” CPLR
`3211(a)(5), and courts regularly grant such motions, e.g., Trump v. Trump, 77 Misc. 3d 543, 558
`(N.Y. Sup. Ct. 2022) (Reed, J.), aff’d, 217 A.D.3d 594 (1st Dep’t 2023); Skluth v. United
`Merchants & Mfrs., Inc., 163 A.D.2d 104, 107 (1st Dep’t 1990) (“Since the agreement herein
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`clearly and unambiguously releases defendant from ‘all liability of every kind . . .’, [it] operates
`as a matter of law to release defendant from any and all claims[.]”).
`The plain language of the 1992 Agreement “fully settles” and “release[s]” DC from “all
`claims . . . regarding any copyrights . . . in any and all work created in whole or in part by . . .
`Joseph Shuster, or any works based thereon.” NYSCEF #2. It also includes a “covenant not to
`assert any claim of right, by suit or otherwise, with respect to the above, now and forever.” Id.
`All of Peary’s claims must be dismissed under CPLR 3211(a)(5) and (7). Collateral
`estoppel bars re-litigation of an issue where, as here, (1) an identical issue was involved in a
`prior action, (2) the issue was actually litigated, and (3) determination of the issue was necessary
`to the prior court’s judgment. See Restatement (Second) of Judgments § 27 (1982); Paramount
`Pictures Corp. v. Allianz Risk Transfer AG, 31 N.Y.3d 64, 69 (2018) (federal common law
`governs preclusive effect of federal judgment).
`The Superman I & II litigation centered around the scope and effect of the 1992
`Agreement. DC argued that the Agreement broadly released all claims against DC, and was
`“plainly a revocation and full re-grant of ‘any and all’ of Shuster’s Superman rights.” MKA, Ex.
`D, at 14 (DC’s MSJ). Peary disagreed—arguing for a narrower interpretation, and submitting
`extrinsic evidence that the parties “did not intend for the 1992 Agreement to discharge and
`supersede all prior copyright grants.” Superman I, 2012 WL 4936588, at *7; MKA, Ex. E, at 13-
`14 (Peary’s 2012 MSJ Opp.) (attempting to distinguish DC’s cases on release and novation).
`Judge Wright held: “the Court finds no ambiguity in the parties’ agreement.” Superman
`I, 2012 WL 4936588, at *5. He concluded that the 1992 Agreement represented a revocation
`and re-grant of “all” Superman rights and a “broad release” of any and all claims, id. at *4:
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`• “[T]he 1992 Agreement not only settled and released all ‘claims . . . rights [and]
`remedies’ concerning the [Superman] copyrights under all prior agreements, but it
`also extended the release to such rights and remedies as might exist ‘otherwise.’”
`• “With a broad release and all-encompassing language, it would here appear that
`the 1992 Agreement does indeed aim to supersede all prior agreements….”
`Peary appealed Judge Wright’s interpretation of the 1992 Agreement, including the
`“settlement and release” language. MKA, Ex. I, at 37 (Peary’s opening appellate brief) (“[Judge
`Wright] reasoned that ‘full settlement’ means ‘a settlement and release of all pending claims
`between the parties.’ This does not add up.”). The Ninth Circuit rejected Peary’s argument and
`“agree[d] with the district court” that the 1992 Agreement “fully settle[d]” all Superman claims,
`and revoked and re-granted all Superman rights. Superman II, 545 F. App’x at 680-81.
`Judge Wright’s interpretation of the release as “broad” and the Agreement as “all-
`encompassing” is binding on Peary and fatal to his claims. So is Judge Wright’s holding that the
`Agreement “released all ‘claims . . . rights [and] remedies’ concerning the [Superman]
`copyrights under all prior agreements, [and] also extended the release to such rights and
`remedies as might exist ‘otherwise.’” Superman I, 2012 WL 4936588, at *5.
`Peary claims ownership of “copyright interests in [Superman]” under foreign reversion
`statutes, but suggests that foreign copyrights are somehow carved out from the 1992 Agreement
`or the California courts’ rulings interpreting it. See Compl. ¶¶ 65, 75, 85, 95, 112. That is not
`the case. Both the plain language of the 1992 Agreement, and the preclusive rulings interpreting
`it, make clear that Jean released “all claims . . . , whether now or hereafter existing regarding any
`copyrights” in Superman. NYSCEF #4. “Any” and “all” mean what they say, and necessarily
`include claims asserted under foreign reversion statutes (just like they include claims asserted
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`under the U.S. Copyright Act). See Superman I, 2012 WL 4936588, at *4; PI Tr. 30:14-17 (The
`Court: “They [the federal courts] are saying that that contract gave DC all rights to the property
`wherever it might be in the world.”).
`These collateral estoppel rulings make this case an easy one. Judge Wright and the Ninth
`Circuit Panel have already necessarily concluded that Jean granted all rights and released all
`claims, in “all-encompassing” language. See Superman I, 2012 WL 4936588, at *4. But even if
`this Court were confronting this release language in the first instance, the result would be the
`same. Courts applying New York law routinely dismiss claims covered by a release that is
`“clear and unambiguous on its face.” Trump, 77 Misc. 3d at 552 (releases “clearly and
`unambiguously released defendants from unknown claims”); James McKinney & Son, Inc. v.
`Lake Placid 1980 Olympic Games, Inc., 92 A.D.2d 991, 992 (3d Dep’t 1983), aff’d as modified,
`61 N.Y.2d 836, 838 (1984) (surety’s release of claims binding on principal where surety
`“released [defendant] ‘from all claims, causes of action or suits, which it now or may have in the
`future”); Ackoff-Ortega v. Windswept Pac. Ent. Co. (Inc.), 120 F. Supp. 2d 273, 282 (S.D.N.Y.
`2000), aff’d sub nom., 46 F. App’x 663 (2d Cir. 2002) (plaintiffs’ federal copyright claims
`released by settlement agreement that, “[i]n unambiguous and sweeping terms, release[d]
`[defendant] from all actions and suits ‘whatsoever’”).
`The Court should reach the same conclusion here, and dismiss all of Peary’s claims in
`this case as released under CPLR 3211(a)(5).3
`
`3 Peary argued in his complaint, preliminary injunction papers, and before Judge Wright and
`the Ninth Circuit that the 1992 Agreement cannot bind him because Jean did not first probate Joe
`Shuster’s estate. DC will not rehash those arguments or points here, as Peary badly misstates the
`law and what the California federal courts ruled on this question. Indeed, as this Court’s ruling
`denying Peary’s preliminary injunction motion correctly observed:
`Plaintiff’s instant claims appear to this Court as an attempt to revive issues that
`were previously raised on the federal level before the Ninth Circuit Court of
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`B. Peary Otherwise Fails to State a Claim.
`Peary’s foreign law claims fail on their own terms because the 1938 Grant no longer
`exists; it was revoked by the 1992 Agreement, as the California federal courts plainly held.
`Under the plain language of the foreign reversion statutes—and as DC’s legal experts attest—the
`rights that Peary asserts exist only in narrow circumstances where: (1) an author’s original
`copyright grant remains in existence; and (2) the copyrights subject to reversion have not already
`been assigned. Peary cannot establish either requirement. Superman I & II conclusively
`established that the 1992 Agreement (1) revoked Shuster’s original 1938 Grant; and (2) granted
`to DC any and all interests in the Superman copyrights. Peary is estopped from collaterally
`attacking those rulings, mandating dismissal under CPLR 3211(a)(5) & (7).
`1. The 1992 Agreement Revoked the 1938 Grant—and Peary Is Estopped
`from Relitigating This Issue.
`Under the laws of the UK, Canada, Ireland, and Australia, copyright reversion rights
`apply only to a grant or assignment made by the author as the first owner of the copyright in the
`subject work. See, e.g., U.K. Copyright, Designs & Patents Act 1988 (“U.K. Act”), c. 48, Sch. I,
`¶ 27(1) (reversion rights apply to “assignment of the copyright” “made by” “the author of a . . .
`work [who] was the first owner of the copyright in it”); Ian Mill Affirmation (“IMA”) ¶¶ 14-19
`(United Kingdom); Daniel Glover Affirmation (“DGA”) ¶¶ 13-15 (Canada); Giancarlo Salizzo
`
`Appeals. This is particularly true regarding the issue . . . whether Frank Shuster
`and Jean Pea[v]y could bind the estate in executing the 1992 agreement, an issue
`the circuit court found to have been implicitly rejected by the lower court.
`PI Tr. 38:17-25; id. at 39:2-5 (“[T]he Ninth Circuit held that the 1992 agreement granted DC
`rights to resolve any existing and future copyright claims by the Shuster family and estate.”); id.
`39:14-16 (quoting Superman II, 545 F. App’x at 681 n.3 (“The district judge’s ruling implicitly
`rejected [Peary’s] argument[,] holding that the estate was bound by the 1992 agreement.”); see
`also 18 Moore’s Federal Practice, Civil § 132.03[3][e] (2025) (“An issue that was necessarily
`implicit in a larger determination is given issue preclusive effect”).
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`Affirmation (“GSA”) ¶¶ 7, 19-23 (Ireland); Anita Cade Affirmation (“ACA”) ¶¶ 12, 15
`(Australia). Peary’s complaint concedes as