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`DC’S MOT. FOR PARTIAL SUMM. J.
`DANIEL M. PETROCELLI (S.B. #097802)
` dpetrocelli@omm.com
`MATTHEW T. KLINE (S.B. #211640)
` mkline@omm.com
`CASSANDRA L. SETO (S.B. #246608)
` cseto@omm.com
`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)
`PLAINTIFF DC COMICS’
`NOTICE OF MOTION AND
`MOTION FOR PARTIAL
`SUMMARY JUDGMENT ON ITS
`FIRST AND THIRD CLAIMS FOR
`RELIEF
`DECLARATIONS OF DANIEL M.
`PETROCELLI AND PAUL LEVITZ;
`STATEMENT OF
`UNCONTROVERTED FACTS AND
`CONCLUSIONS OF LAW; AND
`[PROPOSED] ORDER FILED
`CONCURRENTLY HEREWITH
`Hon. Otis D. Wright II
`Hearing Date: Aug. 20, 2012
`Hearing Time: 1:30 p.m.
`Courtroom: 11
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`TO DEFENDANTS AND THEIR COUNSEL OF RECORD:
`PLEASE TAKE NOTICE that on August 20, 2012, at 1:30 p.m., or as soon
`thereafter as counsel may be heard by the above-entitled court, located in
`Courtroom 11 at 312 North Spring Street, Los Angeles, California 90012, plaintiff
`DC Comics (“DC”) will and hereby does move pursuant to Federal Rule of Civil
`Procedure 56 for summary judgment on its First and Third Claims for Relief.
`DC’s First Claim alleges five independent grounds for deeming invalid the
`copyright termination notice filed on November 10, 2003, by the heirs of Superman
`co-creator Joseph Shuster. First Amended Compl. (“FAC”), Docket No. 49 ¶¶ 105-
`34. There are no issues of material fact as to three of these grounds, warranting
`summary judgment in DC’s favor:
`(1) In exchange for more than $600,000 and other benefits, Jean
`Peavy—the sole beneficiary of Shuster’s estate—entered into a 1992
`agreement with DC that rescinded all of Shuster’s prior copyright grants and
`re-granted to DC any copyright interests that Shuster or his heirs may have
`held. This agreement eliminated any pre-1978 copyright grant that might
`otherwise be subject to termination under the Copyright Act.See 17 U.S.C.
`§§ 304(c)-(d), 203(a); Milne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1042-
`45 (9th Cir. 2005); Penguin Grp. (USA) Inc. v. Steinbeck, 537 F.3d 193, 200-
`02 (2d Cir. 2008).
`(2) In 2001 and 2003, Jean Peavy, her son Mark Peary, and the Estate
`of Joseph Shuster “assign[ed]” their putative “copyright termination interest
`in ‘SUPERMAN’” and any “termination” rights they possessed to a joint
`venture with Pacific Pictures Corporation, defendant Marc Toberoff’s film
`production company. When the Shuster Estate served its copyright
`termination notice weeks later in November 2003, none of Jean, Mark Peary,
`or the Shuster Estate possessed the majority (or greater than 50%) share of
`Joe Shuster’s putative termination interest required to terminate under the
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`Copyright Act and Copyright Office regulations. See 17 U.S.C. §§ 304(d),
`304(c)(1); 37 C.F.R. §§ 201.10(b)(1)(vii), (c)(2); Steinbeck, 537 F.3d at 202.
`Defendants’ undisputed failure to disclose the transfer of their purported
`termination interest to Pacific Pictures was not “harmless error”—both the
`notice and the sworn declarations filed with it concealed material facts about
`defendants’ illicit agreements in violation of federal law.
`(3) The Shuster heirs’ copyright termination notice is premised on
`§ 304(d) of the Copyright Act, which allows termination only by certain
`individuals whose rights “expired” under § 304(c) of the Act. 17 U.S.C.
`§§ 304(c)-(d). Because Joe Shuster passed away in 1992 without exercising
`any purported termination right or leaving a statutory heir to inherit it, his
`termination right did not “expire”—it simply ceased to exist. As a result,
`there is no statutory basis for the Shuster heirs to terminate under § 304(d).
`Summary judgment is also warranted in DC’s favor on its Third Claim,
`which arises under § 304(c)(6)(D) of the Copyright Act. FAC ¶¶ 165-73. Section
`304(c)(6)(D) establishes that during the 10-year notice period before the Shuster
`heirs’ copyright termination notice purports to take effect (2003 to 2013), the
`Shusters were and are barred from entering into any agreement regarding the
`putative rights they hope to recapture with any party other than DC, the original
`“grantee” to those rights. 17 U.S.C. § 304(c)(6)(D). It is undisputed that
`defendants have entered into various rights-tying agreements that improperly
`restrict the Shuster heirs’ freedom to enter into agreements with DC during that 10-
`year notice period, including the Pacific Pictures agreements, as well as a 2008
`“consent agreement” with the heirs of Superman co-creator Jerry Siegel, which
`remains in effect today. Defendants admit the Pacific Pictures agreements are “not
`lawful” under § 304(c)(6)(D)—effectively conceding liability for part of DC’s
`Third Claim. Defendants dispute whether their 2008 consent agreement is
`unlawful, but their admissions in deposition establish its illegality.
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`This motion is made pursuant to Federal Rule of Civil Procedure 56, Central
`District Local Rule 56, and this Court’s Standing Order Regarding Newly Assigned
`Cases (Docket No. 18). This motion is made following several conferences of
`counsel on June 27, 2012, and days subsequent, pursuant to Central District Local
`Rule 7-3. Marc Toberoff, counsel for defendants Mark Warren Peary and Laura
`Siegel Larson, has said he is unavailable for a hearing on August 20, 2012, due to
`vacation plans he told us about last week. Decl. of Daniel M. Petrocelli ¶ 51 & Ex.
`50. As we have told Mr. Toberoff, if he is truly unavailable on August 20, DC is
`amenable to setting a hearing date (on DC’s motion for summary judgment and any
`cross-motion defendants might file) for a later hearing date in September 2012 that
`is convenient for the Court, and assuming a hearing is required. Id. However, as
`DC explained to Mr. Toberoff, DC is unwilling to permit him to use his
`unavailability on August 20 to alter his briefing obligations—and the normal
`briefing deadlines—under the rules. Id. DC offered Mr. Toberoff a briefing
`schedule and hearing date that would have avoided impacting his vacation in any
`way; he declined it. Id.
`This motion is based on this Notice of Motion and Motion and accompanying
`Memorandum of Points and Authorities; the concurrently filed Declarations of
`Daniel M. Petrocelli and Paul Levitz; the concurrently filed Statement of
`Uncontroverted Facts and Conclusions of Law; the concurrently filed Proposed
`Order; and all exhibits, files, and records on file in this action, matters of which
`judicial notice may be taken, and such additional submissions and argument as may
`be presented at or before the hearing on this motion.
` Date d: July 16, 2012 Respectfully submitted,
`By: /s/ Daniel M. Petrocelli
` Daniel M. Petrocelli
`Attorneys for Plaintiff DC Comics
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`- i - DC’S MOT. FOR PARTIAL SUMM. J.
`TABLE OF CONTENTS
`I. INTRODUCTION ........................................................................................... 1
`II. STATEMENT OF FACTS .............................................................................. 3
`A. Joe Shuster’s Agreements And Relationship With DC ........................ 3
`B. Jean Peavy’s 1992 Agreement With DC .............................................. 5
`C. Mark Peary Looks To Recapture The Superman Copyrights ............... 7
`D. This Lawsuit .......................................................................................... 9
`III. SUMMARY JUDGMENT IS WARRANTED ON DC’S FIRST
`CLAIM .......................................................................................................... 10
`A. The 1992 Agreement Bars The Shusters From Terminating .............. 10
`B. The Estate Lacked The Majority Interest Necessary To
`Terminate ............................................................................................ 18
`C. The Shuster Heirs Have No Statutory Right To Terminate ................ 21
`IV. SUMMARY JUDGMENT IS WARRANTED ON DC’S THIRD
`CLAIM .......................................................................................................... 23
`V. CONCLUSION ............................................................................................. 25
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`TABLE OF AUTHORITIES
`CASES
`Blair & Co. v. Otto,
`5 A.D.2d 276 (N.Y. App. Div. 1958) ........................................................... 13, 14
`Burroughs v. Metro-Goldwyn-Mayer, Inc.,
` 683 F.2d 610 (2d Cir. 1982) ......................................................................... 19, 20
`C3 Media & Mktg. Group v. Firstgate Internet, Inc.,
`419 F. Supp. 2d 419 (S.D.N.Y. 2005) ................................................................ 14
`CBOCS West, Inc. v. Humphries,
`553 U.S. 442 (2008) .......................................................................................... 24
`Classic Media, Inc. v. Mewborn,
`532 F.3d 978 (9th Cir. 2008) ................................................................ 15 , 16, 17
`Estate of Molino,
`165 Cal. App. 4th 913 (2008) ............................................................................ 15
`Flowers v. Carville,
`310 F.3d 1118 (9th Cir. 2002) ........................................................................... 25
`Goldbard v. Empire State Mut. Ins. Co.,
`5 A.D.2d 230 (N.Y. App. Div. 1958) ................................................................ 13
`Goldome Corp. v. Wittig,
`221 A.D.2d 931 (N.Y. App. Div. 1995) ............................................................ 14
`Groves v. Prickett,
`420 F.2d 1119 (9th Cir. 1970) ........................................................................... 24
`Hartzheim v. Valley Land & Cattle Co.,
`153 Cal. App. 4th 383 (2007) ............................................................................ 24
`In re Kalt’s Estate,
`16 Cal.2d 807, 811 (1940) ................................................................................. 15
`In re Pacific Pictures Corp.,
`679 F.3d 1121 (9th Cir. 2012) ......................................................................... 2, 7
`In re WorldCom, Inc.,
`2007 WL 2049723 (S.D.N.Y. July 13, 2007) ................................................... 14
`Indep. Energy Corp. v. Trigen Energy Corp.,
` 944 F. Supp. 1184 (S.D .N.Y. 1996) .................................................................. 14
`Int’l Bank of Comm. v. Int’l Energy Dev. Corp.,
`981 S.W.2d 38 (1998) ....................................................................................... 20
`Milne v. Stephen Slesinger, Inc.,
`430 F.3d 1036 (9th Cir. 2005) ..................................................................... passim
`Nat’l Res. Def. Council v. E.P.A.,
`437 F. Supp. 2d 1137 (C.D. Cal. 2006) ............................................................. 10
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`Norgart v. Upjohn Co.,
`21 Cal. 4th 383 (1999) ....................................................................................... 25
`Pearson v. Super. Ct.,
`202 Cal. App. 4th 1333 (2012) .......................................................................... 20
`Penguin Grp. (USA) Inc. v. Steinbeck,
`537 F.3d 193 (2d Cir. 2008) ........................................................................ passim
`Polar Bear Prods., Inc. v. Timex Corp.,
`384 F.3d 700 (9th Cir. 2004) ............................................................................. 25
`Sarkisian v. Sayre,
`2007 WL 4427309 (Cal. Ct. App. 2007) ........................................................... 24
`Siegel v. Nat’l Periodical Publ’ns,
`364 F.Supp. 1032 (S.D.N.Y. 1973), aff’d, 508 F.2d 909 (2d Cir.
`1974) .................................................................................................................... 4
`Suh v. Yang,
`987 F. Supp. 783 (N.D. Cal. 1997) .................................................................... 25
`Sullivan v. Little Hunting Park, Inc.,
`396 U.S. 229 (1969) .......................................................................................... 24
`Sylve v. Riley,
`15 Cal. App. 4th 23 (1993) ................................................................................ 25
`Touche Ross & Co. v. Redington,
`442 U.S. 560 (1979) .......................................................................................... 25
`TransOrient Marine Corp. v. Star Trading & Marine, Inc.,
`736 F. Supp. 1281 (S.D.N.Y. 1990) .................................................................. 13
`U.S. v. Hardesty,
`977 F.2d 1347 (9th Cir. 1992) (en banc) ........................................................... 16
`Wagner v. CT Cimarron, LLC,
`320 Fed. Appx. 539 (9th Cir. 2009) .................................................................. 24
`Wyatt v. Union Mort. Co.,
`24 Cal. 3d 773 (1979) ........................................................................................ 25
`STATUTES AND REGULATIONS
`17 U.S.C. § 304 ................................................................................................ passim
`37 C.F.R. § 201.10(b)(1)(vii) ................................................................................. 18
`37 C.F.R. § 201.10(e) ............................................................................................. 19
`FED.R .C IV. P. 56(a) ............................................................................................... 10
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`OTHER AUTHORITIES
` H.R. REP.N O. 941476 (1976) .................................................................... 11, 23, 24
`RESTATEMENT (SECOND) OF CONTRACTS § 279 (1988) .......................................... 13
` S. REP.N O. 104-315 (1996) ................................................................................... 22
`SUPP.R EG.’S REP. ON GEN.R EV’N OF U.S. COPYRIGHT LAW,8 9TH
`CONG. 72 (1965) .......................................................................................... 10, 21
`SECOND SUPP.R EF.’S REP. ON GEN.R EV’N OF U.S. COPYRIGHT LAW,
`94TH CONG. 307 (1975) ..................................................................................... 24
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`I. INTRODUCTION
`DC filed this case in May 2010 to protect its rights in the Superman property
`it has owned and nurtured for 70 years. Heirs of Joe Shuster, the first illustrator of
`Superman, served a copyright termination notice purporting to recapture certain
`early Superman works as of October 2013. DC’s First Claim contests the validity
`of that notice, and its Third Claim challenges the web of illicit agreements that
`Marc Toberoff and his entertainment companies and business partners engineered
`in violation of DC’s rights under the Copyright Act. Summary judgment is
`warranted in DC’s favor on both claims. There is a pressing need to resolve these
`claims now, given the imminence of the 2013 termination date.
`DC’s First Claim. DC alleges five independent grounds for deeming the
`Shusters’ termination notice invalid, three of which are ripe for summary judgment:
`a. The Shusters’ 1992 Agreement with DC. The 1976 Copyright Act created
`a right to terminate certain pre-1978 copyright grants. Leading copyright
`termination cases make clear that a post-1978 agreement that supersedes all prior
`copyright grants before 1978 eliminates any claimed termination right. See Milne
`v. Stephen Slesinger, Inc., 430 F.3d 1036, 1042-45 (9th Cir. 2005); Penguin Grp.
`(USA) Inc. v. Steinbeck, 537 F.3d 193, 200-04 (2d Cir. 2008).
`Those cases apply with full force here. In 1992, Shuster’s heirs solicited and
`executed such an agreement, in exchange for valuable consideration from DC.
`After Shuster died, his sister and sole heir, Jean Peavy, approached DC asking for
`financial security for the rest of her life, as well as survivor benefits for her brother
`Frank, and payment of Shuster’s “large unpaid debts,” which she and Frank could
`not pay. DC agreed, on the condition that this additional compensation would buy
`complete peace with the Shusters. DC, Jean, and Frank entered into a 1992
`agreement that provided for these benefits and that rescinded all of Shuster’s prior
`copyright grants, re-granted to DC all copyright interests “in any and all work
`created in whole or in part by … Shuster,” and released DC from “all claims[,]
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`whether now or hereafter existing” regarding his copyrights. DC has provided Jean
`and Frank, to date, more than $600,000 under the contract, and Jean continues to
`accept payments under it today. For years, Jean repeatedly affirmed her satisfaction
`with the 1992 agreement and her intent to “honor” it by not serving a copyright
`termination notice. This all changed in 2001, after Jean’s adult and jobless son,
`Mark Peary, began looking for ways to claim an interest in Superman and Toberoff
`intervened to disrupt the family’s longtime contract with DC. Peary rewrote Jean’s
`will to name himself her sole heir, appointed himself executor of Shuster’s Estate in
`place of Jean, and, in 2003, filed a termination notice for the Estate.
`This notice was legally invalid. The copyright provision Peary invoked only
`allows termination of copyright grants executed before 1978. 17 U.S.C. § 304(d);
`Steinbeck, 537 F.3d at 200-04. Because the 1992 agreement had the legal effect of
`extinguishing all pre-1978 copyright grants and replacing them with a new, all-
`encompassing 1992 grant, there was nothing left for Peary to terminate in 2003. Id.
`A deal is a deal, and like the Shuster family’s claims to the Superman copyrights
`rejected by the courts in the 1940s and 1970s, this new claim must, too, be rejected.
`b. Lack of Majority Interest. By defendants’ own admissions, the Estate did
`not own the required “more than one-half” share, 17 U.S.C. § 304(d)(1), of
`Shuster’s termination interest when it filed its termination notice in 2003. In 2001,
`“Toberoff created a joint venture between the [Shusters] and” his company, Pacific
`Pictures.In re Pacific Pictures Corp., 679 F.3d 1121, 1124 (9th Cir. 2012). Jean
`and Peary “assign[ed] to the Venture” all of their putative termination interests,
`promised not to enter into any agreement concerning those rights “without [Pacific
`Pictures’] express written consent,” and agreed that if the venture were terminated
`“for any reason,” Pacific Pictures would get 50% of the rights. The Estate ratified
`in 2003 that the joint venture owned the Shusters’ “copyright termination interest.”
`Two weeks after executing the 2003 Pacific Pictures agreement, Peary and
`the Estate served the copyright termination notice at issue here, in which Peary and
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`Toberoff falsely attested that the Estate owned the right to terminate. The notice
`madeno mention of the Pacific Pictures Joint Venture, which at the time, by
`contract, held 100% of the Shusters’ putative termination rights. Worse still,
`Toberoff swore under oath that he investigated “the current ownership of the rights
`being terminated” and did not disclose his company’s plain interest in the rights.
`These material falsehoods to DC and the Copyright Office are alternative grounds
`judicially to invalidate the Shusters’ termination notice.
`c. Section 304(d) Does Not Apply to the Shusters. The Estate is ineligible to
`terminate under § 304(d), in any event. This section applies only when termination
`rights under § 304(c) “expired.” Under § 304(c), Shuster’s window to terminate
`opened in April 1984 and was set to “expire” in April 1997. Shuster’s right to
`terminate never “expired” because he died in 1992 choosing never to exercise it,
`and leaving no wife, child, or grandchild to inherit it, as the statute requires.
`DC’s Third Claim. The Court need only reach this claim if it does not grant
`DC judgment on its First Claim. During the 10-year notice period (2003 to 2013)
`before the Estate’s termination notice purports to take effect, the Shusters are barred
`by the Copyright Act from entering into agreements regarding their putative
`Superman copyrights with any party other than DC.See 17 U.S.C. § 304(c)(6)(D).
`Defendants admit the Pacific Pictures contracts that Toberoff engineered are “not
`lawful” under § 304(c)(6)(D)—thus conceding part of DC’s Third Claim—and also
`admit they entered into another rights-tying agreement in 2008 that continues to
`exist to this day. The Copyright Act bars such “trafficking in future [copyright]
`interests,”Milne, 430 F.3d at 1047, and the Court should declare defendants’
`consent agreements invalid and restore DC’s exclusive 10-year bargaining right.
`II. STATEMENT OF FACTS
`A. Joe Shuster’s Agreements And Relationship With DC
`Jerry Siegel and Joe Shuster created the character “Superman” in the 1930s;
`but for years, the pair was unable to find a publisher for their story. Statement of
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`Uncontroverted Facts (“SUF”) 1. In 1938, DC—which had employed Siegel and
`Shuster to do other work—elected to include Superman in a new comic book titled
`Action Comics. SUF 2. On March 1, 1938, Siegel and Shuster granted to DC the
`“exclusive right to the use of the [Superman] characters and story.” SUF 3. Action
`Comics #1 (“AC#1”), published on April 18, 1938, featured an adapted version of
`Siegel and Shuster’s Superman story along with several other stories. SUF 4.
`After AC#1 was published, Siegel and Shuster continued to supply DC with
`draft Superman material pursuant to work-for-hire agreements. SUF 5. They were
`compensated for their work in royalties and bonuses, both of which increased with
`Superman’s success. Id. By 1941, the Saturday Evening Post reported that the pair
`stood to make over $2 million (in today’s terms) in the next year alone. SUF 6.
`The pair’s relationship with DC became contentious. In 1947, Siegel and
`Shuster sued DC in New York seeking to invalidate the 1938 assignment. The
`court concluded that the 1938 assignment granted “all” Superman rights to DC. In
`1948, the parties entered into a stipulated judgment under which Siegel and Shuster
`acknowledged the 1938 assignment granted to DC all rights in Superman. SUF 7.
`In 1969, Siegel and Shuster filed another action against DC in New York
`seeking to recapture the renewal copyright in AC#1. The courts again recognized
`that Siegel and Shuster assigned all of their Superman rights to DC in 1938—
`including renewal rights.See Siegel v. Nat’l Periodical Publ’ns, 364 F.Supp. 1032
`1038 (S.D.N.Y. 1973), aff’d, 508 F.2d 909, 913-14 (2d Cir. 1974).
`Siegel and Shuster faced financial difficulties and, after their legal claims
`were rejected, turned to DC for help. In a 1975 agreement, DC provided Siegel and
`Shuster with, in today’s dollars, lump sums of $75,000 each, lifetime annual
`payments of $80,000 each per year, survivor payments to their heirs, and insurance
`coverage, as well as “credits” as creators of Superman. SUF 8. Siegel and Shuster
`again acknowledged that DC owned all Superman-related copyrights.Id. Since
`1975, DC has voluntarily increased the annual payments, made periodic cost-of-
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`living adjustments, given special bonuses, and paid to have Siegel, Shuster, and
`their families travel to Superman-related events. SUF 9. All told, the Siegels and
`Shusters have been paid well over $4 million under the 1975 Agreement, not
`including medical benefits or bonuses. SUF 10.
`In 1976, Congress amended the Copyright Act to allow authors and certain
`statutory heirs to terminate prior copyright grants and recapture the underlying
`copyrights in certain limited circumstances. 17 U.S.C. § 304. Neither Siegel nor
`Shuster ever attempted to exercise any purported termination right, although the
`windows for both to do so opened in 1984, while both were still alive. SUF 11.
`Shuster passed away on July 30, 1992. SUF 12. Shuster had no wife, child,
`or grandchild, and his will named his sister, Jean Peavy, as sole beneficiary and
`executrix of his estate. SUF 13. On August 17, 1992, Jean filed a sworn affidavit
`in California state court identifying herself as Shuster’s “successor” and sole heir
`and requesting that his property “be paid, delivered or transferred to her.” SUF 14.
`B. Jean Peavy’s 1992 Agreement With DC
`Four days after filing her affidavit in the California probate court, Jean wrote
`to DC, identifying herself as “heir to [Joe Shuster’s] Will” and asking DC to pay
`Shuster’s “final debts and expenses.” SUF 15. DC offered to cover Joe’s debts and
`increase survivor payments to his brother Frank from $5,000 to $25,000 per year.
`SUF 16. On September 10, 1992, Frank sent a letter to DC’s then-Executive Vice
`President, Paul Levitz, stating he was “extremely pleased” with the increased
`payments, and asking, after “discuss[ing] this good news with [Jean],” that
`payments be made directly to Jean, who would “send [Frank] whatever money [he]
`wanted as a gift which would not be taxable to [him].” SUF 17. Frank asked if he
`and Jean could meet with Levitz in New York to discuss the issue.Id.
`Levitz dealt with scores of authors and heirs during his decades running DC.
`SUF 18. When DC agreed to grant an author or heir’s request for additional
`money, Levitz would give them the same admonition: this agreement would
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`represent the author/heir’s last and final deal with DC, and would fully resolve any
`past, present, or future claims against DC. Id. Levitz reiterated this condition to
`Frank and Jean in 1992, who confirmed they understood and agreed. Id.
`Following this discussion, the parties executed an agreement on October 2,
`1992. It confirmed that DC would cover Shuster’s debts and pay Jean $25,000 a
`year for the rest of her life. SUF 19. In exchange, Jean and Frank re-granted all of
`Joe Shuster’s rights (including any Superman copyrights) to DC and vowed never
`to assert a claim to such rights. The 1992 Agreement stated, in pertinent part:
`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 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. SUF 19 (emphasis added).
`Over the next decade, DC maintained good relations with the Shusters, and
`Jean and Levitz corresponded regularly. SUF 20. In the close to 60 letters back
`and forth between Paul and Jean, Jean thanked DC for its generosity, reaffirmed the
`1992 Agreement, and requested bonus payments in excess of those required. Id. In
`a 1993 letter, Jean confirmed she would “stick to our bargain” and not attempt “to
`reclaim the SUPERMAN copyright,” but asked for an increase in payments “plus a
`yearly increment to account for inflation.” SUF 21. In 1999—after Congress
`amended the copyright statute to grant additional statutory heirs termination rights,
`and after learning that Jerry Siegel’s heirs had served Superman copyright
`termination notices on DC—Jean reiterated her commitment “to honor” the 1992
`Agreement, and again asked for a bonus:
`I have learned from the Internet that Joanne Siegel has filed a copyright
`claim for SUPERMAN. I want you to know that I intend to continue to
`honor our pension agreement. I would, however, appreciate a generous
`bonus for this year as you had done many times in the past. SUF 22.
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