Major Spoilers Podcast: Age of Apocalypse

Meh I’am too Meh to Explain why Meh is so much Meh

Just wanted to make a comment about the Superman changes in relation to the lawsuit (and I am a lawyer)…

Re: Costume; changing the briefs is unlikely to allow you to escape copyright infringement. In broad strokes, the test for infringement is “substantial similarity” and then there are a number of alternative, sub-tests, and subject matter variations, but a few of the big ones are: 1. “Total Concept & Feel”; 2. “Ordinary Observer”; or 3. “Extrinsic / Intrinsic”… 1. Ignores specific individual differences and looks at the overall picture for infringement; 2. Asks a reasonable or lay person whether copying likely look place; 3. A two part test first looking a objective similarities then a second test that mirrors #2. The point is, the modifications to Superman in the New 52 are not likely to be enough to clear that hurdle… another way to imagine it is if Marvel did the exact same thing, would you expect it to fly? The whole thing is further complicated by the fact that DC is / was co-owners with the heirs with respect to the original and derivatives… if you look at the Gaiman / Spawn case, you have a weird case of Medieval Spawn being a derivative of Spawn who belongs to MacFarlane, but nonetheless Dark Ages Spawn being an infringing copy of the co-owned Medieval Spawn…

re: Movie; The changes in the movie costume could not possibly be an effort to distance Superman from the lawsuit / heirs because the very reason the WB has to make a movie is BECAUSE of the lawsuits. This one does not tie directly to who owns the rights per se, but the heirs claimed that DC licensed the rights to the WB too cheaply, meaning the heirs get too little as co-owners; the court disagreed the fee was too low PROVIDED the licensing contract was amended to force the WB to actually USE the license. So since ownership is forcing them to MAKE the movie, it wouldn’t make any sense to say the movie ISN’T the licensed / owned / contended property… you follow? The WB must firmly declare this to be the same Superman to clear their licensing obligations.

re: Lawsuit in general; While there was a decision declaring some elements of Action #1 as belonging to the heirs and others belonging to DC, it should be noted that this was an intermediary decision by a judge who was intentionally splitting the baby to force the two parties to go to the settlement table (we know this because the judge has stepped down from the case / bench and commented on his ruling subsequently)… his ruling is not typically how such cases are handled and will not stand as BOTH parties have appealed the decision (the heirs believe they are entitled to more and DC believe less, of course). The higher court is unlikely to enforce such a piecemeal ruling because calculating damages would be nearly impossible (how can you measure how much of Action #1 is in any given issue MINUS DC’s remaining rights in the copyright, the Trademark, and the international copyright?). The point is that there is a lot of game yet to play so basing creative decisions in a lawsuit that won’t be resolved for potentially decades wouldn’t be prudent.

Just a thought about the new Superman costume. A lot of people are making an issue out of the fact that Superman wouldn’t need a costume made out of armour plating. Its worth mentioning that maybe the armour isn’t there to be functional, but because he thinks it looks cooler than spandex. I can say with a pretty high level of confidence that if I would go with something that wasn’t as form fitting whether I need it or not.