Superman lawyer responds to Warner Bros. suing him

Marc Toberoff is about to issue this press release responding to today's lawsuit claiming he manipulated the heirs of Jerry Siegel and Joe Shuster into cutting him in on revenues from the Superman franchise. We will have analysis of the case this weekend. In the meantime, here's the release and the original lawsuit:

Having substantially lost the legal battle over the Superman copyrights, Warner Bros. and DC Comics ("Warner") fired their two law firms and hired Daniel Petrocelli. In a desperate effort to avoid the merits of this action, they now resort to a smear campaign, disguised as a lawsuit, against the Siegels' and Shuster Estate's long-time attorney, Marc Toberoff. Even before filing their new lawsuit, Warner Bros.' press machine embarked on a well-coordinated campaign to assassinate Mr. Toberoff's character.

The baseless lawsuit and press campaign are clearly vindictive, given that Mr. Toberoff has handled a string of successful rights claims against Warner, including securing a preliminary injunction barring Warner's infringing "The Dukes of Hazzard" movie in 2005.

Warner disingenuously claims that Mr. Toberoff has a "financial stake" in the Superman lawsuits, when they well know the only interest Mr. Toberoff has is a proper contingent legal fee for litigating the Siegels' (and by extension the Shuster Executor's) termination rights under 17 U.S.C. 304 (c) with respect to Superman and Superboy.

In recognition of the inferior bargaining position of authors who want their works published, Sections 304(c), 304(d) and 203(a) of the Copyright Act specifically provide authors and certain heirs the right to recover their copyrights by terminating prior contractual grants of copyrights. Ridiculously, Warner now uses the Siegels' and Shuster Estate's exercise of this important statutory right to terminate prior contracts as the basis for frivolously claiming tortious contractual interference.

The supposed contracts purportedly interfered with consist of: (1) a 1992 agreement with Joe Shuster's sister that is irrelevant to the statutory termination rights of the Shuster Executor and, in any event, could not serve to waive the Executor's inalienable termination rights under the Copyright Act; and (2) a proposed 2002 agreement between Warner and the Siegels that did not close and was expressly held by the Court in the Superman case to be unenforceable.

Warner and Mr. Petrocelli are aware that the frivolous allegations in their complaint do not add up and will never pass muster in the federal courts. However, that's not the point of their lawsuit. Warner and Petrocelli's objective is to "muddy the waters" by attacking Mr. Toberoff, potentially conflict him out of the case, and thereby strong-arm the Siegels and Shusters into selling at a cut-rate price the copyrights they have legitimately recaptured. Such unethical tactics are nothing short of deplorable.

Last but not least, Warner oddly attached to their complaint an anonymous, inadmissible letter spewing unsubstantiated and unattributed accusations against Mr. Toberoff, and pressed media contacts to publish the defamatory letter. The anonymous letter is a hyperbolic rant that never "connects the dots" in any legally cognizable fashion.

The anonymous letter was supposedly included with a large pile of privileged documents that were brazenly stolen from Mr. Toberoff's law offices and mysteriously arrived at Warner Bros.' doorstep in the midst of this billion-dollar litigation. Even though triplicates of this illegal package were allegedly delivered to top lever Warner executives, including President and COO Alan Horn and former General Counsel John Schulman, Warner claims to have no records whatsoever of such deliveries, nor of the packaging they arrived in. This hardly rings true for a studio that tracks every script or treatment through its doors. Time will tell what role Warner played with regard to the stolen documents and the anonymous letter.

Ironically, Petrocelli, who destroyed the valuable Winnie the Pooh case based on the plaintiff's use of documents stolen from a Disney dumpster, now purports to rely on privileged documents stolen from Mr. Toberoff's law offices under very suspicious circumstances.

The Siegels, Shusters and Mr. Toberoff will vigorously defend against Warner's gutter tactics and baseless accusations and will pursue all appropriate legal remedies against Warner and Mr. Petrocelli. The Siegels and the Shuster Estate remain undeterred in their effort to enforce their legitimate rights under the Copyright Act.