Outside of comic books, it is exceedingly rare to see a villain receive literal and poetic justice at the hands of its own creation. So when I read that Time Warner must now share the copyright for Superman with the heirs of Superman co-creator Jerome Siegel, I couldn't help but give a healthy chuckle. The cause of action flows directly from a provision of the Copyright Term Extension Act (CTEA) of 1998, which Time Warner (along with other studios) pushed through Congress with all their lobbying might. Granted Time Warner never supported this provision, which was a sop to folks and their heirs who sold copyrights when they thought they were only giving away 23 years plus a 23 year renewal, but TW regarded that as an acceptable risk for the billions upon billions of dollars it gained from yet another windfall in copyright land.
On the whole, of course, that calculus remains true. My momentary glee in seeing Time Warner hoist by its legislative petard does not blind me to the reality that the lesson for Time Warner and other copyright maximalists is “it's still worth it.” Yes, assuming the ruling is upheld (a big if), negotiations over upcoming Superman projects will become more complicated and Time Warner and other content companies will face a passel of new law suits. No doubt they and other large content companies will have to pay a chunk of change to successful litigants, in settlement fees, and to my lawyer colleagues. But economically, for a company the size of Time Warner or Disney or any of the others who put their shoulder to the lobbying wheel for CTEA, it's still worth it financially.
So while it's fun to watch the CTEA turn on its master for a change, and it is nice to see Time Warner forced to share some of the revenues with the actual creators (or, in this case, one of the creator's heirs), that won't change the fact that we have created Super Copyrights, and that these Super Copyrights have serious costs to us all. Whether we measure that in purely economic terms of increased transaction costs or preventing productive activity, or the cultural cost of preventing a new generation of authors from following the traditions of their elders and building on the works of the past, the transformation of copyrights from monopolies of limited times and defined rights to super copyrights that encompass more and more activity while surviving for all practical purposes in perpetuity imposes real costs on all of us. Until we recognize that, until we start adopting new policies that strike a better balance between the rights of creators to receive compensation and the interest in the public in a vital public domain, we will continue to feel the bite of these costs.
Hopefully, the Superman copyright case will inspire people to wonder why, after all this time, Superman has not entered the public domain like Moby Dick, Tom Sawyer, and other iconic characters that make up our cultural heritage. But unless people start asking such questions, the triumph of justice over Super Copyright will remain the subject of comic books and the occasional court case.