Siegel v. Warner Bros. Entertainment Inc., 2009 WL 3526576 (C.D. Cal. 2009)

The Central District of California denied Warner Brothers’ motion to reconsider its decision from late August construing 37 C.F.R. § 201.10(e)(1), the harmless error rule that comes into play when an author makes a mistake when filing a notice of termination. To briefly review, the heirs of the co-creator of Superman failed to identify two weeks of early comic strips in its notice of termination to the Copyright Office, which included tens of thousands of other works and stretched five hundred and forty-six pages.  The termination filing, however, included a catch all provision:

[E]ach and every work (in any medium whatsoever, whenever created) that includes or embodies any character, story element, or indicia reasonably associated with SUPERMAN or the SUPERMAN stories, such as, without limitation, Superman, Clark Kent, Lois Lane, Perry White, Jimmy Olsen, Superboy, Supergirl, Lana Lang, Lex Luthor, Mr. MXYZTPLK . . ., Ma and Pa Kent, Steel, the planet Krypton, Kryptonite, Metropolis, Smallville, or the Daily Planet. Every reasonable effort has been made to find and list herein every such SUPERMAN-related work ever created. Nonetheless, if any such work has been omitted, such omission is unintentional and involuntary, and this Notice also applies to each and every such omitted work.

The Court decided not to reverse its previous finding that the omissions did not invalidate the termination for the two weeks of the strip.  A taste from the decision:

[The] “constructive notice” effect so touted by defendants is not a concept to be bandied about in the abstract, as if it were an end unto itself. Such notice is informed largely by its purposes-it is a means to an end. To posit that any member of the public who was interested in exploiting Superman would somehow confine their review of the lengthy registration of the works in that character in the records of the Copyright Office to but a couple weeks’ worth of newspaper strips in January, 1939, is, from a practical business perspective, nonsense. Instead it would transform the harmless error inquiry into an entirely wooden enterprise, shaped entirely by and made subservient to the formalities of the rule itself. Should any third party be interested in exploiting those original copyrightable elements found in those strips, they would have also searched other works to successfully utilize them (works that were in fact listed in the termination notices), and upon doing so discover the termination notice (and the catch-all clause contained therein), putting them on inquiry notice that the termination notice also applied to those strips. The valuable copyrightable story elements to the Superman character contained in those strips (Krypton, Jor-L, etc.) do not exist in a vacuum. As defendants have repeatedly noted to the Court throughout this litigation, Superman is comprised of many different elements which, but for the results of this litigation itself, are considered and marketed part of an aggregate whole, not as tiny individual copyrightable bits (a red cape here, a particular villain there, x-ray vision and the ability to fly over here, an alter ego personality to peruse around the corner, or a far away doomed planet over the horizon). The copyright in the Superman character exists as a conglomerate representing the story that has been told of him through seventy years of exploitation.