Three months after Warner Bros. trumpeted "a significant victory" in its lengthy legal brawl over the rights to Superman, the lawyer representing the estates of Jerry Siegel and Joe Shuster has claimed a small win of his own.
The studio sued Marc Toberoff in March 2010, two years after Siegel’s heirs were awarded a portion of the copyright to the Man of Steel, accusing the attorney of orchestrating a "web of collusive agreements” with the two families that led them to reject “mutually beneficial” longtime deals with DC Comics and seek to recapture the Superman rights. Warner Bros. based its claims on sensitive documents stolen from Toberoff's office in 2008 by a disgruntled former associate and delivered anonymously to the studio. Toberoff argued that the papers were covered by attorney-client privilege, but in April the Ninth Circuit Court of Appeals upheld a May 2011 ruling that Toberoff waived privilege when he turned over the documents in 2010 in response to a grand jury subpoena issued after he met with the U.S. Attorney’s office to discuss an investigation of the theft.
Toberoff responded to the lawsuit in August 2010 by filing an anti-SLAPP motion seeking to dismiss the studio's claims, arguing they amount to bullying and interference with his client's First Amendment right to petition. A district court denied his motion, leading Toberoff to appeal.
Hollywood, Esq. reports the twist, and the good news for Toberoff, is that the Ninth Circuit has determined that in its answer to the motion Warner Bros. can't use any of the newly acquired evidence to bolster its argument that Toberoff was functioning not as an attorney but as an entrepreneur -- one who stood to gain “a majority and controlling financial stake” in the Man of Steel -- when he convinced the Siegel and Shuster heirs to seek to recapture the Superman copyrights. The website notes the studio could still try slip the evidence into the record, but it's something the appellate court typically frowns upon.
A hearing on the matter is expected later this year. The big showdown, a jury trial requested by Warner Bros. in hopes of reversing the 2008 copyright decision, likely won't come until 2013, at the earliest.