Siegel and Shuster Document Archive - Settlements, Other Material From Pacific Pictures Case

DECLARATION OF KEITH G.
ADAMS IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY

JUDGMENT ON DCS FOURTH, FIFTH, AND SIXTH CLAIMS

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Marc Toberoff (State Bar No. 188547)
mtoberoff@toberoffandassociates.com
Keith G. Adams (State Bar No. 240497)
kadams@toberoffandassociates.com
Pablo D. Arredondo (State Bar No. 241142)
parredondo@toberoffandassociates.com
David Harris (State Bar No. 255557)
dharris@toberoffandassociates.com
TOBEROFF & ASSOCIATES, P.C.
22337 Pacific Coast Highway #348
Malibu, California 90265
Telephone: (310) 246-3333
Fax: (310) 246-3101

Attorneys for Defendants Mark Warren
Peary, as personal representative of the
Estate of Joseph Shuster, Jean Adele Peavy,
and Laura Siegel Larson, individually and
as personal representative of the Estate of
Joanne Siegel

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
DC COMICS,
Plaintiff,
vs.

PACIFIC PICTURES CORPORATION;
IP WORLDWIDE, LLC; IPW, LLC;
MARC TOBEROFF, an individual;
MARK WARREN PEARY, as personal
representative of the ESTATE OF
JOSEPH SHUSTER; JEAN ADELE
PEAVY, an individual; LAURA
SIEGEL LARSON, individually and as
personal representative of the ESTATE
OF JOANNE SIEGEL, and
DOES 1-10, inclusive,

Defendants.
Case No: CV 10-03633 ODW (RZx)

Hon. Otis D. Wright II, U.S.D.J.
Hon. Ralph Zarefsky, U.S.M.J.

DECLARATION OF KEITH G.
ADAMS IN SUPPORT OF
DEFENDANTS MOTION FOR
PARTIAL SUMMARY
JUDGMENT ON DCS
FOURTH, FIFTH, AND SIXTH
CLAIMS

Notice of Motion and Motion;
Statement of Undisputed Facts and
Conclusions of Law; [Proposed]
Order and Statement of Decision
filed concurrently herewith

Complaint filed: May 14, 2010
Discovery Cutoff: None Set
Trial Date: None Set

Date: March 11, 2013
Time: 1:30 p.m.
Place: Courtroom 11

Case 2:10-cv-03633-ODW-RZ Document 578 Filed 02/05/13 Page 1 of 9 Page ID #:37330

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INDEX TO DECLARATION OF KEITH G. ADAMS
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Ex. Title Page
A
October 2, 1992 agreement between DC Comics, Frank Shuster and
Jean Peavy
6
B October 19, 2001 letter from Kevin Marks to John Schulman 7
C October 26, 2001 letter from Schulman to Marks 13
D
November 28, 2001 agreement between Pacific Pictures
Corporation, Jean Peavy and Mark Warren Peary
21
E February 1, 2002 letter from Patrick Perkins to Marks 25
F May 9, 2002 letter from Joanne Siegel to Richard D. Parsons 82
G
February 12, 2002 agreement between Pacific Pictures Corporation
and Ariel Emanuel
85

H
September 21, 2002 letter from Joanne Siegel and Laura Siegel
Larson to Marks and Bruce Ramer
92

I
October 23, 2002 agreement between IP Worldwide, Joanne Siegel
and Laura Siegel Larson
93
J October 7, 2003 order admitting will to probate 97
K
October 30, 2003 agreement between Pacific Pictures Corporation,
and Mark Warren Peary, as executor of the estate of Joseph
Shuster, and Jean Peavy
102

L Letter sent from Ariel Emanuel to Bruce Rosenblum 106
M March 12, 2004 Certificate of Recordation 107
N
April 12, 2004 agreement between IP Worldwide, Joanne Siegel
123
O
September 10, 2004 letter from Marc Toberoff to Mark Warren
Peary and Jean Peavy
124
P
November 23, 2001 agreement between Marc Toberoff, Mark
Warren Peary and Jean Peavy
125
Q October 3, 2004 agreement between Marc Toberoff, Joanne Siegel 129

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R
Anonymous document entitled SUPERMAN MARC
TOBEROFF TIMELINE
135
S
Excerpts from the October 7, 2006 deposition of Kevin Marks in
Siegel
142
T
Excerpts from the November 2, 2006 deposition of Ariel Emanuel
in in Siegel
154
U
Excerpts from the November 11, 2006 deposition of Mark Warren
Peary in Siegel
168
V
November 15, 2006 letter from Alexander Merino to Adam Hagen 200
W
Excerpts from the November 17, 2006 deposition of Marc Toberoff
in Siegel
201
X March 26, 2007 Declaration Of Wayne M. Smith in Siegel 277
Y
May 29, 2007 Opposition To Plaintiffs Motion For Partial
Summary Judgment in Siegel
285
Z September 25, 2007 Declaration Of Michael Bergman in Siegel 381
AA
Second Amended Counterclaims, filed in Siegel, dated February
17, 2011
400
BB
Defendants Request For Judicial Notice In Support Of
Consolidated Motion And Motion To Dismiss Pursuant To Fed. R.
Civ. P. 12(b)(6), filed in this case at docket entry 333-1 on October
14, 2011
438
CC
DC Comics Response To Defendants Request For Judicial Notice
In Support Of Consolidated Motion To Dismiss Pursuant To Fed.
R. Civ. P. 12(b)(6), filed in this case at docket entry 335 on October
24, 2011
448
DD Mediation Questionnaire filed in connection with Ninth Circuit 452

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Case Number 11-56934, dated November 9, 2011
EE
Defendant Marc Toberoffs Response To Plaintiff DC Comics
Second Set Of Interrogatories, dated February 23, 2012
457
FF
Excerpts from the September 18, 2012 deposition of Marc Toberoff
in this case
467


1
DECLARATION OF KEITH G. ADAMS IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY
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DECLARATION OF KEITH G. ADAMS
I, Keith G. Adams, declare as follows:
1. I am an attorney at the law firm of Toberoff & Associates, P.C., counsel
of record for defendants Mark Warren Peary, as personal representative of the Estate
of Joseph Shuster, Jean Adele Peavy, and Laura Siegel Larson, individually and as
personal representative of the Estate of Joanne Siegel, in the above-captioned action,
and submit this declaration in support of Defendants Motion For Partial Summary
Judgment On DCs Fourth, Fifth, And Sixth Claims.
2. Attached hereto as Exhibit A is a true and correct copy of an
agreement between DC Comics, on the one hand, and Frank Shuster and Jean Peavy,
on the other, signed as of October 2, 1992.
3. Attached hereto as Exhibit B is a true and correct copy of a letter sent
by Kevin Marks to John Schulman, dated October 19, 2001.
4. Attached hereto as Exhibit C is a true and correct copy of a letter sent
by John Schulman to Kevin Marks, dated October 26, 2001.
5. Attached hereto as Exhibit D is a true and correct copy of an
agreement between Pacific Pictures Corporation, on the one hand, and Jean Peavy
and Mark Warren Peary, on the other, signed as of November 28, 2001.
6. Attached hereto as Exhibit E is a true and correct copy of a letter sent
by Patrick Perkins to Kevin Marks, dated February 1, 2002.
7. Attached hereto as Exhibit F is a true and correct copy of a letter sent
by Joanne Siegel to Richard D. Parsons, dated May 9, 2002.
8. Attached hereto as Exhibit G is a true and correct copy of an
agreement between Pacific Pictures Corporation, on the one hand, and Ariel
Emanuel, on the other, signed as of February 12, 2002.
9. Attached hereto as Exhibit H is a true and correct copy of a letter sent
by Joanne Siegel and Laura Siegel Larson to Kevin Marks and Bruce Ramer, dated
September 21, 2002.

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10. Attached hereto as Exhibit I is a true and correct copy of an agreement
between IP Worldwide, on the one hand, and Joanne Siegel and Laura Siegel Larson,
on the other, signed as of October 23, 2002.
11. Attached hereto as Exhibit J is a true and correct copy of an Order
Admitting Will To Probate, Appointing Executor And Authorizing Independent
Administration of Estate With Limited Authority, issued on October 7, 2003.
12. Attached hereto as Exhibit K is a true and correct copy of an
agreement between Pacific Pictures Corporation, on the one hand, and Mark Warren
Peary, as executor of the estate of Joseph Shuster, on the other, signed as of October
30, 2003.
13. Attached hereto as Exhibit L is a true and correct copy of a letter sent
by Ariel Emanuel to Bruce Rosenblum.
14. Attached hereto as Exhibit M is a true and correct copy of a
Certificate of Recordation, dated March 12, 2004.
15. Attached hereto as Exhibit N is a true and correct copy of an
agreement between IP Worldwide, LLC, on the one hand, and Joanne Siegel and
Laura Sigel Larson, on the other, signed as of April 12, 2004.
16. Attached hereto as Exhibit O is a true and correct copy of an
agreement between Pacific Pictures Corporation, on the one hand, and Mark Warren
Peary, individually and as the executor of Joseph Shusters estate, and Jean Peavy, on
the other, dated September 10, 2004.
17. Attached hereto as Exhibit P is a true and correct copy of an
agreement between Marc Toberoff, on the one hand, and Mark Warren Peary,
individually and as executor of Joseph Shusters estate, and Jean Peavy, on the other,
dated as of November 23, 2001.
18. Attached hereto as Exhibit Q is a true and correct copy of an
agreement between Marc Toberoff, on the one hand, and Joanne Siegel and Laura
Siegel Larson, on the other, signed as of October 3, 2004.

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19. Attached hereto as Exhibit R is a true and correct copy of a document
entitled SUPERMAN MARC TOBEROFF TIMELINE, anonymously sent to
executives at Warner Bros. sometime between 2005 and 2006.
20. Attached hereto as Exhibit S is a true and correct copy of excerpts
from the transcript of the October 7, 2006 deposition of Kevin Marks in Siegel v.
Warner Bros. Entertainment, Inc., 04-CV-8400 ODW (RZx) (Siegel).
21. Attached hereto as Exhibit T is a true and correct copy of excerpts
from the transcript of the November 2, 2006 deposition of Ariel Emanuel in Siegel.
22. Attached hereto as Exhibit U is a true and correct copy of excerpts
from the transcript of the November 11, 2006 deposition of Mark Warren Peary in
Siegel.
23. Attached hereto as Exhibit V is a true and correct copy of a letter sent
by Alexander Merino to Adam Hagen, dated November 15, 2006.
24. Attached hereto as Exhibit W is a true and correct copy of excerpts
from the transcript of the November 17, 2006 deposition of Marc Toberoff in Siegel.
25. Attached hereto as Exhibit X is a true and correct copy of the
Declaration Of Wayne M. Smith In Support Defendants Motion To Compel
Production Of Whistle-Blower Documents, filed in Siegel, dated March 26, 2007.
26. Attached hereto as Exhibit Y is a true and correct copy of Defendants
Opposition To Plaintiffs Motion For Partial Summary Judgment And Memorandum
Of Points And Authorities In Support Thereof, filed in Siegel.
27. Attached hereto as Exhibit Z is a true and correct copy of the
Declaration Of Michael Bergman In Response To The Declaration Of Marc Toberoff
Filed Pursuant To The Courts September 17, 2007 Order, filed in Siegel dated
September 25, 2007.
28. Attached hereto as Exhibit AA is a true and correct copy of the
Second Amended Counterclaims, filed in Siegel, dated February 17, 2011.
29. Attached hereto as Exhibit BB is a true and correct copy of

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Defendants Request For Judicial Notice In Support Of Consolidated Motion And
Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(6), filed in this case as docket
entry 333-1 on October 14, 2011.
30. Attached hereto as Exhibit CC is a true and correct copy of DC
Comics Response To Defendants Request For Judicial Notice In Support Of
Consolidated Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(6), filed in this
case as docket entry 335 on October 24, 2011.
31. Attached hereto as Exhibit DD is a true and correct copy of the
Mediation Questionnaire filed in connection with Ninth Circuit Case Number 11-
56934, dated November 9, 2011.
32. Attached hereto as Exhibit EE is a true and correct copy of Defendant
Marc Toberoffs Responses To Plaintiff DC Comics Second Set Of Interrogatories,
dated February 23, 2012.
33. Attached hereto as Exhibit FF is a true and correct copy of excerpts
from the transcripts of the September 18, 2012 deposition of Marc Toberoff in this
case.
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I declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct.
Executed on February 4, 2013, at Malibu, California.

Keith G. Adams

EXHIBIT A
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#:37417
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Blvd., Suile 811
Beverly Hills, CA 90212
Tel: (810)246-3100;
Fax (310) 24sS101
FACSIMILE COVERPAGE
COMMEIYIS!
Aftached as. requesed is aa execured eopy of the sgreemenr dated February z:, zaoz
betweed Ariel Emanuel and
paeific pisturcs
Corp. regarding ip Worldwidl, U,C.
-
TIIE INFORTV'ATTON COI{TAINED
IN TIIIII TRA}{SMISSION IS b,MENDED ONLY FOR USE OF TI{E
rNDrvlDuALoRENflTYJovnncunnallnrssroeNollavcor.lreurINFoRMATIoNTT{ATis
pRrvrrsgED.
coNFrDENTrALaNosxgMpirnouoGiiosunn-ulrnffiApprJcABrsr.Aw.FTHE
READER oP THIS rr(ANsMIssIoN
rs Not rns-rNTer.rD;; REc]pdllr, ANr DrssErirrNATroN
DISTRIBLIITONoR coPYlNs
olFTHIs ColWunn{CaTroN
IS STRICTLY?R0HiBIIED.IFyoUIIAvE
RECETVED TrIIs comvtancarrounvrnnciniisassNo'irFf
us frmirbiemrv By rELEpr{oNE
AND RETIJRN THE oRIGNAL
rnat rslvGsi.rw-
-fo
us ar rire ntsow .cDoREss vIA{IiE
us
posrAl
SERVICE. TTIANKYOU.
TO: Ariel Z. Emanuel
FAXI 31:o-Vl&2033
[ROM: Mare Toberoff
PAGES (indudingcover)
: 7
DA'I'Ii z 6R107
RE: AE/PPC IPW Agreemint
fPEctrrre
IJ
lil JU$l ? 'nn, r
b,nU_ct-r-A
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EN0000l
EXHIBIT 20
667
Case 2:10-cv-03633-ODW -RZ Document 305-20 Filed 08/09/11 Page 2 of 8 Page ID
#:18622
EXHIBIT G
85
#:37418
JUn-U.+-Us Us;4Jpm rron-
T-582 P.002t997
CO[|FIOEl\|TIAL
The following sets forth the deat terms of the agreement between Pacifio Pictures
Corporation f/Vo Marc Toberoff
('PPg) and Ariel Emanuel
fAE')
to form a
ioint
venture ('Newco') to acquire and e>cploit intellectual property rights ("lFp):
A. Basic Structure
Newco witl be a separate entity (probably a limited liability company
f'LLG")
whose equity will be owned 50% by P?C; 4A/o by AE,
.1O
"/"
by Endeavor'
B. Contributions to Newco.
1. Frbm PPG:
(a) PPCs cunent lP business
(subject to pre-existing commitments and exclusions per
Appendk
olu
and
1lD
below)
(b) Marc Toberoff.:
fMT)
exclusive lP services;
'
lP legalskills;
-
lP contacts, precedent and goodwill;
Access to extensive lP research (6 years)
and lP hit list
2. From AE:
(a) Annual Overhead of
$
+
ppi) plus
8N00002
EXHIBIT 20
668
#:18623
EXHIBIT G
86
#:37419
Jun-04:03 0Z:43pll Frotn-
T-5BZ P.003/007
F-8t0
CO[lFIDEl\lIIAL
' . :
C. Annual Allocalion of.Gross Receipts:
1. PPG will be entitfed to the first $ as defered salary for year
1. AE will next recoup his overhead expenditure for year 1 ($
).
Any
remaining
gross receipts in year 1 will be divided @ sel fqrth.below. In year 2,
PPC will then ba entitled to the next
$
as deferred salary for year 2. AE
will next recoup his overhead expenditure foryear 2 ($
r).
To the extent
PPQ and AE were not paid their respective
91
million and
9... . . . r in years
1
and 2 respectively, those
sums will carry over to subsequent years in the same
rgco|pme_nt pnorrty' Following said rocoupmen! Newcogross receipts wiflbe
distributed 50% to PPC, 4O"/" lo AE, and i OZ to Endeavor. AII revenues derived
loryr
Newco lP go through Newco, excludlng commissions on third parly
Endeavor clients. lt is the intention of the parties to share fairly in the values
generated by transaotions hereunder.
lf Newco is entitled to less than 100% of payments
for certain lP,
yet it is ananged for Endeavor to receive 10% of 100yo oj said lp paymenb,
then, in such case, Endeavor wilt nqt also commission Newco's lebs than lfjO'/"
lP payment,
and the above
distribution of Newco gross
receipts will be adjusted
so that the net effect is that PPC ieceives 50% of the aggregate gross
reieipts,
AE receives 40"/" and Endeavor 1Ay".
2.' Without obtlgation to spend money, if AE opts to invest additlonat
money in Newco to acquire certain lP for a
profrt,
AE widbe entifled to recoup its
investment
from gross
rgcgipts, plus
a 2O%-return; with the balance of grosi
receipts distibuted perllC
't
above. H AE/Newco doesn't invest in certiin lF
aftg s,o days of its introduction
to AHNewco, MT wilt befrea to set up said ir
outslde of
$ew9o
after notice to AE.
D. PPG's Cunent lP/Allocation of Gross Receipts
' 1. On PPC's pre-existing
lP assets (as set forth in Appendix I
llA)
that
are.not set-up; Newco his ne righiro p"rtiiipa:iJ in tne ieuenue stream if AE or
Endeavor attaches a key element
and/br actiratly seF up the project
during the
Term asfollows: Newso receives 50% of 1oo%bt
ppc
ievenu"s from the-lp
(excluding Produeerfees);
Endeavorin
addition receives 10% of MT
producer
fees and 1O0% of its thhd pariy client commissions.
2: On PPC's_projects
that are already set up (as set forth in Appendix I
B)
1l
Dl above applies if rhe Rights revert or return to PPC by some othei- means
(turnaround, expiration o{ option}
during the'Term. otherwise, itAE or End;;;;
contributes something
materialto greenlight
a projeet already sot up by MT/eec,
8N00003
EXHIBIT 20
669
#:18624
EXHIBIT G
87
#:37420
JUn-u4:Ut ul ;.lgplll
:t
sti-
00l.tFI[JEl\lIIAL
""
P 0s4ts07
F-868
Newco receives 25T" of 100% of PPC revenues from the lP (excluding Producer
fees); Endeavor in addilion receives l0% of MT Producer fees and 100% of its
third parly client commissions.
3.' With respect to the legal disputes identified in Appendix I C, if there
is an opportunrtyfor AE to contribute services to settle such disputes, MT will
negotiate-with AE a reasonable fue to AE, subject to AE's settlement of such
disputes.
E. MTs Producer fees
.
Newco will not be acfu'vely engaged in filrn production. MT, personally, will
be attached as a Producerto Newco lP and personally
receive screen credit and
a fee
(fxed
and contingent) for such services outside of Newco to be negotiated
by MT in good
faith with the financier/diskibutor
of such lP derived ppjecb.
Endeavorwill receive'an agenfs commission of 10% of such MT Producer fees.
F. AdditionalAE Hight
1. AE has the absolute right to decline to participate in
oertain lP in which cas.e any such lP deals are outside Newco and
ppG
directty
receives 1OO% of the lP and producer proceeds, if any.
c"
term
The Term shatl be two years,
commensing on or about March t, znaz
once this agreement is executed and Newco's offlces and principalstaff
are in
place,
H. Dissolution of the Venture
Upgn dissofution,
Nerrirco assets
acquired during the Term will be own'ed
,
by the parties
in tfre same proportion
as their equrty in Newcci as tenants iir
commonr and gross
receipts from assets acquirbd or assets set up during the
I"n
wlll continue to be divided and payablaper
the terms of this'Agreefrenr
Pre-existing PPG assets set forth in Appendii 1 remain owned uy enc
unencumbered.
I. Dispute
Hesolution
ln the event
gf afv disputes between the parties concerning this
agreement, any such dispute will be resolved first by meaningful informed
discussions, chaired by a mutually approved
mediaior. lf thoJe dlscussions
do
not result in a resolution the parties
witt sribmit any such dispute to binding
EN00004
EXHIBIT 20
670
#:18625
EXHIBIT G
88
#:37421
J.un-04-03 02l43pn From-
:
COI'IFIIJTNIIAL
T-582 P OOs/OOT F-'EO
expedited arbitration before a single arbitrator familiar with the entertainment
business.
J. General
The
parties will in good faith execute Sueh further documrjnts as'are
'
necessary or desirable to carry out tha purposes and iffient of this agreernent.
The parties contemplate that they wlll enter into a longerform agreement(s)
incorponating the
lgrms
hereof, but until such fime or in the eyent no such longer
agreement is executed, this agreement is and will remain binding.
.
This agreement conh.ins the full undersbndlng of the parties and
supersedes all prior or contemporaneous understandings whetherwritten or oral
with respect to the subject matter hereof and may not be modified except in
writing signed by the party
to be bound. The partles acknowledge
that they have
not slgned this agreemgnt In reliance on any
promise or representation not
expressly set forth herein. Thls agreement may not be assigned by either parly.
This Agreement shall bind and inure to the benefit of the parties and their
respective heirs and executors. Executed facsimile copies of this agreement shall
be valid and aoceptable with the same force and effect as executed originals.
This agreement shall be consbued and applied pursuant to the laws of the
State applicable to agreements rnade and to be performed therein.
A AND ACCEPTED:
Pacific Pictures
lorporation
---
-Srzaru---
t
Date:
7-// 7/o z-
By: Marc Toberoff, President
N
EXHIBIT 20
671
#:18626
EXHIBIT G
89
#:37422
rrul l -u+:u! ug:4gPi l t rtsi l t-
T-5BZ P.006/00r
t-880
EN00006
CONFI0Tl\lIIAL
Ariel Emanuel
-
w
-
Pacific Picilres Corporation
.
APPENDIX 1
EXHIBIT 20
672
#:18627
EXHIBIT G
90
#:37423
rru[-u+-u! u!;4opg rrqi l -
COl'|NNEIITIAL
T-5BZ P.007/00t
F-860
Ariel Emanuel
-
w- Pacific Pictures Corporation
APPENDIX 1 (Gontinued)
C. LegalGlaims/Litigation(inifiatedduetoconfiddntialitg
JS Claims
Rupecieo
8N00007
EXHIBIT 20
673
#:18628
EXHIBIT G
91
#:37424
EXHIBIT H
92
#:37425
EXHIBIT I
93
#:37426
EXHIBIT I
94
#:37427
EXHIBIT I
95
#:37428
EXHIBIT I
96
#:37429
EXHIBIT B
18
#:22042
EXHIBIT 34
284
#:27341
EXHIBIT J
97
#:37430
EXHIBIT B
19
#:22043
EXHIBIT 34
285
#:27342
EXHIBIT J
98
#:37431
EXHIBIT B
20
#:22044
EXHIBIT 34
286
#:27343
EXHIBIT J
99
#:37432
EXHIBIT B
21
#:22045
EXHIBIT 34
287
#:27344
EXHIBIT J
100
#:37433
EXHIBIT B
22
#:22046
EXHIBIT 34
288
#:27345
EXHIBIT J
101
#:37434
EXHIBIT K
102
#:37435
EXHIBIT K
103
#:37436
EXHIBIT K
104
#:37437
EXHIBIT K
105
#:37438
EXHIBIT L
106
#:37439
Certificate of Recordation
This is to certify that the attached document was recorded
in the Copyright Office on the date and in the place shown below.
This certificate is issued under the seal of the
United States Copyright Office.
DATE OP RE CORDAT I ON
8Dec03
VOL UME D OC . NO.
VOL UME D OC . N O .
~ e ~ i s t & of Copyrights and
Associate Librarian for Copyright Services
EXHIBIT M
107
#:37440
Library of Congress
U.S. Copyright Office
IOI Independence Ave, SE
Washington, DC 20559-6000
R E C O R D E D D O C U M E N T S FL- 1OA
DATE: March 12, 2004
IP Worldwide
9595 Wilshire Blvd. Suite 811
A'ITN: MARC TOBEROFF
We have recorded the enclosed document(s) in the official records of the Copyright Office:
VOLUME 3505
DOC. NO.
773 -774
The recording fee has been handled as follows:
-
RECEIVED 8
APPLI ED 8
RE F u N D E D (under separate cover) 8
CHARGED T O YOUR DEPOSI T ACCOUNT $
Sincerely yours,
Register of Copyrights
EXHIBIT M
108
#:37441
C;>pysigtir 13ffice fees are :l;;.!ksjest to :~iaange.
: ~ r i c t ~ ? fees, check i hs Copy ti $i ?n C?iF2ce
;r+&. : i.re ,?: l;:t*,q~;.@8p'~~rjgkt.~p.71/, ~r - ' : i i ~ t 1 7 ~ Cf3f.i:; -
rifly.l P'f<:*..e <-.r
* C L u , , a . r < , . ". t"OZ:: -;.~T-~~%;;0,
- i +-
DOCUMENT COVER SHEET
For Recardation of Documents
UNITED STATES COPYRIGHT OFFICE
DATE OF RECORDATION
(Assigned by Copyright Of f i i )
eeco
mnth Day Year
Volume AZZiLiF paw .B.
FUNDS RECEIVED
, , ~~~; ~m9, ~i ~~- z?%?v~~~: - <S~zFi ~. C-c ::*-:j+! :!FJ?<-zTTl?+.~V-''&%
Do not wdte above this line n
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To the Register of Copyrights:
Please record the accompanying original document or copy
i t:
thereof.
I
3
ii
FOR OFFICE 1l.WONLY
g ~ ~ r T + y f i ' ; & ~ x + ~ ~ ; ~ , ~ ~ ,:7ry~i?Ef;r~~T??.~~~.X~~4.~C~i~iF~,~FJ:if>:ti7."-?.~ I ~ P P - - ~ ~ W S ~ ~ ~ J ~ ~ ~ ~ ; ~ ~ ~ ~ ~ ~ ~ ~ ~ I ~ ~ B ~ S : ~ ~ ~ ~ T Y ~ ~ ~ ~ ~ P . ? T T B : ~ ~ ~ ~ J ~ ~ I J W ~ ~ ~
Name of the party or parties to the document spelled as they
fl Date of execution andlor
appear in the document (List up to the first three)
effective date of the
,& accompanying docommt I 2 n 3
m t aav) r year)
T i = Uarnnr T n r - e~ -saazimmmm.z-r~mr,~~~.'~~iimmmm+zxsia
, Completeness of document
$k
E# Document is complete by its own tenns.
% @ O Document is not complete. Record "as is."
p . ~ 3 A ~ a 7 5 ~ 3 7 ~ ~ ~ ~ ~ & ~ p & a - ~ , n r c % : 2 $ m : % . y . 5 & : q : G ~ :p:;~&a,z~:-,m s&s,%x,, 2 n+:t'. '5:.o-';..xd:;s~,, - c ~r ~~. ~. - . ~; * &~~~~~. ~?~: 42: . :: 'I.-& ykr* ~ . ~ %= ~ r - : - r ; v > ,:s.:: :Fz <.-g . ::~cpx,~:xt,,:.,;, zq. :
/@
Description of document CXTennination of Transfer(s) [Section 3041 5 Other
Cl. Transfer oi Copyright 0 Shareware
c7 R Security Interest 0 Life, Identity, Death Statement [Scrtion 3021
R Change of Name oi Owner 5 Transfer of Mask Works
c?am= - PP *. H---?w.wmww*f%'?'?~~<
: f'*" Title of first work
f*;., as given in the
document in document
II superman"
sx?P - * - - % - + - m P h r f t r * J I P . ~ P
Amount of fee @ Fee Q Fee authorized to be charged to :
, dcul at ed
@; <$
enclosed Copyright Office
$ 100 s Check
Deposit Account number
0 Money Order
I
Account name --
i
$PC.
-.
Affirmation*: I hereby affirm to the Copyright Office that the
&;&d
infomution given on &is form is a true and correct representation
%g of the accompanying document. This affirmation will not suffice as
a certification of a photocopy signature on the docun~ent
(Affirmation must be signed even if you are also signing Space
S i r e
Certification*: Complete this certification in addition to the Affirma-
tic3 if aphotocopy of the o r i w signed document is substituted for
a dcament bearing the actuaI signature.
NOl E This space may not be wd for an official certification.
I certify under penalty of perjury under the laws of the United
States of America that the accompanying document is a true copy of
Date IP ~orldwide/Estate of J os e phs hus t ~
( 31 0 ) 246- 31 00 ( 31 0 ) 246- 31 01 rxlty ~umorncd Agant d
m NU~MI Fax Number , I 9!l !n?
Dale
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IP Worldwide
Nurnber/Straec/A@l
-compeu, ap necasgary spacer
SF ycur Cover Sheet In S w e 9
1. Trm cOpies d Vr, Documsnl Cover Shed
2. Checlnmrmy oroer payaw lo R w e r
R w June 2002-20.000 Web Ra/. June X4X.2 @ Pnntedcn rewl ed p a w US. GOvernmt Pnr~ung m e : aVoo-461-1 l Y ~ . Ml
EXHIBIT M
109
#:37442
NOTlCE OF TERMINATION OF TRANSFER
COVERING EXTENDED COPYRIGHT RENEWAL TERM
OF "SUPERMAN"
To: Time Wamer Inc.
75 Rockefeller Plaza
-
New York, NY 1001 9
Attn: Richard D. Parsons
Chief Executive Officer
Time Warner
Entertainment Company, L.P.
New York, NY 1001 9
Attn: Barry M. Meyer
Chairman & C.E.O.
Warner Bros. Entertainment Inc.
4000 Warner Boulevard
Burbank, CA 91 522
Attn: John A. Schulman
V.P & General Counsel
Wamer Bros. Inc.
Burbank, CA 91 522
V.P. & General Counsel
- Warner Communications Inc.
do Time Warner, Inc.
New York, NY 1001 9
Attn: Paul T. Cappuccio
E.V.P. & General Counsel
Warner Bros. Television
Burbank, CA 9 1 522 ,_
Attn: Peter Roth, President
Warner Music Group
New York, NY 1001 9
Attn: Roger Ames
Chairman & C.E.O.
Warner Bros. Worldwide
Consumer Products
Burbank, CA 91 522
Attn: Dan Romanelli, President
Warner Publisher Services, Inc.
135 W. 50th Street, 7'h Floor
New York, NY 10020
Attn: Rich Jacobsen, President
Time Warner Book Group, Inc.
1271 Avenue of the Americas
New York, NY 10020
Attn: Laurence J. Kirshbaum, CEO
Warner Books, Inc.
New York, NY 10020
Little, Brown and Company, Inc.
New York, NY 10020
DC Comics, Inc.
1700 Broadway, 7" Floor
New York, NY 1001 9
Attn: Paui Levitz
President & Publisher
DC Comics, a General Partnership
1700 Broadway, 7th Floor
New York, NY 1001 9
Attn: Paul Levitz
Executive V.P. & Publisher
DC Direct
do DC Comics
1700 Broadway, 7" Floor
New York, NY 1 001 9
Attn: Paul Levitz, E.V.P. & Publisher
EXHIBIT M
110
#:37443
Milton Bradley Co.
Division of Hasbro Inc.
433 Shaker Road
East Longmeadow, MA 01 028
Attn: David E. Wilson, President
Hasbro, Inc.
1 027 Newport Avenue
Pawtucket, RI 02861
Attn: Alan Hassenfeld
Wildstorm Productions
888 Prospect Street, Suite 240
La Jolla, CA 92037
Attn: Jim Lee
Editor & Director
C/O DC Comics
1700 Broadway, 7m Floor
New York, NY 1001 9
Attn: Paul Levitz
Dark Horse Publications
10956 S.E. Main St.
Milwaukie, OR 97222
Attn: Michael Richardson
President
Cantharus Productions, N.V.
8965 Bay Cove Ct.
Orlando, FL 3281 9
Attn: llya Salkind
Iiya Salkind and Pierre Spengler
12 Chiswick Lane
London W4 2JE, England
Attn: Albion Gee, Esq.
Albion Gee & Co.
Ha.llmark Entertainment, Inc.
21' Floor
New York, NY 1001 9
Attn: Robert Halmi, Jr. Chairman
Marvel Entertainment Group, Inc.
10 East 40% Street, 9 ' Floor
Attn: F, Peter Cuneo
President 8 C.E.O.
Golden Books Publishing
1540 Broadway
New York, NY 10036
Attn: Amy Jarashow
Associate Publisher
Random House Golden Books for
Young Readers .
1540 Broadway
New York, NY 10036
Attn: Kate Klimo
Vice President & Publisher
Random House, Inc.
1 745 Broadway
New York, NY 1001 9
Attn: Katherine J. Trager
Senior V.P. & General Counsel
l n kworks
4320 Delta Lake Dr.
Raleigh, NC 276 1 2
Attn: Allan Caplan
President & CEO
Penguin Group, (USA) Inc.
375 Hudson Street
Attn: David Shanks, C.E.O.
DK Publishing, Inc.
375 Hudson Street
New York, NY 1001 4
Attn: Christopher Davis, Publisher
Scholastic, Inc.
557 Broadway
New York, NY 1001 2
Attn: Richard Robinson
Chairman & CEO
EXHIBIT M
111
#:37444
PLEASE TAKE NOTICE that pursuant to Section 304(d) of the United States Copyright
Act (1 7 U.S.C. 304(d)) and the regulations issued thereunder by the Register of
Copyrights, 37 C.F.R. 201.10, the undersigned Mark Warren Peary, being the person
entitled to terminate transfers pursuant to said statutory provisions, hereby terminates
-
the grant of the transfer of renewal copyright(s) (to the extent of author Joseph
Shuster's ownership share of the renewal copyright(s)) in and to the copyrighted work(s)
entitled "SUPERMANn made in those certain agreements all as identified below, and the
undersigned sets forth in connection therewith the following:
1. The names and addresses of the grantees and/or successors in title
whose rights are being terminated are as follows: Time Warner Inc., 75 Rockefeller
Plaza, New York, NY 1001 9, Attn: Richard D. Parsons, Chief Executive Officer; Time
2
(
c
u*
Warner Entertainment Company, L.P., 75 Rockefeller Plaza, New York, NY 10019, Attn:
u -4
4
W
Barry M. Meyer, Chairman & C.E.O.; Warner Bros. Entertainment Inc., 4000 Warner
*
@a
Boulevard, Burbank, CA 91 522, Attn: John A. Schulman, V.P. & General Counsel;
(D
W
her Bros. Inc., 4000 Warner Boulevard, Burbank, CA 91522, Attn: John A.
Schulman, V.P. & General Counsel; Warner Communications Inc., c/o Time Warner,
Inc., 75 Rockefeller Plaza, New York, NY 1001 9, Attn: Paul T. Cappucio, E.V.P. &
General Counsel; Warner Bros. Television, 4000 Warner Boulevard, Burbank, CA
91522, Attn: Peter Roth, President; Wamer Music Group, 75 Rockefeller Plaza, New
York, NY 10019, Attn: Roger Ames, Chairman & C.E.O.; Wamer Bros. Worldwide
Consumer Products, 4000 Warner Boulevard, Burbank, CA 91522, Attn: Dan Romanelli,
President; Warner Publisher Services, 135 W. 5om Street, 7m Floor, New York, N.Y.
10020, Attn: Rich Jacobsen, President; Time Warner Book Group, Inc., 1271 Avenue of
EXHIBIT M
112
#:37445
the Americas, New York, NY 10020, Attn: Laurence J. Kirshbaum, C.E.O.; Warner
Books, Inc., 1271 Avenue of the Americas, New York, NY 10020, Attn: Laurence J.
Kirshbaum, C.E.O.; Little, Brown, and Company, 1271 Avenue of the Americas, New
York, NY 10020, Attn: Laurence J. Kirshbaurn, C.E.O.; DC Comics Inc., 1700
-
Broadway, 7& Floor, New York, NY 1001 9, Attn: Paul Levitz, Executive V.P. &
Publisher; DC Comics, A General Partnership, 1700 Broadway, 7' floor, New York, NY
1001 9, Attn: Paul Levitz, Executive V.P. & Publisher; DC Direct, c/o DC Comics, 1700
Broadway, 7m Floor, New York, NY 1001 9, Attn: Paul Levtiz, E.V.P. & Publisher; Milton
Bradley Co., Division of Hasbro, Inc., 433 Shaker Road, East Longmeadow, MA 01 028,
Attn: David E. Wilson, President; Hasbro, Inc., 1027 Newport Ave., Pawtucket, RI
02861, Attn: Alan Hassenfeld, Chief Executive Officer; Wildstorm Productions, 888
Prospect Street, Suite 240, La Jolla, CA 92037, Attn: Jim Lee, Editor & Director; w 4
V,
0
wl
Wildstorm Productions, c/o DC Comics, 1700 Broadway, 7m Floor, New York, NY
3
a
10019, Attn: Paul Levitz, President & Publisher; Dark Horse Publications, 10956 S.E.
G
Cd
Pj
Main St., Mitwaukie, OR 97222, Attn: Michael Richardson, President; Cantharus
3
.&
Prgductions, N.V., 8965 Bay Cove Ct., Orlando, FL 3281 9, Attn: llya Salkind; llya
Salkind and Pierre Spengler, 12 Chiswick Lane, London W4 2JE, England, Attn: Albion
Gee, Esq., Albion Gee & Co.; Haflmark Entertainment, Inc., 1325 Avenue of the
Americas, 215' Floor, New York, NY 10019, Attn: Robert Halmi, Jr., Chairman; Marvel
Entertainment Group, Inc., 10 ~ a s t 4om Street, 9m Floor, New York, NY 1001 6, Attn: F.
Peter Cuneo, President & C.E.O.; Golden Books Publishing, 1540 Broadway, New
York, NY 10036, Attn: Amy Jarashow, Associate Publisher; Random House Golden
Books for Young Readers, 1540 Broadway, New York, NY 10036, Attn: Kate Kilmo,
Vice President & Publisher; , Random . House, Inc., 1745 Broadway, New York, NY
EXHIBIT M
113
#:37446
10019, Attn: Katherine J. Trager, Senior V.P. & General Counsel; Inkworks, 4320 Delta
Lake Drive, Raleigh, NC 2761 2, Attn: Allan Caplan, President & C.E.O.; Penguin Group
(USA) Inc., 375 Hudson Street, New York, NY 10014, Attn: David Shanks, C.E.O.; DK
Publishing, Inc., 375 Hudson Street, New York, NY 1001 4, Attn: Christopher Davis,
Publisher; Scholastic, Inc., 557 Broadway, New York, NY 1001 2, Attn: Richard
Robinson, Chairman & C.E.0. Pursuant to 37 C.F.R. Section 201.10(d), service of this
notice is being made by first class mail, and additionally sarvice of this notice is being
made by certified mail, return receipt requested, to the above grantees or successors at
the addresses shown.
2. The works (individually, "Work;" collectively, the "Works") to which this
Notice of Termination applies are as follows': The title of the original copyrighted Work
2
ul
0
ul
to which this Notice of Termination applies is SUPERMAN,.an illustrated comic book u
4
4
&.j
story constituting a front cover and pages 1-1 3, inclusive, in the body of Action Comics,
+d
P,
Vol. 1, No, 1, June, 1938 issue, which was published on April 18, 1938. This Work was %
registered for copyright under registration No. 8379787 and copyright was originally
' This Notice of Termination applies as well to each and every element of each Work, including
without limitation, the story or stories, character or characters, the interplay of such characters,
theme or themes, settings or*focales, and includes, but is not limited to, Superman, his origins
and escape as an infant to Earth in a rocket ship, his super strength, his invulnerability (bullets
bounce off his chest and he's impervious to fire), his super speed, his ability to leap great
distances in a single bound, his telescopic vision, his super hearing and sense of smell, his
sense of humor, his clean-cut good looks, his high morals, ethics and compassion, his mission
as a crime fighter and as a champion of the underdog, his stylized costume and cape, the
diamond shaped "S" insignia on his chest, his secret identity / alter ego as the mild mannered
bespectacled newspaper reporter, Clark Kent, the feisty and attractive female reporter love
interest, Lois Lane, the love triangle between Supeman, Lois Lane and Clark Kent, Clark Kent's
boss / newspaper Editor (a.k.a. Peny White), the Daily Planet newspaper (f.k.a. the Daily Star)
whete Clark Kent, Lois Lane and the Editor work, the great skyscraper metropolis where these
characters live (a.k.a. Metropolis), Superman's scientist father (a.k.a. Jor L) and Superman's
birthplace --a highfy advanced but doomed distant planet (a.k.a. Krypton).
EXHIBIT M
114
#:37447
secured in this Work as of its April 18, 1938 publication date. This Work was v~ritien by
derome Siegel and illustrated by Joseph Shuster. Renewal of the copyright in and to
this Work was made on June 1, 1965, in the name of National Periodical Publications,
Inc, claiming as proprietor of copyright, under renewal registration No. R362188. This
Work was based upon, incorporated, and constituted a slightly revised version of, the
following Works to which this Notice of Termination also applies: twenty-four days (i.e.,
four six day weeks) of previously unpublished SUPERMAN newspaper comic strips,
created c. 1934, written by Jerome Siegel and illustrated by Joseph ~hus t er . ~ The
remaining Works to which this Notice of Termination applies are:
4
Title
W
- Name of Author Date Copvright Secured Copvriqht Req. No. V1 o
V,
SUPERMAN story Jerome Siegel Work created c.1933 N/ A~ u d
in comic book form Joseph Shuster w 4
* In Sieael and Shuster v. National Comics Pub., Inc. et al., the court found that Jemme Siegel
~1
and Joseph Shuster were "the originators and authors of the cartoon character Superman and
of the title Superman and first created cartoon material in which said character and title first
,
appeared in 1934 ...," and further found that this material as incorporated in Action Comics No. 1
constituted: "the formula for the continuing SUPERMAN series to come. It depicted and
narrated the origin of the character SUPERMAN, and contained a complete delineaon of the
pictbrial representation of SUPERMAN, of his habits and character, of the superhuman powers
and attributes with which SUPERMAN was endowed and of the sphere of public good which
SUPERMAN exploits were to enhance." Findings of Fact and Conclusions of Law by Referee J.
Addison Young, fly 8,22 (November 1, 1947); See also Sieqel and Shuster v. National Comics
Pub., Inc. et al., Opinion of Referee J. Addison Young, page 9 ("[he aforementioned material]
certainly contained the full delineation of the character Superman and though the story or
continurty might vary in the future from time to time, it did, I believe constitute a formula for the
continuing series to come..."). In Sieael v. National Periodical Publications. Inc, the Second
Circuit Court of Appeals reversed the District Court's determination that Action Comics No. 1
was a work-for-hire and held: "Superman and his miraculous powers were completely
developed long before the employment relationship was instituted. The record indicates that the
revisions directed by the defendants were simply to accomodate Superman to a magazine
format." 508 F.2d 909, 91 4 (2"d Circuit 1974).
The second and third Works listed in this table as well as the above-referenced 24 days of
previously unpublished SUPERMAN newspaper comic strips were first published in a somewhat
revised form on April 18, 1938 as Action Comics, Vol. I , No. 1, June, 1938, which was
registered for copyright under registration No. 0379787 and renewed under registration No.
R362188.
EXHIBIT M
115
#:37448
Title
-
15 SUPERMAN
daity comic strips
(1 2 strips and 3
scripts)
Action Comics #2
Action Comics #3
Action Comics #4
Action Comics #5
Action Comics # 6
Action Comics # 7
Name of Author Date Copvriaht Secured Copvriqht Reg. No.
Jerome Siegei Work created c.! 334 NIA
Joseph Shuster
Jerome Siegel May 25, 1938 B379788
Joseph Shuster
Jerome Siegel June 25, 1938 B385466
Joseph Shuster
Jerome Siegel July 25, 1 938 B387907
Joseph Shuster
Jerome Siegel August 25, 1938 8394784
Joseph Shuster
Jerome Siegel September 26, 1938 B394866
Joseph Shuster
Jerome Siegel October 25, 1938 B3992 14
Joseph Shuster
3. This Notice of Terrnination applies to the following grants, assignments,
transfers and/or agreements to the extent each grants, transfers or assigns the renewal
I
copyright (or any interest in or to the renewal copyright) to any Work identified
hereinabove:
(a)
A one page agreement between Detective Comics, Inc., on the one
hand and Jerome Siegel and Joe Shuster, co-authors of the comic book/strip
SUPERMAN, on the other, executed on or about March 1, 1938;
-
Action Comics Nos. 2-6 were reprinted in Superman Nos. 1 and 3 (Copyright Reg. Nos.
AA299871 and 8443035, respectively) to which this Notice of Termination, therefore, also
applies.
EXHIBIT M
116
#:37449
(b)
A two page agreement of purported employment between Detective
Comics, Inc., on the one hand, and Jerome Siegel and Joe Shuster, co-authors of the
comic booklstrip SUPERMAN, on the other, executed on or about December 4, 1937;
(c)
A three page letter agreement between Detective Comics, Inc., on
-
the one hand, and Jerome Siegel and Joseph Shuster, co-authors of the comic
boowstrip SUPERMAN, on the other, executed on or about September 22, 1938;
(d)
A three page letter agreement between Detective Comics, Inc. and
The McClure Newspaper Syndicate, on the one hand, and Jerome Siegel and Joseph
Shuster, co-authors of the comic booWstrip SUPERMAN, on the other, executed on or
about September 22, 1938;
(e)
A two page letter agreement between Detective Comics, Inc., on
the one hand, and Jerome Siegel and Joseph Shuster, co-authors of the comic
boowstrip SUPERMAN, on the other, executed on or abou: December 19,1939;
u
4
W
(9
A seven page agreement or stipulation between National Comics
Cb
8
Publications, Inc., Independent News Co., Inc., The McClure Newspaper Syndicate,
(I,
m
H $ ~ Donenfeld, Jacob S. Liebowitz, Paul H. Sampliner and Wayne Boring, on the one
hand, and Jerome Siegel and Joseph Shuster, co-authors of the comic bookfstrip
SUPERMAN, on the other, executed on or about May 19, 1948;
(g)
A twelve page letter agreement (with additional pages for exhibits)
between Warner Communications Inc., on the one hand, and Jerome Siegel and
Joseph Shuster, co-authors of the comic book/strip SUPERMAN, on the other, executed
on or about December 23,1975.
4. The effective date of termination shall be October 26, 201 3.
73
8
EXHIBIT M
117
#:37450
5. ' No prior termination of the grants of rights in the copyright of the
aforementioned Works for their renewal copyright term has been exercised by the
author, Joseph Shuster, or his statutory heirs or representatives pursuant to Section
304 (c) of the United States Copyright Act (1 7 U.S.C. 304(c)).
6. Joseph Shuster died on July 30, 1992. There is no living widow, child or
grandchild of Mr. Shuster. The undersigned, Mark Warren Peary is the Executor of the
Estate of Joseph Shuster; and, as such, is the person entitled to exercise Joseph
Shuster's termination interest pursuant to 17 U.S.C. $304 (d), incorporating without
limitation 17 U.S.C. !j 304 (c)(2)(D), as to the grants of the transfers described herein.
To the best knowledge and belief of the undersigned, this notice has been signed by all
4
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0
V,
persons whose signature is necessary to terminate said grants under Section 304(d) of
u
4
4
n
W
Title 17, United States Code. ,
Dated: ~ o v e r n b e a 2003
Mark Warren Peary
Executor of the state of Joseph Shuster
d o Marc Toberoff, Esq.
9595 Wilshire Boulevard, Suite 81 1
Beverly Hills, CA 9021 2
EXHIBIT M
118
#:37451
CERTIFICATE OF INVESTIGATION
I hereby certify that before serving the foregoing document described as NOTICE
OF TERMINATION OF TWNSFER COVERING EXTENDED RENEWAL TERM OF
"SUPERMANn, and pursuant to 37 C.F.R. Section 201.1 O(d), I caused a reasonable
investigation to be made as to the current ownership of the rights being terminated,
including a search of the records in the U.S. Copyright Office.
I declare under penalty of perjury that the foregoing is true and correct. Executed
this "$ay of November, 2003, at Los Angeles, California.
Marc Toberoff, Esq.
9595 Wilshire Boulevard, Suite 81 1
-4
CI'
C'
Beverly Hills, CA 90212 5
u
w
Counsel for the Estate of Joseph Shuster
w
W
EXHIBIT M
119
#:37452
CERTIFICATE OF SERVICE
I hereby certify that I caused a true copy of the foregoing document described as
NOTICE OF TERMINATION OF TRANSFER COVERING EXTENDED RENEWAL
fi
TERM OF "SUPERMAN" to be served this L d a y of November, 2003, by First Class
Mail, postage prepaid, upon the following:
To: Time Warner Inc.
New York, NY 1001 9
Attn: Richard 0. Parsons
Time Warner
Entertainment Company, L.P.
Attn: Barry M. Meyer
Chairman & C.E.O.
Warner Bros. Entertainment Inc.
4000 Wamer Boulevard
Burbank, CA 91 522
, Warner Bros. Inc.
, 4000 Wamer Boulevard
Burbank, CA 91 522
Warner Communications Inc.
C/O Time Wamer, Inc.
Attn: Paul T. Cappucio
E.V.P. & General Counsel
Warner Bros. Television
4000 Wamer Boulevard
Burbank, CA 91 522
Attn: Peter Roth, President
Warner Music Group.
New York, NY 1001 9
Attn: Roger Ames .
Chairman & C.E.0
Wamer Bros. Worldwide
Consumer Products
Burbank, CA 91 522
Attn: Dan Romanelli, President
Warner Publisher Services, Inc.
135 W. 50th Street, 7* Floor
New York, NY 10020
Attn: Rich Jacobsen
President
Time Warner Book Group, Inc.
New York, NY 1 0020
Warner Books, Inc.
New York, NY 10020
Little, Brown and Company, Inc.
New York, NY 10020
DC Comics, Inc.
1700 Broadway, 7m Floor
New York, NY 1001 9
Attn: Paul Levitz
EXHIBIT M
120
#:37453
DC Comics, a General Partnership llya Salkind and Pierre Spengler.
1700 Eroadway, 7th Floor 12 Chiswick Lane
New York,.NY 1001 9 London W4 ZJE, England
Attn: Paul Levitz Attn: Albion Gee, Esq.
Executive V.P. & Publisher Albion Gee & Co
DC Direct Hallmark Entertainment, Inc.
d o DC Comics
-
1700 Broadway, 7'h Floor 21 st Floor
New York, NY 1001 9 New York, NY 1001 9
Attn: Paul Levitz Attn: Robert Halmi, Jr.
E.V.P. & Publisher Chairman
Milton Bradley Co. Marvel Entertainment Group, Inc..
Division of Hasbro I nc. 10 East 4ofh Streetl gth Floor
433 Shaker Road New York, NY 1001 6
East Longmeadow, MA 01 028 Attn: F. Peter Cuneo
Attn: David E. Wilson, President President & C.E.0
Hasbro, Inc.
1027 Newport Avenue
Pawtucket, RI 02861
Attn: Alan Hassenfeld
888 Prospect Street, Suite 240
La Jolla, CA 92037
Attn: Jim Lee
Editor & Director
d o DC Comics
1700 Broadway, 76 Floor
New York, NY 1001 9
Attn: Paul Levitz
President & Pu biisher
Dark Horse Publications
10956 S.E. Main St.
Milwaukie, OR 97222
Attn: Michael Richardson,
President
Golden Books Publishing
1 540 Broadway
New York, NY 10036
Attn: Amy Jaras how
Associate Publisher
Random House Golden Books for
Young Readers
1540 Broadway
New York, NY 10036
Attn: Kate Klimo
Vice President & Publisher
Random House, Inc.
1 745 Broadway
New York, NY 1001 9
Attn: Katherine J. Trager
Senior V.P. & General Counsel
lnkworks
4320 Delta Lake Dr.
Raleigh, NC 2761 2
Attn: Allan Caplan
President & CEO
" Cantharus Productions, N.V. Penguin Group (USA) Inc.
8965 Bay Cove Ct. 375 Hudson Street
Orlando, FL 3281 9 New York, NY 1001 4
Attn: llya Salkind Attn: David Shanks, C.E.O. 77
EXHIBIT M
121
#:37454
DK Publishing, Inc. Scholastic, Inc.
375 Hudson Street 557 Broadway
New York, NY 1001 4 New York, NY 1 00 1 2
Attn: Christopher Davis, Publisher Attn: Richard Robinson
Chairman & CEO
I declare under penalty of perjury that the foregoing is true and correct. Executed
this / J%~ of November, 2003, at Los Angeles, California.
Marc Toberoff, Esq.
9595 Wilshire Blvd., Suite 81 1
Counsel for the Estate of Joseph Shuster
EXHIBIT M
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#:37455
IPWW 00007
EXHIBIT N
123
#:37456
EXHIBIT O
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#:37457
REDACTED
CONFIDENTIAL
MWP 00054 EXHIBIT P
125
#:37458
REDACTED
CONFIDENTIAL
MWP 00055 EXHIBIT P
126
#:37459
REDACTED
CONFIDENTIAL
MWP 00056 EXHIBIT P
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#:37460
REDACTED
CONFIDENTIAL
MWP 00057 EXHIBIT P
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#:37461
CONFIDENTIAL
LSL 00213 REDACTED EXHIBIT Q
129
#:37462
CONFIDENTIAL
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#:37463
CONFIDENTIAL
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#:37464
CONFIDENTIAL
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#:37465
CONFIDENTIAL
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CONFIDENTIAL
134
#:37467
EXHIBIT R
135
#:37468
EXHIBIT R
136
#:37469
EXHIBIT R
137
#:37470
EXHIBIT R
138
#:37471
EXHIBIT R
139
#:37472
EXHIBIT R
140
#:37473
EXHIBIT R
141
#:37474
EXHIBIT S
142
#:37475
EXHIBIT S
143
#:37476
EXHIBIT S
144
#:37477
EXHIBIT S
145
#:37478
EXHIBIT S
146
#:37479
EXHIBIT S
147
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EXHIBIT S
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EXHIBIT S
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EXHIBIT S
150
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EXHIBIT S
151
#:37484
EXHIBIT S
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#:37485
EXHIBIT S
153
#:37486
EXHIBIT T
154
#:37487
EXHIBIT T
155
#:37488
EXHIBIT T
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#:37489
EXHIBIT T
157
#:37490
EXHIBIT T
158
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EXHIBIT T
159
#:37492
EXHIBIT T
160
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EXHIBIT T
161
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EXHIBIT T
162
#:37495
EXHIBIT T
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EXHIBIT T
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EXHIBIT T
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EXHIBIT T
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#:37500
EXHIBIT U
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EXHIBIT U
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EXHIBIT U
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EXHIBIT U
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EXHIBIT U
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EXHIBIT U
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EXHIBIT U
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EXHIBIT U
175
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EXHIBIT U
176
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EXHIBIT U
177
#:37510
EXHIBIT U
178
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EXHIBIT U
179
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EXHIBIT U
180
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EXHIBIT U
181
#:37514
EXHIBIT U
182
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EXHIBIT U
183
#:37516
EXHIBIT U
184
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EXHIBIT U
185
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EXHIBIT U
186
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EXHIBIT U
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EXHIBIT U
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EXHIBIT U
189
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EXHIBIT U
190
#:37523
EXHIBIT U
191
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EXHIBIT U
192
#:37525
EXHIBIT U
193
#:37526
EXHIBIT U
194
#:37527
EXHIBIT U
195
#:37528
EXHIBIT U
196
#:37529
EXHIBIT U
197
#:37530
EXHIBIT U
198
#:37531
EXHIBIT U
199
#:37532
EXHIBIT G
38
#:21943
EXHIBIT V
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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#:37597
EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT W
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EXHIBIT X
277
#:37610
EXHIBIT X
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EXHIBIT X
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#:37612
EXHIBIT X
280
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EXHIBIT X
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EXHIBIT X
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EXHIBIT Y
283
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
291
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EXHIBIT Y
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EXHIBIT Y
293
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EXHIBIT Y
294
#:37627
EXHIBIT Y
295
#:37628
EXHIBIT Y
296
#:37629
EXHIBIT Y
297
#:37630
EXHIBIT Y
298
#:37631
EXHIBIT Y
299
#:37632
EXHIBIT Y
300
#:37633
EXHIBIT Y
301
#:37634
EXHIBIT Y
302
#:37635
EXHIBIT Y
303
#:37636
EXHIBIT Y
304
#:37637
EXHIBIT Y
305
#:37638
EXHIBIT Y
306
#:37639
EXHIBIT Y
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#:37640
EXHIBIT Y
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#:37641
EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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#:37644
EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
315
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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#:37653
EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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#:37672
EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
347
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EXHIBIT Y
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EXHIBIT Y
349
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EXHIBIT Y
350
#:37683
EXHIBIT Y
351
#:37684
EXHIBIT Y
352
#:37685
EXHIBIT Y
353
#:37686
EXHIBIT Y
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EXHIBIT Y
355
#:37688
EXHIBIT Y
356
#:37689
EXHIBIT Y
357
#:37690
EXHIBIT Y
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EXHIBIT Y
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EXHIBIT Y
360
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EXHIBIT Y
361
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EXHIBIT Y
362
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EXHIBIT Y
363
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EXHIBIT Y
364
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EXHIBIT Y
365
#:37698
EXHIBIT Y
366
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EXHIBIT Y
367
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EXHIBIT Y
368
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EXHIBIT Y
369
#:37702
EXHIBIT Y
370
#:37703
EXHIBIT Y
371
#:37704
EXHIBIT Y
372
#:37705
EXHIBIT Y
373
#:37706
EXHIBIT Y
374
#:37707
EXHIBIT Y
375
#:37708
EXHIBIT Y
376
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EXHIBIT Y
377
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EXHIBIT Y
378
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EXHIBIT Y
379
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EXHIBIT Y
380
#:37713
EXHIBIT Z
381
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EXHIBIT Z
382
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EXHIBIT Z
383
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EXHIBIT Z
384
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EXHIBIT Z
385
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EXHIBIT Z
386
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EXHIBIT Z
387
#:37720
EXHIBIT Z
388
#:37721
EXHIBIT Z
389
#:37722
EXHIBIT Z
390
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EXHIBIT Z
391
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EXHIBIT Z
392
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EXHIBIT Z
393
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EXHIBIT Z
394
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EXHIBIT Z
395
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EXHIBIT Z
396
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EXHIBIT Z
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EXHIBIT Z
398
#:37731
EXHIBIT Z
399
#:37732
Case 2:04-cv-08400-ODW-RZ Document 646 Filed 02/17/11 Page 1 of 38 Page ID
#:14199
EXHIBIT AA
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#:37733
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- 1 - SECOND AMENDED
COUNTERCLAIMS

On January 31, 2011, the Court granted, with changes, plaintiffs Motion for
Leave to File Third Amended Complaint Pursuant to Fed. R. Civ. P. 15 and 16.
Docket Nos. 637, 643. For purposes of completeness, defendants hereby reassert
the counterclaims contained in the First Amended Counterclaims, Docket No. 42,
with changes to reflect only the current date, the updated pleading title, and the
Courts dismissal of Time Warner Inc. as a party to this action. Defendants reserve
all rights, including to amend these counterclaims as and when appropriate.
Defendant/Counterclaimant DC Comics, for its Second Amended
Counterclaims against Plaintiff/Counterclaim Defendants Joanne Siegel and Laura
Siegel Larson, alleges:
PARTIES
1. Defendant/Counterclaimant DC Comics (DC or DC Comics) is a
New York General Partnership engaged in the business of, inter alia, creating,
exploiting, and licensing comic book stories and characters. DC is the successor in
interest to all rights under copyright and other rights, including trademark rights
and the good will in and to the first Superman story and all other works and
products relating to the Superman character.
2. Upon information and belief, Plaintiff/Counterclaim Defendant Joanne
Siegel is an individual and citizen of the State of California, in the County of Los
Angeles. Upon further information and belief, Joanne Siegel is the widow of
Jerome Siegel, the individual credited as a co-creator of the first Superman stories.
3. Upon information and belief, Plaintiff/Counterclaim Defendant Laura
Siegel Larson is an individual and citizen of the State of California, in the County
of Los Angeles. Upon further information and belief, Laura Siegel Larson is a
daughter of Jerome Siegel. Plaintiff/Counterclaim Defendants Joanne Siegel and
Laura Siegel Larson are referred to herein as the Siegels.
#:14200
EXHIBIT AA
401
#:37734
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COUNTERCLAIMS

JURISDICTION AND VENUE
4. This Court has jurisdiction of the subject matter hereof under the
provisions of the U.S. Copyright Act, 17 U.S.C. 101 et seq., relating to copyright
ownership, under sections 39 and 43 (a) and (c) of the U.S. Trademark Act, also
known as the Lanham Act, 15 U.S.C. 1121 and 1125 (a) and (c), and sections
1331, 1332, 1338 (a) and 1338 (b) of the Judicial Code, 28 U.S.C. 1331, 1332,
1338 (a) and 1338 (b), as well as under principles of supplemental jurisdiction, 18
U.S.C. 1367.
5. Venue is proper under 28 U.S.C. 1391 (b) in that, upon information
and belief, a substantial part of the events giving rise to DCs claims occurred or a
substantial part of the properties that are the subject of these counterclaims are
situated in this District and/or the Plaintiffs/Counterclaim Defendants may be found
in this District.
FACTS COMMON TO ALL COUNTERCLAIMS
Background And History
6. Upon information and belief, in or about 1933, Jerome Siegel
(Siegel) and his friend and co-creator, Joseph Shuster (Shuster) collaborated on
creating a number of stories, including a story entitled The Reign of the
Superman, which was published in a magazine put out by Siegel and Shuster
themselves entitled Science Fiction. Upon further information and belief, other
than the same name, the Superman character in this story shared very little, if
any, similarity with the character that would later become known as Superman.
7. Upon information and belief, in early 1933, Siegel and Shuster began
collaborating on comic strips, initially for syndication and eventually for
publication in comic books, a new and growing medium. Among their work
together were a number of comic strips featuring a character they named Superman.
This Superman character bore virtually no resemblance to the character of the same
name that had previously appeared in the Science Fiction magazine. Upon
#:14201
EXHIBIT AA
402
#:37735
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COUNTERCLAIMS

further information and belief, those works, which were never published, included:
(a) twenty four (24) days of Superman comic strips intended for newspapers; (b) a
seven page synopsis of the last eighteen days (weeks 2-4) of such strips; (c) a
paragraph previewing Superman exploits; (d) a nine-page synopsis covering an
additional two months of daily comic strips; and (e) fifteen daily comic strips
(collectively the Unpublished Superman Works).
8. Upon information and belief, between 1933 and 1937 Siegel and
Shuster submitted the Unpublished Superman Works to a number of prospective
publishers and newspaper syndicates, but the work was rejected by them all.
9. Meanwhile, between 1935 and 1937, Siegel and Shuster created a
number of comics strips that were published, including such titles as Dr. Occult,
Henri Duval, and Spy.
10. On December 4, 1937, Siegel and Shuster entered into an Agreement
of Employment (the December 4, 1937 Agreement) with Detective Comics, Inc.
(DCI), a predecessor in interest to DC. Under the Agreement, Siegel and Shuster
agreed to give their exclusive services in producing comic features entitled Slam
Bradley and The Spy for a period of two years. Under the Agreement, Siegel
and Shuster were required to submit any new comics to DCI first, which reserved
the right to accept or reject the work for a period of sixty (60) days.
11. Early in 1938, DCI was looking for materials for a new comic book it
was intending to publish under the name Action Comics. In that connection,
upon information and belief, DCI was provided with the twenty four (24) days of
Superman comic strips from the Unpublished Superman Works for review. At the
instance and expense of DCI and subject to its right to control, Siegel and Shuster
cut and pasted the comic strips, and added certain additional material, to create a
thirteen page comic book story which was accepted for publication by DCI.
12. In an agreement with DCI dated March 1, 1938 (the March 1, 1938
Agreement), Siegel and Shuster, among other things, transferred to DCI the strip
#:14202
EXHIBIT AA
403
#:37736
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COUNTERCLAIMS

entitled Superman . . . all good will attached thereto and exclusive right to the use
of the characters and story, continuity and title of strip . . . and agreed not to
employ Superman and other characters in the strip by their names contained
therein.
13. DCI advertised the publication of the new comic story Superman and
the new title Action Comics No. 1 in others of its publications, including but not
limited to, More Fun Comics No. 31, Detective Comics No. 15, and New
Adventure Comics No. 26, all of which are cover dated May 1938 and, upon
information and belief, were distributed in copies to the public on or before April 1,
1938. These advertisements (the Superman Ads), which depict the Superman
character in his costume, exhibiting super-strength, show almost the entirety of
what would become the cover of Action Comics No. 1.
14. Upon information and belief, sometime prior to April 16, 1938, but
after the Superman Ads, DCI published the thirteen page Superman comic book
comprising the first Superman story in Action Comics No. 1, bearing the cover
date June 1938 (hereinafter Action Comics No. 1). However, Action Comics No.
1 was not comprised entirely of the pre-existing Unpublished Superman Works.
Rather, upon information and belief, in response to DCIs instruction that the
Unpublished Superman Works be presented as a thirteen page comic book and
subject to DCIs right to control, Siegel and Shuster created additional materials to
complete Action Comics No. 1 (the Additional Action Comics No. 1 Materials).
15. After the publication of Action Comics No. 1, upon information and
belief, Siegel and Shuster supplied further original Superman stories at DCIs
instance and expense and subject to its right to control. On September 22, 1938,
Siegel and Shuster entered into another employment agreement (the DCI
September 22, 1938 Agreement), confirming that Siegel and Shuster had been
doing the art work and continuity for said comics [including Superman comics] for
us. We wish you to continue to do said work and hereby employ and retain you for
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said purposes . . . . The DCI September 22, 1938 Agreement also contained an
acknowledgement that DCI was the exclusive owner of Superman.
16. Also on September 22, 1938, Siegel and Shuster entered into an
agreement with DCI and with the McClure Newspaper Syndicate (the McClure
September 22, 1938 Agreement) concerning the use of Superman in newspaper
strips.
17. All of Siegel and Shusters contributions to Superman comic books
and comic strips published subsequent to Action Comics No. 1 as well as the
Additional Action Comics No. 1 Materials, were made either under the DCI March
1, 1938 Agreement, the DCI September 22, 1938 Agreement, the McClure
September 22, 1938 Agreement, or contemporaneous oral agreements confirmed by
one or more of these Agreements, or certain subsequent agreements affirming those
agreements, as employees of DCI or its successors or at DCIs instance and expense
and subject to DCIs right of control, with the result that the copyrights to all
Superman materials created by them after preparation of materials included in
Action Comics No. 1 and to the Additional Action Comics No. 1 Materials are
owned exclusively by DC Comics as works made for hire under the then applicable
1909 Copyright Act.
18. On November 30, 1938, Siegel wrote to DCI (the November 1938
Letter) suggesting that it do a comic book named Superboy, which would relate
to the adventures of Superman as a youth. The November 30, 1938 Letter does
not contain any discussion of plot, dialogue, appearance, or any other copyrightable
material relating to Superboy. DCI decided not to publish a Superboy comic at
that time.
19. In 1939, among the Superman comics prepared by Siegel and Shuster
at the instance and expense of DCI and subject to its right of control, was Superman
No. 1, with a cover date of Summer 1939. In Superman No. 1, Clark Kent was
depicted as a youth with super powers.
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20. On December 19, 1939, Siegel and Shuster entered into a new
agreement with DCI (the December 19, 1939 Agreement), which agreement
modified the DCI September 22, 1938 Agreement by, inter alia, doubling Siegel
and Shusters compensation for Superman comic books and newspaper strips. In
addition, the December 19, 1939 Agreement provided for payment for Siegel and
Shuster for uses of Superman beyond comic books and newspaper strips, such as
radio, motion pictures, and toys. Under the December 19, 1939 Agreement, Siegel
and Shuster again acknowledged DCIs sole ownership of Superman.
21. Upon information and belief, in approximately December 1940,
Siegel, on behalf of himself and Joe Shuster, submitted to DCI a thirteen-page
script of continuity for Superboy (the Unpublished 1940 Superboy Script),
renewing his suggestion to DCI that it publish a comic book about Superman as a
youth. The December 1940 Superboy Script, which sets forth a credit line of By
Jerry Siegel and Joe Shuster, states, in part, [s]o many faithful followers of
todays leading adventure comic strip, SUPERMAN, wrote in demanding the
adventures of Clark Kent as a youth . . .And so here he is at last...the answer to your
requests... Americas outstanding boy hero: SUPERBOY! The Unpublished 1940
Superboy Script goes on to say about Superboy that [i]n later years he was to
become the might [sic] figure known as SUPERMAN! Again, DCI decided not to
publish a Superboy comic at that time.
22. Upon information and belief, on a date prior to November 18, 1944,
DCI published its first comic book containing the adventures of Superboy, who was
Superman as a youth, in More Fun Comics No. 101 with a cover date of
January-February 1945 (hereinafter More Fun Comics No. 101). Upon
information and belief, DCI employed Shuster or an artist from Shusters art studio
(with Shusters knowledge and under his supervision) to create the artwork and
writer Don Cameron to write the Superboy story contained in More Fun Comics
No. 101. The Superboy story in More Fun Comics No. 101 bears little if any
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resemblance to anything contained in the Unpublished 1940 Superboy Script, and
such similarities as may exist are common to earlier Superman related material
owned by DCI.
23. In 1947, Siegel and Shuster brought suit against, inter alia, DCIs
successor in interest, National Comics Publications, Inc. (National) in the New
York Supreme Court in Westchester County (the Westchester Action). The
Westchester Action was, in part, the culmination of a dispute between Siegel and
Shuster and National over what Siegel and Shuster claimed was DCIs
unauthorized publication of Superboy. In the Westchester Action, in addition to
seeking redress in connection with Superboy, Siegel and Shuster sought to
invalidate the March 1, 1938 Agreement, argued that the DCI September 22, 1938
Agreement was obtained by duress, and sought to recapture all rights in Superman.
24. On November 21, 1947, the Court in the Westchester Action issued an
opinion (the Westchester Opinion) after trial in which it found that the March 1,
1938 Agreement transferred to DCI all rights in Superman and that the DCI
September 22, 1938 Agreement was valid and not obtained under duress. The
Court also held that in publishing Superboy, DCI had acted illegally.
25. At the Courts request, the parties to the Westchester Action submitted
proposed fact findings and conclusions of law. On April 12, 1948, the Court
adopted fact findings and conclusions of law and issued an interlocutory judgment
(collectively the Westchester Action Interlocutory Judgment). The defendants in
the Westchester Action filed a notice of appeal, and the Westchester Action
Interlocutory Judgment was stayed pending appeal.
26. Shortly thereafter, the parties to the Westchester Action entered into
two separate agreements: (a) a stipulation dated May 19, 1948 (the May 19, 1948
Stipulation) and (b) a consent judgment dated May 21, 1948 (the May 21, 1948
Consent Agreement). Under both documents, inter alia, Siegel and Shuster: (a)
agreed to vacate the Westchester Action Interlocutory Judgment; (b) acknowledge
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that, pursuant to the March 1, 1938 Agreement, they transferred to DCI all rights in
and to Superman, including the title, names, characters, concept and formula as
set forth in Action Comics No. 1; (c) acknowledged National was sole and
exclusive owner of Superman, the conception, idea, continuity, pictorial
representation and formula thereof in all media; (d) agreed that they were enjoined
from creating, publishing or distributing any Superman work or any imitation
thereof, and from using the title Superman or title that contained the word Super;
(e) acknowledged that National was the sole owner of and owned exclusive rights
in Superboy; (f) agreed that they were enjoined from creating, publishing or
distributing Superboy or any imitation thereof; (g) agreed they were prohibited
from representing their past connection with Superman and Superboy in such a way
to confuse the public that such connection still existed; and (h) agreed they were
prohibited from using any coloring, lettering or printing in referring to Superman or
Superboy that was imitative of that used by National.
27. In the 1960s, Siegel and Shuster again brought suit against National,
this time in the United States District Court for the Southern District of New York
for a declaration that they (and not National) owned the copyright in the renewal
copyright term for Action Comics No. 1. In a decision published in Siegel v.
National Periodical Publications, Inc., 364 F. Supp. 1032 (S.D.N.Y. 1973), the
district court held, inter alia, that the agreements between Siegel and Shuster on the
one hand and DCI (and later National) on the other, intended to assign all rights in
Superman to DCI and National, including renewal copyright rights.
28. In a decision published in Siegel v. National Periodical Publications,
Inc., 508 F.2d 909 (2d Cir. 1974), the Court of Appeals affirmed that portion of the
lower courts ruling relating to Nationals ownership of all rights in Superman.
Siegel and Shuster did not further appeal the ruling.
29. On December 23, 1975, Siegel and Shuster entered into an agreement
with Warner Communications, Inc., then Nationals parent company (the
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December 23, 1975 Agreement). Under this agreement, Siegel and Shuster again
acknowledged that Warner Communications, Inc. was the sole and exclusive owner
of all right, title and interest in and to the Superman concept, idea, continuity,
pictorial representation, formula, characters, cartoons and comic strips, title, logo,
copyrights and trademarks, including any and all renewals and extensions of such
rights, in the United States and throughout the world, in any and all forms of
publication, reproduction and presentation, whether now in existence or hereafter
devised . . . .
30. Under the December 23, 1975 Agreement, Siegel and Shuster each
were to and did receive throughout their lives annual payments as well as medical
insurance coverage. Upon Siegels death, annual payments were to be made to
Plaintiff/Counterclaim Defendant Joanne Siegel for the remainder of her life. The
amount of the annual payment pursuant to the December 23, 1975 Agreement was
increased over the years. Since Siegels passing in 1996, Joanne Siegel has
continuously received and accepted annual payments and health insurance under
that agreement.
DC Comics Development And Licensing
Of Superman Works And Products
31. The initial graphic representations of the Superman character in 1938,
now stylistically dated, presented his adventures with a limited number of
characters in settings that had the look and feel of that particular period. From the
portrayal of the Superman character in Action Comics No. 1, we only know that
he is an upright hero who was sent as an infant to Earth aboard a space ship from an
unnamed distant planet destroyed by old age. Superman is also depicted as secretly
possessed of extraordinary physical abilities, including superhuman strength and
the ability to leap 1/8
th
of a mile, hurdle a twenty-story building and run faster than
an express train. In his ordinary life, the character is depicted as a mild-mannered
newspaper reporter for The Daily Star known as Clark Kent, and in his alter ego,
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Superman is a costumed heroic figure using his extraordinary physical abilities to
fight against crime.
32. Since the publication of Action Comics No. 1, DC Comics has
authored, published and distributed several thousand other comic books containing
the adventures of Superman throughout the United States and abroad in many
millions of copies, adding more than 60 years worth of material to further define,
update and improve upon the Superman character and presenting an ongoing new
flow of Superman exploits and characters resulting in the creation of an entire
fictional Superman universe.
33. In addition to the publication of new comic books containing the
Superman comic strip character, DC Comics has over the last 66 years participated
in the creation, development and licensing of numerous Superman live action and
animated feature length motion pictures, motion picture serials, radio and television
serials and live theatrical presentations. These works have also significantly
contributed to the modernizing and evolution of the Superman character from his
1938 appearance.
34. Over the years since Action Comics No. 1, the presentations of
Superman provided first by DCI and then DC Comics did not present a static
depiction but an ever-evolving portrayal of Superman continuously, featuring new
super powers, new villains, new components to the Superman universe, new
elements in the Superman back story, and changes in the appearance of Superman.
Most notably, many of Supermans powers that are among his most famous today
did not appear in Action Comics No. 1 but only appeared in later publications.
These include: his ability to fly; his super-vision which enables him to see through
walls (X-ray vision) and across great distances (telescopic vision); his super-
hearing which enables him to hear conversations at great distances; his
invulnerability to injury which is most often shown as bullets bouncing off his chest
and/or arms.
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35. One notable part of the evolution of the appearance of the Superman
character undertaken by DC Comics and its predecessors, has been the
transformation of the emblem on the chest of Supermans costume. In Action
Comics No. 1, the emblem was comprised of a small yellow inverted triangle
bearing the letter S shown in yellow and sometimes in red (the Action Comics
No. 1 Crest). Thereafter, in changing the appearance of Superman and his
costume, DC Comics and/or its predecessors significantly changed the Action
Comics No. 1 Crest. Bearing little if any resemblance to the original, it is now a
large yellow five-sided shield, outlined in the color red, and bearing the letter S in
the middle, also in the color red (the S in Shield Device). The S in Shield
Device, as transformed by DC Comics and its predecessors, has become a strong
symbol, standing alone, of all goods and services relating to Superman and his sole
source, DC Comics and its predecessors.
36. At all relevant times, DC Comics, its predecessors in interest and
licensees have duly complied with the provisions of the 1976 Copyright Act and its
1909 predecessor statute with respect to securing copyright protection for the
numerous works in which the Superman character has appeared and establishing
DC Comics copyright ownership thereof, including the original and all works
based upon and derived therefrom, and have received from the Register of
Copyrights, valid and subsisting certificates of copyright registration and renewal
with respect thereto.
37. DC Comics and its predecessors have, since 1938, continuously held
themselves out as the exclusive owners of all rights under copyright in Superman.
38. DC Comics has over many decades adopted and made long,
continuous and exclusive use of (a) the name and mark Superman and (b) certain
key symbols and indicia of origin in connection with and to identify all authorized
uses of the Superman character in print and all other media (sometimes hereinafter
the Superman symbols and indicia of origin). The Superman name and mark and
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Superman symbols and indicia of origin include, inter alia, Supermans
characteristic outfit, comprised of a full length blue leotard with red cape, a yellow
belt, the S in Shield Device, as well as certain key identifying phrases. Most
notable among the latter is Look!...Up in the sky!...Its a bird!...Its a plane!...Its
Superman! first used in the introduction to the 1940 radio program The
Adventures of Superman, and thereafter continuously repeated in Superman
television programming and various Superman publications. All of these Superman
symbols and indicia of origin have been used on and in connection with a wide
variety of publications and licensed goods and services, as they have been added to
the Superman character and mythology under DC Comics and/or its predecessors
supervision and direction, but, in any event, for the earliest symbols, since as early
as 1938.
39. As a result of the above-described continuous and exclusive use by DC
Comics of the Superman name and mark, as well as the Superman symbols and
indicia of origin for over sixty years, the names, marks and symbols and the
appearance of the Superman character have become famous and the public has
come to recognize that all publications, entertainment and products featuring
Superman or bearing such marks all come from the same source, namely, DC
Comics, and that DC Comics is the exclusive source of the Superman character and
all uses of the character on and in connection with any goods and services.
40. DC Comics owns dozens of federal trademark registrations for
Superman related indicia across a broad array of goods and services. Those
registrations include, but are not limited to the following for the following marks:
(a) SUPERMAN (in block letters) Reg. Nos. 2,419,510, 2,204,195, 1,278,177,
1,221,718, 1,209,668, 1,175,907, 1,183,841, 1,248,822, 1,216,976, 1,186,803,
1,189,393, 1,180,068, 1,184,822, 1,181,536, 1,182,947, 1,070,290; (b)
SUPERMAN (in the well-known telescopic lettering) Reg. Nos. 2,226,026,
1,278,175, 1,200,394, 1,185,526, 1,185,853, 1,209,863, 1,220,896, 1,183,809,
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1,182,226, 1,181,537, 1,189,355, 1,218,552, 1,108,577, 391,821, 371,803; (c) the
S in Shield Device (either alone or as part of a rendering of Superman) 2,211,378,
2,226,415, 1,262,572, 1,179,537, 1,197,814, 1,200,387, 1,200,233, 1,209,743,
1,201,167, 1,201,149, 1,229,321, 1,199,690, 1,199,552, 1,199,630, 1,184,881,
1,182,172, 1,189,376, 1,180,292, 1,178,048, 1,182,041, 1,173,150, 1,140,418,
1,235,769, 411,871; (d) SUPERMAN RIDE OF STEEL Reg. No. 2,485,624; (e)
MAN OF STEEL Reg. Nos. 2,226,436, 1,433,864; (f) SUPERBOY Reg. Nos.
394,923 (telescopic lettering), 1,221,719 (block letters); (g) SUPERGIRL (stylized
and in block letters) Reg. Nos. 987,395, 414,623, 1,238,334; (h) SUPERWOMAN
(in telescopic lettering) Reg. No. 394,922; (i) SMALLVILLE Reg. Nos. 2,626,700,
2,809,352, 2,768,213, 2,765,711, 2,882,881; (j) KRYPTONITE Reg. Nos.
2,656,1,239,506; (k) KRYPTO Reg. No. 1,168,306; (1) LOOK, UP IN THE SKY,
ITS A BIRD, ITS A PLANE Reg. No. 1,527,304; (m) LEX LUTHOR Reg. Nos.
2,802,600, 1,634,007; (n) LOIS LANE Reg. No. 1,184,702; (o) PERRY WHITE
Reg. No. 1,184,703; (p) JIMMY OLSEN Reg. No. 1,190,637; (q) LOIS AND
CLARK Reg. No. 1,990,231; and (r) ACTION COMICS (stylized) 360,765
(collectively with the SUPERMAN symbols and indicia of origin, the Superman
Marks).
41. These registrations alone suffice to show the unusual breadth and
scope of the use of such marks related to Superman by DC Comics or its licensees
on or in connection with a broad range of goods and services, all of which have
come to be seen over six decades by countless consumers as indicating an exclusive
authorization or sponsorship thereof by plaintiff DC Comics, the publisher and
source of all Superman comic books and other Superman productions and products.
The Superman Notices Of Termination
42. On April 8, 1997, DC Comics received from Plaintiffs Counterclaim
Defendants Joanne Siegel and Laura Siegel Larson, through their then-counsel,
Finnegan, Henderson, Farabow, Garrett & Dunner, seven documents entitled Notice
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of Termination of Transfer Covering Extended Renewal. Those documents
purport, under 17 U.S.C. 304 (c), to terminate, effective April 16, 1999, the
Siegels share in the following grants of copyright: (a) the December 4, 1937
Agreement; (b) the March 1, 1938 Agreement; (c) the DCI September 22, 1938
Agreement; (d) the McClure September 22, 1938 Agreement; (e) the December 19
1939 Agreement; (f) the May 19, 1948 Stipulation; (g) the December 23, 1975
Agreement (collectively the Superman Notices). However, the Siegels served no
notice terminating their share of the copyright grant in the May 21, 1948 Consent
Agreement.
43. The Superman Notices purport to terminate the Siegels share of the
above grants listed therein in the Unpublished Superman Works, Action Comics
No. 1, and in excess of 15,000 additional works (the Post-Action Comics No. 1
Works). However, in none of the seven Superman Notices, or anywhere else, do
the Siegels purport to terminate their share of any copyright grant in the Superman
Ads.
44. In the Superman Notices, the Siegels expressly recognize and
acknowledge that the character Superboy is a derivative work based on Superman.
The Superman Notices expressly identify Superboy as part of the Superman
family of characters in which the Siegels are purporting to terminate their grants.
Indeed, the more than 15,000 works listed in the Superman Notices include
hundreds of publications and other works that feature only Superboy (as opposed to
Superman), and also Superman No. 1 with a cover date of Summer 1939, in which
Superman is depicted as a youth.
45. In late November, 1998, DC Comics received from
Plaintiffs/Counterclaim Defendants. Joanne Siegel and Laura Siegel Larson,
through their then-counsel, Finnegan, Henderson, Farabow, Garrett & Dunner, four
documents entitled Notice of Termination of Transfer Covering Extended Renewal.
Those documents purport to terminate, effective November 27, 2000, the Siegels
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share it the following grants of copyright relating to the character known as The
Spectre: (a) the December 4, 1937 Agreement; (b) a September 22, 1938
Agreement; (c) and October 10, 1939 Agreement and (d) a second October 10,
1939 Agreement (collectively the Spectre Notices).
46. The Spectre Notices purport to terminate the Siegels share of the
above grants in: (a) the Spectre character appearing in costume in an ad in issue No.
51 of More Fun Comics with a cover date of January 1940; (b) the first Spectre
comic book story published in issue No. 52 of More Fun Comics with a cover
date of February 1940; (c) part 2 of the first Spectre comic book story published in
issue No. 53 of More Fun Comics with a cover date of March 1940, and hundreds
of additional works listed the Spectre Notices (collectively the Spectre Works).
The Parties Negotiations
And The Agreement Reached
47. On April 17, 1997, less than ten days after DC Comics received the
Superman Notices, its counsel wrote to the Siegels counsel inviting negotiation.
The Siegels requested that DC Comics make an initial settlement proposal. But
prior to making such proposal, DC Comics requested that the parties enter into a
confidentiality agreement. Frustrated by the Siegels delay in responding to its
proposed form confidentiality agreement, on November 5, 1997, DC Comics
counsel wrote the Siegels counsel and stated, inter alia, [a]s we had advised you
in the past, our client has elected, for settlement purposes only, not to respond to the
[Superman Notices] served upon them by challenging their validity or scope at this
time. (Emphasis added.)
48. On December 17, 1997, DC Comics and the Siegels finally entered
into a confidentiality agreement. On December 18, 1997, DC Comics forwarded its
first substantive proposal with respect to the copyrights at issue, and in connection
therewith also raised certain defects in the termination notice, stating that there is a
substantial legal issue as to the effectiveness of your clients termination of DCs
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interest in the Superman Comic. For more than six months despite repeated
requests for feedback, DC Comics heard no response to its December 18, 1997
proposal. Finally, on June 19, 1998, the Siegels counsel sent a letter to DC
Comics counsel that did not respond to the proposal but only requested more
information.
49. On July 23, 1998, DC Comics provided the Siegels with the answers to
the questions posed in their counsels letter of June 19, 1998. Despite requests for
feedback for another several months, DC Comics again received no response to its
proposal.
50. Having heard no response from the Siegels, on April 15, 1999, one day
before the purported Effective Date set forth in the Superman-Notices, DC
Comics provided a more comprehensive written notice to Plaintiffs/Counterclaim
Defendants Joanne Siegel and Laura Siegel Larson detailing, among other things,
the reasons it considered the Superman Notices to be invalid.
51. On April 30, 1999, DC Comics received a letter from the firm of
Gang, Tyre, Ramer & Brown, Inc. (Gang, Tyre) indicating it now represented the
Siegels in negotiations with DC Comics. Thereafter, the parties engaged in
extensive negotiations with their respective lawyers attending meetings in
California and New York, and exchanging proposals. During that time period, at
the Siegels request, DC Comics provided a payment of $250,000 (the Advance
Payment) to the Siegels which payment was agreed to be an advance against any
future sums provided under an agreement to be entered into between the parties.
52. On October 16, 2001, a legal representative for DC Comics made an
offer to the Siegels through Gang, Tyre by telephone. On October 19, 2001, Kevin
Marks of Gang, Tyre, on behalf of the Siegels, accepted the October 16, 2001 offer.
That day, Mr. Marks wrote a letter confirming that the Siegels had accepted D.C.
Comics offer of October 16, 2001 and outlined all of the material terms in detail.
Those terms included, inter alia, that the Siegels transferred or would transfer all of
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their rights in the Superman property (which was defined in the letter as Superman,
Superboy and related properties including but not limited to Supergirl, Steel, Lois
& Clark, and Smallville) and in The Spectre. In exchange, the Siegels were to
receive: (a) a sizeable non-returnable advance; (b) a sizeable non-recoupable and
non-returnable signing bonus; (c) forgiveness of the Advance Payment; (d)
significant guaranteed minimum payments as advances against royalties; and (e)
percentage royalties from DC Comics exploitations of Superman across all media,
worldwide.
53. By return letter of October 26, 2001, DC Comics representative wrote
back providing a more fulsome outline of the agreed upon points. Neither the
Siegels nor any of their representatives in any way disputed the October 26, 2001
confirmatory outline from DC Comics. On February 1, 2002, DC Comics
forwarded a draft of a more formal written agreement memorializing the terms
agreed to in the October 19 and 26, 2001 correspondence.
54. After the October 2001 agreement, DC Comics entered into a written
Option Purchase Agreement with Warner Bros., A Division of Time Warner
Entertainment Company, L.P. (now known as defendant Warner Bros.
Entertainment Inc.) dated as of November 6, 1999, pursuant to which DC Comics
granted to Warner Bros. the option to license certain exclusive rights in Superman,
and Warner Bros. has commenced photography of a feature-length motion picture
based on the property.
55. On May 9, 2002, Plaintiff/Counterclaim Defendant Joanne Siegel
wrote a letter to the Co-Chief Operating Officer of DC Comics parent company
acknowledging that the Siegels had accepted DC Comics proposal of October 16,
2002, but purporting to object to unspecified provisions of the formal written draft
and repudiating the agreement reached by the parties in October 2001. To this day,
the Siegels have not identified a single provision of the February 1, 2002 formal
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draft that was inconsistent with the provisions in the Siegels October 19, 2001
acceptance of DC Comics proposal.
56. On September 30, 2002, however, DC Comics received a letter from
the Siegels stating they were breaking off all discussions with DC Comics and
again repudiating the agreement reached by the parties in October 2001.
The Superboy Termination Notices
57. Notwithstanding the fact that the Siegels had already purported to
terminate grants with respect to the Superboy character effective April 16, 1999, on
November 8, 2002, the Siegels mailed to DC Comics another Notice of
Termination of Transfer purporting to relate solely to Superboy (the Superboy
Notice). The Superboy Notice purports to terminate, effective November 17, 2004,
only two grants of copyright: (a) the May 19, 1948 Stipulation and (b) the
December 23, 1975 Agreement, and identifies many of the same works identified in
the Superman Notices. As was the case with the Superman Notices, the Siegels
served no notice terminating the copyright grant in the May 21, 1948 Consent
Agreement.
58. The Superboy Notice purports to terminate the above grants regarding
the following works: (a) the unpublished November 30, 1938 Letter; (b) the
unpublished 1940 Superboy Script; (c) More Fun Comics No. 101; and (d)
approximately 1,600 additional titles. However, the Superboy Notice lists and
purports to terminate grants of rights under copyright relating to hundreds of the
same works already purportedly terminated by the earlier Superman Notices. The
Superboy Notice does not purport to terminate the 1939 depiction of Superman as a
youth in Superman No. 1.
59. In the Superboy Notice, the Siegels make the claim that Superboy is a
separate and distinct copyrighted work and character from the copyrighted work
and character Superman. This contention is erroneous.
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60. In the Superboy Notices, the Siegels also claim that Jerome Siegel was
the sole author of Superboy. This contention is also erroneous.
61. Among the works listed in the Superboy Notice that the Siegels claim
are terminated by such notice of termination (as well as by the Superman Notices),
is the WB television series entitled Smallville. Smallville is a modern, teen-
oriented drama about the life and relationships of Clark Kent and his circle of
friends during Clarks high school years; it features numerous characters not
created or developed by Siegel and story lines wholly original to the series.
62. On June 17, 2004, talent agent Ari Emanuel, representing the Siegels,
sent a letter to DC Comics licensee and affiliated company, Warner Bros., stating,
inter alia, that as of the effective date of the Superboy Notice, November 17, 2004,
DC Comics and its licensees would be cut off from making any further episodes of
Smallville.
63. On August 4, 2004, the Siegels new counsel and attorney of record in
this case, Marc Toberoff, contacted Warner Bros. and reiterated the Siegels
position that, as of November 17, 2004, DC Comics and its licensees would be cut
off from making any further episodes of Smallville.
64. On August 27, 2004, DC Comics counsel herein, Fross Zelnick
Lehrman & Zissu, P.C., sent a letter to the Siegels counsel rejecting the
interpretation of the effect of the Superboy Notice and unequivocally informing the
Siegels that DC Comics and its licensees would proceed with their planned
production, copying, distribution, and exploitation of new episodes of Smallville.
The Siegels Filing Of Two Related Cases
65. On October 8, 2004, 14 days prior to filing the instant action, the
Siegels filed a related action, Civil Case No. 04-8400, which case was assigned to
Judge Pregerson in this Court.
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FIRST COUNTERCLAIM FOR DECLARATION
THAT THE SUPERMAN NOTICES AND THE
SUPERBOY NOTICE ARE INEFFECTIVE
66. DC Comics repeats and realleges paragraphs 1 - 65 above as if fully
set forth herein.
67. DC Comics contends that the Superman Notices and/or the Superboy
Notice are ineffective, inter alia, for any or all of the following five independent
reasons:
#1 The May 21, 1948 Consent Agreement Has Not Been Terminated
68. The May 21, 1948 Consent Agreement is a written agreement entered
into by Jerome Siegel and Joseph Shuster with DC Comics predecessor in interest
and includes a grant of all rights in Superman and Superboy by Siegel and Shuster
to DC Comics predecessor in interest, including all rights under copyright therein.
69. As a result of the Siegels failure to send a Notice of Termination with
respect to the May 21, 1948 Consent Agreement, the grant contained therein to all
copyrights related to Superman remains in full force and effect. Thus, DC Comics
is and continues to be the sole owner of all rights of any kind, including rights
under copyright, in Superman (including its derivative work Superboy) pursuant to
the May 21, 1948 Consent Agreement.
#2 The December 23, 1975 Agreement
70. Through both the Superman Notices and the Superboy Notice, the
Siegels purport to terminate their share of the grant of copyright in Superman and
Superboy contained in the December 23, 1975 Agreement.
71. By letter dated April 15, 1999, the day before the Superman Notice
purported to become effective, DC Comics rejected the scope and validity of the
Superman Notices, including but not limited to, that Superman Notice purporting to
terminate the grant in the December 23, 1975 Agreement.
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72. By letter dated August 29, 2004, DC Comics rejected the scope and
validity of the Superboy Notice, including but not limited to the Siegels claim that
such notice terminated the December 23, 1975 Agreement.
73. Notwithstanding the Siegels having, by virtue of the Superman
Notices, purportedly terminated the grant of copyright contained in the December
23, 1975 Agreement, and with full knowledge of DC Comics rejection of the
Superman Notice, after April 16, 1999, the purported effective date of such notices
of termination, DC Comics continued to perform under the December 23, 1975
Agreement and Plaintiff/Counterclaim Defendant Joanne Siegel continued to accept
the benefits under that agreement. DC Comics has relied upon Joanne Siegels
continued acceptance of benefits under the December 23, 1975 Agreement and has
continued to perform under that Agreement without accounting to the Siegels and
without making any other change in the manner in which it has exploited
Superman.
74. Notwithstanding the Siegels having, by virtue of the Superboy Notice,
purportedly terminated the grant of copyright contained in the December 23, 1975
Agreement, and with full knowledge of DC Comics August 29, 2004 rejection of
the notice of termination, DC Comics has continued to perform under the December
23, 1975 Agreement. DC Comics has relied upon Joanne Siegels continued
acceptance of benefits under the December 23, 1975 Agreement and has continued
to perform under that Agreement without accounting to the Siegels and without
making any other change in the manner in which it has exploited Superboy.
75. Because of DC Comics continued performance under the December
23, 1975 Agreement and Plaintiff/Counterclaim Defendant Joanne Siegels
continued acceptance of the benefits of such agreement after she purportedly
terminated it in both the Superman Notices and the Superboy Notice, the December
23, 1975 Agreement, and the grant of copyright therein, remains in full force and
effect.
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76. Thus, DC Comics is and continues to be the sole owner of all rights of
any kind, including rights under copyright, in Superman (and its derivative work
Superboy), rendering the Superman Notices and the Superboy Notice ineffective.
#3 The Unpublished Superboy Works
77. In the Superboy Notice, the Siegels purport to terminate copyright
grants of rights in the November 1938 Letter and the Unpublished 1940 Superboy
Script and approximately 1,600 additional published titles purportedly relating to
Superboy (the Published Superboy Works).
78. Upon information and belief, as of January 1, 1978, both the
November 1938 Letter and the Unpublished 1940 Superboy Script (the Siegel
Superboy Proposals) remained unpublished and thus were neither in their first nor
their second term of copyright as of that date.
79. Copyright in the Published Superboy Works is owned exclusively by
DC Comics by virtue of their having been prepared as works made for hire for DC
Comics and/or its predecessors, or by virtue of other copyright grants that remain
in full force and effect.
80. Pursuant to the requirements set forth by section 304 (c) of the 1976
Copyright Act, 17 U.S.C. 304 (c), only copyright grants in works that were in
their first or second term of copyright as of January 1, 1978, could be terminated
under that provision. As a result, the Superboy Notice is ineffective as to the Siegel
Superboy Proposals or any portion of any derivative works containing any
copyrightable material therefrom and DC Comics remains the sole owner thereof.
Therefore, the Superboy Notice is ineffective.
#4 Siegel Owned No Copyright In Superboy
81. The Siegel Superboy Proposals are derivative works based upon the
pre-existing copyrighted Superman character and stories owned by DC Comics
predecessors.
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82. Upon information and belief, Siegel, in collaboration with Shuster,
prepared the Siegel Superboy Proposals without the prior knowledge or consent of
DC Comics predecessors.
83. Upon further information and belief, Siegel developed the contents of
the Siegel Superboy Proposals within the scope of his employment contracts with
DC Comics predecessors and/or at their instance and expense and subject to their
right to control.
84. As a result of the foregoing, the Siegel Superboy Proposals were
derivative works based upon Superman, prepared without the authorization of the
copyright owner, and/or were works made for hire, owned ab initio by the copyright
owner in Superman.
85. Whether the Siegel Superboy Proposals were derivative works
prepared without the prior authorization of the copyright owner, or were works
made for hire, Siegel could not and did not own any copyright interest therein that
would be subject to copyright termination pursuant to 17 U.S.C. 304 (c). Thus,
the Superboy Notice is ineffective.
#5 The Superman Notices Were Not Timely Served
86. Upon information and belief, DC Comics predecessor in interest first
secured copyright in Action Comics No. 1 by publication with copyright notice
prior to April 16, 1938.
87. All grants made by Siegel and Shuster or rights in Action Comics No.
1 are still in effect, and all rights under copyright granted therein are still owned
exclusively by DC Comics, because the Superman Notices served by the Siegels are
ineffective for failure to comply with the legal requirements therefore prescribed by
section 304 (c) of the U.S. Copyright Act of 1976, 17 U.S.C. 304 (c), in that: the
Effective date of the Superman Notices, namely April 16, 1999, was too late to
fall within the required period specified in 17 U.S.C. 304 (c) (3) and such notices
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of termination were served less than two years before the allowable effective date in
violation of 17 U.S.C. 304 (c) (4) (A).
88. On information and belief, plaintiffs deny DC Comics contentions
and/or the legal effect ascribed thereto as set forth in paragraphs 66 87 above.
Accordingly, an actual controversy has arisen and now exists between
Plaintiffs/Counterclaim Defendants and DC Comics concerning the above issues.
89. A justiciable controversy exists concerning the above issues and a
judicial declaration is necessary and appropriate to determine the parties respective
rights with regard thereto.
SECOND ALTERNATIVE COUNTERCLAIM FOR
DECLARATION THAT ANY CLAIM BY THE SIEGELS FOR
CO-OWNERSHIP OF SUPERMAN (INCLUDING ITS DERIVATIVE
SUPERBOY) IS BARRED BY THE STATUTE OF LIMITATIONS
set forth herein.
91. Since as early as 1998, Plaintiffs/Counterclaim Defendants were on
notice of DC Comics position that the Superman Notices contained legal defects.
Moreover, effective at least as early as April 15, 1999, Plaintiffs/Counterclaim
Defendants were on notice that DC Comics rejected the Superman Notices and
asserted exclusive ownership of all copyright in Superman.
92. Since April 16, 1999, the purported effective date of the Superman
Notices, Plaintiffs/Counterclaim Defendants have been deprived of the benefits of
their purported co-ownership of copyright in Action Comics No. 1.
93. In response to DC Comics above actions and assertion and such
deprivation to the Siegels of the benefits of their alleged copyright co-ownership,
Plaintiffs/Counterclaim Defendants took no action until filing the instant action on
October 8, 2004, more than six years after DC Comics advised
Plaintiffs/Counterclaim Defendants in writing of defects in the Superman Notices
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and more than five years after being placed on notice by DC Comics of its claim of
exclusive ownership of copyright in Superman and that it rejected and repudiated
the Superman Notices and during which time period the Siegels were deprived of
benefits to which they claim they are entitled.
94. Because Plaintiffs/Counterclaim Defendants claim of partial
ownership of copyright accrued more than three years prior to
Plaintiffs/Counterclaim Defendants bringing the instant action, even taking into
consideration any purported agreements to toll the statute of limitations, any claim
of ownership of copyright in Superman by Plaintiffs/Counterclaim Defendants is
barred by the three-year statute of limitations of the Copyright Act.
and/or the legal effect ascribed thereto as set forth in paragraphs 90 94 above.
THIRD ALTERNATIVE COUNTERCLAIM
FOR BREACH OF CONTRACT
set forth herein.
98. In or about October 2001, Plaintiffs/Counterclaim Defendants entered
into a written agreement with DC Comics memorialized by the authorized agent of
Plaintiffs/Counterclaim Defendants, Kevin Marks, and by the authorized agent of
DC Comics, John Schulman, which subsequently was confirmed and ratified in
writing by Plaintiff/Counterclaim Defendant Joanne Siegel (the Agreement),
pursuant to which, among other things, Plaintiffs/Counterclaim Defendants (1)
transferred to DC Comics, worldwide and in perpetuity, or, alternatively, agreed to
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transfer to DC Comics, worldwide and in perpetuity, any and all rights, title, and
interest, including all United States copyrights, which they may have in any and all
past, present, and future Superman and Superboy-related properties, works,
characters, names, and trademarks (collectively, the Superman Works), (2)
agreed to accept certain compensation from DC Comics in consideration of any and
all rights, title, and interest which they may have in the Superman Works (the
Financial Terms), and (3) covenanted never to sue DC Comics for any claim
related to the Superman Works other than for breach of the Agreement (the
Covenant Not To Sue).
99. DC Comics has performed all of its obligations under the Agreement,
except to the extent such performance has been prevented or excused by the acts or
omissions of Plaintiffs/Counterclaim Defendants. Specifically, and without
limiting the foregoing, DC Comics established a reserve account of the moneys due
to Plaintiffs/Counterclaim Defendants based upon the Financial Terms, which DC
Comics would have paid to Plaintiffs/Counterclaim Defendants pursuant to the
Agreement but for their repudiation and breach of the Agreement as herein alleged.
DC Comics always has been and remains ready, willing, and able to perform all of
its obligations under the Agreement, and will resume doing so upon either a
withdrawal by Plaintiffs/Counterclaim Defendants of their repudiation of the
Agreement or a final adjudication that the Agreement is enforceable and binding on
the parties.
100. Plaintiffs/Counterclaim Defendants have repudiated and otherwise
breached the Agreement by, among other things:
a. Claiming, including in this action, that they have not transferred
and are not contractually obligated to transfer to DC Comics, worldwide and in
perpetuity, all of their rights, title, and interest, including all United States
copyrights, which they may have in the Superman Works, and refusing to execute a
formal written transfer thereof to DC Comics;
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b. Repudiating the Financial Terms and claiming, including in this
action, that they are entitled to additional compensation for the Superman Works;
and
c. Initiating this action in violation of the Covenant Not To Sue.
101. As a direct and foreseeable result of the contractual breaches on the
part of Plaintiffs/Counterclaim Defendants herein alleged, DC Comics has been
damaged in an amount to be proven at trial.
FOURTH ALTERNATIVE COUNTERCLAIM FOR
DECLARATORY RELIEF REGARDING THE AGREEMENT
set forth herein.
103. An actual controversy now exists between DC Comics and
Plaintiffs/Counterclaim Defendants, in that DC Comics contends the Agreement is
binding and enforceable and, therefore, that:
a. Plaintiffs/Counterclaim Defendants either have transferred or
are contractually obligated to transfer to DC Comics, worldwide and in perpetuity,
any and all rights, title, and interest, including all United States copyrights, which
they may have in the Superman Works;
b. If for any reason Plaintiffs/Counterclaim Defendants are
adjudged not to have transferred or not to be contractually obligated to transfer to
DC Comics, worldwide and in perpetuity, all rights, title, and interest, including all
United States copyrights, which they may have in the Superman Works, then the
remaining terms of the Agreement are valid and enforceable and
Plaintiffs/Counterclaim Defendants are not entitled to any compensation for any
past, present, or future exploitation of the Superman Works by or upon license from
DC Comics other than pursuant to the Financial Terms; and
c. If for any reason Plaintiffs/Counterclaim Defendants are
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United States copyrights, which they may have in the Superman Works, then
Plaintiffs/Counterclaim Defendants nevertheless are not entitled to license or
otherwise exploit the Superman Works in any manner.
104. DC Comics is informed and believes, and on that basis alleges, that
Plaintiffs/Counterclaim Defendants dispute these contentions.
105. DC Comics seeks a judicial determination of the parties respective
rights and obligations, which is necessary and appropriate to allow them to properly
govern their future conduct.
FIFTH ALTERNATIVE COUNTERCLAIM FOR
DECLARATION OF LIMITATIONS ON THE SCOPE OF THE
SUPERMAN NOTICES AND THE SUPERBOY NOTICE
set forth herein.
107. In the event the Superman Notices and/or the Superboy Notice are
deemed effective and the settlement agreement between the parties is not enforced,
DC Comics asserts the following alternative counterclaim for a declaration limiting
the scope and reach of the Superman Notices and the Superboy Notice in six
separate and independent ways.
108. DC Comics contends that:
#1 The Superman Ads
109. The regulations governing the contents of notices of termination
promulgated by the U.S. Copyright Office under authority of the 1976 Copyright
Act require, in relevant part, that a notice of termination served pursuant to section
304 (c) of the 1976 Copyright Act name each work to which the notice of
termination applies.
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110. Upon information and belief, all of the Superman Ads first secured
copyright protection by publication with copyright notice prior to April 16, 1938
and prior to publication of Action Comics No. 1.
111. The Superman Ads contain and show the appearance of Superman, his
costume, and his super-strength.
112. The grants made by Siegel and Shuster as to the appearance of
Superman, his costume, and his super-strength, are still in effect, and all rights
under copyright granted therein are still owned exclusively by DC Comics, because
the Superman Notices served by the Siegels do not list the works in which the
Superman Ads were first published.
113. Thus, DC Comics is the exclusive owner of all copyright in and to the
Superman Ads and thereby retains exclusive ownership of copyright in the
appearance of Superman therein, including but not limited to, the appearance of the
Superman costume.
#2 Use Of Superman And Superboy Derivative Works
Prepared Prior To The Purported Effective Dates Of The
Superman Notices And The Superboy Notice
114. The Superman Notices purport to terminate the Siegels share in the
Copyright grant of Jerome Siegel in all Superman-related works thereafter derived
from Action Comics No. 1, including but not limited to the more than 15,000
Superman related works (in addition to Action Comics No. 1) listed in the
Superman Notices (the Superman Derivative Works). Included among the
Superman Derivative Works is the image of the S in Shield Device that has
become a strong trademark of Superman and his single source, DC Comics.
115. The Superboy Notice purports to terminate the Siegels share in the
copyright grant of Jerome Siegel in the approximately 1,600 of the Published
Superboy Works.
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116. The Superman Derivative Works and the Published Superboy Works
are all based upon pre-existing works and were prepared under the authority of the
grants of copyright entered into by Siegel and Shuster to DC Comics and/or its
predecessors.
117. Regardless of whether the Superman Notices and the Superboy Notice
are legally effective, under the Copyright Act, 17 U.S.C. 304 (c)(6)(A), DC
Comics retains the right to make use of the Superman Derivative Works and the
Superboy Published Works under the terms of the original grants under which they
were prepared without any duty to account to the Siegels for any such use.
#3 DC Comics Owns All Superman Derivative Works
118. All copyright rights in any of the works listed in the Superman
Notices, or any other derivative works based upon and that post-date Action
Comics No. 1 (the Post Action Comics No. 1 Works) are owned exclusively by
DC Comics. DC Comics ownership of such copyrights is not subject to
termination pursuant to the Copyright Act.
119. The Post Action Comics No. 1 Works contain many copyrightable
elements not present in Action Comics No. 1 (the Post Action Comics No. 1
Elements). These include, but are not limited to, new super powers, new villains,
new components to the Superman universe, new elements in the Superman back
story, and changes in the appearance of Superman. Notably, many of Supermans
powers that are among his most famous today did not appear in Action Comics No
1 but only appeared later in the Post Action Comics No. 1 Works.
120. Regardless of whether the Superman Notices and the Superboy Notice
are valid and effective, DC Comics remains the sole owner of the Post Action
Comics No. 1 Works and in the Post Action Comics No. 1 Elements. Moreover,
the Siegels can make no use of the Post Action Comics No. 1 Elements.
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#4 Superboy Is A Derivative Work Based On Superman
121. In the November 1938, Letter suggesting the idea for a Superboy
comic strip, Siegel stated such comic would relate to the adventures of Superman
as a youth. In the Unpublished 1940 Superboy Script, Siegel wrote [s]o many
faithful followers of todays leading adventure comic strip, SUPERMAN, wrote in
demanding the adventures of Clark Kent as a youth . . .And so here he is at last...the
answer to your requests...Americas outstanding boy hero: SUPERBOY!
122. As demonstrated by the foregoing, the Siegel Superboy Proposals were
based upon the pre-existing Superman character and stories and are thus derivative
works based thereon, and were not made at the instigation of Siegel.
123. Thus, even if the Superboy Notice were effective, any recapture of
copyright rights would be limited to any new copyrightable subject matter added by
Siegel and Shuster to the pre-existing Superman character and stories exclusively
owned by DC Comics and its predecessors.
124. The new copyrightable subject matter contained in the Siegel
Superboy Proposals is de minimis and thus, even if the Siegels could recapture U.S.
Copyrights therein, such recapture could not affect DC Comics continuing right to
create and exploit new derivative works that do not include such new copyrightable
subject matter, including but not limited to, the television series Smallville.
#5 The Derivative Work Superboy Is A Joint Work Of Authorship
125. Upon information and belief, the Siegel Superboy Proposals were joint
works of authorship as they were prepared jointly with Shuster and because it was
intended that their contents would be merged with artwork to create a comic book
or comic strip.
126. As eventually published, the works containing the Superboy character
included both artwork and storyline.
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127. The joint authors share in the Siegel Superboy Proposals is owned by
DC Comics and cannot be terminated either by the Superman Notices or the
Superboy Notice.
128. As a result of the foregoing, DC Comics right to continue to exploit
the Siegel Superboy Proposals and any derivative works based thereon cannot be
affected by either the Superman Notices or the Superboy Notice.
#6 Smallville Is Not Derived From Superboy
129. Among the derivative works based upon Superman and authorized b
DC Comics is the weekly television series, Smallville.
130. Regardless of whether the Superboy Notice is effective and further
regardless of whether Superboy is a derivative work based upon Superman,
Smallville was derived from and based upon Superman and is not a derivative
work based upon the Siegel Superboy Proposals or any succeeding Superboy comic
or Superboy work exploited by DC Comics and/or its predecessors prior to May 21,
1948. Beyond sharing the idea of depicting Superman as a youth, Smallville is not
substantially similar to the Siegel Superboy Works.
131. Thus, irrespective of any accounting issues relating to the Siegels
purported right to receive compensation with respect to new episodes of
Smallville, DC Comics right to continue to authorize production, distribution,
and airing of Smallville television episodes remains unaffected by the Superman
Notices and the Superboy Notice.
#7 The Additional Action Comics No. 1 Materials
132. The Additional Action Comics No. 1 Materials created in 1938 were
prepared at the instance and expense of DCI and subject to its right to control.
Thus, under the 1909 Copyright Act, the Additional Action Comics No. 1 Materials
were works made for hire and copyright therein was owned by DCI ab initio.
133. Because the Additional Action Comics No. 1 Materials were works
made for hire, the grant of U.S. Copyright therein cannot be terminated pursuant to
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17 U.S.C. 304 (c). As a result, DC Comics remains the sole owner of the
Additional Action Comics No. 1 Materials.
and/or the legal effect ascribed thereto as set forth in paragraphs 106 - 133 above.
SIXTH ALTERNATIVE COUNTERCLAIM FOR
DECLARATION REGARDING THE PRINCIPLES
TO BE APPLIED IN AN ACCOUNTING
136. DC Comics repeats and realleges paragraphs 1 - 65 and 106 - 135
above as if fully set forth herein.
137. DC Comics contends that in the event the Superman Notices and/or the
Superboy Notice were deemed valid and effective, any accounting to which the
Siegels would be entitled relating to Superman (including its derivative work
Superboy, collectively for this Counterclaim Superman) would be subject to the
following limitations and reductions:
a. The Siegels would not be entitled to any revenues derived from
exploitation of Superman outside of the United States because
termination pursuant to 17 U.S.C. 304 (c) cannot affect any
grant of non-United States copyrights. 17 U.S.C. 304 (c) (6)
(E).
b. The Siegels would not be entitled to any revenues derived from
exploitation of the Superman Derivative Works and the
Superboy Derivative Works. 17 U.S.C. 304 (c) (6) (A).
#:14232
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#:37766
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COUNTERCLAIMS

c. Any accounting of profits for exploitation of Superman would
be reduced to account for the value of the appearance of
Superman based upon the Siegels failure to terminate the
Superman Ads.
d. Any accounting of recoverable profits for exploitation of
Superman would be reduced to that portion of such profits that
are attributable to the copyrightable elements from Action
Comics No. 1 less the Additional Action Comics No. 1
Materials (if any), actually present it the Superman works
subject to accounting.
e. Any accounting of recoverable profits would be limited to
profits of DC Comics, the sole owner of rights under any
purportedly terminated grants and the sole owner of copyright in
Action Comics No. 1, and the Siegels would not be entitled to
any share of revenues earned by any third party licensees of DC
Comics, including but not limited to, any of the other
defendants.
f. The Siegels would not be entitled to any accounting for profits
attributable to DC Comics continuing exercise of its rights to
use all other rights other than rights under copyright with respect
to Superman and Superboy, including but not limited to, any
trademark rights. As a result, any accounting of profits would
be further reduced by the value in Superman and the Superman
Marks that have been built up by DC Comics and its
predecessors over the last six decades by virtue of, inter alia, the
Post Action Comics No. 1 Works and Elements, and the
Superman Marks
#:14233
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COUNTERCLAIMS

g. Any accounting of profits would be further reduced by
additional factors, including but not limited to, DC Comics
direct and indirect expenses, taxes, and DC Comics
independent role as a publisher of Superman.
h. Subject to all reductions aforesaid and otherwise determined by
the Court to be applicable, the Siegels would be entitled to an
accounting of only one-half of the copyright co-owners profits.
and/or the legal effect ascribed thereto as set forth above. Accordingly, an actual
controversy has arisen and now exists between Plaintiffs/Counterclaim Defendants
and DC Comics as to the above issues.
WHEREFORE, DC Comics demands judgment as follows:
1. Declaring that the Superman Notices and the Superboy Notice are
ineffective for one or more of the reasons set forth in DC Comics First
Counterclaim;
2. In the event that the Superman Notices and/or the Superboy Notice are
deemed effective, for damages according to proof at trial on DC Comics Third
Alternative Counterclaim;
deemed effective, declaring on DC Comics Fourth Alternative Counterclaim that,
pursuant to the Agreement:
a. Plaintiffs/Counterclaim Defendants have transferred or are
contractually obligated to transfer to DC Comics, worldwide and in perpetuity, any
and all rights, title, and interest, including all United States copyrights, which they
may have in the Superman Works;
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COUNTERCLAIMS

b. In the event that Plaintiffs/Counterclaim Defendants are
United States copyrights, which they may have in the Superman Works, then the
remaining terms of the Agreement are valid and enforceable and
Plaintiffs/Counterclaim Defendants are not entitled to any compensation for any
past, present, or future exploitation of the Superman Works by or upon license from
DC Comics other than pursuant to the Financial Terms; and
c. In the event that Plaintiffs/Counterclaim Defendants are
United States copyrights, which they may have in the Superman Works, then
Plaintiffs/Counterclaim Defendants nevertheless are not entitled to license or
otherwise exploit the Superman Works in any manner;
deemed effective, and DC Comics is not granted the relief sought on its Fourth
Alternative Counterclaim, declaring that the scope and effect of the Superman
Notices and the Superboy Notice are limited as set forth in DC Comics Fifth
deemed effective, and DC Comics is not granted the relief sought on its Fourth
Alternative Counterclaim, declaring that any accounting to which
Plaintiffs/Counterclaim Defendants may be entitled will be limited by all applicable
principles, including but not limited to, those set forth in DC Comics Sixth
6. Awarding DC Comics its costs and reasonably attorneys fees incurred
in connection with DC Comics defenses and claims herein seeking declarations
with respect to copyright ownership; and
#:14235
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#:37770

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS CONSOLIDATED MOTION
TO DISMISS

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mtoberoff@ipwla.com
kgadams@ipwla.com
2049 Century Park East, Suite 3630
Los Angeles, California, 90067
Telephone: (310) 246-3333
Fax: (310) 246-3101

Attorneys for Defendants Mark Warren
Peary, as personal representative of the
Estate of Joseph Shuster, Jean Adele Peavy,
and Laura Siegel Larson, individually and
as personal representative of the Estate of
Joanne Siegel


DC COMICS,
Plaintiff,
vs.

MARK WARREN PEARY, as personal
OF JOANNE SIEGEL, and DOES 1-10,
inclusive,

Defendants.

Hon. Ralph Zarefsky, U.S.M.J.

DEFENDANTS REQUEST FOR
JUDICIAL NOTICE IN
SUPPORT OF CONSOLIDATED
MOTION AND MOTION TO
DISMISS PURSUANT TO FED.
R. CIV. P. 12(b)(6)

Complaint filed: May 14, 2010

Date: November 14, 2011
Time: 1:30 p.m.
Place: Courtroom 11

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TO DISMISS
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KENDALL BRILL & KLIEGER LLP
Richard B. Kendall (State Bar No. 90072)
rkendall@kbkfirm.com
Laura W. Brill (State Bar No. 195889)
lbrill@kbkfirm.com
Nicholas F. Daum (State Bar No. 236155)
ndaum@kbkfirm.com
10100 Santa Monica Blvd., Suite 1725
Los Angeles, California 90067
Telephone: (310) 556-2700
Facsimile: (310)556-2705

Attorneys for Defendants Marc Toberoff,
Pacific Pictures Corporation, IP
Worldwide, LLC, and IPW, LLC
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i
TABLE OF CONTENTS
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TABLE OF CONTENTS

Exhibit

Document Page
Request for Judicial Notice

1
A August 1, 1992 Agreement between DC Comics and Frank
Shuster & Jean Peavy

8
B November 23, 2001 Agreement between Pacific Pictures
Corporation and Mark Warren Peary & Jean Adele Peavy

9
C October 3, 2002 Agreement between IP Worldwide, Inc. and
Joanne Siegel & Laura Siegel Larson

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D October 27, 2003 Agreement between Pacific Pictures
Corporation and Mark Warren Peary

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E Notice of Termination re: Copyright Renewal Term of
Superman, served by the Estate of Joseph Shuster, recorded
with the U.S. Copyright Office on December 3, 2003.

21
F September 10, 2004 letter between Pacific Pictures Corporation
and Mark Warren Peary & Jean Adele Peavy

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G November 15, 2006 letter from Marc Toberoff to DC Comics,
in the related case Siegel v. Warner Bros. Entertainment Inc., et
al., USDC Case No. CV-04-8400-ODW (RZx)

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H Cover Pages, Exhibit Lists and Exhibits from the November 17,
2006 deposition of Marc Toberoff, in the related Siegel case

41
I December 30, 2008 Declaration of DC Comics Counsel,
attaching May 2, 2008 Letter, in the related Siegel case

58
J May 17, 2011 Judgment (Docket No. 669) in the related Siegel
case
62
#:21905
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440
#:37773

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TO DISMISS

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Pursuant to Rule 201 of the Federal Rules of Evidence, defendants Mark
Warren Peary, as personal representative of the Estate of Joseph Shuster, Jean Adele
Peavy, Laura Siegel Larson, individually and as personal representative of the Estate
of Joanne Siegel, Marc Toberoff, Pacific Pictures Corporation, IP Worldwide, LLC,
and IPW, LLC (Defendants), respectfully request that this Court take judicial
notice of the following documents, submitted in support of Defendants Consolidated
Motion to Dismiss Plaintiff DC Comics Complaint Pursuant to Fed. R. Civ. P.
12(b)(6). In ruling on a motion to dismiss a complaint pursuant to Fed. R. Civ. P.
12(b)(6), a court may consider matters subject to judicial notice. See Neilson v.
Union Bank of California, N.A., 290 F. Supp. 2d 1101, 1111-12 (C.D. Cal. 2003) (In
deciding a motion to dismissa court may considermatters that may be judicially
noticed pursuant to Federal Rule of Evidence 201.); Haye v. United States, 461
F.Supp. 1168, 1174 (C.D. Cal. 1978) (Subsection (d) [of Rule 201] makes the taking
of judicial notice mandatory if the Court is so requested and supplied with the
necessary information.).
1

1. Defendants request that the Court take judicial notice of the agreement
between Plaintiff DC Comics (DC), on the one hand, and Frank Shuster and Jean
Peavy, on the other hand, dated as of August 1, 1992 (the 1992 Shuster
Agreement). A true and correct copy of the 1992 Shuster Agreement is attached
hereto as Exhibit A.
On a motion to dismiss under Rule 12(b)(6), courts are permitted to consider
documents incorporated by reference in the complaint. United States v. Ritchie, 342
F.3d 903, 908 (9th Cir. 2003) (Even if a document is not attached to a complaint, it
may be incorporated by reference into a complaint if the plaintiff refers extensively to

1
See generally In re Calpine Corp. Sec. Litig., 288 F. Supp. 2d 1054, 1076 (N.D. Cal.
2003) ([T]he Court may take judicial notice of documents on which allegations in the
[complaint] necessarily rely, even if not expressly referenced in the [complaint], provided
the authenticity of those documents are not in dispute.); Parrino v. FHP Healthcare, Inc.,
146 F.3d 699, 706 (9th Cir. 1998) (stating judicial notice prevents plaintiffs from surviving
a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their
claims are based.).
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#:37774

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TO DISMISS

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the document or the document forms the basis of the plaintiffs claim.); Von Koenig
v. Snapple Beverage Corp., 2010 WL 1980208 (E.D. Cal. May 10, 2010) (where
parties requested judicial notice of juice and tea bottle labels and labels formed the
basis of the relevant causes of action, court considered labels for the purpose of
defendants motion to dismiss). See generally Parrino v. FHP, Inc., 146 F.3d 699,
705-706 (9th Cir. 1997) (holding that documents critical to plaintiffs claims, but
not explicitly incorporated in his complaint may be judicially noticed and
considered by a district court on a motion to dismiss). As the 1992 Shuster
Agreement is referred to throughout DCs first amended complaint (FAC) in this
action (see, e.g., FAC 3-4, 6, 51-55, 112-117, 125-128, 175-179) and is the basis
in part of Plaintiffs First and Second Claims for Relief, it is proper for the Court to
consider the 1992 Shuster Agreement on Defendants motion to dismiss.
between Pacific Pictures Corporation (PPC), on the one hand, and Jean Peavy and
Mark Warren Peary, on the other hand, made as of November 23, 2001 (the 2001
PPC Agreement). The 2001 PPC Agreement is attached hereto as Exhibit B.
On a motion to dismiss under Rule 12(b)(6), courts consider documents
incorporated by reference in the complaint. Ritchie, 342 F.3d at 908; Von Koenig,
2010 WL 1980208. As the 2001 PPC Agreement is referred to throughout the
Plaintiffs FAC in this action (see, e.g., FAC 3, 6, 11, 60-65, 90, 98-99, 120, 132,
169, 177-178, 192-193) and is an alleged basis for Plaintiffs First, Third, Fourth and
Sixth Claims for Relief, it is proper for the Court to consider the 2001 PPC
Agreement on Defendants motion to dismiss.
between IP Worldwide, Inc., on the one hand, and Joanne Siegel and Laura Siegel
Larson, on the other hand, dated as of October 3, 2002 (the 2002 IPWW
Agreement). The 2002 IPWW Agreement is attached hereto as Exhibit C. On a
motion to dismiss under Rule 12(b)(6), courts consider documents incorporated by
#:21907
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#:37775

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TO DISMISS

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reference in the complaint. Ritchie, 342 F.3d at 908; Von Koenig, 2010 WL
1980208. As the 2002 IPWW Agreement is referred to throughout Plaintiffs FAC in
this action (see, e.g., FAC 3, 8, 81-84, 188, 193) and is an alleged basis of
Plaintiffs Third, Fifth and Sixth Claims for Relief, it is proper for the Court to
consider the 2002 IPWW Agreement on Defendants motion to dismiss.
between PPC, on the one hand, and Jean Peavy and Mark Warren Peary, on the other
hand, dated October 27, 2003 (the 2003 PPC Agreement). The 2003 PPC
Agreement is attached hereto as Exhibit D. On a motion to dismiss under Rule
12(b)(6), courts consider documents incorporated by reference in the complaint.
Ritchie, 342 F.3d at 908; Von Koenig, 2010 WL 1980208. As the 2003 PPC
Agreement is referred to throughout Plaintiffs FAC in this action (see, e.g., FAC
3, 10-11, 90, 92, 98-99, 101, 120, 130, 132, 169, 177-178, 192-193) and is an alleged
basis of Plaintiffs First, Third, Fourth and Sixth Claims for Relief, it is proper for the
Court to consider the 2003 PPC Agreement on Defendants motion to dismiss.
5. Defendants request that the Court take judicial notice of the Notice of
Termination of Transfer Covering Extended Copyright Renewal Term of
Superman (the Shuster Termination) served by Mark Warren Peary, as personal
representative of the Estate of Joseph Shuster, on Plaintiff DC Comics, among others,
on November 10, 2003 and recorded with the U.S. Copyright Office on December 3,
2003. A true and correct copy of the Notice of Termination and Certificate of
Recordation with the U.S. Copyright Office is attached hereto as Exhibit E.
On a motion to dismiss under Rule 12(b)(6), courts are permitted to consider
documents incorporated by reference in the complaint. Ritchie, 342 F.3d at 908; Von
Koenig, 2010 WL 1980208. As the Notice of Termination is referred to throughout
plaintiffs FAC in this action (see, e.g., FAC 92-101, 105-164) and is an alleged
basis of Plaintiffs First, Second and Fourth Claims for Relief, it is proper for the
Court to consider the Notice of Termination on Defendants motion to dismiss.
#:21908
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#:37776

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TO DISMISS

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Moreover, the Court may take judicial notice of such records from the U.S.
Copyright Office. See Island Software & Computer Serv., Inc. v. Microsoft Corp.,
413 F.3d 257, 261 (2d Cir. 2005) (taking judicial notice of copyright registrations);
MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (holding that on a
motion to dismiss a court may take judicial notice of matters of public record outside
the pleadings).
between PPC, on the one hand, and Jean Peavy and Mark Warren Peary, on the other
hand, dated September 10, 2004 (the 2004 PPC Agreement). The 2004 PPC
Agreement is attached hereto as Exhibit F. On a motion to dismiss under Rule
12(b)(6), courts consider documents incorporated by reference in the complaint.
Ritchie, 342 F.3d at 908; Von Koenig, 2010 WL 1980208. As the 2004 PPC
Agreement is referred to throughout Plaintiffs FAC in this action (see, e.g., FAC
99, 121, 169, 171-172, 177-178) and an alleged basis of Plaintiffs First, Third,
Fourth and Sixth Claims for Relief, it is proper for the Court to consider the 2004
PPC Agreement on Defendants motion to dismiss.
7. Defendants request that the Court take judicial notice that DC Comics
was in possession of the 2001 and 2003 PPC Agreements, and the 2002 IPWW
Agreement on or before November 17, 2006. Rule 201 of the Federal Rules of
Evidence permits a court to take judicial notice of a fact that is not subject to
reasonable dispute in that it is capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid.
201(b). Subsection (d) [of Rule 201] makes the taking of judicial notice mandatory
if the Court is so requested and supplied with the necessary information. Haye v.
United States, 461 F. Supp. 1168, 1174 (C.D. Cal. 1978). That the 2001 and 2003
PPC Agreements and 2002 IPWW Agreement were produced to DC in the closely-
related case Siegel v. Warner Bros. Entertainment Inc., C.D. Cal. Case No. 04-CV-
08400 ODW (RZx) (Siegel) is not subject to reasonable dispute. Such agreements,
#:21909
EXHIBIT BB
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#:37777

5
TO DISMISS

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attached hereto as Exhibits B, C and D, respectively, were Bates stamped as follows:
2001 PPC Agreement: PPC 00005-00008
2003 PPC Agreement: PPC 00001-00004
2002 IPWW Agreement: IPW 00001-00004
See also November 15, 2006 letter from Marc Toberoff to counsel for DC, including
facsimile cover sheet, attached hereto as Exhibit G, enclosing the document
productions Bates-stamped IPW 00001-00016 and PPC 00001-00009; Werner v.
Werner, 267 F.3d 288, 295-296 (3d Cir. 2001) (determination on a motion to dismiss
of whether defendants produced corporate meeting minutes during discovery in
related state court action is capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned by [defendants]).
Moreover, it cannot be disputed that DC Comics had possession of the 2001
and 2003 PPC Agreements, and the 2002 IPWW Agreement on or before November
17, 2006, as they were introduced as exhibits by DC Comics in its deposition of Marc
Toberoff in Siegel, which took place on November 17, 2006. See cover pages and
exhibits list of the transcript of the deposition of Marc Toberoff and documents
stamped as Exhibits 13, 14, & 18 thereto, attached hereto as Exhibit H; Brodsky v.
Yahoo! Inc., 630 F. Supp. 2d 1104, 1111 (N.D. Cal. 2009) (court takes judicial notice
on a motion to dismiss of conference call transcripts for the fact that statements were
made on the dates specified).
8. Defendants request that the Court take judicial notice of a letter from
attorney Marc Toberoff to DCs attorney Michael Bergman dated May 2, 2008,
which was Exhibit B to the Declaration of Michael Bergman in Support of DCs
Motion to Compel filed on December 30, 2008 (Docket Nos. 395-1, 395-2) in the
related Siegel case. A true and correct copy of the December 30, 2008 Declaration of
Michael Bergman and the May 2, 2008 Letter, as redacted by DCs counsel, is
attached hereto as Exhibit I. It is proper for the Court to take judicial notice of
proceedings and determinations of prior related litigation. 1-201 Weinsteins Federal
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#:37778

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TO DISMISS

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Evidence 201.12[3] (Courts have the power to judicially recognize their own
records of prior litigation closely related to the present case). See Stein v. State of
Arizona, 2010 WL 2541136 (D. Ariz. June 18, 2010) (on motion to dismiss, taking
judicial notice of plaintiffs sentencing documents and release order in related
criminal case against plaintiff) (citing Emrich v. Touche Ross & Co., 846 F.2d 1190,
1198 (9th Cir. 1988)); Reyns Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746
n.6 (9th Cir. 2006) (taking judicial notice, as a matter of public record, of briefs,
pleadings, memoranda, expert reports from related litigation); Kourtis v. Cameron,
419 F.3d 989, 1001 (9th Cir. 2005) ([C]ourt records from related proceedings can be
taken into account without converting a motion to dismiss into a summary judgment
motion), abrogated on other grounds by Taylor v. Sturgell, 553 U.S. 880 (2008).
9. Defendants request that the Court take judicial notice of the Judgment
dated May 17, 2011 (Docket No. 669), that this Court entered in the related Siegel
case. A true and correct copy of the Judgment is attached hereto as Exhibit J. It is
proper for the Court to take judicial notice of proceedings and determinations of prior
related litigation. 1-201 Weinsteins Federal Evidence 201.12[3]. See Stein, 2010
WL 2541136 (citing Emrich, 846 F.2d at 1198); Reyns Pasta Bella, LLC, 442 F.3d
at 746 n.6.
Pursuant to Federal Rules of Evidence 201, and for the reasons set forth above,
Defendants respectfully request that this Court take judicial notice of the documents
described above.
Dated: October 14, 2011 RESPECTFULLY SUBMITTED,
/s/ Laura Brill
Laura Brill

Attorneys for Defendants Marc Toberoff, Pacific
Pictures Corporation, IP Worldwide, LLC, and
IPW, LLC

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#:37779

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TO DISMISS

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/s/ Marc Toberoff
Marc Toberoff

Attorneys for Defendants Mark Warren Peary, as
personal representative of the Estate of Joseph
Shuster, Jean Adele Peavy, and Laura Siegel
Larson, individually and as personal representative
of the Estate of Joanne Siegel

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#:37780
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DC RESPONSE TO DEFS REQUEST FOR
JUDICIAL NOTICE ISO MOT. TO DISMISS

DANIEL M. PETROCELLI (S.B. #097802)
dpetrocelli@omm.com
MATTHEW T. KLINE (S.B. #211640)
mkline@omm.com
CASSANDRA L. SETO (S.B. #246608)
cseto@omm.com
OMELVENY & MYERS LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, CA 90067-6035
Telephone: (310) 553-6700
Facsimile: (310) 246-6779

PATRICK T. PERKINS (admitted pro hac vice)
pperkins@ptplaw.com
PERKINS LAW OFFICE, P.C.
1711 Route 9D
Cold Spring, NY 10516
Telephone: (845) 265-2820
Facsimile: (845) 265-2819

Attorneys for Plaintiff DC


CENTRAL DISTRICT OF CALIFORNIA

DC COMICS,

Plaintiff,

v.

PACIFIC PICTURES
CORPORATION, IP WORLDWIDE,
LLC, IPW, LLC, MARC TOBEROFF,
an individual, MARK WARREN
PEARY, as personal representative of
the ESTATE OF JOSEPH SHUSTER,
JEAN ADELE PEAVY, an individual,
LAURA SIEGEL LARSON, an
individual and as personal
JOANNE SIEGEL, and DOES 1-10,
inclusive,

Defendants.

Case No. CV 10-3633 ODW (RZx)
DC COMICS RESPONSE TO
DEFENDANTS REQUEST FOR
JUDICIAL NOTICE IN SUPPORT
ON CONSOLIDATED MOTION
TO DISMISS PURSUANT TO FED.
R. CIV. P. 12(b)(6) (Docket No. 331-
1)

Hon. Otis D. Wright II

Hearing Date: November 14, 2011
Hearing Time: 1:30 p.m.
Place: Courtroom 11

Complaint Filed: May 14, 2010
Discovery Cutoff: None Set

Case 2:10-cv-03633-ODW -RZ Document 335 Filed 10/24/11 Page 1 of 2 Page ID
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- 1 -
DC RESPONSE TO DEFS REQUEST FOR
JUDICIAL NOTICE ISO MOT. TO DISMISS

Plaintiff DC Comics hereby responds to defendants Request for Judicial
Notice In Support of Consolidated Motion To Dismiss Pursuant To Fed. R. Civ. P.
12(b)(6). Docket No. 331-1. DC does not oppose the Court taking judicial notice
of the evidence requested by defendants and would have told defendants as much
had they contacted DC before filing the request. DC does object to defendants
efforts, yet again, Docket No. 328, to evade the Courts page limitation on Rule 12
briefing by repeating and augmenting their Rule 12 arguments in the body of their
request for judicial notice. E.g., Docket No. 331-1 at 4-5. Such additional
argument should be stricken and are further grounds to deny defendants re-filed
Rule 12 motion.
Dated: October 24, 2011

Respectfully Submitted,
By: /s/ Daniel M. Petrocelli
Daniel M. Petrocelli

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Patricia Perello
From: cacd_ecfmail@cacd.uscourts.gov
Sent: Monday, October 24, 2011 8:33 PM
To: ecfnef@cacd.uscourts.gov
Subject: Activity in Case 2:10-cv-03633-ODW -RZ DC Comics v. Pacific Pictures Corporation et al
Response (non-motion)
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to
this e-mail because the mail box is unattended.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
apply to all other users. To avoid later charges, download a copy of each document during this first
viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not
apply.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
Notice of Electronic Filing

The following transaction was entered by Petrocelli, Daniel on 10/24/2011 at 8:32 PM PDT and filed on
10/24/2011
Case Name: DC Comics v. Pacific Pictures Corporation et al
Case Number: 2:10-cv-03633-ODW -RZ
Filer: DC Comics
Document Number: 335
Docket Text:
RESPONSE filed by Plaintiff DC Comics to Defendants' Request For Judicial Notice [333]
(Petrocelli, Daniel)

2:10-cv-03633-ODW -RZ Notice has been electronically mailed to:

Cassandra L Seto cseto@omm.com, swatson@omm.com

Daniel M Petrocelli dpetrocelli@omm.com

Keith Gregory Adams kgadams@ipwla.com

Laura W Brill lbrill@kbkfirm.com, docket@kbkfirm.com, jcontreras@kbkfirm.com

Marc Toberoff mtoberoff@ipwla.com

Matthew T Kline mkline@omm.com

Nathalie E Cohen ncohen@kbkfirm.com, docket@kbkfirm.com

Nicholas Calvin Williamson nwilliamson@ipwla.com
EXHIBIT CC
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#:37783
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Nicholas Frederic Daum ndaum@kbkfirm.com, docket@kbkfirm.com

Patrick T Perkins pperkins@ptplaw.com

Richard B Kendall rkendall@kbkfirm.com, docket@kbkfirm.com, ghunter@kbkfirm.com

2:10-cv-03633-ODW -RZ Notice has been delivered by First Class U. S. Mail or by other means to: :
The following document(s) are associated with this transaction:
Document description:Main Document
Original filename:C:\fakepath\10-24-11 DC's Response to Def's RJN.pdf
Electronic document Stamp:
[STAMP cacdStamp_ID=1020290914 [Date=10/24/2011] [FileNumber=12505082-
0] [ada63944ff848646d2e37153047f39f0d570d7804d6e3d66dadc35322006ec150e
36d110b6a905fe8794d8638926944dc20b2a2ebce551921bca000c1dc319ff]]

EXHIBIT CC
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#:37784
Page 1 of 2
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Circuit Mediation Office
Phone (415) 355-7900 Fax (415) 355-8566
http://www.ca9.uscourts.gov/mediation
MEDIATION QUESTIONNAIRE
The purpose of this questionnaire is to help the courts mediators provide the best possible mediation
service in this case; it serves no other function. Responses to this questionnaire are not confidential.
Appellants/Petitioners must electronically file this document within 7 days of the docketing of the case.
9th Cir. R. 3-4 and 15-2. Appellees/Respondents may file the questionnaire, but are not required to do so.
9th Circuit Case Number(s):
District Court/Agency Case Number(s):
District Court/Agency Location:
Case Name: v.
If District Court, docket entry number(s) of
order(s) appealed from:
Name of party/parties submitting this form:
Please briefly describe the dispute that gave rise to this lawsuit.
Briefly describe the result below and the main issues on appeal.
11-56934
CV-10-3633
Central District of California, Western Division
DC Comics Pacific Pictures Corporation, et al.
337
Defendants, Pacific Pictures Corp. et al.
Attorney Marc Toberoff represents the heirs of Superman's co-creators, Siegel and Shuster, in long-standing
copyright litigation with DC Comics (DC) and its parent, Warner Bros. Entertainment Inc. (Warner), which
commenced in 2004. After years of litigation, Mr. Toberoff won key victories on behalf of his clients in Siegel v.
Warner Bros. Entertainment Inc., C.D. Cal. Case No. 04-CV-08400, 542 F. Supp. 2d 1098 (C.D. Cal. 2008) (the
Siegel Case), vindicating the heirs' right pursuant to 17 U.S.C. 304(c) to terminate Siegel and Shusters old
Superman copyright grants to DC. DC retaliated by filing baseless state-law claims for tortious interference against
Mr. Toberoff and entities with which he has been affiliated to obtain economic leverage over Mr. Toberoff and his
long-time clients. Mr. Toberoff contends that the claims arise from protected activity, including his efforts to assist
the heirs in vindicating their rights under federal copyright law.
On August 13, 2010, defendants moved to strike DCs Fourth, Fifth, and Sixth Claims pursuant to Californias
Anti-SLAPP statute; that motion was vacated on September 7, 2010, when DC filed an amended complaint. On
September 20, 2010, defendants filed a new Anti-SLAPP motion as to DCs amended complaint; that motion was
vacated on October 14, 2010 after full briefing. On January 14, 2011, defendants refiled their Anti-SLAPP motion,
and the parties then re-submitted their briefing in January 2011. On March 9, 2011, the District Court ordered the
parties to once again re-submit their briefing, which the parties did in March 2011. On June 1, 2011, at DCs
request, the District Court ordered the parties to file new opposition and reply briefs, which the parties did in
August 2011. On October 25, 2011, the District Court denied the Anti-SLAPP motion on the grounds that DC's
Fourth, Fifth and Sixth Claims were not subject to the Anti-SLAPP statute. That order is immediately appealable
pursuant to Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).
Case: 11-56934 11/09/2011 ID: 7961209 DktEntry: 3-1 Page: 1 of 2
EXHIBIT DD
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Page 2 of 2
Describe any proceedings remaining below or any related proceedings in other tribunals.
Provide any other thoughts you would like to bring to the attention of the mediator.
Any party may provide additional information in confidence directly to the Circuit Mediation Office at
ca09_mediation@ca9.uscourts.gov. Please provide the case name and Ninth Circuit case number in your
message. Additional information might include interest in including this case in the mediation program, the
cases settlement history, issues beyond the litigation that the parties might address in a settlement context,
or future events that might affect the parties willingness or ability to mediate the case.
CERTIFICATION OF COUNSEL
I certify that:
a current service list with telephone and fax numbers and email addresses is attached
(see 9th Circuit Rule 3-2).
I understand that failure to provide the Court with a completed form and service list
may result in sanctions, including dismissal of the appeal.
Signature
("s/" plus attorney name may be used in lieu of a manual signature on electronically-filed documents.)
Counsel for
Note: Use of the Appellate ECF system is mandatory for all attorneys filing in this Court, unless they are
granted an exemption from using the system. To file this form electronically in Appellate ECF, complete
the form, and then print the filled-in form to PDF (File > Print > PDF Printer/Creator). Then log into
Appellate ECF and choose Forms/Notices/Disclosure > File a Mediation Questionnaire.
The statutory termination rights of Siegels heirs regarding Superman were litigated in the closely related Siegel
Case. The District Court held that the Siegels termination was valid as to the first Superman story published in
Action Comics, No. 1 and other original Superman works. The case was then transferred to Judge Otis Wright on
November 20, 2009. Thereafter, a F.R.C.P. 54(b) judgment was entered, and the remainder of the case was stayed
pending an appeal by both sides of the Rule 54(b) judgment, currently before the Ninth Circuit, Case No. 11-55863.
In this action, C.D. Cal. Case No. 10-CV-3633, the District Court found that defendants had waived privilege on
numerous attorney-client communications that had been stolen from Mr. Toberoffs law firm and delivered to
Warner because Mr. Toberoff had produced the documents to the U.S. Attorneys Office, pursuant to a grand jury
subpoena and confidentiality agreement, as a condition of their investigation/prosecution of this crime. That order
is currently before this Circuit on a writ proceeding, Case No. 11-71844.
DC has taken the position that while this appeal is pending, it is entitled to pursue discovery on claims at issue in
this appeal, as well as interrelated federal claims asserted in its complaint.
The parties engaged in formal mediation sessions before the Hon. Daniel Weinstein (Ret.) in May-June 2008,
September 2009 and April 2010. The parties' efforts were unsuccessful. DC thereafter filed this action in May 2010.
The parties have scheduled a further mediation for December 1, 2011.
/s/ Marc Toberoff
Laura Siegel Larson, Jean Adele Peavy and Mark Warren Peary
EXHIBIT DD
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#:37786
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SERVICE LIST

SERVICE LIST
OMELVENY & MYERS LLP
Daniel M. Petrocelli
dpetrocelli@omm.com
Matthew T. Kline
mkline@omm.com
Cassandra L. Seto
cseto@omm.com
1999 Avenue of the Stars, 7th Floor
Los Angeles, CA 90067-6035
Telephone: (310) 553-6700
Facsimile: (310) 246-6779

Attorneys for Plaintiff-Appellee,
DC Comics

PERKINS LAW OFFICE, P.C.
Patrick T. Perkins
pperkins@ptplaw.com
1711 Route 9D
Cold Spring, NY 10516
Telephone: (845) 265-2820
Facsimile: (845) 265-2819

Attorneys for Plaintiff-Appellee,
DC Comics

Marc Toberoff
mtoberoff@ipwla.com
Keith G. Adams
kgadams@ipwla.com
2049 Century Park East, Suite 3630
Telephone: (310) 246-3333
Facsimile: (310) 246-3101

Attorneys for Defendants-Appellants,
Mark Warren Peary, as personal
representative of the Estate of Joseph
Shuster, Jean Adele Peavy, and Laura
Siegel Larson, individually and as
personal representative of the Estate of
Joanne Siegel
Richard B. Kendall (State Bar No. 90072)
rkendall@kbkfirm.com
Laura W. Brill (State Bar No. 195889)
lbrill@kbkfirm.com
Nicholas F. Daum (State Bar No. 236155)
ndaum@kbkfirm.com
10100 Santa Monica Blvd., Suite 1725
Telephone: (310) 556-2700
Facsimile: (310)556-2705

Attorneys for Defendants-Appellants,
Marc Toberoff, Pacific Pictures
Corporation, IP Worldwide, LLC, and
IPW, LLC

EXHIBIT DD
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#:37787
1
Patricia Perello
From: ca9_ecfnoticing@ca9.uscourts.gov
Sent: Wednesday, November 09, 2011 7:37 PM
To: Docket
Subject: 11-56934 DC Comics v. Pacific Pictures Corporation, et al "File a Mediation Questionnaire"
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
apply to all other users. To avoid later charges, download a copy of each document during this first
viewing.
United States Court of Appeals for the Ninth Circuit
Notice of Docket Activity

The following transaction was entered on 11/09/2011 at 7:37:17 PM PST and filed on 11/09/2011
Case Name: DC Comics v. Pacific Pictures Corporation, et al
Case Number: 11-56934
Document(s): Document(s)

Docket Text:
Filed (ECF) Appellants Laura Siegel Larson, Mark Warren Peary and Jean Adele Peavy Mediation
Questionnaire. Date of service: 11/09/2011. [7961209] (MT)

The following document(s) are associated with this transaction:
Document Description: Main Document
Original Filename: DC v. PPC.Appeal.Anti-SLAPP.Mediation_Questionnaire.11.9.2011.print.pdf
Electronic Document Stamp:
[STAMP acecfStamp_ID=1106763461 [Date=11/09/2011] [FileNumber=7961209-0]
[1ded8e517f31d672ca0cf9ffc7066cda7a63dfab676b54f552fd56a6741c4f9952c431b27850aa3be7eefe74c423a2
d157725c1b4bd2be083a49552e780e2d7c]]

Document Description: Service List
Original Filename: DC v. PPC.Appeals.Anti-SLAPP.Service-List.11.9.2011.pdf
Electronic Document Stamp:
[STAMP acecfStamp_ID=1106763461 [Date=11/09/2011] [FileNumber=7961209-1]
[06e2f6f60b42b9ef94b30e7da187dd9ef98a094e499c2f1148d7b032054c9357d4974829b9ac56a8123f0f699d4f0
868362882fa635d397d8f6c728ddb5d11d7]]

Notice will be electronically mailed to:

Petrocelli, Daniel
Mr. Kendall, Richard B., Attorney
EXHIBIT DD
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#:37788
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Brill, Laura W.
Toberoff, Marc
Mr. Kline, Matthew T.
Ms. Seto, Cassandra
Mr. Perkins, Patrick
Mr. Daum, Nicholas Frederic, Attorney
Mr. Adams, Keith Gregory, Attorney
EXHIBIT DD
456
#:37789

DEFENDANT MARC TOBEROFFS RESPONSE TO
PLAINTIFF DC COMICS SECOND SET OF INTERROGATORIES

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mtoberoff@ipwla.com
kgadams@ipwla.com
Pablo D. Arredondo (State Bar No. 241142)
parredondo@ipwla.com
22631 Pacific Coast Highway, #348
Malibu, California, 90265
Telephone: 310.246.3333
Facsimile: 310.246.3101

Attorneys for Defendants Marc Toberoff,
Pacific Pictures Corporation, IP
Worldwide, LLC, and IPW, LLC


DC COMICS,
Plaintiff,
vs.

MARK WARREN Peary, as personal
OF JOANNE SIEGEL,
and DOES 1-10, inclusive,

Defendants.


DEFENDANT MARC
TOBEROFFS RESPONSE TO
PLAINTIFF DC COMICS
SECOND SET OF
INTERROGATORIES

Complaint Filed: May 14, 2010

EXHIBIT EE
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DEFENDANT MARC TOBEROFFS RESPONSE TO PLAINTIFFS SECOND SET OF
INTERROGATORIES
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Defendant Marc Toberoff (Defendant) responds as follows to the Second Set
of Interrogatories dated January 24, 2012 (the Interrogatories) propounded by
plaintiff DC Comics (Plaintiff or DC).
I.
PRELIMINARY STATEMENT
Defendant will construe the terms YOU and YOUR to refer to Marc
Toberoff.
No incidental or implied admissions are intended by Defendants responses to
the Interrogatories. The supplying of any fact does not constitute an admission by
Defendant that such fact is relevant or admissible. The fact that Defendant has
responded to any interrogatory is not intended to be and shall not be construed as a
waiver by Defendant of all or any part of any objection to any interrogatory.
Defendant reserves until the time of trial all objections as to the relevance or
admissibility of any facts provided in its answers to the Interrogatories.
The responses set forth herein are based on information now available to Defendant
and Defendant reserves the right to revise, correct, add, clarify or supplement the
general and specific objections and responses set forth herein.
II.
RESPONSES TO INTERROGATORIES
Subject to, and without waiving the qualifications above, Defendant responds
to each individual Interrogatory as follows:
Interrogatory No. 26
DESCRIBE in detail all efforts YOU have made to MARKET any rights
involving SUPERMAN and/or SUPERBOY.
Response to Interrogatory No. 26
Defendant objects to this interrogatory on the grounds that it is vague and
ambiguous, overbroad, burdensome and oppressive. Defendant further objects to this
request on the grounds that it is not reasonably limited in scope. Defendant objects to
EXHIBIT EE
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#:37791

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INTERROGATORIES
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this request to the extent that it seeks information which is not reasonably calculated
to lead to the discovery of relevant and admissible evidence. Defendant additionally
objects to this request to the extent that it seeks communications or items protected
by the attorney-client privilege, the attorney work product doctrine and any other
privilege or immunity available under law or arising from contractual obligation.
Subject to and without waiving the foregoing general and specific objections,
Defendant responds, without limitation, as follows:
In 2004, Ari Emanuel and Marc Toberoff engaged in negotiations with Warner
Bros. Entertainment Inc. regarding the sale and/or license of Joanne Siegel and Laura
Siegel Larsons (the Siegels) rights in Superman and Superboy to Warner.
However Warner Bros. proposed terms that were virtually identical to its settlement
proposal to the Siegels in 2001-2002, which they had rejected. The Siegels once
again rejected such proposal.
Subsequently, there have been settlement discussions with DC Comics/Warner
Bros. in DC Comics v. Pacific Pictures Corp., Case No. 10-CV-03633, Siegel v.
Warner Bros. Entertainment Inc., Case No. 04-CV-08400 ODW (RZx), and Siegel v.
Time Warner Inc. et al., Case No. 04-CV-08776 ODW (RZx). Mediation sessions
were held with Hon. Daniel Weinstein (Ret.) of JAMS in May-June 2008, September
2009 and April 2010, and with Judge Weinstein and Kenneth Ziffren in December
2011. The mediation has yet to result in a settlement, however, discussions are
ongoing.
On December 4, 2008, in an in-person meeting with Peter Schlessel, then
President of Worldwide Affairs for Sony Pictures Entertainment, Marc Toberoff
discussed the potential license to Sony Pictures Entertainment of the Superman rights
recaptured by the Siegels. They had a follow-up telephone conversation several
weeks later.
In April-May 2010, Marc Toberoff discussed the potential license to
Paramount Pictures of the Superman rights recaptured by the Siegels with Rob
EXHIBIT EE
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#:37792

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Moore, Vice Chairman of Paramount Pictures, and his support staff. There was an
initial telephone call including John Fogelman, Marc Toberoff, and Rob Moore on
April 21, 2010; a further call including John Fogelman, Marc Toberoff and Rob
Moore on April 29, 2010; and an in-person meeting including John Fogelman, Marc
Toberoff and Rob Moore on May 12, 2010 at the Paramount Pictures lot. In addition,
there were various e-mails exchanged between April 21 and May 11, 2010.
On November 19, 2010, in an in-person meeting with Tom Rothman, CEO of
Fox Filmed Entertainment, and his support staff, Marc Toberoff discussed the
potential license to Filmed Entertainment of the Superman rights recaptured by the
Siegels.
IDENTIFY any PERSONS with whom YOU have COMMUNICATED in
connection with efforts to MARKET any rights involving SUPERMAN and/or
SUPERBOY.
Laura Siegel Larson, c/o Toberoff & Associates, P.C., 22631Pacific Coast
Highway, Suite #348, Malibu, California 90265.
Joanne Siegel, deceased.
EXHIBIT EE
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#:37793

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INTERROGATORIES
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Mark Warren Peary and Jean Adele Peavy, c/o Toberoff & Associates, P.C.,
22631 Pacific Coast Highway, Suite #348, Malibu, California 90265.
Warner Bros. Entertainment Inc./DC Comics, including John Schulman,
Wayne Smith, Paul Levitz, Dianne Nelson and John Rogovin, 4000 Warner
Boulevard, Burbank, California, 91522, as well as outside counsel for the same.
William Morris Endeavor, including Ari Emanuel and John Fogelman, 9601
Wilshire Boulevard, Beverly Hills, California 90212.
Sony Pictures Entertainment, including its then President of Worldwide Affairs
Peter Schlessel, 10202 West Washington Boulevard, Culver City, California 90232.
Paramount Pictures Corporation, including its then Vice-Chairman Robert
Moore, 5555 Melrose Avenue, Hollywood, CA, 90038.
Fox Filmed Entertainment Group, including its then Chief Executive Officer,
Thomas Rothman, 10201 W. Pico Blvd., Los Angeles, CA 90035.
DESCRIBE in detail when any efforts YOU have made to MARKET any
rights involving SUPERMAN and/or SUPERBOY took place.
As to discussions with Warner Bros. Entertainment, Inc. and DC Comics, from
EXHIBIT EE
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#:37794

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INTERROGATORIES
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2003 to the present.
As to discussions with Sony Pictures Entertainment, December 2008.
As to discussions with Paramount Pictures, April-May 2010.
As to discussions with Fox Filmed Entertainment Group, November 19, 2010.
DESCRIBE in detail all COMMUNICATIONS YOU have had with actual or
potential INVESTORS concerning rights involving SUPERMAN and/or
SUPERBOY.
Beginning in or around March 2002, and sporadically since then, Marc
Toberoff has had discussions with Ari Emanuel concerning potential
INVESTORS, including Mr. Emanuel himself, in Superman rights recaptured by
the Siegels.
On December 4, 2008, in an in-person meeting with Peter Schlessel, then
President of Worldwide Affairs for Sony Pictures Entertainment, Marc Toberoff
discussed the potential license to Sony Pictures Entertainment of the Superman rights
recaptured by the Siegels. They had a follow-up telephone conversation several
weeks later.
EXHIBIT EE
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#:37795

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In April-May 2010, Marc Toberoff discussed the potential sale and/or license
of the Superman rights recaptured by the Siegels with Rob Moore, Vice Chairman
of Paramount Pictures and his support staff. There was an initial telephone call
including John Fogelman, Marc Toberoff, and Rob Moore on April 21, 2010; a
further call including John Fogelman, Marc Toberoff and Rob Moore on April 29,
2010; and an in-person meeting including John Fogelman, Marc Toberoff and Rob
Moore on May 12, 2010 at the Paramount lot. In addition, there were various e-mails
exchanged between April 21 and May 11, 2010.
On November 19, 2010, in an in-person meeting with Tom Rothman, CEO of
Fox Filmed Entertainment, and his support staff, Marc Toberoff discussed the
potential license of the Superman rights recaptured by the Siegels.
IDENTIFY any PERSON with whom YOU have COMMUNICATED
concerning actual or potential INVESTORS in rights involving SUPERMAN and/or
SUPERBOY.
William Morris Endeavor, including Ari Emanuel and John Fogelman, 9601
Wilshire Boulevard, Beverly Hills, California 90212.
EXHIBIT EE
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Sony Pictures Entertainment, including its then President of Worldwide Affairs
Peter Schlessel, 10202 West Washington Boulevard, Culver City, California 90232.
Paramount Pictures Corporation, including its then Vice-Chairman Robert
Moore, 5555 Melrose Avenue, Hollywood, CA, 90038.
Fox Filmed Entertainment Group, including its then Chief Executive Officer,
Thomas Rothman, 10201 W. Pico Blvd., Los Angeles, CA 90035.
DESCRIBE in detail when YOU have COMMUNICATED with actual or
potential INVESTORS concerning rights involving SUPERMAN and/or
SUPERBOY.
With Ari Emanuel, since March, 2002, sporadic and ongoing.
With Sony Pictures Entertainment, on December 4, 2008.
With Paramount Pictures, April-May 2010.
With Fox Filmed Entertainment Group, on November 19, 2010.

EXHIBIT EE
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#:37797

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Dated: February 23, 2012 TOBEROFF & ASSOCIATES

/s/ Keith G. Adams
Keith G. Adams
Attorneys for Defendants

EXHIBIT EE
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#:37798

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VERIFICATION
I declare under penalty of perjury that on information and belief the facts set
forth in the foregoing answers to the Interrogatories are true to the best of my present
knowledge and belief.

DATED: February 23, 2012

Marc Toberoff

Print Name of Signatory Signature

EXHIBIT EE
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#:37799
In The Matter Of:
DCCOMICS
v.
PACIFICPICTURESCORPORATION
___________________________________________________
TOBEROFF,MARCVol.1
September18,2012
_____________________________________________
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#:37800
MARC TOBEROFF - 9/18/2012
Los Angeles - 800-826-0277 www.merrillcorp.com/law
Merrill Corporation - Los Angeles
Page 1
CENTRAL DISTRICT OF CALIFORNIA
DC COMICS, )
)
Plaintiff, )No.
)CV-10-3633 ODW (RZx)
VS. )
)
PACIFIC PICTURES CORPORATION,)
IP WORLDWIDE, LLC, IPW, LLC, )
MARC TOBEROFF, an individual,)
Laura Siegel Larson, as )
personal representative of )
the ESTATE OF JOSEPH SHUSTER,)
JEAN ADELE PEAVY, an )
individual, JOANNE SIEGEL, )
an individual, LAURA SIEGEL )
LARSON, an individual, and )
DOES 1-10, inclusive, )
)
Defendants. )
)
__________)
VIDEOTAPED DEPOSITION OF MARC TOBEROFF
TAKEN ON
TUESDAY, SEPTEMBER 18, 2012
Reported by: SHANDA GABRIEL
CSR No. 10094
EXHIBIT FF
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#:37801
Page 2
1 Videotaped deposition of MARC TOBEROFF,
2 taken on behalf of the Plaintiff, at 1999 Avenue of
3 the Stars, Los Angeles, California, commencing at
4 9:25 a.m., TUESDAY, SEPTEMBER 18, 2012, before
5 SHANDA GABRIEL, CSR No. 10094.
6
7 APPEARANCES:
8 FOR THE PLAINTIFF:
9 O'MELVENY & MYERS LLP
10 BY: DANIEL M. PETROCELLI, ESQ.
11 JASON TOKORO, ESQ.
12 1999 Avenue of the Stars
13 7th Floor
14 Los Angeles, California 90067-6035
15 (310) 553-6700
16
09:25:49
FOR THE TOBEROFF ENTITY DEFENDANTS and MARC
17
09:25:49
TOBEROFF:
18
19
BY: RICHARD B. KENDALL, ESQ.
20
10100 Santa Monica Boulevard
21
Suite 1725
22
23
(310) 556-2700
24
25 ALSO PRESENT: FRITZ SPERBERG, VIDEOGRAPHER
EXHIBIT FF
469
#:37802
Page 5
1 LOS ANGELES, CALIFORNIA;
2 TUESDAY, SEPTEMBER 18, 2012
3 9:25 A.M.
4
5 THE REPORTER: I am making the following
6 statements pursuant to Rule 30(b)(5) of the Federal
7 Rules of Civil Procedure:
8 My name is Shanda Gabriel, C.S.R. 10094,
9 the videographer is Fritz Sperberg, both contracted
10 by Merrill Corporation, 20750 Ventura Boulevard,
11 Suite 205, Woodland Hills, California.
12 Today's date is September 18, 2012, the
13 time is 9:25 a.m. and this deposition is being held
14 at 1999 Avenue of the Stars, Los Angeles,
15 California.
16 Would counsel please state your appearances
17
09:25:39
and whom you represent:
18
09:25:39
MR. PETROCELLI: Daniel Petrocelli for
19
09:25:40
plaintiff, DC Comics.
20
09:25:42
MR. TOKORO: Jason Tokoro for plaintiff, DC
21
09:25:44
Comics.
22
09:25:44
MR. KENDALL: Richard Kendall on behalf of
23
09:25:47
the Toberoff entity defendants and Marc Toberoff.
24 THE REPORTER: The witness is Marc
25 Toberoff.
EXHIBIT FF
470
#:37803
Page 6
1 Would you please raise your right hand to
2 be sworn in.
3 MARC TOBEROFF,
4 having been first duly sworn, was
5 examined and testified as follows:
6
7 EXAMINATION
8 BY MR. PETROCELLI:
9
09:26:02
Q. I will address you as Mr. Toberoff for the
10
09:26:06
purpose of the deposition, if that's all right with
11
09:26:08
you.
12
09:26:08
A. I won't be offended.
13
09:26:11
Q. Can you tell us what your educational
14
09:26:15
background is?
15
09:26:16
A. I went to -- starting with what, college?
16
09:26:16
Q. Yeah.
17
09:26:22
A. I went to McGill University, and then in my
18
09:26:28
third year I transferred to Princeton, and then I
19
09:26:37
didn't -- I missed my girlfriend, essentially, and
20
09:26:41
transferred -- decided to go back to McGill and
21
09:26:45
graduated from McGill after being at Princeton, I
22
09:26:47
think, for -- between a half a year and a year. I'm
23
09:26:51
not sure.
24
09:26:51
Q. What year did you graduate?
25
09:26:53
A. In 1977.
EXHIBIT FF
471
#:37804
Page 27
1
09:52:34
of these entities?
2
09:52:36
A. I think basically whoever was the line
3
09:52:38
producer or primary producer of the picture.
4
09:52:43
Q. And these are projects in which you had
5
09:52:44
some kind of participation?
6
09:52:44
MR. KENDALL: Vague and ambiguou- --
7
09:52:44
THE WITNESS: Yes.
8
09:52:47
MR. KENDALL: Vague and ambiguous.
9
09:52:48
BY MR. PETROCELLI:
10
09:52:54
Q. IP Worldwide, that was a limited liability
11
09:52:58
company?
12
09:52:58
A. Yes.
13
09:53:00
Q. And who were its members?
14
09:53:01
A. Myself and Ari Emanuel.
15
09:53:08
Q. And was Endeavor at the time also a member?
16
09:53:11
A. I believe Endeavor -- I believe Endeavor
17
09:53:16
may have had some equity in it. I believe 10
18
09:53:18
percent.
19
09:53:19
Q. Did --
20
09:53:20
A. I'm not sure whether they were a member or
21
09:53:22
whether they simply were entitled to a percentage of
22
09:53:25
proceeds.
23
09:53:26
Q. A 10 percent contractual interest?
24
09:53:28
A. Right.
25
09:53:30
Q. Okay. Did IP Worldwide get replaced
EXHIBIT FF
472
#:37805
Page 174
1
14:39:42
A. I'd have to look at whether the 2003 PPC
2
14:39:47
agreement, what effect that had on this agreement.
3
14:39:53
But if that didn't have -- if that didn't effect
4
14:39:55
this provision, then it would be until we replaced
5
14:40:02
this agreement with a legal retainer dated as of
6
14:40:05
November 23rd, 2001.
7
14:40:06
Q. But signed when?
8
14:40:09
A. Signed in -- I think it was 2004.
9
14:40:11
Q. Okay. We'll get to that one.
10
14:40:22
Is it fair to say in 2001 when PPC entered
11
14:40:26
into this joint venture agreement with Jean Peavy
12
14:40:28
and Mark Peary, you understood that in a legal
13
14:40:38
retainer agreement, you as a lawyer would not be
14
14:40:41
permitted to include a provision that said that the
15
14:40:44
client requires your consent to settle, correct?
16
14:40:50
MR. KENDALL: Objection. Calls for a legal
17
14:40:50
conclusion. Incomplete hypothetical.
18
14:41:00
THE WITNESS: I know that's the case
19
14:41:01
sitting here today. I can't -- I can't -- I don't
20
14:41:04
have a -- I don't have a specific knowledge of
21
14:41:08
whether I knew that in 2001.
22
14:41:08
BY MR. PETROCELLI:
23
14:41:10
Q. Do you have any reason to believe you
24
14:41:11
didn't know that in 2001?
25
14:41:17
A. I don't have a reason to believe either
EXHIBIT FF
473
#:37806
Page 265
1
17:10:29
starting with that 2001 form of agreement and even
2
17:10:33
under the 2003 agreement it was just simpler to have
3
17:10:39
a simple retainer.
4
17:10:40
And the idea was to replace -- to cancel
5
17:10:42
and replace that agreement with this retainer
6
17:10:44
agreement. That's why it was both dated as of the
7
17:10:47
exact same date.
8
17:10:49
Q. Was it prepared, that is Exhibit 20 and
9
17:10:56
Exhibit 21, at or about the time of commencement of
10
17:10:58
litigation in the Siegel case?
11
17:11:04
A. I think it was prepared before that.
12
17:11:05
Q. The Siegel litigation was in October 2004?
13
17:11:07
A. When we filed the Siegel lawsuit?
14
17:11:13
Q. Yes.
15
17:11:13
A. It was either October or November. I -- I
16
17:11:16
would -- it would be helpful to know the date when I
17
17:11:20
entered into the Siegel litigation retainer
18
17:11:22
agreement. I didn't know whether that was -- if
19
17:11:29
that was around September 10, 2004.
20
17:11:37
Q. Take a look at that document which has also
21
17:11:40
been produced to us in redacted form. It's dated
22
17:11:43
October 3, 2004.
23
17:11:48
THE WITNESS: October 3, 2004?
24
17:11:50
MR. PETROCELLI: Yeah. That will be marked
25
17:11:51
as Exhibit 103.
EXHIBIT FF
474
#:37807
Page 268
1
17:15:24
others to consummate a settlement?
2
17:15:26
A. I don't believe that had any requirement of
3
17:15:37
any other consent than Joanna and Laura to a
4
17:15:44
settlement.
5
17:15:44
Q. Any such requirement --
6
17:15:46
A. I don't believe the Shuster retainer
7
17:15:48
agreement has that also. But in your -- your -- I
8
17:15:56
don't have the unredacted agreement in front of me
9
17:15:59
to verify that.
10
17:16:00
Q. And that requirement after 2004, the first
11
17:16:06
time that requirement came into existence was in
12
17:16:08
2008 when the parties signed the consent agreement?
13
17:16:14
MR. KENDALL: What requirement?
14
17:16:15
MR. PETROCELLI: The requirement for the
15
17:16:16
consent of another to consummate a settlement.
16
17:16:23
THE WITNESS: Well, again, we're getting
17
17:16:25
into an area of where we assert a privilege, and
18
17:16:27
privilege has been upheld, so my answer is without
19
17:16:30
waiver of privilege, same agreement, correct?
20
17:16:30
BY MR. PETROCELLI:
21
17:16:33
Q. Yes.
22
17:16:33
A. Okay. And I'm also discussing what has
23
17:16:37
already been disclosed, which is essentially -- and
24
17:16:41
now I've forgotten the question. So I prepared -- I
25
17:16:45
prepared the record to answer the question.
EXHIBIT FF
475
#:37808
Page 269
1
17:16:46
Q. My question was the first time that a
2
17:16:48
requirement for the consent of another to consummate
3
17:16:51
a settlement was 2008, after the 2004 agreements?
4
17:16:57
A. With respect to the Siegels and Shusters?
5
17:16:57
Q. Yes. Correct.
6
17:16:57
A. Yes.
7
17:17:01
Q. Is the consent --
8
17:17:10
A. But I would answer that more specifically,
9
17:17:13
it's not the consent of another. You're technically
10
17:17:15
correct, but it's basically mutual consent of the
11
17:17:19
Siegels and Shusters to a settlement of their
12
17:17:21
termination interests.
13
17:17:22
Q. Did they receive --
14
17:17:25
A. Not my consent.
15
17:17:28
Q. Your consent is not required at all?
16
17:17:30
A. Absolutely not.
17
17:17:31
Q. And not any entity associated with you?
18
17:17:34
A. Correct.
19
17:17:34
Q. Okay. And no third party, it's just the
20
17:17:39
Siegels and the Shusters?
21
17:17:39
A. Correct.
22
17:17:40
Q. Okay. Is -- is it both Mark --
23
17:17:51
A. And -- and --
24
17:17:53
Q. -- Warren Peary and Jean?
25
17:17:54
A. I was just about to say that the -- the
EXHIBIT FF
476
#:37809
Page 270
1
17:17:58
consent, I believe, is the executor.
2
17:18:04
Q. On the Shuster side?
3
17:18:05
A. I believe so.
4
17:18:08
Q. And on the Siegel side?
5
17:18:09
A. I'm not 100 percent certain.
6
17:18:11
On the Siegel side it was Laura and Joanne.
7
17:18:14
Q. Now it's just Laura?
8
17:18:15
A. Correct.
9
17:18:19
Q. Did -- you said that there was a conflict
10
17:18:24
waiver signed by Peary in or about 2008, I believe?
11
17:18:34
A. Yes.
12
17:18:35
Q. What prompted that?
13
17:18:35
A. The consent agreement.
14
17:18:37
MR. KENDALL: Just a minute. I think we're
15
17:18:38
getting into a slightly different area.
16
17:18:40
So, again, I just want to caution you on
17
17:18:43
privilege. And I assume we have the same
18
17:18:47
understanding, that it will not be a waiver, so
19
17:18:49
you'll just have to make a determination whether
20
17:18:51
you -- you want to provide this information since it
21
17:18:55
may be privileged.
22
17:18:56
MR. PETROCELLI: I believe he answered the
23
17:18:58
question. He said "the consent agreement."
24
17:19:06
MR. KENDALL: So he did, but that's because
25
17:19:07
he didn't give me an opportunity to object first and
EXHIBIT FF
477
#:37810
Page 271
1
17:19:10
give him a caution first.
2
17:19:10
BY MR. PETROCELLI:
3
17:19:12
Q. Do you know whether the Shusters received
4
17:19:16
independent legal advice regarding the conflict
5
17:19:22
waiver or the consent agreement?
6
17:19:23
A. I don't know whether they did or did not.
7
17:19:27
Q. And do you know whether the Siegels did?
8
17:19:32
A. I believe the Siegels did.
9
17:19:34
Q. Do you know the name of the attorney?
10
17:19:35
A. George Zadorozny.
11
17:19:40
Q. George Zadorozny?
12
17:19:42
A. And I don't -- they may have -- I know that
13
17:19:46
whenever it came to something like that, they would
14
17:19:48
run it by George Zadorozny and/or George Zadorozny
15
17:19:54
and Arthur Levine or just George Zadorozny.
16
17:19:58
Q. Did you send copies of the consent
17
17:20:00
agreement to George or Arthur?
18
17:20:06
A. No, that wasn't the practice.
19
17:20:08
MR. KENDALL: Marc, take your hand away
20
17:20:09
from your face because it interferes with the
21
17:20:12
projection of your voice.
22
17:20:13
THE WITNESS: Okay.
23
17:20:13
BY MR. PETROCELLI:
24
17:20:16
Q. It also detracts from your -- your
25
17:20:18
appearance.
EXHIBIT FF
478
#:37811
Page 272
1
17:20:18
A. Sophisticated demeanor.
2
17:20:23
Q. I know you said that Zadorozny would be
3
17:20:28
involved in certain matters.
4
17:20:30
A. "Zadorozny."
5
17:20:31
Q. "Zadorozny."
6
17:20:31
A. Yeah.
7
17:20:34
Q. Do you know for certain if he was involved
8
17:20:37
in the -- for the Siegels with respect to the 2008
9
17:20:45
consent agreement?
10
17:20:46
A. Not 100 percent certain, but that's my
11
17:20:50
belief.
12
17:20:53
Q. Did the Siegels --
13
17:20:53
A. Put it another way, I would be very
14
17:20:55
surprised if he was not.
15
17:20:56
Q. Did the Siegels also sign a conflict waiver
16
17:20:59
in 2008?
17
17:21:00
A. Yes.
18
17:21:00
Q. Do you know if he was involved in that
19
17:21:01
document?
20
17:21:05
A. I thought you just asked me that.
21
17:21:07
Q. I asked you about the consent agreement.
22
17:21:09
A. Oh, okay.
23
17:21:10
Q. Did you --
24
17:21:11
A. Two separate documents, yeah.
25
17:21:12
So consent agreement, it would be the same
EXHIBIT FF
479
#:37812
Page 273
1
17:21:14
answer for both.
2
17:21:16
Q. There are two documents that the Siegels
3
17:21:18
signed in 2008?
4
17:21:19
A. Yes.
5
17:21:19
Q. Okay.
6
17:21:19
A. And -- and now that you ask it that way, I
7
17:21:23
have even -- I -- I think it's even -- it's even
8
17:21:29
more likely that Zadorozny was involved with the --
9
17:21:35
with respect to the consent agreement, yes, and
10
17:21:39
since there were two agreements, including a
11
17:21:43
conflict waiver -- a conflict waiver and a consent
12
17:21:46
agreement, I believe he was involved in reviewing
13
17:21:47
those.
14
17:21:48
Q. And Zadorozny was involved in reviewing the
15
17:21:51
2004 retainer agreement with Joanne and Laura?
16
17:21:55
A. Yes.
17
17:22:00
Q. Why did you date the engagement for
18
17:22:05
professional services that you signed with Warren in
19
17:22:08
2004 as of November 23, 2001?
20
17:22:13
A. Two reasons. One, I wanted to make it
21
17:22:15
clear that this agreement was replacing the PPC
22
17:22:19
agreements and two, I wanted -- it was -- it was
23
17:22:27
like an assertion of privilege over our
24
17:22:33
relationship, attorney-client relationship
25
17:22:37
commencing at the latest on November 23rd, 2001 when
EXHIBIT FF
480
#:37813
Page 274
1
17:22:42
we signed the PPC agreement.
2
17:22:45
Q. When you signed the -- excuse me. Are you
3
17:22:50
a signatory to the consent agreement?
4
17:22:52
A. Only as to approval as to form.
5
17:22:59
Q. Okay. Did you receive independent legal
6
17:23:03
advice? Did you receive legal advice regarding that
7
17:23:06
subject whether the Siegels and Shusters could sign
8
17:23:14
a consent agreement without violating some law,
9
17:23:19
including the copyright statute?
10
17:23:21
MR. KENDALL: So that may call for
11
17:23:23
privileged information given the specificity of the
12
17:23:26
question. I just caution you not to reveal any
13
17:23:31
attorney-client communications you may have had with
14
17:23:34
anyone who was acting as your counsel or providing
15
17:23:37
legal advice.
16
17:23:46
THE WITNESS: But I can answer outside
17
17:23:53
of -- I can answer whether or not -- revealing
18
17:23:56
whether or not I did is not --
19
17:23:57
MR. KENDALL: If the answer is no, then
20
17:23:59
you're not revealing any attorney-client
21
17:24:01
communication. If the answer is yes, then you might
22
17:24:06
be, and so then you have to make a judgment as to
23
17:24:08
whether you wish to reveal that.
24
17:24:12
THE WITNESS: Not -- not any -- not outside
25
17:24:15
of my firm.
EXHIBIT FF
481
#:37814
Page 314
1 DECLARATION
2
3
4
5
6 I hereby declare I am the deponent in the
7 within matter; that I have read the foregoing
8 deposition and know the contents thereof, and I
9 declare that the same is true of my knowledge except
10 as to the matters which are therein stated upon my
11 information or belief, and as to those matters, I
12 believe it to be true.
13 I declare under the penalties of perjury of
14 the State of California that the foregoing is true
15 and correct.
16 Executed on the _____ day of
17 _________________ 2012, at
18 __________________________________________,
19 California.
20
21
22
23
24 ___________________________________
25 MARC TOBEROFF
EXHIBIT FF
482
#:37815
Page 315
1 STATE OF CALIFORNIA )
) ss.
2 COUNTY OF LOS ANGELES )
3
4 I, Shanda Gabriel, Certified Shorthand
5 Reporter, Certificate No. 10094, for the State of
6 California, hereby certify:
7 I am the deposition officer that
8 stenographically recorded the testimony in the
9 foregoing deposition;
10 Prior to being examined the witness was by
11 me first duly sworn;
12 The foregoing transcript is a true record
13 of the testimony given.
14 Before completion of the deposition, review
15 of the transcript [X] was [] was not requested. If
16 requested, any changes made by the deponent (and
17 provided to the reporter) during the period allowed
18 are appended hereto.
19
20 Dated _________________________.
21
22 _____________________________
Shanda Gabriel
23 CSR 10094
24
25
EXHIBIT FF
483
#:37816

Siegel and Shuster Document Archive - Settlements, Other Material From Pacific Pictures Case

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Siegel and Shuster Document Archive - Settlements, Other Material From Pacific Pictures Case

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DECLARATION OF KEITH G.

ADAMS IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY

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