Full opinion text
ORDER RESOLVING ADDITIONAL ISSUES STEPHEN G. LARSON, District Judge. The 1976 Copyright Act contains many intricate formalities that an author (or his or her heirs) must navigate to successfully terminate the grant to the copyright in an original work of authorship, but perhaps none is more fundamental an impediment than the one excluding from the reach of termination the copyright “in a work made for hire.” 17 U.S.C. § 304(c); see 1 Melville B. Nimmer, Nimmer on Copyright § 5.03[A] at 5-12 (2008) (commenting that the exclusion “relating to termination of transfers is probably the most important feature of the work for hire doctrine with respect to works created at present”); 3 William F. Patry, Patry on Copyright § 7:42 (2008) (labeling as a “significant exclusion” to the right to terminate the grant in “work-for-hire creations”). The complexity of the 1976 Act’s termination procedures stems as much from the fact that those provisions intersect with and must be construed in light of the body of copyright law that existed at the time the works were created (here, the 1909 Copyright Act) as from the intricacies set forth in the 1976 Act itself. This is particularly true when applying the “work made for hire” bar to works created under the auspices of the 1909 Act, as the law developed by the courts under that Act was oftentimes confused and not well-delineated, with its dimension continuing to evolve long after the effective date of the 1976 Act. See Easter Seal Society for Crippled Children and Adults of Louisiana, Inc. v. Playboy Enterprises, 815 F.2d 323, 325 (5th Cir.1987) (commenting that the term “work for hire” was undefined in statute, and that a “substantial body of cases developed as courts worked out the definition”). Having previously addressed the iconic superhero Superman’s first appearance in Action Comics No. 1 in its earlier decision, the Court now considers the myriad relationships and contractual arrangements surrounding the published works of Superman by his creators Jerome Siegel and Joseph Shuster for the years 1938 to 1943. The task of disentangling these relationships and agreements, and giving legal meaning to them, lies at the heart of this case. I. FACTUAL BACKGROUND When the Court last left Superman, the copyright in the earliest published version of the character, as depicted in the comic book Action Comics No. 1, had been reunited with the heirs of one of his creators, Jerome Siegel. See Siegel v. Warner Bros. Entertainment Inc., 542 F.Supp.2d 1098, 1145 (C.D.Cal.2008). One might have thought that with the extensive discussion of Superman’s creation and development therein, little more would be left to be said about Superman’s first years in print; as the Court has since learned, there is more to the story. Like the arc of a comic book serial, there has been an unfolding of evidence regarding the creation and subsequent publication of Superman. The parties have presented to the Court previously undisclosed evidence surrounding the back story to Superman’s creation before 1938, the character’s publication for the years 1938 to 1943 in comic books published by Detective Comics after Action Comics No. 1, and in the syndication of daily newspaper comic strips through the McClure Newspaper Syndicate. A. Pre-1938 Years: Superman’s Initial Creation and Development As recounted in the Court’s earlier Orders, the development of Superman evolved, with the character being reworked by Siegel and Shuster over a period of years. However, missing from that account and now disclosed is the existence of another collaborator. The story picks up with Siegel dramatically rescuing from the flames the cover art work from the pair’s initial version of the Superman character in heroic form (as a hulking strong man, sans super-human powers or alien origin, in the fashion of Flash Gordon) after Shuster grew despondent when the publisher to the comic book Detective Dan rescinded its offer to publish the material. See Siegel, 542 F.Supp.2d at 1103. This led to a split of sorts with Siegel, with Shuster apparently deciding he was no longer interested in continuing to illustrate Superman, and Siegel apparently concerned that the character was going nowhere under Shuster’s artistic direction. As Siegel later recounted, after the debacle with Detective Dan, Shuster became “very discouraged” and decided that he “did not want to work on Superman anymore.” (Decl. Marc Toberoff, Ex. F at 45). Undeterred, Siegel sought out other artists to illustrate his scripts as he continued to flesh out the Superman character. See Siegel, 542 F.Supp.2d at 1103 (“Undaunted, Siegel continued to tinker with his character, but decided to try a different publication format, a newspaper comic strip”). Notably, Siegel approached illustrator Russell Keaton, who at that time was providing the art work for the Buck Rogers Sunday newspaper strips. For a few months spanning the summer and fall of 1934, the pair exchanged correspondence and scripts for Superman. This activity culminated with Siegel and Keaton producing a week’s worth of newspaper comic strips (or nine horizontal strips, each containing four panels, with dialogue and illustrations), and Siegel drafting for Keaton’s consideration three scripts (for which no illustrations were ever created) for Superman that, taken together, demonstrated the evolving nature of the character. The story portrayed in the scripts and the week’s worth of illustrated material was devoted exclusively to Superman’s upbringing as a child by a couple known only as Sam and Molly Kent, and included the first inklings of a science fiction aspect to the character, albeit with a much different take on Superman’s now well-familiar origins. In this earlier version, Siegel conceived of Superman as having been sent as an infant back in time, to then-present day America (circa 1935), in a time machine created by “the last man on Earth” before the planet’s destruction. The story is also notable as it contained the first expression of Superman’s now familiar super-human powers: That he had a “physical structure millions of years advanced from” those living in 1935, leading him to possess “colossal strength,” the ability to “leap over a ten story building,” “run[] as fast as an express train,” and stated that “nothing less than a bursting shell could penetrate his tough skin.” Upon his arrival, Superman spoke a language that his adoptive parents did not understand, and the secret of his origins was tied to a cryptic mystery note accompanying him in the time machine. When, as an adult, Clark Kent was presented with the mystery note, he could not understand the words written on it. Both the illustrated strips and the scripts contain the by-line crediting its authorship to “Jerome Siegel and Russell Keaton.” (Decl. Marc Toberoff, Exs. C, D & E). Keaton eventually chose not to take a chance on someone with such little experience writing comics; by sometime in the first half of 1935, Siegel and Shuster resumed their creative partnership and were again working together on Superman, with the pair poised at the tipping point that would lead them to create the version of the character that would transform the comic book industry. In fact, it was shortly thereafter that Siegel would have his breakthrough moment, conceiving of the now-familiar Superman story on a “hot summer night.” It was then that Siegel combined his now developed Superman character as a mythic superbeing capable of fantastic feats with a new pseudo-scientific explanation for those feats to make them more plausible — the character’s extra terrestrial origin. Shuster then went about creating a graphical representation of Siegel’s character, replete with costume and distinctive physical features: The two then set about combining Siegel’s literary material with Shuster’s graphical representations. Together they crafted a comic strip consisting of several weeks’ worth of material suitable for newspaper syndication. Siegel typed the dialogue and Shuster penciled in artwork, resulting in four weeks of Superman comic strips intended for newspapers. The art work for the first week’s worth of “daily comic strips was completely inked” and thus ready for publication. The “three additional weeks of ‘Superman’ newspaper comic strip material” differed from the first week’s material “only in that the art work, dialogue and the balloons in which the dialogue appeared had not been inked,” instead consisting of no more than black-and-white pencil drawings. Siegel, 542 F.Supp.2d at 1105. Much of this four weeks’ worth of material was later re-cut and re-pasted into a comic book format and published in the first installment of Detective Comics’ comic book magazine Action Comics. Not widely known is the amount of material, beyond that published, the pair had created during these formative years, outside the watchful eye of any publisher. To begin, not all of the four weeks of pre-existing Superman material created by Siegel and Shuster found its way into print in Action Comics No. 1. During the editing process, Detective Comics decided to exclude the first weeks’ worth of material in order to accommodate space for other features in the comic book. As later explained by noted comic artist/writer/historian James Steranko in his 1989 forward to DC Comics publication of Superman Archives, Volume 1: McClure Syndicate agent M.C. Gaines, an early comics pioneer, just happened to have the Siegel and Shuster submission on his desk when president Harry Donenfeld [of Detective Comics] phoned, inquiring about original material to fill a new magazine he was assembling.... Donenfeld recognized the material’s appeal and ordered the newspaper strip repasted into comic-book format, with the first week eliminated to accommodate available space in the magazine, which was christened Action Comics.... The opening tale was reprinted in its entirety in Superman 1.... (emphasis added). Indeed, if one compares the material published in Superman No. 1 with that in Action Comics No. 1, the two mirror one another in every respect except that Superman No. 1 contains an additional six pages (the first six pages in the comic) filling in more details about Superman’s formative years as well as providing the prologue to the story told in Action Comics No. 1 (see Addendum A for the first six pages of Superman No. 1). Included in the famous first edition re-publication of Superman No. 1 is a forward by Siegel himself, which gives the following description of the origins and time of ci'eation for these first six pages of material: M.C. Gaines became involved in this enterprise[, the publication of Superman No. 1]. Readers may be especially interested in the letter he wrote to me on March 27, 1939 on Detective Comics, Inc. stationary: “With further reference to the SUPERMAN book ... we have decided ... that for the first six pages of the SUPERMAN book that we would like you to take the first page of SUPERMAN, which appeared in ACTION COMICS # 1, and by elaborating on this one page, using different ideas than those contained on this page, work up two introductory pages, the last panel of this second page to consist of the panel marked ‘X’ on the enclosed sheet. On these two pages, you will of course leave out the scientific explanation of Clark Kent’s amazing strength, as we want a separate page on that item to use further back in the book with the heading as follows: ‘Scientific Explanation of Superman’s Amazing Strength’, in which you will incorporate five or six various explanations, which we discussed while you were here in New York several days ago. (Decl. Marc Toberoff, Ex. GG). Thus, the first two pages in Superman No. 1 was composed of material created by Siegel and Shuster in 1939 when the comic book was published, but the following four pages in the comic (pages three through six) represent the first week of Superman material the pair had crafted in 1935. Beyond this first four weeks of material (containing Siegel’s dialogue and Shuster’s illustrations) that was later re-cut and re-pasted in comic book format, Siegel also had written Superman material to which Shuster provided no illustrations. For example, Siegel wrote a paragraph previewing future Superman exploits which was contained at the end of a “nine-page synopsis of the storyline appearing in the three weeks of penciled daily Superman newspaper comic strips.” 542 F.Supp.2d at 1105. The paragraph Siegel wrote previewing future Superman exploits has now been produced in this case: This ends the first month’s release and yet the potentialities of the character, SUPERMAN, has barely been scratched. He’s headed for the most exciting and yet humorous adventures this world has even seen. He will win a war single-handed, battle an airplane with his bare hands, swim several hundred miles and think nothing of it, etc. He’s different and sure to become the idol of young and old. He’ll participate in sports and astound the nation; he’ll single-handed rescue a town from a flood through his super-strength. Unlike most adventure strips the scene of the story will not be laid in some fantastic, unknown jungle or planet or country, but will be all the more astounding for having its locale on familiar streets. SUPERMAN will operate against a background of America’s most well-known cities, buildings, and pleasure-spots. (Decl. Marc Toberoff, Ex. A at 12 (emphasis in original)). These broad outlines later found expression in the plot of Action Comics No. 2, which involved Superman single-handedly averting a war brewing in the fictional country of San Monte that had been instigated by a corporate war profiteer. In that comic book, there is a series of panels revealing Superman battling a fighter plane in mid-air with his bare hands, and there is also a series of panels depicting Superman swimming a great distance in the ocean. Action Comics No. 4 similarly gives concrete expression to the idea pitched in Siegel’s paragraph, telling the story of Superman interceding in a college football game and using his superpowers on the field to astound the crowd. Finally, in Action Comics No. 5, Superman is shown saving a town from a flood after a huge dam breaks. Moreover, even with the renewed partnership with Shuster, Siegel still looked to and would lift material he had created while corresponding with Keaton, and use it for publications of his newly conceived Superman character. Thus, in November, 1934, Siegel sent to Keaton, a nine-page “synopsis of what will occur during the next two months” to convince a potential publisher to bring the extant version of Superman to print. The synopsis submitted by Siegel is of the college football story alluded to a year later in Siegel’s “future exploits” paragraph and tracks almost precisely the storyline, both the dialogue and the action direction, that was later published by Detective Comics in Action Comics No. 4. The following example, comparing Siegel’s 1934 script with a portion of the published material found in Action Comics No. 4, is typical of this near seamless interweaving between these two items. The narrative from Siegel’s script is followed by the embodiment thereof in Action Comics No. 4: Script (page 6) The coach says: “This is going to be good! The sap is running for a goal, with everyone on the field trying to stop him. There goes Martin for him. Watch Burke come down faster than a window-shade!” Martin is the first to reach SUPERMAN. As he dives for a tackle he says: “This is for poking into my locker!” SUPERMAN’S outhrust arm connects with Martin’s face, thrusting off the tackier. “And this,” says SUPERMAN, “is for busting me on the jaw!” Three more players close in on SUPERMAN, from all sides. The coach says to his assistant: “He’ll have to be a superman to get by them.” SUPERMAN leaps to the shoulder of one of the three oncoming players, and springs on over the other two. The coach’s assistant replies: “There’s your superman!” SUPERMAN is already half-way down the field. The coach’s assistant says: “I believe he’s going to make it!” To which Coach Oliver replies: “Just fool’s luck so far. Wait until he meets our ‘unbeatables’ — -Stevens, Burns, and Dennis.” The entire remaining team piles onto SUPERMAN. The coach yells: “They’ve got him!” Action Comics No. 4 (page 8): B. Superman’s Publication in Comic Books and Newspaper Strips Siegel and Shuster’s well-traveled Superman concept was eventually published by Detective Comics in the premiere issue of its comic book magazine Action Comics in April, 1938, becoming an almost instant success whose popularity endures to this day and whose depiction has been transferred to various media formats. It is in this transfer to different formats that yet another portion of the untold history of Superman’s first years in print takes shape. Shortly before the publication of Action Comics No. 1, Siegel and Shuster signed a grant of their rights in the copyright to the Superman material contained therein to Detective Comics. This assignment was executed on March 1, 1938, giving to Detective Comics “such work and strip, all good will attached thereto and exclusive right[s] to the use of the characters and story, continuity and title of strip contained therein ... to have and hold forever,” in exchange for $130. In the grant, Siegel and Shuster further agreed that they would “not employ said characters or said story in any other strips or sell any like strip or story containing the same characters by their names ... without obtaining [Detective Comics’] written consent therefore.” Superman’s appearance in Action Comics No. 1 was followed by subsequent installments, “published at regular intervals, each succeeding issue having a SUPERMAN comic strip prepared by [Siegel and Shuster], who continuefd] to be paid by DETECTIVE COMICS, INC. at the agreed rate of $10 per page.” (April 20, 2007, Decl. Bergman, Ex. S at 282 (Westchester referee’s Finding of Fact No. 36)). Thus, Action Comics No. 2 was published on May 25,1938; Action Comics No. 3 was published on June 25, 1938; Action Comics No. 4 was published on July 25, 1938; Action Comics No. 5 was published on August 25, 1938; and Action Comics No. 6 was published on September 26,1938. It is apparent from the undisputed evidence that publication of Superman as a continuing feature in Action Comics was part of a pre-arranged, implicit understanding between the artists and Detective Comics. For instance, before Superman was accepted for publication in the first issue of Action Comics, Detective Comics’ editor, in a letter dated January 10, 1938, voiced concerns to Siegel about Shuster’s ability to handle such a continuing “feature” given his preexisting commitments to doing the art work for other regularly appearing comics for the publisher. (Decl. Michael Bergman, Ex. A (‘With all the work Joe is doing now ... could it be possible for him to still turn out 13 pages of this new feature? ... if it were humanly possible I’d like to have him turn out this ‘Superman’ for the new magazine.... It strikes me that adding another 13 pages to his already filled schedule is loading him up to the neck. Please let me know immediately whether or not he can do this extra feature” (emphasis in original))). Similarly, correspondence from another Detective Comics’ editor to the pair, shortly before Superman’s initial appearance in Action Comics No. 1, also suggested that the Superman comic was envisioned by the publisher to be a regular feature in its Action Comics comic book for which the pair would provide continuing material. On April 8, 1938, Detective Comics sent a check in payment for their “July material,” and enclosed was a letter to Siegel remarking that the publisher had “loaded [them] up with 43 pages a month” in material to produce, and expressing concern with the pair’s ability to handle such a monumental task, but also reminding the pair that their “chances of ... making more money is bound up with the success of the magazine.” (Decl. Michael Bergman, Ex. B). Superman’s acceptance for publication in comic book format apparently rekindled Siegel’s interest in seeing his character syndicated in daily newspaper strips. As later explained by Shuster during the bench trial in the 1947 Westchester litigation, even with Superman’s publication in Action Comics No. 1, he and Siegel still “wanted to see Superman in the newspapers, not in the magazines.” (Decl. Marc Toberoff, Ex. N at 118). Their motive was an economic one: At this time, “black-and-white newspaper comic strips ... were” not only “the most popular medium for comics,” but were also potentially the most lucrative. Siegel, 542 F.Supp.2d at 1103. Toward that end, Siegel, initially without either the approval of or notice to Detective Comics, began shopping around the now accepted, but as yet unpublished, Superman character to various newspaper publishers seeking syndication in or around March or early April, 1938. That Siegel did not first approach Detective Comics about syndicating Superman in newspapers was understandable given that, in Shuster’s words, Detective Comics “wasn’t running a newspaper.” (Decl. Marc Toberoff, Ex. N at 118). As Siegel later explained in an unpublished memoir titled “Creation of a Superhero”: I continued attempting to break into newspaper syndication. On April 8, 1938, an employee in the Business Department of the McClure Newspaper Syndicate wrote to me asking if I would be agreeable to working out two weeks of “Superman” newspaper strips at no obligation to them: ‘You should get a letter from the publisher of these magazines before we can get down to brass tacks on Superman.” He was referring to “Action Comics.” He added, “The early panels describing the birth of SUPERMAN and how he came to this planet could well be expanded into several weeks releases, we think.” On April 13, 1938, he suggested that I submit the two-weeks’ sample releases of SUPERMAN around July 1st. I wrote a detailed two weeks “Superman” daily strip continuity account of Superman’s origin on the planet Krypton; how his father and mother placed their infant child in a rocket ship and sent him to Earth, moments before Krypton exploded. And how, upon reaching Earth, the infant was rescued from the flaming space craft and grew up to become crusading SUPERMAN. I sent the script to McClure Syndicate. (Decl. Marc Toberoff, Ex. R). Just before he submitted the script to McClure, Siegel wrote the following letter to Detective Comics’ president, J.S. Liebowitz, on April 18,1938: Regarding SUPERMAN. In their latest letter, McClure has instructed us to draw up the two weeks release of SUPERMAN and get them submitted on July 1st. This, Joe and I will do. When we submit the drawn up strip to them, I’ll inform you at once. I’ve no doubt but that if you drop in on the McClure Newspaper Syndicate at that time to discuss matters, that your presence will aid materially in the selling of the strip. (Deck Marc Toberoff, Ex. S). Siegel’s unpublished memoir recounts what transpired thereafter: On April 21, 1938; McClure responded that they preferred waiting until July 1: “Enclosed we return your continuity for your safe-keeping. Thank you for your energetic cooperation.” I knew that periodical publishers often returned to contributors, upon request, the rights other than first serial rights. Wheeler-Nicholson had written to me that this was our arrangement. I wrote to Liebowitz [at Detective Comics] that I had a newspaper syndicate interested in syndicating “Superman,” and I requested that newspaper syndication rights to “Superman” be returned to Joe [Shuster] and me. In his letter to me dated June 9, 1938, Liebowitz replied, “While it is not our intention to hold you back in any way from a possible newspaper syndication of ‘Superman’, we are not in a position to give you what you ask for, that is a complete release. If and when a syndicate makes a definite offer for the use of ‘Superman’, we can get together so that all of us will benefit.” On June 13, 1938, M.C. Gaines of McClure wrote to me that since I had already completed the first two weeks of the SUPERMAN strip, I should now send the material to him. “I will take this matter up at the first opportunity and let you know what we decide to do.” Joe did a terrific art job of illustrating my script for these two weeks of the daily “Superman” strip. I mailed the strips to McClure Syndicate. (Decl. Marc Toberoff, Ex. R (emphasis in original)). While waiting to hear back from McClure, Siegel pursued other newspaper syndicators to see if they might be interested in distributing a Superman newspaper comic strip, submitting with his pitch a copy of the two weeks’ worth of material concerning Superman’s origins. One other newspaper syndicator that expressed some positive feedback was The Register and Tribune Syndicate. Again, as explained by Siegel in his memoir: Chas. E. Lounsbury of the Register and Tribune Syndicate wrote to me on August 10,1938, in response to my letter of August [sic] 26, “We are impressed with your outline and especially your enthusiastic approach. We read with interest the optional two weeks’ releases. They do strike us as exciting and original.” He noted I had a proposal elsewhere, and said they could not give me a quick decision. But if I was still in the clear after Labor Day, they would be glad to hear from me. On September 7, 1938, he again wrote that “such matters necessarily move rather slowly here.... Personally I like SUPERMAN very much and believe that with a few changes it has very good possibilities.” He stated that if McClure Syndicate was in a position to take on the strip, he presumed I would go ahead. I informed Liebowitz [at Detective Comics] of these developments. (Decl. Marc Toberoff, Ex. R; see also Decl. Marc Toberoff, Ex. T (September 7, 1938, letter from Managing Editor Chas Lounsbury to Jerome Siegel)). Shortly thereafter, progress was made on the McClure front. In early September, 1938, Liebowitz summoned Siegel to New York City to discuss the McClure newspaper syndication proposal. (Decl. Marc Toberoff, Ex. R (“In early September, Liebowitz asked me to come to New York to discuss the matter of McClure’s interest in syndicating ‘Superman’ ”)). What happened during this early September meeting is later related in the June, 1941, Saturday Evening Post story, “Up, Up and Awa-a-y!”: From the fall of '38 on, it was all sail and no anchor. Amid the piteous sounds of syndicate editors kicking themselves, McClure negotiated with Donenfield [at Detective Comics] to handle the newspaper rights, Donenfield to receive 40 per cent. Superman was eventually placed in 230 daily and Sunday newspapers scattered throughout the Western Hemisphere. Donenfield’s 1940 cut was $100,000. The McClure negotiations were perceived by considerable unhappiness for the partners. They sensed' — correctly— that syndicate editors, who had once turned Superman down, would soon come to them, hat in hand. They begged Donenfield to give back the syndicate rights. “We can’t do that,” he replied, “but if one of you will come to New York, I’m sure we can work something out.” Sitting up all night in the coach for lack of sleeper fare, Siegel arrived, rumpled and yawning, to receive the proposition: If the partners would confíne all their services to Donenfield for ten years, he would permit them to do strips for McClure, himself retaining an agent’s 10 per cent — of McClure’s gross, however, not his own 40 per cent. In the heat of discussion Siegel was frequently reminded that Donenfield owned all rights and could freeze the partners out. The boys signed a contract, which for the first year brought them an increase of less than $100 a month. (Decl. Marc Toberoff, Ex. M). The transaction was structured into two separate contracts, executed by the parties on approximately September 22, 1938: An employment agreement between Detective Comics, on one hand, and Siegel and Shuster, on the other hand; and a newspaper syndication agreement among all three: Detective Comics, Siegel and Shuster, and McClure. The newspaper syndication agreement gave McClure an eight-month option for a “six days a week” Superman “daily strip.” If exercised, Detective Comics agreed “to permit [Siegel and Shuster] to supply ‘Superman’ strip exclusively to [McClure] for syndication in newspapers [throughout the world], for a minimum period of five years from June 1, 1939,” with an option for McClure to “renew the agreement for a further period of five years.” “[I]n consideration,” McClure agreed to pay “Detective ... forty (40%) per cent of the net proceeds from such syndication during the first year, forty-five (45%) per cent during the second year and fifty (50%) per cent thereafter.” (Decl. Marc Toberoff, Ex. Q). Payment to Siegel and Shuster for their “work” created under the contract was to be done “solely” through Detective Comics. The syndication agreement provided that Siegel and Shuster were to supply said material to McClure “on an advanced schedule of at least six weeks” so as to “insure ample time for distribution prior to release dates.” If Siegel and Shuster failed to furnish said material in time, the agreement allowed Detective Comics to substitute “other artists to do the feature and strip.” As to the Superman newspaper strip material supplied to it by Siegel and Shuster, the syndication agreement provided that McClure, not Detective Comics, would have “reasonable editorial supervision of the feature,” which Siegel and Shuster promised to maintain “at the standard shown in the sample submitted.” (Decl. Marc Toberoff, Ex. Q). The syndication agreement also provided that monthly statements of McClure’s net proceeds would be sent to “Detective and a copy to” Siegel and Shuster. Furthermore, both Detective Comics and Siegel and Shuster were given the right to inspect McClure’s books and records “in reference to the feature, at any reasonable time.” (Decl. Marc Toberoff, Ex. Q). As to the copyright in the material published in the newspaper comic strips, the syndication agreement provided that it would be in McClure’s name, with a “reversionary” interest in favor of Detective Comics at the conclusion of the contract’s term. (Decl. Marc Toberoff, Ex. Q (“The material contained in the feature which we syndicate will be copyrighted in our name, but copyright reverts to Detective at the termination of this contract”)). Toward that end, the syndication agreement made clear that “the title ‘Superman’ shall always remain the property of Detective,” and that Detective Comics retained the copyright in Superman in all other media “except daily or weekly newspaper publication.” (Decl. Marc Toberoff, Ex. Q (“Our agreement covers newspaper rights only. Radio, motion picture, silent and talkie, book and all other rights are retained and owned by Detective”)). Finally, McClure agreed to provide to Detective Comics free of charge “all the original drawings of the ‘Superman’ strip, so that said drawings may be used by Detective in the publication” of its comic book magazines, but only “six months after [the] newspaper [strip’s] release.” The employment agreement notably differentiates provisions relating to newspaper strips and those concerning comic books. The agreement contained an opening declaration broadly asserting Detective Comics’ rights to, among others, the Superman copyright. (Decl. Marc Toberoff, Ex. P (“We, Detective Comics ..., are the exclusive owners of comic strips known by the titles ‘Superman’ ”)). The employment agreement further noted up front that Siegel and Shuster had, up to that time, been doing the “art work and continuity for [the Superman] eomie[ ] for [Detective, and that Detective] wish[ed] [for them] to continue to do said work and hereby employ and retain you for said purposes for the period of this contract.” The following sentence then recited Siegel and Shuster’s agreement to “supply [Detective] each and every month hereafter, in sufficient time for publication in our monthly magazines, sufficient copy and art for each of said features each month hereafter.” The agreement distinguished this duty from Siegel and Shuster’s further duty under the syndication agreement: “You shall also furnish in sufficient time to properly perform the terms of an agreement we are executing together with you with the McClure Newspaper Syndicate, all of the art and continuity for the newspaper strip entitled ‘Superman’ called for by said agreement.” (Decl. Marc Toberoff, Ex. P). The employment agreement then spelled out the per page compensation rate Detective Comics would pay Siegel and Shuster for the respective comic book characters they had been supplying to the publisher at that time (Superman receiving the highest rate of $10 per page). Again, the agreement then distinguished this payment scheme with that for the artists’ creation of the Superman newspaper strips: We further agree to pay you for the McClure Newspaper Syndicate strips which you may hereafter furnish pursuant to the above-mentioned contract with McClure, on the following basis: When we receive payment from McClure on the 40% basis mentioned in the contract, we shall retain 7%% and pay you 32^% of the “net proceeds” as defined in the McClure contract. Wbien we receive payment from McClure on the 45% basis mentioned in the contract, we shall retain 9% and pay you 36% of the “net proceeds” as defined in the McClure contract. WTien we receive payment from McClure on the 50% basis mentioned in the contract, we shall retain 10% and pay you 40% of the “net proceeds” as defined in the McClure contract. (Decl. Marc Toberoff, Ex. P). As for ownership in the copyright to the newspaper strips, the employment agreement provided that Detective Comics would own “all” such “material” and, at Detective Comics’ option, it could be “copyrighted or registered in [Detective’s] name or in the names of the parties designated by us.” The employment agreement further provided that Detective Comics had the right to “reasonably supervise the editorial matter of all features” and the right to terminate Siegel and Shuster’s employment if “the art and continuity of any feature shall not be up to the standard required for the magazines.” Moreover, the employment agreement provides that, should Detective Comics decide to re-print some of the Superman newspaper strips in its “magazines,” Detective Comics would compensate the pair “at the above-mentioned page rate less the percentage which McClure receives for said syndication.” The employment agreement also contained a global (literally and figuratively) prohibition against Siegel and Shuster “hereafter” furnishing to anyone Superman material, whatever its form be it as a “comic” book, a “newspaper” strip, or something else; instead, the artists agreed that they “shall furnish such matter exclusively to [Detective Comics] for the duration of this agreement as such matter may be required by us or as designated by us in writing.” Around the time the syndication and employment agreements were signed by all the parties concerned, Liebowitz wrote a letter on September 28, 1938, to Siegel, commenting upon said agreements. In the course of his lengthy correspondence, Liebowitz reminded Siegel that, “[a]s I have pointed out to you many times, our company has very little to gain in a monetary sense from the syndication of this material. Also bear in mind, that we own the feature ‘Superman’ and that we can at any time replace you in the drawing of that feature and that without our consent this feature would not be syndicated and therefore you would be the loser in the entire transaction .... It is entirely up to you and Joe, whether you wish our pleasant relationship to continue and whether you wish the strip ‘Superman’ to be syndicated.” (Decl. Michael Bergman, Ex. B). Siegel quickly responded that both he and Shuster “are anxious and ready to do our best on SUPERMAN so that all parties concerned will profit.” (Decl. Michael Bergman, Ex. C). With that, Siegel and Shuster produced daily newspaper strips for McClure under the terms of the September 22, 1938, syndication agreement from 1939 through 1943; the first daily newspaper strip (depicting the first day’s worth of the two weeks of material created by Siege and Shuster in the spring of 1938) appearing in the Milwaukee News Journal on January 16,1939: The applications submitted by McClure (and, when approved, the certificates) for the original copyright term registration for the Superman newspaper strips (identified as a “PERIODICAL CONTRIBUTION”) created and published from 1939 to 1943 listed “McClure Newspaper Syndicate” as the claimant and “Jerry Siegel and Joe Shuster” as the authors of the newspaper strips. (Decl. Michael Bergman, Ex. C). No effort was made by any party throughout the initial term of the Superman newspaper strips published through 1943 to file a supplemental registration to make changes to the information contained in the original registrations. Two applications for renewal term registrations were, however, submitted for the Superman newspaper strips in question during the 1960s: First, National Periodical Publications Inc., as successor in interest to Detective Comics, submitted applications for a renewal registration claiming as proprietors in the copyright of the renewable matter in “a work made for hire,” noting that said work was a “contribution to periodical or other composite work,” namely, the specific newspaper issue in question. (Decl. Michael Bergman, Ex. C). Second, applications for a renewal registration were also made by Siegel and Shuster, listing themselves as authors of the renewable matter. (Decl. Marc Toberoff, Ex. A (Thomson & Thomson copyright report noting that “the copyrights in the [newspapers strips] originally published through 1943 were renewed ... in the names of Jerome Siegel and Joe Shuster, claiming as authors”)). Not long after Superman entered into newspaper syndication, it became apparent that McClure could not provide the editorial supervision over the material submitted by Siegel and Shuster as called for in the syndication agreement. Correspondence between the artists and their magazine editor at Detective Comics, J.S. Liebowitz, recount this increasingly rocky relationship. (Decl. Michael Bergman, Ex. D (April 21, 1939, letter from Liebowitz in which he notes “[e]very morning it seems to me I receive copies of criticisms and complaints sent to you by Miss Baker of McClure” and that “Mr. Nimis of McClure was here today and he stated that they definitely do not intend to go on as they are ... they feel that the time and effort and aggravation encountered in getting this thing going properly is not worthwhile because of your lack of cooperation”)). Eventually, by January, 1940, it was clear that McClure had outsourced its editorial supervision over the newspaper strips to editors at Detective Comics. (Decl. Michael Bergman, Ex. I (January 22, 1940 letter commenting that “[w]e’ve been having considerable talk about the daily releases on SUPERMAN, and I believe Jack [Liebowitz] is writing to you to have you send all the material here before it goes to the syndicate for release”); Ex. E (January 25, 1940 letter from Liebowitz reminding Siegel that “all copy must clear through our office”); Ex. F (February 8, 1940 letter remarking on the “present arrangement” of Detective Comics “editing of the strip”)). The substance of the editorial comments contained in the correspondence from Detective Comics (both as to the Superman comic book and later also the newspaper strips), pertained for the most part to complaints about the pair’s failure to follow its editorial directions and to submit material on time, leaving the publisher to have to quickly scramble to get the material to the printer to meet its deadlines. There were, however, more substantive criticisms of both the script and artwork supplied by the pair, with specific changes either made to yet-to-be released material or suggested for later releases. (Decl. Michael Bergman, Ex. E) (noting that it was “unwise” to depict Clark Kent flying in the air without wearing Superman’s costume, as had been done with “the last daily release”); Ex. H (returning 26-page script and suggesting that it be re-written for a 13-page story as “there is nothing important enough about the story to justify its going to such length”); Ex. I (cataloging critiques of specific artwork of “sketches” submitted by Shuster); Ex. M (complaining “that a great deal hasn’t been done to make Lois look better,” giving specific examples in which the artwork is deficient, and then drawing an image of Lois on the correspondence that the editor suggests “Shuster and his lads” use as an exemplar). During the term of the syndication agreement, problems also arose with Siegel and Shuster’s ability to supply newspaper strips in a timely fashion to McClure. As a consequence, McClure turned to Detective Comics for “filler” material for “newspapers which carried the comic strip SUPERMAN in order to prevent said newspapers from terminating their syndication agreements with” McClure. (Decl. Bergman, Ex. S (Westchester referee finding of fact # 91)). Notably, Detective Comics did not supply in-house Superman newspaper strips, as was its right under the terms of the syndication agreement. Instead, Detective Comics “supplied” to McClure a Superman spin-off, the “comic strip LOIS LANE, GIRL REPORTER, ... without charge for use.” (Decl. Bergman, Ex. S (Westchester referee finding of fact # 91)). In fact, Detective Comics and McClure entered into a side agreement in September, 1943, with reference to the Lois Lane newspaper strip’s impact on the computation of the net proceeds to be divided among the parties. In the agreement, the two “agreed that ... ‘net proceeds’ for the purposes of computing [Siegel and Shuster’s] return from the newspaper publication of Superman should be the entire gross receipts” from the same, “deducting therefrom only the cost of cuts and proofs.” (Decl. Bergman, Ex. S (Westchester referee finding of fact # 102-103)). Detective Comics and McClure further agreed that “the compensation of the [in-house] artists engaged by Detective Comics to draw the releases of Lois Lane, Girl Reporter ... furnished by Detective Comics to McClure for newspaper syndication was to be deducted from the gross receipts of the Superman syndication as ‘mechanical costs’ in computing ‘net proceeds.’ ” (Decl. Bergman, Ex. S (Westchester referee finding of fact # 102-103)). Siegel and Shuster were not parties to (nor were they apparently aware of) this arrangement between McClure and Detective Comics. Later, McClure notified Detective Comics of its election to extend for five years (beginning from June 1, 1944) the term of the 1938 syndication agreement. Contemporaneously, McClure “assigned to Detective Comics ... all its rights, title and interest in all copyrights in [the] Superman” newspaper strips created during the preceding five years, “including all renewals and extensions thereof.” (Decl. Toberoff, Ex. A at 5 (Thomson & Thomson copyright report, dated Feb. 29, 1996)). During the same time period, the pair produced, under the terms of the employment agreement, Superman material for various comic book magazines published by Detective Comics, first in its serialized magazine Action Comics, then as a standalone feature in the self-titled comic book magazine Superman. The terms contained in the 1938 employment agreement were later altered in a modification agreement entered into between Detective Comics and the artists on December 19, 1939. In this modification agreement it was noted that, “while both [the artists] have continued to furnish art work and continuity for ‘SUPERMAN,’ ... Mr. Shuster no longer furnishes the art work” for the other strips to which the pair were under contract to produce, such as “Slam Bradley” or “Spy.” The parties therefore agreed that, in exchange for Detective Comics being “free to make other arrangements” for “furnishing [the] art work” for these other comics, Siegel and Shuster’s compensation for Superman comic book material (which the pair reaffirmed that they would “continue to furnish all [the] art and continuity” thereof) would be increased to $20 per page, and Detective Comics would pay the pair 5% of the net proceeds derived from the commercial exploitation of Superman outside that from comic books and newspaper syndication, and into such other mediums as “radio, motion pictures, [and] the toy and novelty field.” (Decl. Michael Bergman, Ex. A). Detective Comics re-asserted that it had “the unrestricted right to adapt, arrange, change, transpose, add to and otherwise deal with [the Superman] comic strip ... as [it] in [its] sole discretion ... deem[ed] necessary.” The agreement further contained Siegel’s and Shuster’s re-affirmation that Detective Comics was the “sole and exclusive owners of the comic strip entitled ‘Superman’ ... and to all rights of reproduction ..., including but not limited to the fields of magazine or other book publications, newspaper syndication, radio broadcasts, television, [and] motion pictures .... ” It was also acknowledged by the pair that Detective Comics held “all right of copyright and all rights to secure copyright registration in respect of all such forms of reproduction either in [its] name or others at [its] exclusive option.” Not all the Superman comic book material supplied by Siegel and Shuster after the September, 1938, employment agreement was published by Detective Comics, although it remains unclear whether the pair was nonetheless paid for such material. For instance, plaintiffs have brought to the Court’s attention the curious tale of “K-Metal from Krypton.” In August, 1940, Siegel submitted a 26-page script, accompanied by multiple pages of illustrations (mainly pencil drawings, but some that had been inked) created by artists working in Shuster’s studio that, in the words of comic writer and historian Mark Waid, “would have ... radically” altered the then established Superman story line: Lois Lane learns that Clark Kent is Superman and the two agree to become partners and confidants; the first appearance of the kryptonite concept (referred to in the material as K-Metal derived from meteorite debris from the planet Krypton) and its debilitating effects on Superman’s powers; and Superman first learning of his Kryptonian origins. Although the material was not published when initially submitted by Siegel, upon later being unearthed in DC Comics’ library vault in 1988, copies of the material were circulated among the top brass at the company in the hopes of “obtaining Siegel’s blessing to have the story re-illustrated and released ..., but for whatever reason, nothing ever came of it.” (Decl. Marc Toberoff, Ex. BB). Eventually, disputes between Detective Comics and Siegel and Shuster led to the pair leaving the employ of Detective Comics in 1947, ending involvement by this talented pair in the further development of the Superman character. II. WORK MADE FOR HIRE UNDER THE 1909 ACT Under the 1976 Act, an author’s (or his or her heirs’) ability to terminate a prior grant in the copyright to his or her creation does not apply to a “work made for hire” because the copyright in such a creation never belonged to the artist in the first instance to grant; instead, it belonged at the outset to the party that commissioned the work. See 17 U.S.C. § 304(c). This absolute bar to termination brings into sharp focus a question that has figured prominently throughout the parties’ papers: Whether any of the vast body of Superman material created up to 1943 by Siegel, with either the assistance of Shuster, with the assistance of others, or alone, was a “work made for hire.” If so, then plaintiffs (as Siegel’s heirs) cannot terminate his grant of the copyright in that material, such a grant being merely a superfluous act that did not alter the preexisting ownership rights to that copyright. See Playboy Enterprises, Inc. v. Dumas, 53 F.3d 549, 554 (2d Cir.1995) (“Once it is established that a work is made for hire, the hiring party is presumed to be the author of the work”). Resolution of the work made for hire nature of this material is controlled by the governing body of law in existence at the time Siegel crafted this Superman material, that is, the 1909 Act and the precedent developed thereunder. See Self-Realization Fellowship v. Ananda Church, 206 F.3d 1322, 1325 (9th Cir.2000) (“Because all of the copied works were created before 1978, the Copyright Act of 1909 governs the validity of the initial copyrights”); Twentieth Century Fox Film Corp. v. Entertainment Distributing, 429 F.3d 869, 876 (9th Cir.2005) (“We first consider Twentieth Century Fox Parties’ infringement claims under the now repealed Copyright Act of 1909 because [the work] was published before the ... effective date of the 1976 Copyright Act”). The 1909 Act provided that, “[i]n the interpretation and construction of this title[,] ... the word ‘author’ shall include an employer in the case of works made for hire.” 17 U.S.C. § 26 (repealed). “Thus, with respect to works for hire, the employer is legally regarded as the ‘author,’ as distinguished from the creator of the work, whom Learned Hand referred to as ‘the “author” in the colloquial sense.’” Martha Graham Sch. and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624, 634 (2d Cir.2004). Nowhere, however, did the 1909 Act define what was meant by “work made for hire” or “employer”; only the consequences flowing from such a designation were spelled out. The task of giving meaning to these terms was left to the courts. “Although for most of its life Section 26 was construed to extend work-for-hire status only to traditional employer-employee relationships,” by way of demonstration that the work was done within the scope of one’s job duties with their employer, “in the late 1960s, in limited circumstances, some courts began expanding the definition of ‘employee’ to cover authors outside the traditional employment relationship,” to those involving “an independent contractor,” but only if it could be shown that “the work was made at the hiring party’s ‘instance and expense.’ ” 2 Patry on Copyright § 5:84. However, in 1965, the Ninth Circuit was the first court to utilize the “instance and expense” test to determine whether works created either by independent contractors or employees were ones made for hire. See Lin-Brook Builders Hardware v. Gertler, 352 F.2d 298 (9th Cir.1965). Said inclusion was done by the court formulating an across-the-board presumption in favor of finding work-for-hire ownership whenever a work is produced at the “instance and expense” of the hiring party, said presumption only subject to being overcome by evidence that the parties did not intend for such a result: [W]hen one person engages another, whether as employee or as an independent contractor, to produce a work of an artistic nature, that in the absence of an express contractual reservation of the copyright in the artist, the presumption arises that the mutual intent of the parties is that the title to the copyright shall be in the person at whose instance and expense the work is done. Lin-Brook, 352 F.2d at 300 (noting that the presumption was not overcome because there was no evidence “as to the circumstances or intendment” of the parties); see also Twentieth Century, 429 F.3d at 881 (“[t]he presumption may be rebutted only by evidence that the parties did not intend to create a work-for-hire”). The test sought to match the concept of a work made for hire with the purpose of the Copyright Act, that is, to “promote” the creation of “useful Arts.” U.S. Const. Art. 1, § 8. As one court explained: “[T]he law directs its incentives towards the person who initiates, funds and guides the creative activity, namely, the employer, but for whose patronage the creative work would never have been made. Copyright law ‘is intended to motivate the creative activity of authors ... by the provision of a special reward,’ ” namely, the legal protection afforded to such creative property through copyright. Estate of Hogarth v. Edgar Rice Burroughs, Inc., 62 U.S.P.Q.2d 1301, 1316 (S.D.N.Y.2002) (quoting Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984)). Toward that end, the instance and expense test requires the evaluation of three factors: (1) At whose instance the work was prepared; (2) whether the hiring party had the power to accept, reject, modify, or otherwise control the creation of the work; and (3) at whose expense the work was created. See Twentieth Century, 429 F.3d at 879, 881. The “expense” requirement is met where a “hiring party simply pays an [employee or] independent contractor a sum certain for his or her work.” Playboy Enterprises, 53 F.3d at 555. Such regular, periodic payments of a sum certain bear the hallmark of the wages of an employee required to produce the work in question for his or her employer, and not that of a party who is free to engage with those other than the commissioning party in marketing his or her work. See Donaldson Publishing Co. v. Bregman, Vocco & Conn, Inc., 375 F.2d 639, 642-43 (2d Cir.1967). “In contrast, where the creator of a work receives royalties as payment, that method of payment generally weighs against finding a work-for-hire relationship.” Playboy Enterprises, 53 F.3d at 555; see also Twentieth Century, 429 F.3d at 881 (finding that “expense” requirement met when publisher agreed to pay the creator “a lump sum for writing the book, instead of negotiating a royalty deal”). Finally, in speaking of the expense in the creation of the work, the focus is not on who bore the costs or expense in physically creating the work itself (the money spent to purchase the paper on which the dialogue and story elements was printed, the typewriter used to put into concrete form the author’s concepts of the same, and the pencils and ink needed to draw the illustrations, etc.). That particular consideration relates to the question of whether “an artist worked as an independent contractor and not as a formal employee,” a distinction, as made clear after the Ninth Circuit’s decision in Lin-Brook, that has “no bearing on whether the work was made at the hiring party’s expense.” Playboy Enterprises, 53 F.3d at 555. Instead, the focus is on who bore the risk of the work’s profitability. See Twentieth Century, 429 F.3d at 881 (“there is little doubt that the book was authored at [the publisher’s] expense. [The publisher] took on all the financial risk of the book’s success, agreeing to pay [the writer] a lump sum for writing the book, instead of negotiating a royalty deal”); Picture Music, Inc. v. Bourne, Inc., 314 F.Supp. 640, 651 (S.D.N.Y.1970) (noting that “the fact that the author was obliged to repay advances on royalties which were never accrued is an indication that the relationship was not an employment for hire”). The “instance” component of the test inquires into “whether ‘the motivating factor in producing the work was the employer who induced the creation.’ ” Twentieth Century, 429 F.3d at 879; see also Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1217 (2d Cir.1972) (concluding that the fact the employer took the “initiative in engaging” the author to create the work rendered it as one made for hire). That the commissioning party be the motivating factor is not a “but for” test — that is, but for the artist’s employment the work would not have been created — but instead is a more narrow inquiry focused on the nature and scope of the parties’ business relationship. As one court explained: No doubt Graham was a self-motivator, and perhaps she would have choreographed her dances without the salary of Artistic Director, without the Center’s support and encouragement, and without the existence of the Center at all, but all that is beside the point. The fact is that the Center did employ her to do the work, and she did the work in the course of her regular employment with the Center. Where an artist has entered into an explicit employment agreement to create works, works that she creates under that agreement cannot be exempted from the work-for-hire doctrine on speculation about what she would have accomplished if she had not been so employed. There is no need for the employer to be the precipitating force behind each work created by a salaried employee, acting within the scope of her regular employment. Many talented people ... are expected by their employers to produce the sort of work for which they were hired, without any need for the employer to suggest any particular project. “Instance” is not a term of exclusion as applied to specific works created within the scope of regular employment. It may have more significance in determining whether an employee’s work somewhat beyond such scope has been created at the employer’s behest or to serve the employer’s interests.... Martha Graham Sch., 380 F.3d at 640-41. Thus, “under the 1909 Act[,] a person could be an employee yet create a work ‘as a special job assignment, outside the line of the employee’s regular duties.’ In that event, the work is not a work for hire.” Id. at 635 (citing Shapiro Bernstein & Co. v. Jerry Vogel Music Co., 221 F.2d 569, 570 (2d Cir.1955)). The critical factor is what was the nature of the creator and publisher’s business relationship (be it as an employer-employee or an commissioner-independent contractor) at the time of the work’s creation, and whether the work in question falls within the scope of those job duties. It is for this reason that courts concern themselves with “the degree to which the hiring party had the right to control or supervise the artist’s work,” as its presence would reflect a circumstance found when the work being created was done so within the confines of the preexisting employment relationship. Twentieth Century, 429 F.3d at 879; see also Donaldson, 375 F.2d at 643 (labeling as an “essential element” the “power to direct and supervise the manner in which the writer performs his work”); Picture Music, 314 F.Supp. at 650 (“The existence of an arrangement going beyond an assignorassignee relationship prior to the undertaking of the particular work. The antithesis of such an arrangement is a case where an author creates a work of his own volition and then sells it to a proprietor”). Although it is not critical that the commissioning party actually exercise its right of control and supervision in the creation of the work in question, it is necessary that the party have the right to direct, control, or otherwise shape the artist’s work. See Martha Graham Sch., 380 F.3d at 635 (“The right to direct and supervise the manner in which the work is created need never be exercised” (emphasis in original)); Picture Music, 314 F.Supp. at 651 (labeling as “crucial” whether the hiring party had “[t]he right ... to direct and supervise the manner in which work is performed”). Moreover, there are certainly gradations of control a publisher could and may have exerted in the creation of the work, and the greater the extent of such supervision the “more likely it is that the work was created at the commissioning party’s instance.” Twentieth Century, 429 F.3d at 880. Thus, a publisher providing suggestions and comments on galleys to a novel, for instance, may move into the realm of that associated with a work made for hire depending on the degree and pervasiveness of said interaction. Id. (labeling “the degree of in-person supervision was much greater than” what the publisher “usually]” did, including utilizing the services of fact-checker and “regular face-to-face meetings” by the a