The Man
Loves to Hate
With the tenacity of a pit bull, Marc Toberoff helps creators
and their heirs wrest back control of their copyrights
from studios and publishers.
By Eriq Gardner
sk any lawyer at a Hollywood studio
about Marc Toberoff, and the response
seems almost like an involuntary reflex:
The Toberoff name invokes an immediate gagging sound, then a negative head-shake cutting
off further discussion. A moment of contemplation follows, triggering off-the-record innuendo
that approaches character assassination.
How can a solo lawyer with just three associates in a downtown Los Angeles office generate
such animosity? By threatening the studios’ hold
on the intellectual property needed to produce
remakes and sequels, Hollywood’s lowest-risk
route to a hit and even a blockbuster. Toberoff
has successfully exploited “termination rights”—
the once-ignored but now high-profile passages
in copyright law that let authors or their heirs
wrest back control of copyrights from studios or
publishers. He casts himself as an avenging hero,
sticking up for creators and their heirs against
stingy corporate interests, a posture that infuriates his critics. The cases he has won for heirs in
the last year involve iconic—and tremendously
valuable—franchises: Superman and Lassie. No
wonder the studios are worried—especially as
Toberoff’s successes are likely to spawn copycat
efforts by others. “The termination rights issue
is a real problem . . . that is really going to affect
the ability to produce additional programming,”
says Jared Jussim, executive vice president of IP
at Sony Pictures Entertainment.
The Hollywood Reporter recently described
Toberoff as “an ambulance chaser” who has
created “a cottage industry out of a loophole.”
But Toberoff’s success, both in a Riverside,
California federal district court (Superman)
and at the U.S. Court of Appeals for the Ninth
Circuit (Lassie), suggests that judges are fans
of Toberoff’s reading of the law. Both the 1976
and 1998 U.S. Copyright Acts extended the life
of copyright protection. But they also—in section 203 of the 1976 Act and section 304 of the
1998 Act—give creators or their heirs the right
to terminate copyright assignments after a given
number of years have passed in a work’s life.
A House of Representatives legislative report
in 1976 explained the intention: “A provision
of this sort is needed because of the unequal
bargaining position of authors, resulting in part
from the impossibility of determining a work’s
value until it has been exploited.” Lon Sobel,
a professor at Southwestern Law School in
Los Angeles, says, “Every time Congress has
extended the term, they’ve had to decide who
would benefit from the extension—the people
who bought the copyright or the people who
created the copyright. Congress decided to give
the benefit of the extension to the latter.”
Walt Disney Company lobbied so hard for
the 1998 extension that the law was nicknamed the Mickey Mouse Protection Act. So
it was ironic that it was Disney that first let
JOHN ABBO TT
