off who represents the estate. Unless there’s a compromise,
Warner will lose most of its rights over the future of the
Superman franchise.
Toberoff followed his Superman victory for the Siegel
estate with a win this summer at the appellate level for
Winifred Knight Mewborn, daughter of author Eric Knight,
who wrote the novel Lassie Come Home. Mewborn had
served a termination notice to the rights holder Classic
Media, Inc., in 1996. In the resulting lawsuits, Classic relied
on a 1976 agreement and on the Milne decision to knock
down Mewborn’s termination—and won.
Then, in 2004, Mewborn discovered that Classic was in
preparation for a new Lassie movie. She hired Toberoff, who
wrote to Classic on her behalf, demanding a share of the
profits. In the ensuing lawsuit, Toberoff lost in federal district
court. “Everybody was depressed,” says Toberoff, referring to
his three associates. “I said, ‘We’ll be able to overturn it at the
Ninth Circuit.’ ”
In July the Ninth Circuit did find
in Mewborn’s favor, overturning the
district court, and all but obliterating
the Milne case’s implicit warning to
copyright creators. According to the
court, the law forbids contracts in
which creators waive their termination rights forever. Soon
after, Classic and Mewborn settled.
Bonnie Eskenazi, the Greenberg Glusker partner who
represented Disney in the Milne case and who represented
Classic, says the Lassie opinion is a “classic case of judicial
legislating” that is bad for both heirs and the studios. Since
the court essentially ruled that no contract can get in the
way of the rights of termination, she believes it will take
away from creators and their heirs the opportunity to
negotiate compensation in return for a waiver of termination rights. That means heirs will have to wait out the years
until they can start the termination process and hope the
property will still be valuable, says Eskenazi.
Toberoff, of course, rejects any notion that questions his
role as champion of the underdog. Growing up in New
York, he was influenced by his father Max, now retired,
who was named by Forbes in 1989 as one of the ten most
successful trial lawyers in America. Like his father, Toberoff
will only work on contingency. “My father took all the risks
and financed the costs of experts so even the poorest plaintiff could afford the best lawyer in town,” Toberoff says. His
father also showed him the value of being a fighter. When
the father and son played tennis, his father would zing the
ball with a cross-court forehand with topspin and treat
“every match like it was a new war,” Toberoff says.
The young Toberoff didn’t always want to be a trial
lawyer—he wanted to make movies. After graduating from
the Columbia University School of Law in 1980 and passing the bar, Toberoff followed his film ambitions, working
for director Robert Altman, and for much of the decade
as an aide to producer Elliott Kastner (The Long Goodbye,
1973; Oxford Blues, 1984). He learned the ins and outs of
“The movie business was a difficult shark
tank,” Toberoff found after moving to
Hollywood. “You needed to control something.”
the entertainment business, vacationing at Kastner’s villa at
Cannes, and hanging out with Hollywood celebrities including Clint Eastwood, Richard Burton, and Sydney Lumet.
After a failed attempt by the self-proclaimed “extreme
skier” to take over a Colorado ski resort, Toberoff moved
to California in 1993. Like many dreamers who arrive in
Hollywood, he immediately faced obstacles. “I realized the
movie business was a difficult shark tank,” Toberoff now
says. “Five studios had a monopolistic hold. You needed to
control something to do business in this town. For some
people, it’s money to finance projects. For others, including
agents and lawyers, it’s about controlling talent.”
Toberoff found his piece of control in IP.
One day, while exercising at the gym, Toberoff noticed a
classified advertisement in a trade newspaper from the “son
