Month: May 2013

Go, Ken, Go! -- Part 3: The Stakes

2013-05-20, 9:45 pm
Categories: Comics, Games, Politics, Stream of Consciousness

My Penders coverage continues. See previous installments under the Ken Penders tag.

So what's actually at stake in Archie v Penders?

What does Ken want?

Penders wants a court to rule, decisively, that he never entered into any contractual agreement with Archie Comics beyond first print rights, and to grant him sole ownership of every story that he both wrote and drew, and co-ownership of every story where he did one or the other but not both.

This includes various Sonic stories from issue #11 all the way up to #140, some specials, and the entire Knuckles series, and any original characters and locations introduced therein.

Contrary to how the enraged fanboys would have it, this does not mean that Archie would not be allowed to reprint those stories or reuse those characters -- it just means that Archie would have to compensate him for that use.

First of all, in many cases, Ken wouldn't have full ownership over those stories, characters, and locations -- as mentioned, he would only gain full ownership over stories that he wrote and drew; he would only gain co-ownership of stories where he worked with other writers or artists. (Usually half-ownership, because a comic typically has two creators, writer and artist -- but some of the stories had multiple writers and/or artists.) Sega would retain the remaining share of the rights -- at least, until and unless Ken's partner(s) on a story came forward making similar legal claims and asserting their co-ownership -- and retain the right to do whatever it wanted with them, so long as it compensated Ken for his portion of ownership.

And secondly, it wouldn't be in Ken's interest to halt the reprinting of any of those stories or the reuse of any of those characters. He wants Archie and Sega to continue using them -- so that he gets paid for their use.

Ken also wants to continue the stories he began in Knuckles the Echidna. He wants to be able to use the original characters he created and continue to build that world, through a publisher of his choosing, without oversight or approval from Archie or Sega.

The rub is, even if Ken gets all the copyrights he's seeking, he won't get the trademarks. Even if he can use Rob o' the Hedge, he's going to have to make him look a lot less like Sonic the Hedgehog. Likewise, his echidna characters are going to have to look significantly different from Knuckles.

Also for trademark reasons, while Ken will have the reprint rights to everything he wrote or drew for Archie, in the vast majority of those cases he won't actually be able to exercise those rights without permission from Sega. He'll be allowed to reprint any story that doesn't have any of Sega's characters or anyone who looks like Sega's characters in it, but nothing with Sonic, Tails, Knuckles, Sally, et al, and if he wants to reprint stories with Locke, Rob o' the Hedge, or other trademark-derivative characters, he's going to have to redraw them first.

A decisive victory for Penders would include damages and back pay for all the years Archie has continued to exploit his copyrights, and would lead to a ruling in his suit against Sega and EA that those companies had likewise violated his copyrights and owed him back pay and damages for Sonic Chronicles: The Dark Brotherhood.

What does Archie want?

Archie wants a decisive declaration that Ken signed a work-for-hire agreement and that all his work was produced under for-hire conditions, that he agreed to a flat page rate, and that it was paid. Archie wants the court to rule that it doesn't owe Ken anything more than what it's already paid him, and is free to continue reprinting his back issues and using his characters without any additional compensation.

Short of that, Archie wants to minimize any potential payout it may have to make. It's already gone to some efforts to remove the disputed characters from the covers of reprints and to write them out of its universe. If Archie has to pay Ken, it will want to pay as little as possible, and have as little obligation to him going forward as it can get away with.

How big could this be?

The smallest impact this litigation could possibly have is, well, the impact it's already had: Ken's characters get benched awhile until this gets sorted out, and Archie eventually brings them back. A ruling that's favorable to Archie would pretty much ensure this happens.

Even in the case of a ruling favorable to Penders, Archie could still bring the characters back and continue to issue reprints of Penders-era stories; all it would have to do is compensate him for their use. I have to stress, here, that Penders is not seeking to halt Archie and Sega from profiting from his work -- he just wants a cut. If Archie does permanently drop Penders's characters and cease reprinting his comics, make no mistake: that's out of spite, not legal obligation. That's not Archie being forced to stop using those works, it's Archie choosing not to use them so it doesn't have to pay Penders for them.

As for the biggest potential impact? Well, it involves the character Robo-Robotnik.

Robo-Robotnik is a character who first appeared in Sonic the Hedgehog #19, by Penders, Mike Kanterovich, Dave Manak, and Art Mawhinney. He's a parallel-universe version of Robotnik.

Now, the "original" Robotnik -- the one who resembles the version from the Saturday morning cartoon -- dies in issue #50.

In #75, a new Robotnik steps in; as you'd expect, he more closely resembles the Robotnik from the games (and as the games gave up the "Robotnik" name for the original Japanese "Eggman", the comics followed suit).

But here's the rub: the new Robotnik in #75 is Robo-Robotnik, hopping from his parallel universe to Mobius Prime and creating a new body for himself.

So the ramifications of this are potentially huge: technically speaking, the Eggman who has been the main antagonist in the Sonic the Hedgehog comic from issue #75 to present was co-created by Ken Penders. Best case for Ken and worst for Archie, a court agrees that Ken co-owns the rights to this version of Eggman.

Now, Archie could still kill him off and have yet another parallel universe Eggman take his place; that'd be trivial enough and would keep them from having to compensate Penders for Eggman's future appearances.

But that would still leave the entire run of the Sonic comic from #75 to today -- approaching issue #250 -- featuring a Penders-derived character in a primary role.

Now, Archie is big on reprints. Huge on reprints. And they can choose not to reprint any stories containing, say, Julie-Su the Echidna -- but they can't refuse to reprint any issue containing Robo-Robotnik; that would gut their back catalog. They would have to play ball and offer Penders compensation for reprints.

What would a settlement entail?

Of course, the thing about out-of-court settlements is that they're typically not disclosed to the public. If Penders and Archie do settle, we'll never know most of the details.

But what we do know, because it's been mentioned in the public record, is that both sides are seeking an agreement where Penders is allowed to publish his own comics featuring his original characters, provided he alters their appearances to avoid infringing on Sega's trademarks.

Other than that, all I can offer is conjecture.

At a guess, Penders will allow Archie to continue to use his characters, and probably allow Sega co-ownership rights. (This will be useful to Sega and Archie in case their other co-creators come forward seeking the copyrights.) Archie will want to offer him a one-time payment for these rights; Penders will be seeking co-ownership and a guarantee of royalties or at least some form of profit-sharing agreement. It's unclear which of those will happen.

Given the leverage Penders has with Robo-Robotnik, I think Archie will push for him to sign away the rights to that character in particular, guarantee that he will never try to claim an ownership stake in him, and that he is indeed the same character as Sega's Dr. Eggman and not an original character at all. I think Penders is likely to agree to this -- while co-ownership of Robo-Robotnik could be one of the strongest victories he could make, it's also going to be one of the trickier ones in court. My guess is Penders will give up his claim to Robo-Robotnik in exchange for something else he wants -- either a reasonably-sized one-time payout, or a stronger position with the rights to the other characters who he can actually use in his own comics. (Robo-Robotnik is, of course, a complete non-starter for use in Ken's own comics; he's so fundamentally tied to the character of Eggman that Ken would have to change him so substantially that he might as well just create a new character anyway. The only reason Penders would want Robo-Robotnik would be for reprint royalties.)

What does Sega want?

To crush freelancers, see them driven before them, and to hear the lamentation of their women.

Sega doesn't want to give Penders anything. It wants him to lose, decisively, and serve as a lesson to any other freelancers with any bright ideas.

Archie might convince Sega to agree to a settlement -- but there's no way Sega will do that unless Penders agrees to drop his litigation against Sega and EA. And there's no way Penders will do that without some sort of payout. While I believe he's totally sincere in wanting to keep his original characters and continue Mobius: 20 Years Later on his own terms, Sega and EA are the biggest fish here and he's not going to drop his case over Dark Brotherhood without receiving some form of compensation.

Realistically, I think if a settlement is reached, it will involve Sega (and possibly EA) giving Penders a one-time payout with no admission of wrongdoing, and Penders signing documents to the effect that he recognizes the Dark Brotherhood as distinct from the Dark Legion and will never claim otherwise again.

I think this would probably work out all right for all parties -- Dark Brotherhood was years ago and no sequel appears to be forthcoming. Penders might be better off taking a one-time sum than gambling on future royalties that may or may not materialize; Sega, on the other hand, will want to keep the option of using the Dark Brotherhood again even if that never actually happens.

But again -- all of this is conjecture on my part. I don't know what Sega's, Archie's, EA's, or Penders's lawyers are thinking on this. If there is a successful settlement, we'll know a few of the terms -- like copyright assignments, whether Ken ends up making his own comics with Knuckles-derivative characters, whether Archie brings back Ken's characters in its comics universe -- but we won't know any financial agreements, or specific restrictions on the use of the copyrights.

Still, I'm hoping for a settlement that treats Ken decently and allows him to make a living. He's really put a lot on the line in bringing his case this far; if it goes to jury I hope he wins, but I hope he doesn't have to go through that ordeal (and the appeals that would inevitably follow). Here's hoping for a resolution that works out well for him.

Mr. Clean

2013-05-19, 9:48 pm
Categories: Music

A pre-Mothers recording with Zappa on guitar and backup vocals. Uploaded by haulofrecords.

Go, Ken, Go! -- Part 2: The Curious Case of the Contracts

2013-05-17, 7:50 pm
Categories: Comics, Games, Politics, Stream of Consciousness

Archie is the most anti-creator publisher in the comics industry.

DC's bad. Marvel's worse. But Archie is the worst.

To this day, Archie's official company line is that Archie (the character) was created by company founder John Goldwater, while Bob Montana merely created "the original characters' likenesses". And it took an out-of-court settlement for Bob Montana to get even that half-assed credit.

And talking of court cases, what happened when Dan DeCarlo tried to get a piece of the Josie and the Pussycats movie? He was fired. After freelancing for the company for forty years and becoming the definitive Archie artist (and indeed the definitive "good girl" artist). And firing him apparently wasn't enough -- Archie actually started removing his name from reprints.

Archie has the gall to continue to claim that Dan DeCarlo didn't actually create Josie -- a character who is named after his wife.

Archie creators don't even get royalties or any form of profit sharing -- you get a page rate and that's all.

So it was against this historical backdrop that I heard Ken Penders claim that his Sonic comics had not been work-for-hire, and I was skeptical. Well, "skeptical" is one of the politer words I used at the time -- I also said his claims "strike me as some legitimately crazy shit".

(I suspected for awhile that this was why I was never approved to post on Ken's messageboard; now I'm more inclined to believe it's just an automated system that filters out four-letter names as probable spambots. At any rate, it was still a rude thing to say and I now believe it was factually inaccurate besides.)

That was my read on the case for the first couple years it ran, but not long after that, the other shoe dropped and the scope of what Penders was really claiming became clear: Archie never made him sign a contract. If you look through my posts from around that time (and I'll have a bibliography post in the next couple days), you can watch the scope of the claim begin to dawn on me and my view of the case start to shift to Penders's favor.

Hard as it was to believe, it was starting to look like Archie, the company that had been so iron-fisted in its treatment of its own creators over the past 70 years, really had dropped the ball. Ken wasn't the only creator making these claims. Scott Shaw, Elliot Maggin, and a laundry list of others were too.

Here's the thing about work-for-hire: under the Copyright Act of 1976, work-for-hire agreements must be made in advance, in writing. If Ken did not sign a contract before producing his work, then it was not work-for-hire.

Which still doesn't necessarily mean, in and of itself, that he didn't transfer the rights to Sega by way of Archie -- he could have sold the rights, even if the work wasn't produced for-hire.

But that doesn't seem to have happened.

Archie has produced some contracts which appear to have Penders's signature on them -- but they're sloppy, incomplete photocopies, and they're dated years after Ken first started writing and drawing Sonic comics. Ken has implied, though he's been very careful not to say it outright, that his signature may even be forged on them.

And personally -- and please note that this is pure unsubstantiated conjecture on my part -- I think he's got proof. Because by the end of last year, Archie was talking settlement.

Indeed, Archie's lawyer recently said the company was "desperate" to settle. But it hasn't.

And that's because this isn't just about Ken Penders and Archie. Sonic is a licensed comic; Sega owns the rights. Not just to the original characters, but to all the comics and everything in them. If Archie lost the license, Sega would retain the rights to reprint everything through another publisher (like how Dark Horse can reprint Marvel-era Conan and Star Wars).

At least, that's how it's supposed to work. But, if Ken is right and Archie never made him sign a contract, that means he owns, or at least co-owns, all the material he wrote or drew.

The way the contracts were supposed to work is that the writers and artists sign them and immediately give up the rights to Sega. According to Penders, Shaw, Maggin, et al, that didn't happen.

So Sega is denied the ownership it expected, because Archie screwed up the paperwork.

And, not to put too fine a point on it, Sega's been sued over it. And might be again.

Because I've been talking about Archie v Penders here, but there's another suit out there: Penders v Sega and EA.

The Sega/BioWare game Sonic Chronicles: The Dark Brotherhood included villains who resembled Penders's Dark Legion characters. I will grant that I've never played Dark Brotherhood -- but I'll also say that the very first thing I thought when I saw the advertising materials was "Oh, it's the Dark Legion."

So Archie v Penders has a direct bearing on Penders v Sega and EA -- because the outcome of Archie v Penders will determine whether Penders owns the Dark Legion and has grounds to sue for their appropriation in the first place.

If I were representing Sega, I'd be pretty angry at Archie for fouling up the paperwork and putting my company into this position. And I'm willing to bet that Sega is a lot less interested in settling than Archie is. Because even if it reaches an arrangement where it pays out a small, one-time settlement fee and doesn't have to worry about paying Penders for reprints or for any future games or reissues, a settlement opens the door for more writers and artists to assert their copyrights and pursue compensation.

So that's where things stand as of last week. Archie wants to settle but Sega hasn't granted approval for a settlement.

The judge is pushing to bring Sega in on the negotiations ASAP, and that should determine whether the suits are settled or go to trial. There should be more news any day now.

Update 2013-07-08: Archie v Penders has been settled; see Part 5 for my thoughts.

Electric Circus

2013-05-13, 9:16 pm
Categories: Music

Been awhile since we checked in on Ed Seeman. Here's a post he calls Electric Circus 60's Disco Zappa Music, with the following explanation:

This 60's disco was located just below Andy Warhol's Loft and down the block on St. Marx Place in Greenwich Village from where Zappa was playing for six months at the Garrick Theater. So I used his music from my "Uncle meat" footage to score this completely unedited film shot on one 100ft. roll.

Thanks for all the posts, Ed. Looking forward to many more.

Go, Ken, Go! -- Part 1: Sonic Fandom ca. 1996

2013-05-13, 6:11 pm
Categories: Cartoons, Comics, Games, Politics, Stream of Consciousness, TV

I'd like to talk about Archie v Penders, because it fascinates the hell out of me. In fact, I've got enough to say about it that I'll be on the subject for most of the week, if not longer.

But I should probably get some disclosure out of the way first.

First of all, my feelings on creators' rights are pretty well known.

And second, I corresponded with Ken Penders for years in the mid-1990's and he was pretty cool to me.

It may be hard to remember in these days where I can just get into a political debate with Ethan van Sciver or ask Kurt Busiek about his unpublished Final Fantasy comics, but it wasn't so long ago that most people didn't have the Internet and it wasn't common for fans to connect directly, personally, and regularly with comics creators.

The first cartoonist who I ever knew to directly engage his fans online was Ken Penders. (Not the first person, and not even the first person who worked on Sonic the Hedgehog at Archie -- that honor goes to editor Paul Castiglia, who likewise was a class act -- but the first person who was actually writing, drawing, and inking the things.)

In those days, the main place where I participated in Sonic fandom was on a mailing list run by Ron Bauerle. And when I say "mailing list" I mean something less sophisticated than an automated majordomo system; I mean people E-Mailed Ron and he forwarded those E-Mails to a list of addresses, manually, with some edits and comments of his own.

Ken was kind, engaged, patient, and forthcoming. He took the credit or blame for ideas that were his, and he was entirely candid about decisions that were forced on him by Archie or Sega.

I always liked the guy, though I grant I often had a funny way of showing it. I was thirteen, fourteen years old, and behaved about like you expect an angry, entitled, teenage member of comic book fandom to behave. And Ken was always patient and polite with me (and others), even when I didn't earn it.

In my defense, there were times when he actively and transparently trolled the fans. The biggest thing that ever happened on Ron's mailing list was when one day Ken posted -- in a fake casual, "oh by the way" manner -- that he'd just written a script where he killed off Princess Sally.

He may not have deserved all the vitriol he got for that -- but he did very clearly and deliberately invite it.

(And while I remember being nastier than I should have been, I won't recant the substance of my criticism of the story -- if possible, my disdain for the "women in refrigerators" and "revolving door of death" tropes has only deepened in the intervening years. It was a terrible idea, a terrible execution, and, all right, at least the "Director's Cut" reissue of #50 shows that editorial meddling made the comic even worse than if Ken had done it the way he wanted to.)

But again, I always liked Ken -- he was a nice, friendly, forthright guy, who made time for his fans. Even when I didn't like the comics he was writing or drawing, I still liked him.

And, nontrivially, I also think he's a big part of why Archie's Sonic comic is still out there.

The mid-1990's were a weird time for Sonic fandom. The cartoon had ended, and the games were going through what would become the longest dry spell in their history.

Nobody expected, fifteen and twenty years ago, that Sonic the Hedgehog would still be running in 2013, zooming toward issue #250. (And that fact is essential to understanding the current legal disputes. It looks to me like Archie got sloppy with its paperwork, precisely because this was a licensed comic that they didn't think would last. But more on that tomorrow.)

Indeed, Ken didn't tell us at the time, but there was every possibility that the book was going to end with #50. I mean, given that the story arc was called Endgame, that should have been obvious, in hindsight.

But Ken, more than anybody else, is the guy who kept the book afloat. He's the one who took the wheel in the teens (#16?) and decided the book should depart from the slapstick roots of the Scott Shaw/Mike Gallagher/Dave Manak era and generally start to look more like the Saturday morning cartoon. He wrote more complex, character-based stories. That's how the comic attracted an audience outside its 8-to-12-year-old target, how it managed to keep its 8-to-12-year-old target, and generally the reason there's still a Sonic comic at all. Ken believed in the book, he took it seriously, he made it the best he could. It wasn't always great -- in fact, there were times it was downright lousy. But a Ken Penders story was still usually better than anything printed in the first 15 issues.

And look, I quit reading Sonic comics ages ago. People say Ian Flynn is great and I take them at their word. I definitely acknowledge the possibility that he's writing better comics than Ken ever was. I don't know.

But I am pretty confident that Ian Potto would never have gotten a job writing Sonic the Hedgehog if not for Ken Penders. Firstly, because there wouldn't have been a Sonic comic if Ken hadn't shepherded it through some of its most turbulent years, and secondly, because it was guys like Ken, Paul, and Karl Bollers who interacted directly with the fandom and created an environment where fans like Flynn and Dawn Best could actually make the step to pro.

So anyhow, that's my bias in all this. I like Ken Penders as a dude. I like a lot of what he did when he wrote and drew Sonic and Knuckles. I don't like a lot of what he did, too -- and while a lot of that's down to editorial meddling by Archie and Sega, some of it is indeed down to decisions made by Ken himself.

But that's not why I think he's right and should win the case against Archie -- indeed, when he first announced he was pursuing legal remedies I thought he must be crazy, and said so, rather rudely.

But as the facts have come out, I've found myself believing Ken isn't just morally in the right, he's legally in the right.

And that doesn't have anything to do with whether I, or anyone else, actually like him, as a person or as a writer or as an artist.

That's a point Sonic fanboys just can't seem to grasp in this case: whether or not you personally like Ken Penders's Sonic and Knuckles comics is completely irrelevant to the merits of his legal case.

Coneheads

2013-05-12, 9:00 pm
Categories: Music, TV

I'm sure somebody's got this in better quality somewhere, but here's the one I ran across, courtesy of uploader qahtani.

Cynicism

2013-05-11, 10:36 pm
Categories: Music, TV

"People are people and they are basically bad."

A little cynical for my tastes, but I must say I enjoy his commentary.

Uploaded by LightningStrat. He doesn't name the original source but it looks like the early '80's and those subtitles are German.