Tag: Copyright Law

Kirby on Work-for-Hire

2013-06-04, 9:39 pm
Categories: Books, Comics, Politics, Stream of Consciousness

One of the most common facts Kirby critics cite -- well, the ones who actually have a basic understanding of the facts of the case, anyway -- is that he sided with Marvel when Joe Simon attempted to recapture the rights to Captain America in 1966.

I'm reading Marvel Comics: The Untold Story, by Sean Howe. It's an excellent book, and recommended.

And I just came across the exact wording of Kirby's statement on the subject. It appears on page 77 of Howe's book, and he cites a post on 20th Century Danny Boy, which has a scan of the statement.

It reads, in part:

I felt that whatever I did for Timely belonged to Timely as was the practice in those days. When I left Timely, all of my work was left with them.

Kirby certainly seems to be suggesting that the work he and Simon did for Timely in the 1940's was work-for-hire and not spec work. As such, that does seem to undercut any later claims he or his family might make that he believed he and Simon created Captain America independently and had a right to terminate the transfer of copyright.

Critics of the Kirby Estate's legal maneuverings over the past few years cite that this shows that Jack knew his work in the 1960's was work-for-hire, too.

But does it?

Because from where I'm sitting, it seems to indicate exactly the opposite.

Kirby says, "I felt that whatever I did for Timely belonged to Timely as was the practice in those days." Why the past tense? If Kirby believed that the work he was doing in the 1960's was work-for-hire, that it was owned by Marvel, and that he had no stake in it -- why would he refer to that arrangement as what "was the practice in those days", decades earlier? Why wouldn't he use the present tense? Why wouldn't he indicate that this was still the practice at the time he was writing that statement, if he believed that to be the case?

Kirby's words in this document clearly imply that he believes the work-for-hire arrangement is a thing of the past, and not a standard agreement at the time he wrote the statement in 1966.

Quantum and Woody

2013-05-31, 9:32 pm
Categories: Comics, Politics, Stream of Consciousness

I haven't talked about the questions surrounding the upcoming, non-Priest-and-Bright Quantum and Woody comic because there's so much we don't know and I didn't want to jump the gun.

Today, for the first time, we got word from Mark Bright that the situation with Valiant is "amicable":

As far as I know Priest hasn’t spoken to anyone about anything concerning Quantum and Woody other than myself and that happened only within the last month or so… Our position with Valiant isn’t adversarial. The people at Valiant have been more than willing to talk about what is happening at the company and with Quantum and Woody and with Priest and me. What happens from here is yet to be seen, but everything thus far has been amicable.

Pretty vague, but it gives me hope.

Let me back up. (Ooh, out-of-sequence storytelling. Just like...Quantum and Woody!)

Quantum and Woody was a comic book in the mid-1990's, created by writer Christopher Priest and artist Mark Bright. It was a superhero buddy-cop comedy. It was funny as hell and became a cult hit; it remains one of my all-time favorite comic books.

Quantum and Woody was published by Acclaim, a video game company that was briefly in the comics business, having bought out a publisher called Valiant.

Priest and Bright's contract contained a reversion clause -- if the book went out of print, they had the opportunity to buy the rights.

But Acclaim went bankrupt. Its assets were auctioned off. Somebody bought the rights to its superhero line, and eventually a couple of Valiant fans bought the company name and those rights.

Now, I've done a bit of reading on bankruptcy law. And yes, it is possible for somebody to buy up copyrights without buying into the contracts associated with them. This is, legally, a breach of contract -- but the company liable for the breach is the bankrupt company, not the buyer.

Which, I'm not gonna lie, seems pretty goddamn stupid from where I'm sitting. What the fuck good is it to make a bankrupt company liable for anything? It's not like they're ever going to pay any damages.

Anyhow, the new Valiant doesn't appear to have done anything legally wrong. Indeed, they appear to be treating the old Valiant/Acclaim creators better than they're legally obligated to -- the article I linked above suggests that they are paying royalties for the back issues they've put up on Comixology, and while it doesn't cite a source, I think that would go a long way to explaining why things are "amicable" with Priest and Bright -- and Kevin Maguire, who had some harsh words for Valiant back in March but who has since smoothed things over with them.

So what happened, anyway?

Kevin Maguire claimed, back in a series of posts on Bleeding Cool in March, that Priest and Bright attempted to trigger their reversion rights before Acclaim's bankruptcy but that Acclaim stonewalled them on a technicality.

Rich Johnston, on the other hand, has uncovered a 2005 interview where Priest says he and Bright never acted on reversion because they were busy with other projects.

Now, it could be that Priest was being diplomatic and keeping things close to the vest -- that would be consistent with his silence on the matter these last few months.

Or it could be that Maguire is mistaken and Priest and Bright didn't attempt reversion.

The answers aren't clear, and probably never will be.

But it's good to hear that things are amicable, and it sounds like Valiant is in touch with Priest and Bright and is making an effort to do the right thing. That's great news.

What would be better would be to read some actual new material by Priest and Bright -- Quantum and Woody or anything else. Fingers crossed.

Meanwhile: IGN is running Quantum and Woody Weekly, by James Asmus and Ty Templeton, to promote the upcoming series. And I have to admit, the first one made me smile.

It's not Priest and Bright. But it's not bad.

Go, Ken, Go! -- Part 4: Bibliography

2013-05-21, 6:53 pm
Categories: Comics, Games, Politics, Stream of Consciousness

I think this'll round off my Ken Penders coverage for now -- maybe I'll post more when there's news; maybe I'll write a post about why I care enough about the rights to silly mid-1990's Sonic the Hedgehog comics to spend so much time and so many words on the subject, just as soon as I figure that out myself.

Anyway, here's a list of articles about Archie v Penders and the related legal disputes. I posted comments in many of these threads myself, and it's interesting (to me at least) to watch as I go from initial skepticism -- "Penders signed a contract, he had to have" -- to eventually realizing that the root of Penders's claim is that no, he didn't sign a contract, and then slowly come to believe that he's right and Archie really did forget to make him sign one.

Far and away the most legwork on this story has been done by Tristan Oliver of TSSZ News. TSSZ's coverage has been extensive, and I intend to link a few highlights here; please understand that this is by no means an exhaustive sample of everything Oliver and his associates have written on the subject. For a more thorough list, check their Penders+Copyright tag.

By the way, though: I would advise not reading the comments section on any TSSZ News story about the Penders case. The comments section is a wretched hive of scum and villainy.

(Also: My sister-in-law owns cats named "Tristan" and "Oliver". That's kinda weird.)

Ken Penders Presents... by Ken Penders, kenpenders.com, 2010-07-07. Ken's opening salvo, where he first claims that he owns or co-owns the copyrights to everything he ever wrote or drew for Archie's Sonic the Hedgehog, Knuckles the Echidna, and assorted related specials.

Has Archie Lost Rights to Sonic Reprints? by Johanna Draper Carlson, at her blog Comics Worth Reading, 2010-07-11. This is the first I heard of the story; Ken's name was a bit of a blast from the past and I was surprised to hear it in the comics news.

Ken Penders Claims Sonic The Hedgehog Rights by Rich Johnston, Bleeding Cool, 2010-07-10. The first of Bleeding Cool's long-running coverage of the case.

Archie v Penders thread at Brontoforumus, 2010-07-12 to 2013-07-09 -- this thread is assembled from all the posts I (and others, but mostly I) have written on the subject for the past several years across multiple threads. It makes for a good quick run-down to read it all end-to-end.

Archie Comics Files Federal Lawsuit Against Ken Penders, by Tristan Oliver, TSSZ News, 2010-12-01. While there had been legal wrangling prior to this, this is where the lawsuits actually started. And it is important to remember, throughout this discussion, that while fanboys continue to misstate the basic facts of the case, Archie sued Ken Penders, not the other way around. (Penders has sued Sega and EA -- we'll get to that in a bit -- but he has not sued Archie. Archie sued him.)

Penders Affidavit Offers Intimate Look At His Sonic Comics Tenure by Tristan Oliver, TSSZ News, 2011-03-03. Oliver looks over the affidavit. This is where the meat of the dispute starts to become clear: Penders is claiming he never signed a work-for-hire agreement; Archie has submitted documentation to the contrary but Penders is disputing its authenticity; Penders has other creators from the same period who back up his story. Money quote: "First, the signatures are not believed by me to be authentic."

Inside Ken Penders's Alleged Work for Hire Agreements with Archie by Tristan Oliver, TSSZ News, 2011-03-07. Oliver highlights the contracts Archie has submitted as evidence, and notices a number of discrepancies in them.

Ken Penders Files Lawsuit Against Sega, Electronic Arts by Tristan Oliver, TSSZ News, 2011-06-01. As the name implies, this is the filing of Penders v Sega and EA, over the game Sonic Chronicles: The Dark Brotherhood, which features characters who resemble the Dark Legion from Ken's Knuckles comics.

Inside Ken Penders’s Copyright Lawsuit Against Sega, EA by Tristan Oliver, TSSZ News, 2011-06-03. More detail on the suit, notably including Penders's allegations that BioWare approached him about helping develop Sonic Chronicles, which would certainly imply they were familiar with his work and the Dark Brotherhood's resemblance to the Dark Legion is not coincidental.

The Ken Penders/Archie Comics Lawsuit Continues by Rich Johnston, Bleeding Cool, 2011-06-24. More coverage of the contracts Archie submitted as an exhibit in the case, and Penders's claim -- with support from Scott Shaw and Elliot S Maggin -- that the contracts are illegitimate.

Coming Soon in 2012, by Ken Penders, kenpenders.com, 2011-12-01; Ken's statement of intent to publish his characters in his own comics, without Archie or Sega (or Sega's trademarks). At the time of this writing the thread has posts in it on up through last October; a lot of it is just Ken going in circles patiently trying to explain copyright and trademark law to his forum trolls, but if you can get through it there's a lot of edifying information on the claims he's making in the case and the legal tack he's taking with them.

Ken Penders To Publish Sonic The Hedgehog Characters On His Own by Rich Johnston, Bleeding Cool, 2011-12-04; a response to the above post. The comments thread had some interesting discussion and links related to how Archie handled the TMNT license; the TMNT Adventures comic ended around the same time the Sonic comic started, though unfortunately it's no longer up and only part of it is available on archive.org.

Inside the Archie v. Penders Pre-Trial Report by Tristan Oliver, TSSZ News, 2012-02-13. Notes some of the names on the witness list; a number of former Archie editors and freelancers were slated to testify and corroborate Ken's claim that Archie did not make him or other Sonic freelancers sign work-for-hire agreements.

Penders Case: Scott Shaw Claims Copyright to his Archie Sonic Work by Tristan Oliver, TSSZ News, 2012-03-20. Includes an affidavit from Shaw, as well as one from Maggin saying he never signed a work-for-hire agreement for an issue he did of Archie's Super Teens around the same time.

Ken Penders Stops Diamond From Distributing Sonic Collections by Rich Johnston, Bleeding Cool, 2012-09-14. This was an early sign that Penders's claims were causing trouble for Archie; in the months since Archie has continued to put out reprints of Penders's Sonic work through Diamond, but among other measures it's altered covers so that his characters don't appear on them.

Settlement Terms Reached in Archie v. Penders Copyright Case by Tristan Oliver, TSSZ News, 2012-12-04. For a minute there, it really looked like it was almost over.

Flynn Addresses Altered Sonic #244; Fans Look To Penders Settlement by Tristan Oliver, 2012-12-27. A recent issue of Sonic the Hedgehog has most of the Knuckles the Echidna supporting cast sent through a Warp Ring and effectively written out of the series indefinitely. Notably, the characters in question are among those Penders created and is seeking to claim copyright on.

Archie Fighting Proposed Dismissal of Penders Copyright Case by Tristan Oliver, TSSZ News, 2013-03-27. And then the talks broke down and Penders moved for dismissal. In one of my favorite legal filings ever, Archie's lawyer argues against dismissing the case with prejudice because this would be, and I quote, "greatly prejudicial".

Penders Counsel Asks Court to Ban Knuckles Archives #4 Sale, Related Material in Dispute by Tristan Oliver, 2013-04-19. Ken's tightening the screws and pushing for an injunction; the judge has not made a decision yet.

Archie Desperate To Settle, But Can’t Without Sega – The Latest In The Ken Penders Sonic Comics Case by Rich Johnston, Bleeding Cool, 2013-05-09. A fantastic transcript of a May 2 court session; the judge quotes Laurel and Hardy but the transcript reads more like an Abbott and Costello routine. Counsel for both Archie and Penders state that they want to settle but that they haven't been able to get Sega to sign off on their terms.

And here we stand -- there's been no news since. The judge granted both parties more time to bring Sega to the table to approve their settlement, and that's the last we heard; neither Bleeding Cool nor TSSZ News has posted any updates on the case since.

I suspect all sides are hoping to settle rather than go to trial. If they settle, most of the terms will be private. But if talks break down, the case will go to trial. And from there, probably an appeal by whichever side loses. This could stretch on for years more. But like I said yesterday, I hope it doesn't -- I hope it gets settled on terms that are favorable to Ken.

Of course, while that would close the book on Penders's case, it wouldn't preclude all the other Sonic freelancers from that era from coming forward with claims of their own. As we've seen, there are lots of creators making the same claims Ken has -- and if he gets a settlement, they'll be angling for settlements of their own.

Stay tuned...

Update 2013-07-09: Archie v Penders has been settled. Two more related links:

It's Over. by Ken Penders, kenpenders.com, 2013-07-01. Ken announces that he is moving forward with The Lara-Su Chronicles.

Judge Officially Dismisses Archie v. Penders Case by Tristan Oliver, 2013-07-02. TSSZ News confirms that the case has been settled and the suit dismissed.

Update 2015-09-24: I'm late on this, but I recently found out that Penders v Sega et al was dismissed (due to a mistake in how the paperwork was filed, not due to any decision on the merits of the case itself).

TheAmazingSallyHogan has the most thorough summary of both cases that I have seen to date; it is well worth reading in its entirety.

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.

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.

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.

Prenda Law Circles the Drain

2013-05-07, 9:03 pm
Categories: Politics, Stream of Consciousness, Tech

In light of the recent excellent news of the legal sanctions facing copyright troll Prenda Law, here are some things I wrote on the subject a couple months ago. Originally posted on Brontoforumus, 2013-03-07, 2013-03-12.

...so have you guys been paying attention to the Prenda Law case? Because it's pretty amazing.

Prenda Law is one of those copyright trolls that sends people threatening letters alleging that they've illegally downloaded porn. The idea is that people would rather pay a settlement than be a named defendant associated with downloading porn.

It's extortion. Which is bad, and was bound to catch up with Prenda sooner or later.

But that's actually the tip of the iceberg. Popehat has an exhaustive rundown, but the highlights are that Prenda Law is most likely run by people who own the rights to the porn videos in question and who have not disclosed that interest, and also they appear to have stolen a guy's identity and named him as their CEO. (He's suing them.) The lawyer who's been representing them in court appears to be distancing himself from the organization now and blaming his bosses for everything; the judge seems righteously pissed and has dropped the word "incarceration" into his list of potential sanctions.

A followup post indicates that the company's entire business strategy appears to be to buy up cheap rights to porn movies that are cheap because they're frequently pirated, and then pursue pirates, ostensibly to reduce piracy and increase the value of their investments.

I'm just astounded by the combination of stupidity and balls involved in this scam. I mean, at least people who run Ponzi schemes put some effort into appearing legitimate.

I understand the greed part. I just don't understand how they thought they could get away with it. Like I said earlier, if all they'd done was shake people down for blackmail money they could have gotten away with just having their business shut down; it's the layers of incompetent and half-assed fraud that are really breathtaking and liable to lead to disbarment and possible incarceration.

I am very much looking forward to seeing this organization dismembered and its corpse hung out as warning for all the other copyright trolls and would-be copyright trolls to see. Some prison time for the principals would be a bonus.

The bad news just keeps piling up for Prenda; now its owners/lawyers are facing potential disbarment and criminal investigations.

Popehat has lots more under the prenda-law tag, and Ars Technica has plenty under the tags intellectual-property and lawsuits.

75

2013-04-18, 6:14 pm
Categories: Cartoons, Comics, Politics

According to the Internet, today is the 75th anniversary of the publication of Action Comics #1, the first appearance of Superman.

There's rather a lot I can say about Superman -- from how the people who think he's boring are wrong, to my disappointment at the recent decisions in the Siegel and Shuster heirs' attempts to reclaim the rights.

But I'm not feeling so hot right now, so instead I'm just going to leave you with the very first Fleischer Superman cartoon. In which he punches fucking lasers.

Signage

2013-02-11, 11:19 pm
Categories: Books, Stream of Consciousness, Tech

Yesterday I went to a Cory Doctorow book signing at Changing Hands.

He was promoting his new book, Homeland, but the talk he gave was more general. It dealt with his usual pet issues: overbearing copyright law and its impact on ordinary citizens, and spyware that attempts to control our computers and how it makes them and us less safe. A lot of it was about Aaron Swartz, the talented programmer who developed RSS, helped build Reddit up, spent the last several years of his life fighting charges from the US Attorney threatening a decades-long prison sentence for copyright infringement (when the copyright holders themselves chose not to press charges), and took his own life last month. It's a sobering story -- obviously depression is a complicated thing and it's foolish to blame a person's suicide on one single cause, but I think any reasonable person can conclude that (1) the charges against him contributed to his decision and (2) they were wildly disproportionate to his alleged crime.

Sobering stuff, but a good talk and mostly light despite ending on a heavy note. Nobody in the audience recorded it, but Doctorow said the talk's been recorded elsewhere and that he'd provide a link once it was uploaded to YouTube. (Edit 2013-02-13: Per Doctorow's blog, the version of the speech he gave the next day at ASU has been posted on ustream: part 1, part 2.)

Before all that, I was sitting in the audience waiting for him to come out onstage. I was reading a copy of Circle of Enemies; the lady sitting next to me asked if it was an urban fantasy novel and when I said that it was, she handed me her business card and said that she was an urban fantasy author as well. Her name is Kater Cheek, she's a former student of Doctorow's, and the urban fantasy novel advertised on her card is Seeing Things. I bought a copy when I got home; haven't had a chance to read it yet, but I'm looking forward to it.

I mentioned that I'd recently put out a few audiobooks; she hadn't heard of ACX so I suggested she give it a look if she's interested in producing any of her own.

I talked to Doctorow a bit about audiobooks, too, when it came time for the actual booksigning. The guy in front of me asked if Homeland would be released as an audiobook; Cory said there were no plans at present, because he won't distribute through Audible until they offer a DRM-free option, and Audible is 90% of the market. He said he's looking at options with the Humble Bundle; when I got up there I wished him luck on that, and added that a Humble Audiobook Bundle could be a great help to narrators like myself who don't really have an alternative to Amazon but don't like DRM very damn much either. (I mentioned that, while I sell books on Audible, I can't be their customer, because they don't support my operating system. Crazy.)

Anyway, I asked him to sign my Nexus 7 case, because that's where I keep most of his books.

For Thad -- If you can't open it, you don't own it! Cory

Which is really a twofer, because now my case has not only a drawing of a skull and crossbones by Cory Doctorow...

Speck's logo looks like an asshole

...it's also got a drawing of an asshole by Kurt Vonnegut.

(For the record, I haven't opened it but I'm pretty confident that I can. It looks easier than my Mac Mini, Wii, or old 60GB iPod, and I've opened them.)

Fair Use

2013-01-21, 3:15 pm
Categories: Politics, TV

Happy Martin Luther King Day. Here's a video of the I Have a Dream speech, posted by Fight for the Future.

The I Have a Dream speech is copyrighted. If SOPA had passed last year, this site could have been subject to takedown simply for embedding the above video.

I do not begrudge King's right to own the words he spoke. Nor do I begrudge his family's right to inherit them following his tragic death. But I question the right, not to mention the wisdom, of any entity -- individual, governmental, or corporate -- to restrict the dissemination of these words, this speech, this seminal moment in American history.

The I Have a Dream speech is copyright 1963, Estate of Martin Luther King, Jr. Pass it on.