Tag: Creators’ Rights

Marvel's Statement of Purpose

2013-07-29, 9:13 pm
Categories: Books, Cartoons, Comics, Movies, Politics, Stream of Consciousness

I'm in the home stretch of Sean Howe's excellent Marvel Comics: The Untold Story, and this quote from the beginning of chapter 17, I think, sums up what's wrong with the company in a nutshell:

The Los Angeles Times, CNN, and USA Today all chimed in about Liefeld, Lee, McFarlane, and the other renegade artists who were standing up to big business. In response, Marvel president Terry Stewart made a statement that "the importance of the creative people is still secondary to the (comic book) characters," a stance that hardly discouraged Marvel's new image as a corporate overlord.

(Brackets in original.)

Howe comes back to this point in chapter 19:

In June 1994, Frank Miller paid tribute to Jack Kirby, delivering a keynote speech at an industry seminar in Baltimore. [...]

Marvel Comics is trying to sell you all on the notion that characters are the only important component of its comics. As if nobody had to create these characters, as if the audience is so brain-dead they can't tell a good job from a bad one. You can almost forgive them this, since their characters aren't leaving in droves like the talent is. For me it's a bit of a relief to finally see the old "work-made-for-hire talent don't matter" mentality put to the test. We've all seen the results, and they don't even seem to be rearranging the deck chairs.

Creators who complained about defections to Image and other companies, he continued, were "like galley slaves complaining that the boat is leaking." The age of company-owned superhero universes -- the Jack Kirby age -- was over. "It's gone supernova and burned itself out, and begun a slow steady collapse into a black hole. We couldn't feed off the genius of Jack Kirby forever. The King is dead, and he has no successor. We will not see his like again. No single artist can replace him. No art form can be expected to be gifted with more than one talent as brilliant as his. It's a scary time because change is always scary. But all the pieces are in place for a new proud era, a new age of comics. Nothing's standing in our way, nothing too big and awful, nothing except some old bad habits and our own fears, and we won't let that stop us."

The crowd rose to its feet.

(Ellipsis mine.)

Miller was right in some ways and wrong in others.

The bottom fell out of the market soon after, for both Marvel and Image. Jim Lee is now one of the Editors in Chief at DC; McFarlane and Liefeld have become punchlines (and so, for that matter, has Miller). Post-bankruptcy Marvel has done a pretty damn good job feeding off the genius of Jack Kirby -- in films. As for the comics, well, they're selling decently enough but are, at this point, largely the R&D branch for upcoming Disney movies.

Marvel still believes the creative people are secondary (and that's giving them the benefit of the doubt). Marvel is wrong.

Yes, Iron Man is more popular now than he was during Jack Kirby or Don Heck's lifetime. That's not just because Iron Man's a great character -- though I happen to think he is --, it's because of Robert Downey Jr, and Jon Favreau, and Gwyneth Paltrow, and Jeff Bridges.

When you think the characters are primary and the creative people secondary, you get a film like Daredevil. Or, at best, Fantastic Four. Compare the numbers -- and you'll forgive me from switching over to DC for this, but they've got a much longer history of film franchises -- compare the numbers from Batman and Robin to the numbers from The Dark Knight, or the numbers from Superman Returns to the numbers from Man of Steel, and tell me that the characters are more important than the creative people.

And that, of course, is just looking at it from a mercenary standpoint -- because really, that's what Marvel as a company cares about. That's not even getting into quality. My unsurprising opinion is that you're a lot likelier to get a high-quality film or comic when you've got high-quality creative people working on it.

And Marvel's policy of treating its characters as primary and their creators as secondary has resulted in fewer and fewer original characters added to its stable. Sure, lots of creative people still love to play in Marvel's sandbox -- and then save their original ideas for creator-owned work.

Take a look at the characters who've starred in films or TV shows over the past couple of decades. Superman and Batman are from the 1930's. Green Arrow and Captain America are from the 1940's. The Fantastic Four, Spider-Man, Iron Man, Daredevil, and the Avengers are from the 1960's. The X-Men are also from the 1960's, though their most popular character, Wolverine, is from the 1970's. Blade, Ghost Rider, and Swamp Thing are from the 1970's too (and so is Howard the Duck, if you really want to bring that up). The New Teen Titans, Elektra, the Tick, the Teenage Mutant Ninja Turtles, and the Mystery Men are from the 1980's. Static, Spawn, Hellboy, and the Men in Black are from the 1990's. The Walking Dead started in 2003, Kick-Ass in 2008.

It's not an exhaustive list (see Nat Gertler for that), but it's an eye-opening one. Marvel and DC have a strong library of characters -- from decades ago. Most of the successful new characters, though, are creator-owned.

But hey -- Disney's biggest franchises are already from the 1920's to the 1950's (and many of them are based on public-domain material that's a lot older than that). Disney doesn't need to create new product. When the copyrights to the first Mickey Mouse cartoons come close to expiring, Disney can bribe Congress to extend them. If Disney needs to add new material to its portfolio, it can buy a company like Pixar or Marvel.

And as Disney's purchase of Lucasfilm and, to a lesser extent, Viacom's purchase of the Teenage Mutant Ninja Turtles, shows, even the most successful creator-owners eventually want to retire and are willing to part with their works.

Star Wars -- hm. Maybe I have found an example where the characters are more important than the creator.

Course, that's just because he was ripping off Jack Kirby.

Quantum and Woody and Complex Feelings

2013-07-12, 7:07 pm
Categories: Comics, Stream of Consciousness

Quantum and Woody was something I loved when I was a teenager -- and then it went away. 13 years later it shows back up, but under less than ideal circumstances. It's not the book I remember, and I don't know if I should be happy it's back or pissed about it being something less than what I expected and hoped for.

Even if you've never read a Quantum and Woody comic before, I'm guessing that the previous paragraph was suitably unsubtle that you realized it was a metaphor for the plot of the comic.

I posted about the status of Quantum and Woody previously. The gist: the original comic was published by Acclaim, and the creators, Christopher Priest and Mark Bright, had a reversion clause in their contract that should have allowed them to buy out the copyrights to the comic after it went out of print. But Acclaim went bankrupt and the rights were sold at auction instead. They were eventually bought by a new company, Valiant (which takes its name from the Valiant Comics that Acclaim bought out in the first place, but is not the same company), which has opted to start a new series written by James Asmus and drawn by Tom Fowler.

Priest has said nothing about the new series, and Bright has said little -- but he did say that their relationship with Valiant is "amicable", and that was good enough for me to go ahead and pick up issue #1 of the new series.

It's...well, it's good, but it's not as good as the original.

First of all: it's not very funny.

I mean, I laughed a few times. But the biggest laugh was at a running gag from the old series. Technically it still counts as a joke -- they're invoking a running gag, not merely doing a Family Guy-style "Hey, remember that thing from that other thing?" -- but it's not Asmus and Fowler's joke, it's Priest and Bright's.

And the whole thing feels a little like that, really. The book doesn't just borrow the premise of the original, it borrows Priest's specific storytelling techniques -- it's got chapter titles with white text against a black background, and it jumps around and tells the story out-of-sequence. Yes, that's one of the things the original Q&W was known for -- but it wasn't a Q&W thing, it was a Priest thing. He used the same technique in Black Panther and Deadpool. For my tastes, this strays a little too far from the notion of a loving homage to the original series and too close to stealing another guy's bit. It's uncomfortable.

And it's also absurd, given that Valiant chose not to ask Priest and Bright to do the new series themselves, ostensibly because they wanted to do something different, that the new book hews so close to the old one stylistically.

And yet, for all that, page 2 passes up a perfect opportunity to use "noogie". What the F-word? I just don't understand how Asmus can crib so shamelessly from the original series (and Priest's general comics vocabulary) and yet draw the line at noogie, of all places.

...okay, that got a little inside baseball. Point is, the book, at its worst, feels like a cover tune that's uncomfortably close to the original without ever hitting the same notes quite right.

But at its best?

It's got heart, man.

Asmus may not have a good grip on Priest's gift for satire -- and couldn't get away with his brand of pointed commentary on race in America even if he did -- but what he does get is the relationship between the leads. It's real and it's raw -- these are two guys who really do love each other (but they're not a couple) but are so fucking furious at each other over something that happened a long time ago that it takes a near-death experience to even acknowledge it -- almost.

Asmus gets that. And it just so happens to be the emotional core of the book. More important than the jokes, and certainly more important than "Hey look you guys we put the goat on the cover!" -- it's the heart.

Aside from that, the plot actually hews pretty close to the original, despite an important change in apostrophe placement -- now, Eric and Woody are reunited after their father's murder, not fathers'.

That's been the change fans of the old series have been most nervous about -- well, the story change that fans of the old series have been most nervous about. But it works.

Ultimately, Eric and Woody's fathers weren't important to the original story; they were the McGuffin that got everything started, but we knew less about them than we knew about Uncle Ben (and only slightly more than we knew about Thomas and Martha Wayne in the original version of Batman's origin). Woody's father is only important because he's what got him to come back to town -- it's his mother who we see is mostly responsible for what shaped him as a child, for better or worse.

And all that would seem to be intact -- in this version, Eric's father took Woody in as a troubled foster child. And, while the circumstances of Woody's departure from the family are left as a mystery for now, I wouldn't be surprised if they were similar to what happened in the original series: he went to live with his mom, things went south fast, and he wound up living on the streets.

All of which is still entirely possible if Mr. Henderson was his adoptive father. Mr. Van Chelton is completely unnecessary to the story.

Through all this chatter, I guess I've focused on Asmus's writing over Fowler's art. Fowler's art is like Asmus's writing, I suppose -- it's solid but it hasn't blown me away, and unfortunately a whole lot of it seems to be just recreations of scenes from the original series (like the opening of Q&W falling out a window while the news media mock them).

Still -- it's good. It's not what I'd hoped for, but it's not bad.

It's good enough that I'll pick up #2. And hope that this generates enough interest that maybe someday we'll see something new from Priest and Bright. New Quantum and Woody, the release of the completed-but-unpublished issues of the original series, or something else entirely -- it doesn't matter, I'd be happy to see anything by them that I haven't seen before.

Because that's the real point, here -- yeah, I like Quantum and Woody. But not nearly as much as I like Christopher Priest and Mark Bright.

Go, Ken, Go! -- Part 5: Settlement!

2013-07-08, 9:57 pm
Categories: Comics, Games, Politics, Stream of Consciousness

For my previous coverage, check out the Ken Penders tag. In particular, the first post has a relevant disclaimer that (1) I tend to side with creators over publishers generally and (2) I corresponded with Ken Penders in the 1990's and he was a nice guy.

Anyhow, looks like I'm a bit behind on this, but last week brought the biggest news yet: per TSSZ News, Archie and Penders have settled and the suit has been dismissed.

What I predicted in Parts 3 and 4 still holds: we'll learn some of the terms of the settlement in the coming months (we already know Ken is moving forward with The Lara-Su Chronicles so I think we can safely say he has the rights to publish original comics with Lara-Su in them); some will stay confidential. Penders v Sega and EA is still ongoing, though this puts him in a better position as it establishes that he does have standing to sue for infringement, even if it still has to be established that Dark Brotherhood infringes his copyrights.

I think it's also safe to say that Ken would be happy for Archie to continue using his characters and reprinting his stories -- so long as they pay him his share for that use. And that if, say, the echidnas stay lost in that warp ring, that's Archie's decision not to pay Penders, not Penders's decision not to let Archie pay him.

But I think there's something much bigger coming.

Penders wasn't the only guy freelancing for Archie's Mamaroneck office in the mid-1990's. And he wasn't the only guy doing it without signing a contract first.

There are potentially dozens of other Sonic alums who have been watching this case and waiting to see if they've got a shot at winning their rights back, too. Scott Shaw has already filed for copyrights on his Sonic work. He won't be the last.

Archie v Penders is over. But this is only the beginning.

Update 2015-09-24: And Penders v Sega is over too; it was dismissed in 2014. I discuss it more in Part 6.

As for Scott Shaw and other creators seeking to reclaim their copyrights in the same way that Penders did, I haven't heard any news on that front, though I suspect we won't; given how the Penders case turned out, Archie is unlikely to file any more lawsuits, and I suspect that if other creators raise similar challenges Archie will settle with them quietly without getting the courts involved. It is possible that this has already happened, though it's likely that we'll never know.

Gary Friedrich

2013-06-12, 9:44 pm
Categories: Comics, Movies, Stream of Consciousness

There have been a lot of disheartening rulings, over the past few years, in cases where comic book creators or their heirs attempted to reclaim the rights to their work: the Siegels, the Shusters, the Kirbys. And Gary Friedrich.

Friedrich -- co-creator of Ghost Rider with Roy Thomas and Mike Ploog -- has fallen on hard times. Like far too many creators in comics, he's gotten old and poor and sick while the company he used to freelance for has made millions off his work. Like far too many creators in comics, he tells a story of the company promising far more than what it delivered.

Friedrich sued Marvel in an attempt to reclaim the rights to Ghost Rider. Marvel countersued -- Friedrich had been selling signed Ghost Rider prints without giving them a taste -- and, because Friedrich is not an artist, he was signing other people's Ghost Rider art.

Friedrich lost. And not only did he lose, but Marvel made an example of him. They sought not only $17,000 from a man who was too broke to pay his medical bills; they also demanded that he stop publicly referring to himself as the creator of Ghost Rider. I've seen lots of creators lose cases like this -- but never seen terms that seemed so punitive and downright mean-spirited.

Friedrich appealed. And today, a three-judge panel unanimously vacated last year's ruling.

Via Reuters:

On Tuesday, a unanimous three-judge panel of the appeals court deemed that Friedrich's 1978 agreement with Marvel was ambiguous.

"First, the critical sentence defining the 'Work' covered by the Agreement is ungrammatical and awkwardly phrased," Circuit Judge Denny Chin wrote in the 48-page opinion. "Second, the language is ambiguous as to whether it covered a work published six years earlier."

The appeals court found that Marvel was not entitled to a judgment based on its argument that a statute of limitations has expired. The court also found that there is a genuine dispute of facts regarding the authorship of the character.

And The Hollywood Reporter quotes Chin further:

Spotlight 5 had been published six years earlier by a different corporate entity (Magazine Mgmt.) and had grown so popular that Marvel had already reprinted it once and had launched a separate Ghost Rider comic book series. Given that context, it is doubtful the parties intended to convey rights in the valuable Ghost Rider copyright without explicitly referencing it. It is more likely that the Agreement only covered ongoing or future work. Hence, there is a genuine dispute regarding the parties' intent for this form contract to cover Ghost Rider.

There are several points at issue. First, like in the Kirby case, the question of whether the work was created for-hire, in which case Marvel would be the legal author, or whether Friedrich and Ploog created that story independently and therefore co-authored it and sold it to Marvel. Thomas, unlike Friedrich and Ploog, was an employee of Marvel, and the extent of his role is disputed -- was the book authored by Marvel? Co-authored by Marvel?

And, like in the Siegel and Shuster cases, there is a question as to whether (if Friedrich was a legal co-author of the work) he gave up the right to reclaim the copyright. Chin's quote above is instructive: put frankly, it requires quite a stretch to believe that Friedrich would have knowingly given up his right to termination for such a small amount of money.

I believe that legal point is also at the root of the Siegel, and especially the Shuster, cases. That the Siegel and Shuster heirs would have deliberately given up their rights to reclaim Superman for the small amount of money DC offered them -- especially the Shusters, whose payout was reportedly only tens of thousands of dollars -- defies common sense.

All that said, while this gives Friedrich another chance, it doesn't give him any guarantees -- indeed, the appellate court has already noted several facts in Marvel's favor. Jeff Trexler runs down the facts, and compares the case to Siegel's 1974 case against DC.

I don't know what Friedrich's chances are -- I wish him the best but fear that recent trends aren't on his side -- but this case has repercussions beyond his case. Even if he loses again, this case raises more questions about Marvel's 1970's-era contracts -- and that could have some serious repercussions throughout the industry.

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.

Con

2013-05-27, 3:45 pm
Categories: Comics, Stream of Consciousness

Well, I did end up making it to Phoenix Comicon this past Saturday. I'm still not feeling top of my game but I'm improving.

The whole thing was pretty overwhelming and uncomfortable but I managed to meet and get autographs from most of the creators I wanted: Mike and Laura Allred signed my X-Force #116 and commented proudly that it was the book that signaled an end of the Comics Code; I also got autographs from Ben Templesmith (Fell #1), Mike Mignola (the first Hellboy trade), Terry Moore (Echo #1), and John Layman (Chew #5). I brought a TMNT #50 in case I got a chance to meet Kevin Eastman, but he was one of the few creators who had a long line.

Really I think that's the best thing about Phoenix Comicon: so many creators, so few lines.

Case in point: the legendary Don Rosa.

The only piece of merchandise I wound up buying at the convention was a signed print of Uncle Scrooge diving into his money bin. I chatted with Mr. Rosa a bit and told him how much I appreciated his work and his recent Epilogue essay, where, among other things, he discussed how poorly he's been treated by Disney. Disney refused to allow the essay to be printed in The Don Rosa Collection; Rosa commented to me that that resulted in far more people reading it than would have if they had just printed it. I told him that there's a name for that on the Internet: the Streisand Effect.

Don Rosa is one of the most popular cartoonists in the world. In the few minutes I got to speak with him, I also found him to be a sharp, funny, genuinely nice man.

He's an inspiration -- and I think one of the things he should inspire people to do is to get mad. Mad that a man of his talent, a man who has made the Disney corporation millions, only ever got a page rate for the work he did.

Shame on Disney. And all my gratitude to Mr. Rosa. I'll be putting this print in a frame and keeping it forever -- and remembering that I put some money in the artist's pocket, which, sadly, he doesn't get when you buy a copy of The Life and Times of Scrooge McDuck.

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.