Archie Fighting Proposed Dismissal of Penders Copyright Case
Archie Comics is in serious danger of having its lawsuit against former Sonic comics writer Ken Penders dismissed, potentially making a bad situation for fans of the series and those involved with its production worse.
Counsel for Penders have requested the case be dismissed on the basis of a affirmation during a January status conference that both parties agreed to settlement terms, as well as an indication from Richard Berman, the judge overseeing the case, that the matter would be dismissed after January 21st no matter what, according to public documents filed with the US District Court for the Southern District of New York on Monday and obtained by TSSZ. But counsel for Archie have disputed the claim that any settlement is official, and have filed an endorsed letter in the case urging judge Berman to deny Penders’s request.
“We submit that this court may not dismiss this action ‘with prejudice,’ as requested by Mr. Penders’ counsel. This would inappropriate [sic] and greatly prejudicial to ACP’s interests, since ACP has not had a full and fair opportunity to litigate in this proceeding any of the issues that are raised in the parties’ pleadings,” writes ACP attorney Joshua Paul in his letter to the court.
Paul’s letter alleges that both Penders and Archie “concluded an understanding of the basic parameters of settlement during a mediation session held on November 29, 2012 and reduced that understanding to five deal points covering 15 lines of text in a signed Term Sheet.” But as we reported in December, a letter from Paul did use more concrete language in claiming “the parties reached agreement on the terms of settlement.”
Counsel for Penders asserts that is enough, and cites the transcript of the January status conference between both sides. The transcript shows an irritated judge Berman trying to understand why it’s taken so long for the settlement to be finalized. In one exchange, Berman appears to scold Paul for the delay:
Paul said the exchange that “the core of the agreement will be in schedules” and that settling this matter “is the most important thing that [Archie] is dealing with right now, is to get rid of this litigation.”
Judge Berman than appeared to set a deadline of January 21st, “at which time I’m going to dismiss the case,” including counterclaims, according to the transcript.
But January 21st has come and gone with no settlement finalized. Paul’s letter on behalf of Archie alleges there is one matter still in dispute; it appears to be the extent of which Penders’s copyrighted characters can appear like a Sonic character–in of itself a whole other can of legal worms:
A material term of settlement involved the scope of Mr. Penders’ claim of rights to exploit certain claimed proprietary rights in the future. Pursuant to the Term Sheet, Mr. Penders’ asserted rights [….] if exploited by Penders in the future, would not “look and feel like they are a part of a ‘Sonic Universe.’
[….]
The parties have attempted without success to reach agreement on the metes and bounds of Mr. Penders’ Claimed Rights (Schedule A). In the absence of agreement on this key point, there can be no agreement between the parties.
In a nutshell, attorneys for Penders hope to hold Judge Berman to his word on dismissing the case, whether there’s a settlement in place or not. If that happens and no terms are in place, Penders would retain total copyright control over the matters in dispute with Archie, including some characters, storylines, and more–making it very difficult for Archie to continue with catalog releases, or bringing back characters widely believed to be purged in Sonic #244 back to the series. A dismissal with prejudice would not allow Archie to refile the lawsuit again.
It could also become a nightmare for both Sega and Electronic Arts. You may remember that Penders filed a suit in 2011 against both companies, alleging material under his copyright was used in Sonic Chronicles: The Dark Brotherhood. That case was dismissed but appealed to the 9th Circuit; the outcome of the Archie matter may determine how far this separate suit can go. Having a whole set of tested, undisputed copyrights intact would be an incredible advantage for Penders against Sega and EA, and could potentially cost both companies dearly if they hold a second time.
Judge Berman has requested briefs by next week. When we know something more about this case, we will pass it along.
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This is really sad! God I hope Archie can pull a miracle and at least get something positive out of all this. If they don’t have a settlement doesn’t that leave Penders open to lawsuit by Sega and Archie if he actually publishes his spin-off graphic novel hes been talking about?
Shit. There goes my optimism…or what was left of it, at any rate.
Well, I’ll just sum up every Archie-Supporters reaction in one word:
Shit!
Damn!! I hope Archie wins this one, as much as I admire Penders for what he did I hope he totally lost the case, otherwise we could be saying farewell to almost all the echidnas of Archie comics plus some other characters, there could be also the need for a reboot if this happens.
Also for everyone asking themselves why Shade the echidna hasn’t appeared in other Sonic game or why there hasn’t been a Sonic Chronicles 2 it’s mostly because of this, if Pender loses we could be seeing a sequel to that game or at least the appearance of Shade in another game.
Heh I knew that would end up being a contention of debate. That if his characters looked too much like Sega’s property, when he is planning on trying to sell future works, that they would nab him on that detail. He would have to redesign everything, characters, story, places, names. Kinda pointless to try and claim these things when your gunna have to change everything about it if you do win the rights. He’s blinded by the dollar signs he has in his eyes.
It’s just sad, trying to claim ideas or characters, that wouldn’t have even come about had he not been given work from Archie and Sega in the first place. If your so brilliant Ken why not start fresh and create something new, something people can get into and enjoy on its own merits, instead of trying to piggyback from a famous franchise that doesn’t belong to you.
i don’t get it. is this a good thing or a bad thing and why?
well shit. i guess we’re fucked, right?
@kimplix
I’ll simplify it for you: Archie’s lawsuit against Penders is in danger of being dropped altogether, which means that: a) the rights to the characters are lost to them forever, and b) they won’t be able to reprint any of Penders work anymore in graphic novels.
As Heavy would say: Oh it is sad day.
@jaysin89
Anyone can sue anybody at anytime for any reason. That doesn’t mean the suit has merit or that they’ll win.
@Dante Sparda
My understanding as to why there hasn’t been an SC2 is that SC1, while a successful game for Bioware, wasn’t at the level EA deems worthy of investing resources. EA’s used to games selling in the first week what SC1 sold during its entire run. EA would rather invest in areas with a greater rate of return on that investment. That’s not to say the lawsuit wasn’t looked at in determining whether an SC2 version would be made…I’m just saying it wasn’t the only reason, nor most likely the major one.
@Tenko
The dispute is with Archie, not SEGA. Plainly put, Archie is worried about consumer confusion generated between the two comics if they look too much alike, as any company would be when another company brings out a competing product that looks like theirs. And more so if that product appears to be superior to their own. *grins* For example, you see it all the time in the home video market. There is nothing “illegal” about that, or Disney would’ve put a stop to it a long time ago.
And to correct another misconception, Ken was seldom “given work” by Archie, save for a few game adaptations. His stories were created on his own, and then submitted to Archie’s editors for their approval and use in the comic, under what’s known as a “contribution to a collected work” in copyright parlance. Archie was always capable of accepting works to the collection from other authors, and they did.
@kimplix @Shadow Emperor
Not quite correct, SE. The rights to the characters are not lost to them forever, nor is it true they won’t be able to reprint Ken’s works outside the comic itself, like a digest. They would just have to enter into agreement with Ken for the use of the stories and characters. Whether they do so or not is their decision, not Ken’s. As I’ve stated before, it was never Ken’s intent to ban Archie’s use of his characters, but he does feel that as long as Archie is benefiting from them (i.e., earning income) beyond the scope of the original intent of the works (i.e., outside the comics), he should also be compensated for those additional uses as their creator.
@BobR
Ah, I see. Thanks for clearing that up.
come on sega step into the case
@Bobr:
Look… we know who you are. Whether or not or a backer on Ken’s side.
But I think you should let the community see what they want to, and think what they want– right or wrong. Nobody wants to get a point by point statement, everyone is already tired of this ridiculous case.
But I will say that to claim Ken’s ideas as superior is a bit much. Ken’s character designs and basis of his stories likely would not exist had it not been for SEGA’s series. Obviously, the SEGA design for hedgehogs, and Echidnas are very trademark– so the use of that likeness of dreadlocked colorful anthropomorphic echidna is naturally going to rub people the wrong way. Honestly, if just made anthropomorphic echidnas that were more on the basis of what echidnas actually look like in features there probably wouldn’t be a huge dispute if there was ZERO influences in design choices by the SEGA trademarked design choices.
Also, whether its a dispute with Archie or SEGA– who owns Sonic? SEGA. Who has their name on the comics and it rights– SEGA. All of his previous work was torwards
@BobR
Except Penders was clearly a work for hire, like almost everyone else ever in the comic industry, and just got lucky that his contract “disappeared” right around the time stopped working on the comic. On top of that, his creations are clearly based on Sega owned characters.
Frankly, the loss is just one of principle. The stories and characters are terrible anyway, and Penders’ actions here have resulted in no publisher wanting to touch him. His comics will never, ever sell again, he’s made sure of that. The only reason he put all his characters in Sonic anyway was because nobody else would publish them, and that was when he had a good relationship with the industry. Archie loses reprint rights, which is a financial loss for them, and Sega and EA don’t want to have to deal with a lawsuit, but no matter what, Ken Penders does not actually win.
(Continued) — a SEGA owned property. And part of a comic involving their mascot. So naturally, SEGA is open to take action against Ken for something that is built from their work.
So… the only way he could use his ideas is by changing everything. A clean slate of originality.
If I may be on opinion, he derived many themes from Star Wars. As well as soap operas drama. It lacked luster to ME, but I’m entitled to my opinion.
I do agree however, that Ken should get credit where its due. But not entire claim over derived design ideas. Sure, he should definitely benefit should they use it. That much is true.
The only reason this wasn’t nipped in the bud straight away is that Archie funbled their end of the contracts. If they end up losing this case, and he goes after SEGA, they’ll probably yank the license from them outright
Sketching away basically said it in a nutshell. I agree wholeheartedly.
Also a judge that isn’t interested in the details, there’s the justice system for ya lol. It’s taken way to long to settle, I agree but still, a judge should be all about the details on a case.
@BobR
I agree, it could be because of that tought I think it would be strange for EA to miss the oportunity to develop a better sequel to a title that sold a lot of copies just because of the Sonic brand, even more when Bioware have already started work on it, sadly in either case we will have to wait until the resolution of the second Pender’s lawsuit to see if we have a chance for a sequel to be made, and I must say I’m a big fan of Sonic Chronicles.
@Dante Sparda
I thought the cancellation of SC2 had to with EA scrapping Bioware’s handheld division?
@The Shadow Emperor
I see, to bad for them, btw do you know what was the name of the handled division? I searched for it but could’t find it.
I hope Penders loses…..nuff said!
Well shit I hope it comes out good and mainly that Penders doesn’t make that god awful series he planned mainly for the eye sores he calls “re-designs”
I want to file a notion to send all copies of Sonic Chronicles to a landfill.
There is still the matter of Ken even making the book since all progress on his other two projects has come to a halt. (The Republic and The Lost Ones) How can be so confident that he can get his Lara-Su book out there when he has not finish these yet?
I’m bewildered that anyone is arguing that this is good for Penders.
The judge set a deadline for a settlement.
By that deadline Archie had written up the terms of settlement and had started removing Penders’ characters from the book. The only term that Penders is not agreeing upon? He insists he should be allowed draw these characters in the Sonic Team’s style.
He’s attempting to argue that his works are not derivative while insisting he must be allowed draw them using a style developed by other people. Sure the judge could decide to be willfully blind to details, but if anything this situation seems more likely to hurt his argument in the eyes of the court.
Archie Inc has a long and depressing history of screwing over comics creators. Just ask anyone familiar with the tragedy of Dan DeCarlo. Sounds like Archie Inc has yet to mend their ways.
Comparing Penders’ case to DeCarlo’s is a final insult. These properties are extremely dissimilar (Josie and the Pussycats were a unique concept. “The daughter of Knuckles the Echidna” is not), as is the nature of the contracts (Penders is extremely lucky that poor filekeeping at Archie has resulted in them losing the original copy of his contract).
Archie has a great deal to answer for, but it would be wrong for their karma to be paid for by rewarding another man for his creativity-starved attempts to piggyback on the works of others.
@Damo
Agree, I know Archie does not have the best history with regards to how they treat there writers and artiest, but that does not mean everyone how goes up against them is the good guy, especially when he is fighting for nothing more than color swaps of Sega’s characters.
@Dante Sparda
Couldn’t tell you. I’m only relaying what I’ve heard.
Thanks for keeping us updated on the situation, TSSZ!
So wait ..is St. John gone? Because I liked him. He’s a great villain now that he’s with ixis. I just hope this doesn’t result in the of sonic comics. Although the quality is always hit or miss…this comic means a great deal to me. I just hope everything can be worked out so the fans don’t feel any backlash. I thought out of all the echidnas lien da and the doctor were my favorites. It’s a bummer we finally get to see her fight sonic only to have the echidnas wiped out.
All this drama over Ken Penders un original recolored characters. Ken Penders stories stunk, seriously. “Rouge making out with Knuckles dad?” 0_o Ken should be afraid to show his face considering all the damage he caused to the comic. What took Ken Penders so long to come out with this law suit?
Contradiction: Ken Penders claimed that his fans informed him about the his material being in Sonic Chronicles. Then later he changes story. Saying it was Bioware that approached him about his material. The dude is a lying greedy thief.
“The devil is in the delay…”
Why do I get a feeling we’re going to be seeing this line in one of Ian’s books one of these days? 😛
Sooooo much hatetred for ken right now, can’t he just leave things alone and stop being a douch.
I really love this comic I’d hate for things to get worse.
@Sonichu Penders has stated he didn’t have a contract, so unless you have proof otherwise, it doesn’t sound like it work-for-hire at all. In fact it sounds like just the opposite. If the case is dismissed, that would basically mean Archie’s lawsuit against Penders had no merit, that he owns his copyrights and can do with them what he wants.
@TLSonic Color swaps? I always read lots of meanness and venom in your posts but rarely anything factual. I think Penders contributed a whole lot more to the series than mere color swaps. Apparently so did the judge or this case would be in court right now, not on the verge of dismissal, with both parties squabbling over settlement terms.
I think Archie’s awful track record for failing to do right by its writers and artists speaks for itself. Blaming Penders for standing up against them just makes you look selfish and small. Do you really think no matter who Archie exploits along the way or how, it’s fine and dandy as long as the comic gets published? Really? And someone please explain to me how creating Josie and her all-girl band — who just happen to friends with Archie and the gang from Riverdale High — are any different from a story about the daughter of an echidna. Neither existed before the writer created them. Why is Josie a “unique concept” when the other is not? That just doesn’t make sense. If Josie and the Pussycats can exist in Riverdale High universe and still belong to Dan DeCarlo, surely Lara-Su can also belong to the person who created her.
If this case is dismissed, it will be interesting to see what happens with Penders’s suit against Sega. Pass the buttered popcorn, please.
@ truebluesonicfan
Regarding your comment about Ken’s characters being “original concepts”:
As many people have pointed out, the problem with Ken’s characters is that their base designs are derived from Knuckles, whose design is trademarked to Sega. Just changing their clothes, hairstyles, colors, etc. does not make them “original”.
Trademark law is a whole different matter than copyright law. So what might be legally Ken’s under copyright law, may not be the same under trademark law.
@truebluesonicfan
The reason for my venom against Ken is he is a hypocrite pure and simple. He is going after Sega and EA for doing the same thing he did. If you consider Lara-Su an “original” character despite being a derivative of Knuckles than why is it not OK for the Dark Brotherhood to be original despite being a derivative of the Dark Legion, why is what Ken did OK but not Sega. And as for Archie, its not that I support its abusiveness it’s just that I don’t like it when creators leave a series with no contest for the work and then years later try to get it back just cause they smell money. When Ken left the comic back in 2005, he seem perfectly fine leaving all his creations in the hands of Ian and Archie, than about five years later he goes “I change my mind I want my stuff back now” you support that, contract or not if he truly cared he would gotten the rights for them the day they depute in the book or at least try to get them when he left the company, he did it with Particle and Dr. Droid in that Super Sonic Special years ago. Why not the others? Why did he wait so long? Answer me that. As for the uniqueness of Josie yes they exist in the same universe but they where able to tell unique stories about them without having to always cram in the Archie ones. Lara-Su is the daughter of Knuckles how can you tell her story without including him or anything from Sega?
And as for his plans with the characters. Do you truly believe that book is going to be that great or even come out. This guy has a track record for taking FOREVER to release anything and constantly missing deadlines, you think someone with that track record should be in control of these characters. If you believe that much in the Lara-Su book why don’t you ask him what is taking him so long doing The Republic and/or The Lost Ones. Both there face book pages have not been updated for a while and The Republic’s website is currently down.
P.S.: http://img832.imageshack.us/img832/3123/kencopyright.jpg
By the way I found a great new group at deviant art that I think a lot of us should join.
http://rallyagainstpenders.deviantart.com/
I know how things could get worse: the whole series could get cancelled and end in a cliffhanger just like Sonic SAT AM and Fleetway’s Sonic the Comic.
@SEGA_Queen As it has been posted before, your claim that Penders’s characters aren’t original doesn’t hold up. If Josie and the Pussycats, Clark Kent, Jimmy Olsen, Lois Lane and other characters can be copyrighted as original characters, Penders’s characters are no different. Without a contract that says otherwise, an artist owns what they create. Trademark law deals with use of a mark in commerce, so it’s true the law is different there.
@TLSonic From what I read Penders says he became concerned because books and electronic games using the characters he created were being reissued without recognition and compensation to him as writer and creator. He took the necessary steps to protect his work from being exploited. The rest of your statement is conjecture on your part. It makes perfect sense for Penders to wait to fight back until the work was being used without permission. Rather than blaming Penders for sticking up for his rights, blame Archie. They should just stop giving writers the shaft and give them the recognition they deserve. But obviously you don’t care about that. It’s selfish on your part to just want what you want, regardless if the people who created the stories you loved in the first place get the short end of the stick. Seems to me that makes you the greedy one.
@truebluesonicfan:
Let me clarify my thought on trademarks.
There’s a part of trademark law that covers “consumer confusion”. BobR gave a great example of this:
“Archie is worried about consumer confusion generated between the two comics if they look too much alike, as any company would be when another company brings out a competing product that looks like theirs.”
Theoretically, I believe Sega could also sue Ken on the basis of “consumer confusion”.
Why? Because if Ken continues to use characters that look like Knuckles, consumers may think his comic is officially endorsed and licensed by Sega.
@truebluesonicfan
Oh my f**king god did you not look at the pic I posted. Let me make this clear his “creations” do not appear in the game and the story of the Brotherhood is different than Ken’s Dark Legion. Again if you believe that Lara-Su is different than Knuckles then why can’t the Brotherhood be different than the Legion you have yet to answer this. Did you ever even play Sonic Chronicles, I have and I can say Ken’s playthings don’t appear in it. Again have you not played the game?
And also since the design of the characters are based on Knuckles how is he going to convince people that his book is not associated with Sega? Do you not know what “consumer confusion” is? Please answer this.
P.S. http://img832.imageshack.us/img832/3123/kencopyright.jpg
Really hope we get an update on this whole situation soon.
@TLSonic I didn’t answer because your logic isn’t logical! You keep comparing apples and oranges. Of course I’ve played the game. I don’t remember reading anywhere that Sega got Ken Penders involved in creating it (without a contract) so how can you remotely claim the situations are the same?
I can post links to pictures too. Here’s one with Josie and the Pussycats.
http://tvseriesfinale.com/assets/josieandthepussycats12m.jpg
Here’s another with Archie and the Gang.
http://tinyurl.com/ArchieJugReg
They look similar, so what does it prove? The look of the characters doesn’t have anything to do with who legally created them. Clark Kent looks a heck of a lot like Superman, last I checked.
The concept of customer confusion in trademark law has to do with using a specific mark in commerce. That’s why you can have Spock, the Vulcan, Vulcan from X-Men, Vulcan the restaurant gear and Vulcan the Greek God. The tradeMARK for each of these is different. Now if Mr. Spock began making and selling ovens or Vulcan from X-men grew pointed ears, started using Mr. Spock’s greeting and wearing a tight blue t-shirt with a Starfleet insignia, you might have some problems with trademark.
I’m no attorney, but unless Lara-Su suddenly becomes a red, male echidna like Knuckles, I think Sega would be hard pressed to win this one. Disney can’t trademark every mouse in the universe. Mighty Mouse and Mickey Mouse can co-exist without copyright or trademark infringement. Unless Mickey suddenly drops his red shorts and starts flying and wearing yellow tights, or vice versa, neither would have much of a case.
Nothing you have posted so far cuts the mustard when it comes to trademark or copyright. If it did, you would never have had Sean Connery, who once starred as James Bond, be able to star as James Bond in a film that wasn’t sanctioned or produced by the Bond Franchise. Can you say, Never Say Never Again, anyone?
If having the star who rose to fame as James Bond, play James Bond in a non-Bond sanctioned (meaning technically non-James Bond) James Bond film wasn’t confusing, how then is having independent stories about a purple female echidna too confusing for fans of comics about a red, male one? Unless they’re color-blind, I think they’ll know the difference between the two characters.
I’ll restate my earlier observation about this case. Pass the popcorn, please.
@truebluesonicfan
The James Bond example is a really bad one since a judge later prevented them from making more non-EON sanctioned Bond movies.
@truebluesonicfan
It’s true that Ken characters don’t look exactly like Knuckles. However, they still look like Sega’s Sonic characters, so consumers could still mistakenly think Ken’s comic is officially licensed and approved by Sega.
Now, Ken could put some sort of disclaimer in his comic stating that it’s not affiliated, endorsed, etc. by Sega. But I’m not sure if that would protect him from any legal action from Sega.