Archie Lawsuit Documents: Scott Fulop Is Plaintiff, Cites Almost 1,000 Examples Of Alleged Copyright Infingement In Comics
We’ve received a tip from The Shadow Imperator containing the complaint documents on the recent Archie lawsuit. The plaintiff, mentioned as Narrative Arc Entertainment organizer Scott Fulop, is citing 6 counts of illegal activities by Archie Comics and SEGA, including copyright infringement, violations of the Lanham Act, deceptive practices, unjust enrichment, and more. Fulop is apparently citing infringement on Sonic comics spanning from 1996-2012, and claiming republished and original work going up to 2009. There are 953 cited examples of alleged copyright infringement in comics, printed and digital. This includes 441 alleged infringements over 348 (re)releases of the main Sonic comic series. Fulop’s attorney is Neil Burstein, who is high-profile and has several top-tier IP and entertainment clients. Fulop is demanding a trial by jury as well.
This is a civil action seeking damages and injunctive relief for copyright infringement under the Copyright Act of the United States, 17 U.S.C. §§ 101, et seq., for violations of the Lanham Act, 15 Case 7:16-cv-06109-VB Document 1 Filed 08/01/16 Page 2 of 18 U.S. C. § 1125 (a), for unfair competition, unjust enrichment and related claims under Federal and New York statutory and common law, and for Declaratory Judgment that the alleged copyright registrations of the Defendants were fraudulently obtained, are invalid and should be canceled.
If you don’t know what the Lanham Act is, it is the primary federal trademark statute of law in the United States that prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising.
The complaint mentions the following characters as being part of his original work:
Mammoth Mogul
Sergeant Simian
Lightning Lynx
Predator Hawk
Flying Frog
The Fearsome Foursome (group name for Sergeant Simian, Lightning Lynx, Predator Hawk
and Flying Frog
Merlin Prower
Sir Connery, the Mighty Crusader
Black Death
Enchantress
Mathias Poe
Damocles the Elder
The Swords of Acorns
The Sword of Light
The Land of Dark
Fly, Fly Freddy
Indeed, Ken Penders has no involvement in the filing. However, Penders’ own account, along with his lawsuit, is cited:
24. Upon information and belief, Kenneth Penders (“Penders”) also worked as a freelance writer/artist for Defendant ACP for over twelve years.
25. Fulop knew Penders from Fulop’s prior employment as staff editor for Defendant ACP when he regularly engaged Penders services on behalf of defendant ACP as a freelance writer/artist.
26. After his tenure as a staff editor for Defendant ACP, Fulop collaborated as a co-author with Penders on many freelance writing projects for Defendant ACP in addition to Fulop’s solo assignments from Defendant ACP.
28. On information and belief, none of the checks or payment vouchers that either Fulop or Penders received from Defendant ACP in payment of their work contained any legal language or notices concerning copyright rights, work for hire or a transfer of rights to Defendant ACP or to Defendant Sega. Nor did any of the correspondence concerning Fulop or Penders story ideas or the approvals relating thereto contain or have such terms or language.
29. When Fulop submitted freelance story ideas or work including the creation of new and original characters to Defendant ACP, at no times did he ever have any discussion with anyone at Defendant ACP concerning the issue of copyright ownership or the concept of “work for hire”. Nor was Fulop ever aware of Penders ever having such a conversation with Defendant ACP.
32. Fulop used the writing pseudonym Kent Taylor when submitting work to Defendant ACP and working with Penders and other writers on the Sonic Comic Book Series.
35. Thereafter, Penders informed Fulop that Defendant ACP was beginning to reprint certain stories written solely by Fulop, reprint certain stories written and/or illustrated solely by Penders, reprint certain stories co-written by Fulop and Penders, reprint certain stories co-written by Fulop, Penders and other writers, as well as continuing to use some of their respective new and original characters in new stories and in other media.
36. On information and belief, and according to the U.S. Copyright Office records, Penders filed and obtained copyright registrations in 2009 and 2010 for certain stories written and/or illustrated by Penders, in some instances co-written by Fulop, and in some instances co-written by Fulop and other writers during their mutual tenure as freelance writers/artists/creators (the “Penders Copyright Registrations”) and four of said copyright registrations list Fulop as one of the copyright claimants in instances where Fulop was one of the writers.
40. On information and belief, Penders attempted to obtain remuneration from Defendant ACP for the various works and original characters he created as a freelance writer and artist and which were being used in new stories as well as his original stories being reprinted by Defendant ACP but Defendant ACP refused to make any payments.
41. On information and belief, Defendant ACP commenced litigation in the United States District Court for the Southern District against Penders seeking, among other causes of action, to invalidate the Penders Copyright Registrations. Penders counterclaimed against ACP for copyright infringement, among other claims. This litigation was assigned case no: 10 Civ 08858.
42. On information and belief, Judge Berman of the U.S. District Court for the Southern District of New York formally dismissed the action commenced by Defendant ACP against Penders.
43. On information and belief, there was no judicial determination in said action commenced by Defendant ACP against Penders affecting the validity of any of the Penders Copyright Registrations, and Penders retained ownership of all the Penders copyrights at issue in the litigation.
Not only is Archie cited for wrong doing with copyrighting, but SEGA too.
We’ll be updating you more on the latest, but this…looks bad. Especially for Archie and the Sonic comics.
This post was originally written by the author for TSSZ News.
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Wow…that’s a lot of money. Money like that will sink Archie and could kill off the Sonic Comics. (Not the UK one, the US one) . Whilst I can see that there would be issues with the reprints, they’ll need to stop doing them and focus on the new stuff. Let’s hope this doesn’t get even nastier. First Penders pending case and now this, I wonder if there will be others coming soon and why….Perhaps some ill will towards Archie?
Maybe this is why they aren’t reprinting anything anymore. Also Ken Penders did say there were +40 freelancers who didn’t sign contracts with Archie, so maybe more of them will file lawsuits. Penders also did say he was rounding up these freelancers for the legal battle to come.
What the ****!? All this over a few characters in a comic book! The comics barely make much anyway, how could they pay for this!? This is ridiculous, but so many court cases are.
[i]”Fulop is apparently citing infringement on Sonic comics spanning from 1996-2012, and claiming republished and original work going up to 2009. There are almost 1,000 cited examples of alleged copyright infringement in comics, printed and digital. 348 of the examples of alleged copyright infringement are in regards to the main series Sonic comics.”[/i]
The statute of limitations on copyright infringement is three years prior to the time of filing the lawsuit. He can’t actually sue for any copyright infringement prior to August 2013. At most, this can only cover a handful of reprint collections.
There are exceptions made in the statute when a person couldn’t have reasonably discovered the infringement when it occured, but considering this all occured in a book Fulop himself wrote for, he can’t really claim he couldn’t have reasonably discovered it before, especially considering…
[i]”Penders filed and obtained copyright registrations in 2009 and 2010 for certain stories written and/or illustrated by Penders, in some instances co-written by Fulop, and in some instances co-written by Fulop and other writers during their mutual tenure as freelance writers/artists/creators (the “Penders Copyright Registrations”) and four of said copyright registrations list Fulop as one of the copyright claimants in instances where Fulop was one of the writers.”[/i]
The lawsuit itself notes that Fulop almost certainly knew about this since at least 2010. He’s sunk his own argument against not potentially knowing about the infringement.
tl;dr Statute of limitations exists. Scott can’t sue for anything before August 2013. He can sue for recent reprints.
Well, since we now know he’s actually reading these…
Hey Penders, any thoughts on this?
Good to know. Hopefully this will largely blow over.
Considering this is huger than Penders’ case…I doubt it.
….oh god, this is really the end isn’t it?
Why? Just…just why? It never even got to 300 issues…we never even got chapter two of the Lost Hedgehog Tales…
Why Fulop? Why Penders? Why Archie? Just….just WHY?
Why did the Lost Hedgehog Tales have to stop anyway? Also, if this only affects the reprints, I’m in trouble because that’s the only way I read most these comics, as I live in the UK
They haven’t stopped, it’s just that Flynn only does them when he has the time to, and…well, he just hasn’t had the time to. Also Penders may have put the fear of god in him with that one comment from months ago, but he gave no sign of having acknowledged that, so I’m just going to chalk it up to not having enough time to get to it. That was back when it was looking like Penders was planning on pursuing more legal action…but then this happened.
Oh, ok good. I seem to remember him saying at some point. I remember all that stuff with Penders a couple of months ago. Do you think Archie fought him off? Maybe that’s why all the regular issues got delayed.
Honestly I just think Fulop beat him to it. Penders rarely ever does things quick enough, and I would imagine getting a case together takes some time…keep in mind that I have no idea how suing works, so for all I know it takes either as long as 5 months or as little as 5 minutes. Anyway, the issues getting delayed may have been a coincidence, and Penders if anything was probably still spending time preparing, with announcing that he was planning on buying character rights from several other fellow freelancers, editing his app (again, why he isn’t just prioritizing on actually producing and publishign his almost 10 year old project is beyond me), and being a guest to two conventions within the same year. Clearly Fulop had at least 2 years to get this underway, what with his company just coming into existence out of seemingly nowhere.
Sorry Donnie, I’m fucking mad. Fuck you fulop, fuck everyone involved with this attack. Why the fuck do I have to lose what I like but I’m surround by shit media. Again, fuck you scott fulop.
I don’t care what Penders says, I bet he is involved somehow, probably put the idea in this guys head out of spite for Archie.
If you really wanted to stretch it, technically he may have indirectly inspired Fulop to take action with the result of his previous case against Archie and Sega, the settlement from that dispute resulting in a domino effect where other previous freelancers are now aware of their opportunity to press charges and come out with money that they may or may not be in desperate need of. I doubt Penders and the rest of them are working under some kind of “rogue’s gallery” or “former creator hivemind” or whatever crazy theory you want to come up with, but since most of them are likely in contact with one another, it probably would have worked out that if anyone else did something similar, Penders and other similar people would get involved as well. Again, don’t know how deliberate it is, but it’s got just the right amount of elements to be nearly unavoidable in any scenario.
Personally If it was up to me, I’d tell Archie comics to cut their losses and drop the reprints of the pre-reboot continuity entirely. I get this will annoy a lot of you but if Archie can’t produce evidence that Penders and Fullop signed an agreement that any characters/concepts they created under their tenure belonged to Archie/Sega – as is standard in such trades – Archie is in deep deep legal trouble.
Aren’t all of those characters deceased or otherwise inactive? The only one that ever amounted to anything was mogul.
Why is this fool trying to get paid for obsolete content? Doesn’t he have the talent to produce new works instead of crying about dead characters nobody cares about? Like these guys aren’t even footnotes in Sonic history or the comments.
I just don’t understand. Isn’t there some agreement with a publisher that if you write for them you’re giving them permission to use your ideas? Both Penders and this guy were compensated for their ideas that they freely gave Archie and Sega permission to use.
I mean can Stan Lee turn around and sue Marvel for continuing to use all of his ideas? This is silly.
Basically, manchildren are suing because Archie is using characters that the original creators intended for, funnily enough, use in the comics.
Do you think the guy who came up with the Daleks still gets paid every time they appear in an episode of Doctor Who?
Or that the creators of Batman TAS get paid every time Harley Quinn shows up anywhere?
Jesus Christ, the logic these hacks are peddling is absolutely absurd.
Until a few years ago, yes. I believe that the estate of the guy who created the Daleks did get a royalty check.
What I don’t get is, you guys made these characters and stories for Archie’s Sonic comics as freelancers right? So since you took no initiative to file any additional copyrights, why would the rights not fall to the publisher or IP holder? You not getting paid for the story/characters is YOUR fault. “Oh I didn’t know I should have.” Too bad. If you trespass on private property you didn’t know was private you’re still trespassing. Ignorance of the law is not exemption from it. You made the characters for Archie/Sega, you didn’t cover your bases, deal with it.
You say ignorance of the law is no excuse, Skai, yet you are demonstrating a whoa-full lack of knowledge about copyright yourself. Copyright always vests in the creator of the work. The creator is classified as either the actual artist or the company the ARTIST WAS AN EMPLOYEE OF at the time of the creation. Note that neither Ken Penders nor Scott Fulop were Archie employees at the time they created their stories. Unfortunately, this is why Archie was able to screw Dan DeCarlo so badly, because he WAS an Archie employee.
Now in most situations, artists like Ken or Scott are hired under something called a Work-For-Hire agreement. A work-for-hire agreement does NOT make them employees of the company. Think of it as a contract between two companies: one being Archie and the other being the artist/creative. Archie does have this, but failed to implement it properly. And, as far as I know, they’re still failing, because the copyright regulations list very specific criteria that has to be met to transfer a copyright from a work-for-hire artist to the company. For example, the work has to be specifically identified — blanket agreements of the type Archie was using no longer cut it. The actual rights that are being transferred must also be spelled out. It’s possible to grant limited rights, such as a printing in a magazine or comic. Both Ken and Scott created their stories for printing in the Archie Sonic Comic that appears approximately once each month. This was the permission they had granted Archie. Archie can make as many copies of that comic as they want, when they want, and not violate the copyright they have. However, moving the work to another medium (such as digital) or in another venue (like the Sonic Archives) were not part of the initially understood agreement between artist and company. That’s where the violation comes in. Neither Ken nor Scott gave permission for the use of their material in this manner. Archie took their works and used them in a manner in which they had not agreed, violating the copyright permissions Archie has for the material.
I don’t understand shit about law. So is what’s going on here is basicly some company is suing sega because they noticed almost 1000 copyright infrigments in their work from 1996-2012. I see comments here saying this might be the end of the Sonic Comics. How does that work?
The maximum amount of money that Fulop could sue Archie and Sega for is somewhere in the 100 millions, a loss which would be extremely difficult, if not impossible, to recover from. Plus, Sega got dangerously close to revoking Archie’s Sonic license altogether for its incompetence regarding the Penders trials. So that’s where the fear is coming from.
The 1000 copyright infringements comes from Fulop’s full library of Sonic comic– he’s suing for infringement regarding every Sonic comic he’s ever worked on for Archie Sonic.
I frankly think that’s not going to get him as much money as he wants– the statute of limitations passed for all comics released before 2012-2013, so he’s only got a case at all for the reprints. And Sega’s probably innocent in all this. I think Archie comics are going to be fine in the end, but even if Sega does pull the license for Sonic from them, Sonic comics will live on elsewhere, probably with a different company.
And I’d like to note that the $100mil+ thing is a maximum, not a requirement. I’m no expert, but last I checked, how much Fulop will be able to get out of this will be determined by how much not getting this money has negatively affected his life and how much his work is actually worth.
Something tells me his life hasn’t been all that negatively impacted by not getting the money, and that Mammoth Mogul, Sergeant Simian, et. al., aren’t worth anywhere near $100mil+. Sure he has a case against the reprints, but this isn’t going to destroy Archie.
You’re correct about the statue of limitations on copyright litigation, which is precisely why the plaintiff’s attorney is pushing for a jury trial. The hope is that the punitive damages awarded by said jury would reasonably make up the lack of statutory damages as a result of the limited window of actionable offences. While I do not believe that he will receive the maximum combination of statutory and punitive damages, taking into account the long history of putative infringement, depending on the jury, and the judge they get to preside over the case (and whether that judge classes the inclusion of knowledge of prior unactionable infringement to be non-prejudicial), he could very well take Archie to the cleaners, to the tune of $40-60mn.
Where are these ex-wives keep comming from?
Whatever, these got boring anyway for me awhile ago (like 2 years). If it ended, I wouldn’t care.
Yeah! Who wouldn’t forget about memorable and creative designs such as Flying Frog (a frog with a scarf on), and Sergeant Simian (generic gorilla with army clothes)? This is absolutely not throwing a fit over something pitiful.
No, seriously, fuck you, Fulop. Go design something actually likeable.
I may not like the comic or Ian Flynns work, but if this is how the comic ends I’ll be feeling pretty depressed about it.
A long running comic that has only continued to improve graphics wise over the years cut short by an old employee smelling blood/cash is just… wrong in so many ways.