Archie Responds to Penders Injunction Attempt in Copyright Case

There is an update to the story we told you about last week concerning efforts by counsel from former Sonic writer Ken Penders to prevent Archie Comics from publishing Knuckles Archives #4 and any other copyrighted material in dispute from the ongoing civil case between the two parties.

The response from counsel representing Archie Comics has been made available in the public record.  As expected, Archie has asked the court to deny Penders’s request to file for an injunction.

“Such a motion would be futile because [….] Mr. Penders is unable to establish that he will likely prevail on the merits of his copyright infringement claims against Archie,” writes attorney Joshua Paul in the response.

One cited reason in Archie’s response includes the denial of summary judgment to both sides made by the court last July.  You may remember that both Archie and Penders sought summary judgment against one another, which if granted to either would have in effect ended the case.  That both requests were denied ultimately led to what we thought were settlement terms reached at the end of last year.

“As this court recognized in its July 16, 2012 Decision and Order denying the parties’ cross-motions for summary judgment [….] the issue of copyright ownership in the present case turns principally on which of two factual accounts the jury believes – Archie’s account (which is that Mr. Penders signed two agreements with Archie in December 1966 [sic]), or Mr. Pender’s account (which is that Mr. Penders never signed those agreements),” writes Paul in the response.

Other cited reasons appear to challenge the very specific nature of Penders’s copyright claims themselves.  Another portion of the response contesting the idea of sole authorship for the works in question reads:

Mr. Penders’ certificate of registration corresponding to Knuckles the Echidna issue # 17 [….] asserts no claim of authorship to any aspect of the story or artwork featured on seven of the issue’s relevant pages specifically, the material featured at pages pp. 5, 6, 7, 9, 16, 17 and 22. [….] (Indeed, although the certificate of copyright asserts that Mr. Penders authored the story and artwork that appears on pp. 24 – 30 of issue # 17, the issue in question actually ends at page 22.

In fact, counsel for Archie attached an original copy of Knuckles #17 to its response as an exhibit, along with a copy of one of Penders’s copyrights for direct comparison.  Penders’s copyright for Knuckles #17 cites pages one through six, eight, ten through fifteen, eighteen through twenty-one, and twenty-four through thirty.  Archie may very well be betting on the idea the page numbers don’t line up with Penders’s copyright certificate to prevent an injunction.  It should be noted Knuckles #17 was the only exhibit from the comics Archie submitted for review.  It should also be noted that even if Archie’s dispute about sole authorship sticks, there appear to be more collaborators in line behind Penders waiting to see how this pans out.

It’s no matter for the moment, however, as no decision was handed down one way or the other.  If we see one pop up, we will let you know about it.  More progress in the case should be seen in the coming weeks.