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Author Topic: Archie v Penders  (Read 3210 times)

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Thad

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Archie v Penders
« on: July 12, 2010, 09:59:01 PM »

...So this was unexpected:

Ken Penders, who wrote and drew for Sonic the Hedgehog between issues #11 and #159(!), is claiming copyright on every character he created for the series, asserting that Archie is not allowed to use them or reprint his issues without his consent, and planning to do an original story about Knuckles's parents and daughter.  (HT: Johanna Draper Carlson at Comics Worth Reading.)

Now, I think I've made my views on creators' rights pretty fucking clear at this point.  I wish Ken the best of luck and hope he pulls it off.  But I think he's tilting at windmills.  This isn't a Siegel-and-Shuster situation where they created Superman before selling it to DC, and neither is it a Kirby situation where he was a freelancer who never signed a contract.  Penders's work was almost certainly for-hire, and his contract almost certainly explicitly gave the rights to all his scripts, art, and characters to Sega.  Neither Sega nor Archie are known for liberal interpretations of creators' rights.  Hell, Archie STILL refuses to acknowledge Dan DeCarlo was the creator of Josie, even though she's NAMED AFTER HIS WIFE.

(Digression: One of Penders's Sonic characters is a cat named Hershey, named after his son's cat.  That's the one case where I figure he could conceivably be able to wriggle out of a WFH agreement -- assuming he came up with the idea of a comic character based on his son's cat, drew her up, and THEN pitched her to Archie, he would have to explicitly sign her over.  Of course, the fact that her name brings up trademark concerns is just one more ownership headache...)

Sega's so protective of derivative works that I remember there being a brouhaha in the mid-1990's after they put out a release stating that all characters created for Sonic fanfic were their property.  Absurd and completely unenforceable, of course (I own Shannon the Echidna, bitches), but obviously the difference between fanfic writers and professional writers is the pros sign contracts.  (Of course, if Sega really employed people who were so incompetent that they thought a declaration like that was legally binding, I guess there's an outside chance they didn't think they'd have to put it into the language of their contracts.  But I find that pretty fucking unlikely.)

And then of course there's Penders's rather ballsy plan to use Sonic-derived characters in an unlicensed work.  Even if he, hypothetically, DID own the rights to those characters, he'd have to plaster a "NOT AFFILIATED WITH OR ENDORSED BY SEGA" across the cover to avoid trademark confusion issues, given that red echidnas with dreadlocks are a pretty fucking recognizable symbol.

It's a strange case, and I'm curious to see how it develops.  Would be interesting if it actually had any merit, and could set some big precedent if it did (though I suspect Sega's resolution in that case would be "Fuck it, don't reprint those issues or use those characters anymore"), but I suspect Ken's either totally off-base or is angling for a settlement.
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Brentai

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Re: Re: Another thread on copyright/patent/trademark law
« Reply #1 on: July 12, 2010, 10:17:45 PM »

(Digression: One of Penders's Sonic characters is a cat named Hershey, named after his son's cat.

Oh good, because it's not awkward enough as it is stumbling into a massive sea of porn of her.
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Thad

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Re: Re: Another thread on copyright/patent/trademark law
« Reply #2 on: December 04, 2011, 03:34:52 PM »

Ken Penders, who wrote and drew for Sonic the Hedgehog between issues #11 and #159(!), is claiming copyright on every character he created for the series, asserting that Archie is not allowed to use them or reprint his issues without his consent, and planning to do an original story about Knuckles's parents and daughter.  (HT: Johanna Draper Carlson at Comics Worth Reading.)

Now, I think I've made my views on creators' rights pretty fucking clear at this point.  I wish Ken the best of luck and hope he pulls it off.  But I think he's tilting at windmills.  This isn't a Siegel-and-Shuster situation where they created Superman before selling it to DC, and neither is it a Kirby situation where he was a freelancer who never signed a contract.  Penders's work was almost certainly for-hire, and his contract almost certainly explicitly gave the rights to all his scripts, art, and characters to Sega.  Neither Sega nor Archie are known for liberal interpretations of creators' rights.  Hell, Archie STILL refuses to acknowledge Dan DeCarlo was the creator of Josie, even though she's NAMED AFTER HIS WIFE.

(Digression: One of Penders's Sonic characters is a cat named Hershey, named after his son's cat.  That's the one case where I figure he could conceivably be able to wriggle out of a WFH agreement -- assuming he came up with the idea of a comic character based on his son's cat, drew her up, and THEN pitched her to Archie, he would have to explicitly sign her over.  Of course, the fact that her name brings up trademark concerns is just one more ownership headache...)

Sega's so protective of derivative works that I remember there being a brouhaha in the mid-1990's after they put out a release stating that all characters created for Sonic fanfic were their property.  Absurd and completely unenforceable, of course (I own Shannon the Echidna, bitches), but obviously the difference between fanfic writers and professional writers is the pros sign contracts.  (Of course, if Sega really employed people who were so incompetent that they thought a declaration like that was legally binding, I guess there's an outside chance they didn't think they'd have to put it into the language of their contracts.  But I find that pretty fucking unlikely.)

And then of course there's Penders's rather ballsy plan to use Sonic-derived characters in an unlicensed work.  Even if he, hypothetically, DID own the rights to those characters, he'd have to plaster a "NOT AFFILIATED WITH OR ENDORSED BY SEGA" across the cover to avoid trademark confusion issues, given that red echidnas with dreadlocks are a pretty fucking recognizable symbol.

It's a strange case, and I'm curious to see how it develops.  Would be interesting if it actually had any merit, and could set some big precedent if it did (though I suspect Sega's resolution in that case would be "Fuck it, don't reprint those issues or use those characters anymore"), but I suspect Ken's either totally off-base or is angling for a settlement.

According to BC, Penders is going through with his threat to continue the Mobius: 20 Years Later story, sans Sega's characters.

Something I neglected to mention above: Penders's Knuckles series featured a shadowy group called the Dark Legion.  The Dark Brotherhood is quite clearly the Dark Legion with the serial numbers filed off, which leads me to believe that he had a royalty agreement and Sega ripped him off.

That doesn't actually mean he OWNS any of the characters he created for Archie/Sega, but if I had to guess I'd say he's probably trying to use this to push for a settlement, which would presumably involve back royalties from the DS game.

Or maybe he's just figuring "Hey, if THEY can take my stuff, change the names, and not pay me, then I guess turnabout is fair play."
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Thad

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Re: Re: Another thread on copyright/patent/trademark law
« Reply #3 on: December 05, 2011, 08:21:19 AM »

Over on his messageboard, Ken is saying what strikes me as some legitimately crazy shit:

Quote
Let me make this explicitly clear: ACP does not, has never and will never own anything published within the covers and pages of any SONIC or SONIC-related comic except for the actual books themselves. They have no claim to any of the characters, concepts and stories that the fans enjoy. There is no © Archie Comics anywhere on any of those books for precisely that reason.

I find that, uh, difficult to believe.  Especially given Archie won't even acknowledge that its eponymous character was created by Bob Montana.  And claims that Josie sharing a first name with Dan DeCarlo's wife is just a crazy coincidence.

It's probably best not to read the fanboy arguing in the thread.
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Thad

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Re: Re: Another thread on copyright/patent/trademark law
« Reply #4 on: December 13, 2011, 12:54:48 PM »

Over on his messageboard, Ken is saying what strikes me as some legitimately crazy shit:

Scott Shaw! has filed an affidavit with the Court, which was reported on TSSZ News, stating he has no contract with Archie. If he has no written contract with Archie, exactly how does Archie or Sega lay claim to his work? Likewise, if I claim I signed no contract with Archie, how does either party lay claim to my work? (Yes, TSSZ news also reported Archie has produced documents in my case, the validity of which is being challenged, which is why we're going to court. Even so, TSSZ News found several questionable aspects about those same documents which they stated raised serious questions about the document's enforceability.)

Wow, that's...
...really?

Archie never made him sign anything?

And the contracts they've produced are fake?

I mean, okay, comics history is full of stories like that, but...I find it hard to believe Archie would have made such serious mistakes in the 1990's.  When dealing with a popular licensed brand.

Now, Marvel couldn't produce any WFH contract for Kirby, but the case was dismissed on the instance-and-expense test.  However, my reading of the decision suggested that the I&E test was invoked specifically because the work predated the '76 Copyright Act, and I'm not sure it applies to work more recent than that.

Quote
And if Archie had been paying some form of royalties to all their creators prior to this, in all likelihood this discussion would never be taking place at all.

Ooh.  Yeah, that explains it.

Wow, no royalties?  I guess if any publisher was still making those deals in the 1990's it would be Archie.  But yeah, most of the major players have realized that royalty agreements are the best way to avoid a lawsuit.


...should probably go figure out what the hell TSSZ is (The Super Sonic Zone?) and what they have to say about the docs Archie's produced.

EDIT: Sauce.  Apparently the WFH docs Archie's produced are from 1996, well after Ken started writing for Sonic.  There's a standard clause certifying that all previous work is also for-hire, but you can't retroactively declare a work to be WFH.

Now, of course Kirby signed similar contracts with Marvel in the 1970's and '80's, and they were used as evidence in the recent case.  But there are a couple of differences.  First, Marvel losing paperwork in the 1960's is more believable than Archie losing it in the 1990's, and second, as mentioned above, the judge ruled the presence or absence of contracts to be moot in the Kirby case per the instance-and-expense test.  Again, I'm not sure if I&E applies here; maybe one of our resident lawyers can provide some off-the-cuff elucidation.

There's also this bit:

Quote
Contractor and Archie acknowledge that they have entered into previous oral and written Work for Hire agreements, including the Newsstand Comic Independent Contractor’s Agreement that Archie and Contractor executed in __________ (fill in year if applicable; leave blank if inapplicable)

It's not a scan but I assume from context that the space was left blank.  Which would seem to indicate, from the language, that Ken didn't sign the Independent Contractor's Agreement prior to 1996.

Course, even if those characters weren't created for-hire, that doesn't mean Ken still owns them.  I find it likely that the subsequent contracts assigned all his characters to Archie (whose contracts with Sega, in turn, assigned them to Sega).  If that's true, then even if Ken's work wasn't for-hire, it was transferred, and that transfer can't be terminated for another 40 years or so.

But then there's this:

Quote
The second agreement Penders allegedly signed, the Licensed Comic Books Independent Contractor’s Agreement, reaffirms jurisdiction.  Though meant principally for the Sonic series and offshoots, it also does not specify in writing what “Licensed Comics” Penders was writing for, as the contract specifies.  The agreement also does not specify Sega or anyone else as the “Licensor”–there are merely blank spaces left.

Where it gets even more complicated is where Archie was to specify the owner of the licensed work, who commissioned it, and who Penders was to look at for compensation.  As seen in the image above, one party–presumably Archie–was to designate whether they or the “Licensor”, Sega in this case, were the “Owner” of Penders’s work.  The documents entered into evidence show that never happened.  That’s important because the contract states “that all past, present, and future contributions” are considered Works for Hire by the owner, but that owner is never clearly outlined.

In the suit, it has allegedly been conceded the documents are copies and not originals, and there remains a question as to whether Archie Comics has the original documents.  Penders disputes the authenticity of those documents and has throughout the case for that and other reasons, alleging the style and scope of the agreements were unlike anything he had seen in his prior experience within the comic industry.

It's beginning to sound like it's possible that someone in Archie's legal department is just really incompetent -- but again, that's hard to believe given their previous rebuffment of DeCarlo.

OTOH, the agreement with Sega could be something unique in Archie's history.  Granted, they've done licensed work before -- notably TMNT -- but I've recently learned that Steve Murphy actually retained ownership of all the characters he created for the Archie TMNT book.  (There's a bit of conversation at IDW's forums, notably on page 3.)  I'm given to understand that the rights arrangement is part of what made Archie antsy about its TMNT book and resulted in Murphy being booted from it (and the title being canceled six months later).  Murphy's last issue (under the alias "Dean Clarrain") was cover dated March 1995, meaning it actually shipped in December 1994 or thereabouts -- meaning that if Archie WERE concerned about creator-owned characters, it had probably been brewing for all of '94, if not longer.  Ken's first issue of Sonic is cover dated March '94, so I suppose it's possible Archie was still getting its shit together regarding creator ownership on licensed books -- but again, all that requires a whole lot of conjecture on my part and still implies a pretty great deal of cluelessness on Archie's part.

Course, per a slightly earlier article, Penders is suggesting his signature on those contracts is forged (though couching it in vague enough language that if they turn out to be real he can claim he was misremembering, not lying).

Quote
Specifically, rather than receiving a specific assignment, Archie invited us to pitch story ideas, which they would either accept or reject.  Unlike my experience of submitting scripts at any other comic book publisher, Castiglia insisted we submit our scripts in full panel page layout form, clearly depicting everything in a rough visual format rather than in normal text format. We were paid no additional money for producing these story layouts, despite the additional time and effort it required, and received no credit or acknowledgement for them in the published works.

Ooh -- that's called working on spec, and it is most definitely not a for-hire arrangement.  Wonder if he has any proof?

That was the undoing of the Kirby campaign: they couldn't produce any evidence that Kirby worked on spec.  (Possibly because Marvel kept all his original pages.)  If Ken can actually provide any proof that he worked on spec, then that could nullify any WFH agreements -- though again, it wouldn't affect any ownership transfers.

I still think Ken's tilting at windmills here, but it definitely looks like somebody made some mistakes at Archie in the mid-'90's.  Guess if Sega doesn't just pay him off and tell him to go away, we'll see just how severe those mistakes are.
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Thad

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Re: Re: Another thread on copyright/patent/trademark law
« Reply #5 on: February 14, 2012, 01:38:10 PM »

More on Archie v Penders.

Quote
Past Sonic editors Scott Fulop, Justin Gabrie, and Daryl Edelman plan to testify for the defense that either Archie did not send contracts out to freelancers like Penders when it came to the Sonic series, and/or they themselves as freelancers were not asked to sign a work-for-hire agreement while they worked on the comic.  Other names, like former artists Scott Shaw and Jim Valentino, and former writers Mike Kanterovich and Karl Bollers are also on the defense’s witness list, as they too are expected to testify they never signed a work-for-hire agreement with Archie.  In the case of Shaw, the report notes, he was allegedly not under a contract from 1993 through 1996.

Archie, as you might expect, disputes that; perhaps damningly, VP of Finance Ed Spallone is testifying that he handled the contract personally -- and he was previously expected to testify on Penders's side.
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Thad

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Re: Re: Another thread on copyright/patent/trademark law
« Reply #6 on: December 04, 2012, 09:10:33 PM »

Archie and Penders close to a settlement.  Which doesn't mean it's over; Penders is still after EA and Sega for lifting his ideas for Sonic Chronicles without compensating him, and Scott Shaw and others have also sought copyright recognition for stories they wrote and drew without signing WFH agreements.

And it seems to me that Sega may well have a breach-of-contract case against Archie for failing to get creators to sign those agreements.
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Büge

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Re: Archie
« Reply #7 on: March 27, 2013, 01:13:21 PM »

More Archie-related litigation! This time, it appears that the tide may be turning in Ken Penders's favour.

http://www.tssznews.com/2013/03/27/archie-fighting-proposed-dismissal-of-penders-copyright-case/

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Mongrel

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Re: Re: Archie
« Reply #8 on: March 27, 2013, 01:33:24 PM »

I like how the comments are all "Oh no this is terrible! Now we won't ever see these characters reprinted!"
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Thad

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Re: Re: Archie
« Reply #9 on: March 27, 2013, 02:04:40 PM »

I like how the comments are all "Oh no this is terrible! Now we won't ever see these characters reprinted!"

Ugh.  Yeah, I try to stay out of the comments.  I've spent all day arguing with dipshits in the CBR Quantum and Woody thread as it is.

People who don't care about the legal merits and just want the spice to flow are the worst.  Worse than people who make stupid, half-assed arguments about why the corporation is always right; at least they nominally care about the laws and contracts in question.  (Hell, I'll go one farther than that: I'm seeing some anti-Moore people on Bleeding Cool side with Priest and Bright, on the grounds that Moore's reversion clause was never triggered because Watchmen never went out of print but Priest and Bright's was because Quantum and Woody did.  So I'll give those guys credit: they actually DO care about the law and the circumstances of the case.)

Given that, MY favorite part is that the Archie lawyers literally say that the judge shouldn't dismiss with prejudice because, and I am not paraphrasing here, it would be "greatly prejudicial".

Best of luck to Penders.  And Shaw, Maggin, and everybody else waiting for their chance to get some redress.
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Mongrel

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Re: Re: Archie
« Reply #10 on: March 27, 2013, 02:36:13 PM »

The funny part is that Penders winning doesn't preclude anything (unless he's stated he refuses to ever do anything with them again?). It just means Archie has to buy those rights.
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Thad

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Re: Re: Archie
« Reply #11 on: March 27, 2013, 03:36:46 PM »

Or just license them.

Yeah, that's the horrible thing about all this -- people who are so opposed to the idea that Penders get PAID for the characters and stories he created.
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Re: Re: Archie
« Reply #12 on: March 27, 2013, 03:44:27 PM »

Well, I guess their assumption is that Archie will be too spiteful to license the characters and will just reboot their beloved comic or do whatever-the-hell else.

In fairness, that guess might not be far wrong. But when you think about that it's funny how odd that tendency is. When two corporations fight like this, usually the loser just pays up to buy the needed licensing fees/rights and that's the end of it (assuming they can afford it). It's usually all business. But when a corporation loses out to a small rights-holder the corporation will often go to ludicrous lengths to avoid paying a dime to the rights-holder. Which is even sillier because an individual small rights-holder's price is almost always going to be lower than a corporate entity's price.
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Büge

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Re: Re: Archie
« Reply #13 on: March 27, 2013, 04:16:51 PM »

But then all the other corporations will think it's a wimp.
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Thad

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Re: Re: Archie
« Reply #14 on: March 27, 2013, 06:01:31 PM »

Well, I guess their assumption is that Archie will be too spiteful to license the characters and will just reboot their beloved comic or do whatever-the-hell else.

They don't need to reboot.  Indeed, I'm not sure which of Ken's characters they're even using at this point.  Whichever characters they're using they can write out however they want and just revert to characters Sega owns.  They've already started altering covers of reprint collections so the disputed characters aren't on the cover.

But those reprint collections are the rub.  If Penders was awarded his copyrights, it would knock a huge chunk out of their back catalog -- IIRC Penders was head writer and frequent artist from around issue #16 to #75, plus the Knuckles solo series, and he continued to do backups for some time after he was off the lead features -- and that's without even getting into Scott Shaw, Mike Gallagher, and the other writers and artists making the same claims Penders is.  At a guess, they'd be losing the rights to at least 60% of the first 100 issues of the series, the entirety of the Knuckles series, and most of the quarterly specials.  And this is Archie we're talking about, a company that's pretty well synonymous with reprinting everything forever and not compensating the original writers or artists for it.  I don't think it's the new issues they're worried about, it's the reprints.

(A more aggressive stance:
So okay.  The original Dr. Robotnik was killed off in issue #50.
In issue #75, he was replaced by another Dr. Robotnik, who conveniently bore a closer resemblance to the version that appeared in the games and of course eventually came to be known as just Eggman.
BUT.
The Eggman introduced in #75 is actually Robo-Robotnik, a parallel-universe version of Robotnik who first appeared in issue #19, written by, well, I expect you see where this is going, Ken Penders.
An aggressive interpretation of canon would be that Ken Penders co-owns the version of Robotnik who appears in issues #75-present.
Again, that's easily-fixable -- do an issue where Eggman blows up and is replaced by yet another parallel-universe version -- but it would mean the bulk of the series would require compensation to Penders for reprints.
I'm not sure if he's actually claimed copyright on Robo-Robotnik at all...but if he did, and if the case got dismissed with prejudice, that'd be a pretty big fucking deal.  You wanna talk leverage?  THAT is leverage.)

In fairness, that guess might not be far wrong. But when you think about that it's funny how odd that tendency is. When two corporations fight like this, usually the loser just pays up to buy the needed licensing fees/rights and that's the end of it (assuming they can afford it). It's usually all business. But when a corporation loses out to a small rights-holder the corporation will often go to ludicrous lengths to avoid paying a dime to the rights-holder. Which is even sillier because an individual small rights-holder's price is almost always going to be lower than a corporate entity's price.

There's another wrinkle here: Archie doesn't own any of the characters or comics in the first place; the whole thing's licensed.  Even if they wanted to license Ken's characters and back issues, I suspect any deal they struck would need Sega's approval too.  And as creator-unfriendly as Archie is, I think Sega's liable to be worse.  Especially if Penders's appeal goes forward.  I have a hard time imagining Sega authorizing Penders reprints while he's in the process of suing them for Dark Legion Brotherhood.
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Re: Re: Archie
« Reply #15 on: March 27, 2013, 08:56:13 PM »

The Dark Brotherhood© is copyright Bethesda Softworks.
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Thad

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Re: Re: Another thread on copyright/patent/trademark law
« Reply #16 on: May 09, 2013, 04:21:16 PM »

Want more hilarious court transcripts about a copyright case?

Archie v Penders continues.  Archie now claims that they "desperately" want to settle, but can't without Sega's permission.  (Paul is Archie's lawyer, Daman is Penders's.)

Quote
MR. PAUL: The missing link is the premise, the legal premise that Mr. Penders brings to his valuation and, in fact, the fact of whether he has a claim or not against Sega. And while it would be very inefficient, we could deal with one thing — we could — I understand, if we could resolve issues between these two parties, but if you’re asking — your question was what’s the impediment to settlement.

THE COURT: You can’t –

MR. PAUL: We’re going to end up having to pay for Sega’s defense.

THE COURT: It’s pretty obvious, though, isn’t it? Why don’t you just bring in Sega to your settlement conversations? I mean, if there’s some other missing aspect –

[...]

MR. DAMAN: Yes, your Honor. We would agree with everything you’ve just said. We’ve been asked not to contact Sega, and we’ve adhered to their wishes.

THE COURT: That makes no sense.

MR. PAUL: Judge, the case won’t go away though, because Sega won’t offer a dime.

THE COURT: I don’t know who asked you not to. I don’t think I did.

MR. DAMAN: We were asked by ACP, the other party in this case –

THE COURT: Right.

MR. DAMAN: — not to.

THE COURT: So but that makes no sense. Forgive me. If he’s saying that they’re the missing link and, you know, you’re two smart business lawyers, so get the missing link. Bring the missing link in and solve all the issues.

Early in the transcript, the judge is suggesting the case go to trial.  With a jury.

While I'm certainly pessimistic about decisions juries have made in copyright cases over the past few years, I DO think it bears noting that Archie really, really doesn't want this to go to trial, and I think that means Ken's got a better case than what's been publicized so far.  (Totally unsubstantiated theory, pure conjecture on my part: proof that the signature on the photocopied contracts Archie produced is a forgery.)

By the end, the judge has backed off that a bit and is pushing for them to get ahold of Sega and figure this shit out.  We'll see.
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Thad

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Re: Archie v Penders
« Reply #17 on: May 23, 2013, 04:17:29 PM »

So I wrote some stuff about this.

There should be more news soon; from what I understand Sega has joined the talks and, well, they sound about as happy as I expected they would.
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Thad

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Re: Archie v Penders
« Reply #18 on: July 08, 2013, 11:31:16 AM »

Settlement reached; case dismissed.

No word yet on what this means for Penders v Sega and EA, but it certainly puts him in a stronger position.

EDIT: New blog post.  Basically reiterating what I've said before: we still don't know all the settlement terms; we'll know more as time goes on but will probably never know all the details; and this is just the beginning because there are another 30 or so guys who freelanced for Archie's Mamaroneck office in the mid-'90's who are sharpening their knives now.

Meanwhile, I indulged in a bit of schadenfreude in the TSSZ News comments section on their two articles about the news.  (Before, I admit, realizing that this story is a week old now.)  The fanboys are really in more of an incoherent rage than ever; highlights include one guy swearing he'll never buy another Archie comic again because "fuck you Penders" (huh?), another guy swearing that all the fanboy rage is a sure sign that no comic store will stock Ken's comics (I think "off-brand Sonic comics" ARE going to be a tough sell, but not because some guy on a messageboard is SO ANGRY), and a concern troll who tut-tuts that if only Ken had made more legal threats then surely the fans would have been on his side.
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Sharkey

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Re: Archie v Penders
« Reply #19 on: July 09, 2013, 07:19:04 AM »

The fanboys are really in more of an incoherent rage than ever; highlights include one guy swearing he'll never buy another Archie comic again because "fuck you Penders" (huh?)

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