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.
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:
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:
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).
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.