COMING SOON IN 2012

[Ken Penders]

@Tylinos:

you either don't understand the way the legal system works, or specifically ignored it because filing it would have hurt your case for obvious reasons.

You're outright admitting here that you did this as a play to get around statute of limitations law.

Please tell me this is something other than saying you may possibly re-file before the Archie case ends even though you were basically just told to not do that.

Whatever else you may think, what is going on between me, Archie, Sega and EA is most certainly not a game. I didn't make up the rules to begin with. If anything, I'm the guy who's learning the system as he goes along. Yes, there is a strategy to everything, but that goes for the other side as well.

When the companies file a motion, they're going to phrase everything in a way most favorable to them. Likewise, my attorneys will present the facts from our POV. Then the Judge gets to weigh in, and neither side really knows how that will play out. If it appears I'm the one ignoring what the Judge is saying, I can't help you're not getting the full picture.

As much as I would like to be more informative, that's not the smart play on my part for now. Even if it means you think I'm still in the wrong, I'm not going to say anything that ends ups doing severe damage to my case at this point, even if it does make me look bad to a lot of the fans.

this could be used as an argument against you saying you think your book would succeed based on support emails.

I'm just saying you shouldn't try to argue with imaginary numbers.

What numbers am I throwing out? Success is something that's elusively defined these days. Mitt Romney just won the primary in Michigan, but is he really a winner? The jury will be out on that one for awhile. In terms of comic book sales, back in the 70's, if a book sold under 200,000 copies, it was cancelled. Now if a book sells over 50,000, it's a runaway success. A small independent publisher can build a hit just from selling 1000 to 5000 copies of a book depending on a number of factors. What you think I mean by THE LARA-SU CHRONICLES being a success and what I think are two different measuring units.

Did you mean that its best sales were during the '90s era, and that there was an increase from your last part of time on the book to the start of Ian's time? Or do you mean something about subscriptions?

The sales of the books on the newsstands during the 90's were better than they are now. The sales through the direct market via Diamond Distribution is better now than back then, but it isn't enough to make up for lost newsstand sales. While my guess would be there were more subscriptions back then, I just don't know for certain. The reprint and digital sales are recent components to the sales picture and have plenty of room for growth, so that may make up the difference, but I don't believe we're quite there yet.

So unless Mr. Penders’s contract was wildly different, he signed away those characters before he even created them.

you're purposefully leaving things out to use libel on Ian as a way of proving a point.

I'm not libeling Ian. I'm simply stating he was misinformed. Ian is saying everyone on staff including freelancers signed contracts, which begs the question: How does he KNOW?

Company executives? Can't say I find them an unbiased source of information.

I already have freelancers such as Scott Shaw! submitting declarations they never signed contracts, so unless Ian was either misinformed by company executives or he's aiding and abetting in the propaganda, his initial statement is incorrect. I'm willing to cut slack and believe he was misinformed.

On the other hand, what characters has Ian created, especially during the early years of his run, that warranted concern on his part whether he signed away his rights or not? Scourge? Revamp of my character Evil Sonic. Dark Egg Legion? Ian himself admits its an update of the Dark Legion. (And no, please don't take this as a criticism of Ian because it's not. I'm just asking people to look at the bottom line here.)

Ian's living the dream. Great. But his dealings with the company are totally different from the experiences of others. I would certainly never say my experiences are in any way similar to his. (And I'd think he'd agree.)

[Greenman]

Timeline of events

Thanks for this, but it doesn't really change anything about my standing or what I believe the end result of this case will be.

What everything mentioned so far indicates is that Ken was employed on a work for hire basis, meaning he lost the rights to his story once he forfeited it to Archie for publication. They were commissioned from him by Archie, who then gained the rights to distribute that material CONTRACT OR NOT through publishing the stories in a tangible form. Once those books hit the market with their logo, backed by their money, the stories and designs contained within became theirs.

The fact that Ken had a verbal contract means nothing, you can't prove a negative.

Uh, no, but you have it wrong. For starters, when someone creates a work, whether it is a script, a drawing, a film, whatever, once the work is created, the person who created it automatically is the owner of the copyright. That person doesn't need any document to establish ownership.

Not quite, and this is a misconception that's really going to come back and bite you. I'll try to be as clear as I can on this...

See in most cases you do only need to have your work in a tangible form, but even then you need some kind of documentation to prove you did in fact create it. With written works it's typically just some form of self-publication, and even then it's just a means of saying "this person created this thing on this date."

Now this is where you're mistaken, because you weren't employed to write stories for yourself, you were hired to write stories for your publisher. That's a work for hire, which negates this whole thing on that basis alone. This law that everything is suddenly copyrighted once pen hits paper doesn't even apply to you. Personal opinion: drop the case.

[Ken Penders]

@Greenman:

They were commissioned from him by Archie, who then gained the rights to distribute that material CONTRACT OR NOT

I'm glad you're not my lawyer. Here's what the Judge recently wrote in the Kirby case about works created under the 1976 Copyright Act and the 1975 Contract he signed for Marvel on page 43 of her opinion:

The employment agreement - signed literally on the eve of passage of the new copyright law, under which Kirby's future work would not have qualified as work for hire in the absence of such an agreement (emphasis mine)

Get that? Any work done AFTER the 1976 Copyright Agreement WITHOUT a signed work for hire agreement does not qualify as work for hire. If you hire me to create comic book art using a script you supply and pay me for my work on completion, you still don't own my work. Without a document stating clearly that you have first print rights to my work, all you've done is hire me to create art for your own private enjoyment.

You can disagree with me all you want, but even the Judge in the DeCarlo case didn't grant Archie a complete win to all of DeCarlo's material, no matter what Archie may trumpet in the press. A clear reading shows the Court didn't rule on a number of issues regarding DeCarlo for various reasons, nor did the Judge rule in favor of everything Archie wanted or would have liked.

However, the press has limited space to report the news and doesn't do nuance. That's why you get headlines like DeCARLO LOSES TO ARCHIE.

And no, I didn't even have a verbal contract. But that's neither here or there.

because you weren't employed to write stories for yourself, you were hired to write stories for your publisher.

Again, see above. Also, your "facts" about my "employment" are incorrect, but I can't go into details now. That would be like Macy's publicly airing out their sales strategy to Gimbels.

[Greenman]

Uh, you missed something there. Full quote:

The court also found unpersuasive defendants’ argument that the language of the 1975 employment agreement indicated that, as late as 1975, Marvel believed its relationship with its freelance artists was premised on the purchase of work and the assignment of copyright, and not on the work-for-hire doctrine. The employment agreement – executed literally on the eve of passage of the 1976 Copyright Act under which Kirby's future work would not have qualified as work for hire in the absence of such an agreement — was not evidence that Kirby and Marvel intended for Kirby to retain any federal copyright in his work at the time he created it.

The point is that it was always the stipulation that work for hire would mean your copyrights go to the employer. I think you're interpreting this all wrong, because "absence" in this case does not mean what you think it does. It means that regardless of the fact that he had the contract he did or not, the implication remained that the working relationship was that of a work for hire, which is defined by the following test:

The Second Circuit adopted the "instance and expense" test – a two-pronged test to determine if a "work is made for hire" under the 1909 Act. The copyright belonged to the person at whose instance and expense the work was created, and an independent contractor is treated as an employee under the statute if the work is made at the hiring party's instance and expense. A work is deemed made at the hiring party's instance and expense when the employer induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out. The hallmark of an employment for hire is whether the employer could have exercised the requisite power to control or supervise the creator's work, even if it never exercised that power. According to the court, the Second Circuit's jurisprudence created an almost irrebuttable presumption that any person who paid another to create a copyrightable work was the statutory author under the work for hire doctrine.

This is literally your employment in a nutshell. If it had been an original comic, and you created all the characters, but it was in Sonic's style, then you might have had a shot. Which is why I suggested you just drop this, settle, and pursue your comic after some major retooling.

Also, your "facts" about my "employment" are incorrect, but I can't go into details now.

Those details better be "I got paid in peanuts with little dollars signs on them while Archie suits dug through my desk and stole my stories." Because I'm having a really hard time believing that your employment didn't consist of getting paid actual money to make things.

I'm glad you're not my lawyer.

mhm.

[Tylinos]

I'm going to be busy the next few days, so I'll have to make my responses shorter than I'd like. I'll only respond to what I can for now.

Whatever else you may think, what is going on between me, Archie, Sega and EA is most certainly not a game. I didn't make up the rules to begin with. If anything, I'm the guy who's learning the system as he goes along. Yes, there is a strategy to everything, but that goes for the other side as well.

When the companies file a motion, they're going to phrase everything in a way most favorable to them. Likewise, my attorneys will present the facts from our POV. Then the Judge gets to weigh in, and neither side really knows how that will play out. If it appears I'm the one ignoring what the Judge is saying, I can't help you're not getting the full picture.

As much as I would like to be more informative, that's not the smart play on my part for now. Even if it means you think I'm still in the wrong, I'm not going to say anything that ends ups doing severe damage to my case at this point, even if it does make me look bad to a lot of the fans.

Well, yes, it's not a game, and strategy is certainly needed. But my point was that you claimed there wasn't any trickery and whatnot, when part of the strategy did involve that, no matter how you want to spin it. Not saying that's an unwise move in the strategy department, though. (Heck, it's a great one for keeping the case alive.)

What numbers am I throwing out? Success is something that's elusively defined these days. Mitt Romney just won the primary in Michigan, but is he really a winner? The jury will be out on that one for awhile. In terms of comic book sales, back in the 70's, if a book sold under 200,000 copies, it was cancelled. Now if a book sells over 50,000, it's a runaway success. A small independent publisher can build a hit just from selling 1000 to 5000 copies of a book depending on a number of factors. What you think I mean by THE LARA-SU CHRONICLES being a success and what I think are two different measuring units.

Probably bad wording on my part. I'll try to remember to respond better to this when I have time.

The sales of the books on the newsstands during the 90's were better than they are now. The sales through the direct market via Diamond Distribution is better now than back then, but it isn't enough to make up for lost newsstand sales. While my guess would be there were more subscriptions back then, I just don't know for certain. The reprint and digital sales are recent components to the sales picture and have plenty of room for growth, so that may make up the difference, but I don't believe we're quite there yet.

You do realize the industry as a whole has gone down since that time, right? If anything, the comic has gone uphill in comparison to its position compared to other books in general.

I'm not libeling Ian. I'm simply stating he was misinformed. Ian is saying everyone on staff including freelancers signed contracts, which begs the question: How does he KNOW?

From the looks of this, you're misinterpreting his statement. Judging by the rest of his post in question, he meant unless your contract situation was quite different compared to contracts as of the company at the current time.

Company executives? Can't say I find them an unbiased source of information.

And people would find you to be any less biased?

Scourge? Revamp of my character Evil Sonic.

Two things here. One, I may be wrong on this, but I've been told by multiple people over the years that the old Pseudo Sonic story from before #11 was originally intended to be the debut of Evil Sonic before the story was changed. But again, I may be wrong on that.

Second, think about what you're saying for a moment. You're claiming creation over a character who is, quite literally, evil Sonic the Hedgehog.

Also, the rest of that section I'll try to respond to another time.

[Antarctic Deity]

Conquering Storm, Constant Vigil, Endless Reach, Thrash, Beauregard, Matilda, Akhlut, some Wolf Pack members, Mordred Hood, Diesel, The Foreman.

It's so good to see you've read the book and know what you're talking about finally, instead of making badly researched potshots!

[Mavrickindigo]

Conquering Storm, Constant Vigil, Endless Reach, Thrash, Beauregard, Matilda, Akhlut, some Wolf Pack members, Mordred Hood, Diesel, The Foreman.

It's so good to see you've read the book and know what you're talking about finally, instead of making badly researched potshots!

On the other hand, what characters has Ian created, especially during the early years of his run, that warranted concern on his part whether he signed away his rights or not? Scourge? Revamp of my character Evil Sonic. Dark Egg Legion? Ian himself admits its an update of the Dark Legion. (And no, please don't take this as a criticism of Ian because it's not. I'm just asking people to look at the bottom line here.)

What I'd like to know is how Ian would have to admit something that's blatantly obvious. The story goes with the Legion going to Eggman for help, and then he's all like "Yes, you work for me and now you'll be called the Dark Egg Legion or I'll kill you'"

that's the basis of it.

Conquering Storm, Constant Vigil, Endless Reach, Thrash, Beauregard, Matilda, Akhlut, some Wolf Pack members, Mordred Hood, Diesel, The Foreman.

Technically Beauregard was mentioned by Mike Gallager, but he was more of a throwaway line back then.

Also notice how most of Ian's list are interesting characters. It's quality over quantity here.

EDIT: Also don't forget how he fleshed out the Zone cops by actually adding in new No Zone denizens: Zouge, Zector, Zespio, Zeggman, Znively

[Ken Penders]

@Greenman:

It means that regardless of the fact that he had the contract he did or not, the implication remained that the working relationship was that of a work for hire, which is defined by the following test:

No, it's you who's doing the misinterpreting. Kirby's works involved in this case were created between 1958 through 1963, all of which fell under the 1909 Copyright Act, not the 1976 Copyright Act. The part you boldfaced is connected to the beginning part of the following but not the Judge's qualifier:

The employment agreement – executed literally on the eve of passage of the 1976 Copyright Act under which Kirby's future work would not have qualified as work for hire in the absence of such an agreement

What the Judge is saying here that had Kirby signed the contract AFTER the passage of the 1976 Copyright Act, any works he created prior to the presence of a written agreement would not qualify as works for hire. Since he signed before the passage, his works were governed by the 1909 Statute, which does define work-for-hire absent an agreement.

The Second Circuit adopted the "instance and expense" test – a two-pronged test to determine if a "work is made for hire" under the 1909 Act.

You just made my point for me. We don't operate under the 1909 Act anymore. Any works created since January 1, 1978 fall under the Copyright Act of 1976, which clearly defines the nine categories that define works-for-hire, under which I and many others observe - even the comic publishers at the time it was enacted - does not list comic books anywhere within those nine categories.

Those details better be "I got paid in peanuts with little dollars signs on them while Archie suits dug through my desk and stole my stories." Because I'm having a really hard time believing that your employment didn't consist of getting paid actual money to make things.

They never employed me. The 1099s they issued clearly state I was a non-employee.

@Tylinos:

You do realize the industry as a whole has gone down since that time, right? If anything, the comic has gone uphill in comparison to its position compared to other books in general.

I submitted a document to the court in which showed SONIC #11 (my first issue) outsold everything but two X-Men titles throughout the K Mart chain. The list included other high profile DC and Marvel titles, including the big ones. Throughout my run the book outsold most of Marvel's and DC's output then, even if it wasn't reflected in the Diamond sales charts. So who's putting up the straw man argument now? I'm definitely comparing apples to apples as best as possible in this instance.

Two things here. One, I may be wrong on this, but I've been told by multiple people over the years that the old Pseudo Sonic story from before #11 was originally intended to be the debut of Evil Sonic before the story was changed. But again, I may be wrong on that.

Second, think about what you're saying for a moment. You're claiming creation over a character who is, quite literally, evil Sonic the Hedgehog.

Pseudo Sonic had nothing to do with Evil Sonic. Mike K and I didn't even know that story was being done or had been completed by the time we turned our story in. Second, while he may appear and be named Evil Sonic, that wasn't the basis for the character. I'll go into the genesis later when I can.

[Greenman]

So what? You apply under the current WFH standards too. I just figured to compare you to Kirby since you seem to think that's appropriate.Seriously I could go tit for tat on you with bird law all day, but in the end all you're going to do is clip out the portions you think favor your point of view rather than give it any context and reap the actual meaning. Like Kirby, you'll be left with nothing. Unlike Kirby, your legacy is a bunch of trite furry melodrama. So congratulations, I guess.

You should probably play some of the Ace Attorney games, because the nonsense in those make more sense than your interpretation of the law.

Second, think about what you're saying for a moment. You're claiming creation over a character who is, quite literally, evil Sonic the Hedgehog.

He is, because in Pender's world if you draw something to look exactly like a Sonic character, it's a original and you DO NOT steal it.

[Mavrickindigo]

Second, while he may appear and be named Evil Sonic, that wasn't the basis for the character. I'll go into the genesis later when I can.

Whatever your original idea was must have gone through a ton of revisions, because that whole story is tailored to "alternate universe: Sonic meets Evil Sonic"

[Greenman]

Whatever your original idea was must have gone through a ton of revisions

Well you see, originally he had a mustache and was called Bad Sonic. Penders wisely made a few alterations in order to amp the quality of his work, opting for a leather jacket and a much more exciting name.

And then he sat back and shoved a few money-peanuts in his mouth, and said "I've done some fine work here today."

[BobR]

And then he sat back and shoved a few money-peanuts in his mouth, and said "I've done some fine work here today."

I'd watch statements like that, Greenman. It's bordering on a display of disrespect, and that's a no no on this board. You don't have to respect the person to whom you're replying, but public display of that disrespect is out. You might want to refresh your memory of board rules.

[BobR]

Actually, I would take issue with Mr. Stallman's explanations. The fact that copyright, trademark, and patents are separate and distinct entities with their own laws does not invalidate the use of the term "intellectual property" as coverage for all three items. Should we quit calling dogs "dogs" because there are so many different breeds? Or step back to canines, because of the different species? If you think of patents, trademarks, and copyrights as species of intellectual properties, the analogy holds. Yes, they're all different, but they all had to be thought up as opposed to occurring naturally.

The difference is, right now the word "dog" isn't at the center of spurious legal campaigns that threaten the rights of billions across the globe. It benefits the corporate lobbyists to perpetuate the term "IP", even if it's considered acceptable use of the English language. Emphasizing clarity is only a small means of pushing back, but it helps.

I use a perfectly valid simile, and you shoot back that "dog" isn't on trial? That's a rather specious argument, don't you think? The point stands, if it's created by the mind of man, it's an intellectual property that can be copyrighted, trademarked, or patented. The one and only purpose for said protections is to give its creator the chance to earn income from said creation without the fear their creation would be used or sold by others without recompense, as a means to foster the creation of additional works. Would J.K. Rowling have created Harry Potter if any publishing house could take her story, print it, make tons of money from it, and NOT pay her a dime? Where is the drive to create any future works, if that were the case?

[BobR]

It would be like trying to circumvent the copyright on Knuckles by painting him blue and giving him a different name.

Actually, that would do it. We've already hashed this argument out in Howard the Duck vs. Donald Duck.

Granted people are making assumptions, it's probably because they find the idea that two companies would draft a contract in such a way that their head writer would gain rights to all submitted material upon termination unlikely.

Ken was never terminated by Archie because he was never hired by Archie. He submitted stories he wrote for publication in Archie Comic's Sonic the Hedgehog and Knuckles the Echidna comics (as well as other Archie published titles.) There was no agreement that Archie had to accept said stories, and other than for some game adaptations, Ken was never told what to write. HIs stories were his creations that he submitted to Archie. The mere fact that Archie was looking for Sonic stories to publish does NOT make Ken's work an automatic work-for-hire. Archie was perfectly capable of accepting stories from other writers (and did) and not print every story Ken submitted (they didn't.)

As a magazine editor myself, I receive manuscripts for articles written by others all the time. Even if I should put out feelers for a particular type of article, anyone submitting manuscripts to that request are still not work-for-hire. Copyright remains with the author. If I find an article that fits what I'm looking for, I enter into a Publication Agreement with the author, where he authorizes us to print his manuscript in our magazine article and any future publication form and technology. That agreement is very explicit, in that it identifies the exact work, and what rights are being transferred to us. Our main stipulation is that we have right of first publication, meaning that the article has never appeared in print in any other magazine. We do NOT request copyright, which remains with the writer. He's free to do whatever else he wants with the manuscript after our printing. This publication agreement is executed with each and every manuscript submitted by the author, even though we have several recurring authors who are always submitting articles on numerous topics.

Now, to show you the quirks in copyright law, even though we've printed the author's manuscript in our magazine article, he is NOT free to republish that same article. It is classified as a different work from what the author wrote, and subject to its own copyright, which is held by my magazine. We had permission to use his manuscript in our work through our publication agreement, but he's not free to use our work because that was not part of the original agreement. He can use what he wrote himself, though.

Now, how does this apply to Ken? He's the author submitting a work he created to Archie for publication in the comic. Archie accepted said work, and paid him for it (note he was NOT hired to write the work -- Ken did that on his own hoping it would be accepted and he would be paid for it. There were times when his work wasn't accepted, so that was wasted effort.) The problem is Archie never followed through on the equivalent of a publication agreement stipulating the exact work and what copyrights Ken was expected to give up. Ken submitted the work with expectation it would be printed in the comic and that would be it. Archie never gave him any indication it would be otherwise. He did not anticipate his work appearing in other mediums, such as trade paperbacks or digital form, or that Archie and other authors would derive recompense from expanding upon the work he did. That would be like Disney making the first Donald Duck cartoon, then watching Warner Bros., Walter Lantz, Hanna-Barbera, et al, start making Donald Duck cartoons and deriving income from same without Disney seeing one cent from the others' works. It is just that type of scenario that copyright and trademark laws are designed to prevent.

I could go into additional details about that so-called contract everyone keeps pointing to, but I cannot at this time and I understand why. But there is one thing I do want to point out. It was stated in an earlier posting that Ian said because Ken supposedly signed a contract, "...he signed away those characters before he even created them." That tells me Ian does not know or understand copyright. You can NOT sign away a character before it's created. The work must already be created before a transfer from the creator of the work to whomever takes place. So "future work" in regards to transferring copyright is impossible. Likewise past work is also out. You can not reassign copyright retroactively. It can only be transferred from the current point going forward. That's why I must have new Publication Agreements from every author for every article they write before I publish their work.

[Tylinos]

Okay, time to look over the points I missed last time.

What numbers am I throwing out? Success is something that's elusively defined these days. Mitt Romney just won the primary in Michigan, but is he really a winner? The jury will be out on that one for awhile. In terms of comic book sales, back in the 70's, if a book sold under 200,000 copies, it was cancelled. Now if a book sells over 50,000, it's a runaway success. A small independent publisher can build a hit just from selling 1000 to 5000 copies of a book depending on a number of factors. What you think I mean by THE LARA-SU CHRONICLES being a success and what I think are two different measuring units.

This one really was my fault due to stupidly bad wording. I'm sorry for that. What I meant was that you were trying to compare the number of potential readers from the Sonic fandom and the number of potential readers not involved with the fandom at all but are still interested in the old Knuckles series, when those numbers are impossible to even relatively compare due to being impossible to count.

For starters, when someone creates a work, whether it is a script, a drawing, a film, whatever, once the work is created, the person who created it automatically is the owner of the copyright. That person doesn't need any document to establish ownership.

Let's look at work-for-hire law here. Let's say, for the sake of argument, that someone created a script for a film, since you mentioned both in your examples. For something to be a work made for hire, it has to fall into one of two categories. The first is "a work prepared by an employee within the scope of his or her employment". But for this argument, let's say it doesn't fit there, and look at the second instead.

...or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

In other words, it has to fit one of the nine categories of works listed, must be ordered or commissioned for use in said work, and there must be a mutual agreement in writing specifying that it was a work for hire.

If all three categories are met, the creator is not the automatic copyright owner. In our example, the first is already met by this being for a motion picture. The second is most likely (but not definitely) the case, and the third is possible. What you're arguing (or, at least, what it looks like you're arguing) is that they become the copyright owner no matter what. However, this is not the case if said conditions are met. For the sake of our example, it's quite possible they could be met.

I submitted a document to the court in which showed SONIC #11 (my first issue) outsold everything but two X-Men titles throughout the K Mart chain. The list included other high profile DC and Marvel titles, including the big ones. Throughout my run the book outsold most of Marvel's and DC's output then, even if it wasn't reflected in the Diamond sales charts. So who's putting up the straw man argument now?

Still you, actually. While I readily admit I don't have actual sales figures for the entirety of the comic's run (could someone please provide some to clear this up for both sides of the argument here?), I was speaking about the general series sales over its history from what I'd read of them in the past and the status of the industry as a whole (but I could be misremembering them), while you're oversimplifying the argument by using Sonic #11 as a representative of the series' sales history.

Pseudo Sonic had nothing to do with Evil Sonic. Mike K and I didn't even know that story was being done or had been completed by the time we turned our story in.

Alright. I'll take your word for it on this one. To be honest, while people did keep telling me that Pseudo was originally intended to be Evil Sonic, I honestly have no idea what the source on this supposed information was. If someone knows, please post about it.

Second, while he may appear and be named Evil Sonic, that wasn't the basis for the character. I'll go into the genesis later when I can.

And...? Even if Evil Sonic was originally intended to be a different character, what does that have to do with anything? The character, as published, was Evil Sonic the Hedgehog.


As you can see, this is a picture of Sonic the Hedgehog attacking one of Dr. Eggman's robots.

Actually, let me be a bit more clear. This is a picture of the evil version of Sonic the Hedgehog, who has the same name as him and looks identical to him, attacking one of Dr. Eggman's robots.


This is from the very next issue, showing Sonic confronting Evil Sonic. You may have noticed that they look identical, except one is wearing Sonic's distinctive shoes, and the other is wearing socks. Funny thing, when I scanned this page earlier, I glanced over the page without reading the dialogue and assumed the one with the shoes was the real Sonic and the other was Evil Sonic. It wasn't until I read the dialogue when resizing it that I noticed the one with the shoes was Evil Sonic.

What I'm trying to say is that you're claiming ownership over a character named Sonic the Hedgehog who looks identical to Sega's Sonic the Hedgehog. Even if you won copyright over your characters, Sega would immediately sue you for copyright infringement on him, and that's one particular case they'd win quite easily. And that's also one where I'm pretty sure Sega could sue for attorney's fees and and statutory damages as well.

Are you still sure you want to try and claim copyright on Evil Sonic?

The mere fact that Archie was looking for Sonic stories to publish does NOT make Ken's work an automatic work-for-hire. Archie was perfectly capable of accepting stories from other writers (and did) and not print every story Ken submitted (they didn't.)

While this is true, it alone also doesn't disprove the possibility of him having been work-for-hire under either its first or second category. A work for hire can quite easily be rejected because the company doesn't like it for whatever reason. And on the point of having other writers: Most companies tend to take work from more than just one employee.

Let's look at, for example, a TV show. Most TV shows have more than one writer hired to write scripts for different episodes, and many shows end up rejecting scripts for various reasons. But that doesn't mean said scripts and characters (the ones used, at least; I don't know regarding the unused) can be then taken and used by those writers elsewhere.

That agreement is very explicit, in that it identifies the exact work, and what rights are being transferred to us. Our main stipulation is that we have right of first publication, meaning that the article has never appeared in print in any other magazine. We do NOT request copyright, which remains with the writer.

Yes, and this is true in your particular case, but assuming for the sake of argument that Ken did have a work for hire contract in place, it wouldn't necessarily have the same stipulations as the ones in your magazine's agreements.

It was stated in an earlier posting that Ian said because Ken supposedly signed a contract, "...he signed away those characters before he even created them." That tells me Ian does not know or understand copyright. You can NOT sign away a character before it's created. The work must already be created before a transfer from the creator of the work to whomever takes place.

I think he was using more of a figure of speech there, in that, like I said before, when under work-for-hire any characters and etc. that end up being used which aren't specifically exempt from copyright transfer (such as, in a Ken-related example, how Particle was exempt from ownership transfer in Super Special #7) would have their copyrights transferred.

[Cheezmatt]

I use a perfectly valid simile, and you shoot back that "dog" isn't on trial? That's a rather specious argument, don't you think? [snip]

To ignore that difference is to ignore the trouble the public is facing right now. Of course most are aware of what nobler ends copyright, trademark and patenting is supposed to accomplish - I'm not attacking Ken's endeavor at all if you're wondering, that's an example of copyright being used properly to defend an artist. But that's a far cry from the overreaching of huge corporate interests, already having more powers than they ought and pushing for even more, by using cloudy definitions among many other things in drafting these bills. My tangentially suggesting a greater degree of clarity is a consciousness-raising exercise if nothing else, one from which everyone would benefit. After all, as these legal matters have shown, clarity can be very important.

[Greenman]

It would be like trying to circumvent the copyright on Knuckles by painting him blue and giving him a different name.

Actually, that would do it. We've already hashed this argument out in Howard the Duck vs. Donald Duck.

Except you're wrong, because Howard the Duck isn't a literal reprint of Donald Duck comics with Donald simply renamed. I'm talking specifically about Penders reprinting old stories and having to make changes in order to maintain a coherent storyline.

[Luger]

It would be like trying to circumvent the copyright on Knuckles by painting him blue and giving him a different name.

Actually, that would do it. We've already hashed this argument out in Howard the Duck vs. Donald Duck.

I'm curious now. In the Lara-Su Chronicles could Ken simply make Lara-Su's father have a similar visual appearance to M25YL Knuckles (since the design is quite different from SEGA's Knuckles, what with the cybernetic eye, wearing of a hat, body suit, vest, etc.) but with a different fur colour and maybe a couple other minor changes, and have him simply called "Guardian" throughout the series? That way readers would know who the character is supposed to be, while Ken wouldn't technically be using Knuckles. Or would this still be too close to copyright infringement?

Also, out of curiousity, who created the design for M25YL Knuckles?

[Mavrickindigo]

It would be like trying to circumvent the copyright on Knuckles by painting him blue and giving him a different name.

Actually, that would do it. We've already hashed this argument out in Howard the Duck vs. Donald Duck.

I'm curious now. In the Lara-Su Chronicles could Ken simply make Lara-Su's father have a similar visual appearance to M25YL Knuckles (since the design is quite different from SEGA's Knuckles, what with the cybernetic eye, wearing of a hat, body suit, vest, etc.) but with a different fur colour and maybe a couple other minor changes, and have him simply called "Guardian" throughout the series? That way readers would know who the character is supposed to be, while Ken wouldn't technically be using Knuckles. Or would this still be too close to copyright infringement?

Also, out of curiousity, who created the design for M25YL Knuckles?

yeah we'll know who he's supposed to be, and it'll be stupid.

[PaulAgnew]

The next character reveal will only further emphasize the hard science nature of this group.

Any chance of the next character being Gae-Na?

Please?

She's got quite a small but devoted fan-following, am I right Patman and Luger?

[jameygamer]

Head's up:

http://www.tssznews.com/2012/03/09/alle ... ders-case/

Is this is true, that will teach ya to watch important documents like a hawk. I'm no businessman, but I am pretty sure that contract papers need to be handled just as carefully as money or gold or anything valuable you have in your house.

[Tylinos]

I'm curious now. In the Lara-Su Chronicles could Ken simply make Lara-Su's father have a similar visual appearance to M25YL Knuckles (since the design is quite different from SEGA's Knuckles, what with the cybernetic eye, wearing of a hat, body suit, vest, etc.) but with a different fur colour and maybe a couple other minor changes, and have him simply called "Guardian" throughout the series? That way readers would know who the character is supposed to be, while Ken wouldn't technically be using Knuckles. Or would this still be too close to copyright infringement?

I'm not sure, but I suppose it could be possible. However, given Ken's stance on expies, it's highly unlikely.

http://www.tssznews.com/2012/03/09/allegations-of-missing-archie-contracts-in-penders-case/

Archie Comics of the 1990s is stupid, the sky is often blue, and water is wet. What a shock.

In all seriousness, though, the timing of the signing of the alleged contract compared to the timing of the lost contracts actually adds credibility to the contract being authentic: If they'd faked it, we all know that even nowadays Archie Comics isn't nearly clever enough to have placed the timing for a fake as being in the exact time new contracts would be reasonably written up. That would make them somehow both the stupidest and most clever company out there.

[PaulAgnew]

Please Note: Any similarities between Archie, the BBC, and Dreamwave concering the destruction of items with historical value are purely coincidental.

[Julie-Su Fan]

Looks like Scott Shaw! is following Ken's example. Who's next?

http://www.tssznews.com/2012/03/20/penders-case-scott-shaw-claims-copyright-to-his-archie-sonic-work/

[jameygamer]

http://www.tssznews.com/2012/03/30/repo ... erica-cut/

Comments on this, Ken?