In it All, Assurance He was Never Under Work for Hire Agreement
The fourteen page affidavit Ken Penders submitted last month in the lawsuit Archie Comics filed against him is perhaps the most raw, meticulous, and unabridged side to his story anyone could ever see. It tells a tale of a man who, now living off unemployment and close to penniless, was making absolutely sure he was not under the heart of the whole mess’s matter before diving in: A work for hire agreement.
In the declaration obtained by TSSZ News, Penders claims of confiding in past co-workers who were also allegedly not bound by such an agreement, and even allegedly confirmed with Archie’s editor in chief Victor Gorelick no such agreement between him and the company existed before filing copyright claims on many of his contributions to the Sonic comics last year.
“Before undertaking these Copyright Office filings, I wanted to make absolutely certain of my position as the owner of all rights in the works I created which were published in the Sonic Comics,” Penders explains in the declaration. “I therefore telephoned Victor Gorelick, editor-in-chief of Archie Comics, in December 2008. During that conversation, I requested that Archie (i) return to me original artwork still in its possession, and (ii) provide me with copies of any agreement I may have signed with Archie Comics relating to any of the freelance work I did for them. Gorelick told me that no such documents existed.”
To be sure, Penders then claimed he followed up several times with Gorelick through telephone and E-Mail, seeking “written confirmation” of the contract’s non-existence. Gorelick never furnished such documentation. It was reportedly furnished when Archie filed its complaint against Penders, but it hasn’t been made part of the public record electronically. Nevertheless, Penders later in the declaration disputed its authenticity:
First, the signatures are not believed by me to be authentic. Second, I have no record of ever receiving documents in 1996 from Archie, nor any recollection of the same. Third, I have no copies of these signed documents in my records – when I receive a document that has already been signed by the other party, it is my normal business practice to make a copy of the fully-executed agreement before returning the document to them.
Penders says the only documents he signed from Archie during his tenure were pay vouchers and a group medical insurance waiver. He also alleges that “all or most of the freelance creators” on the Sonic Comics at the time of his employment did not sign work for hire agreements, and even provided a list of potential witnesses that, at times, is a trip through the series’ history. Penders names former staffers Scott Shaw, Michael Gallagher as “likely witnesses.”
But there’s a lot more to the declaration than those disputes. Penders testifies at length as to how he came to prominence with the Sonic comics:
In October 1993, my friend Mike Kanterovich came to me, telling me he was approached by Paul Castiglia, the editor at that time of the Sonic Comics, who advised that the current writer for the Sonic Comics might be leaving and Archie was looking for some inventory stories to have on hand as a back-up precaution. Kanterovich told me that Castiglia offered him the opportunity to submit story ideas for potential assignments. Unfortunately for him, Kanterovich knew little or nothing about the character or
the comic books, and so he reached out to me because he was aware that I knew a great deal about the character since the “Sonic the Hedgehog” video games, Sonic Comics and “Sonic the Hedgehog” television shows were favorites at that time of my young son Stephen. Kanterovich and I spoke about the Sonic Comic opportunity, and I provided Kanterovich with information on the characters. As our discussions continued, Kanterovich suggested that we work together on story ideas to pitch to Archie for publication in the Sonic Comics. Initially, we prepared and submitted three story ideas to Castiglia for approval during the second half of October 1993. All three stories were submitted by Archie to SEGA for approval, and two of the three were eventually approved by SEGA and Archie.
This method of working on a comic book was different than I was used to doing with other publishers. 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.
Penders alleges in the affidavit this eventually led to he and Kanterovich visiting Archie headquarters in New York, during which they encountered Archie publishers Michael Silberkleit and Richard Goldwater. Some joking around ensued, specifically on notion both Penders and Kanterovich would become the regular Archie writers. That eventually happened, but as Penders notes, “there was at no time any official undertaking by Archie to formalize our working arrangements, and no guarantee of future work for the Sonic Comics.”
It ultimately was the release of Sonic Chronicles: The Dark Brotherhood by Sega in 2008, which Penders believed either referenced or outright used characters he created from the Sonic comics without his consent, that compelled him to seek copyright protection. Penders claimed upon doing so, the U.S. Copyright Office notified both Archie and Sega of his intent, and Archie did not intervene:
[….] During the copyright application process, the Copyright Office sent a notice to Archie Comics and SEGA advising them of my copyright claims, but Archie took no steps to object to the applications, and failed to provide the Copyright Office with copies of any agreements that would dispute my ownership. This was confirmed to me via e-mail on May 21, 2010 by William J. Briganti, Assistant Chief of the Visual Arts and Recordation Division at the Copyright Office.
Penders does not explain if the same circumstances held for Sega, and we are checking out that lost detail for clarification. But if that holds similarly, should Penders prevail in this case, it may mean Sega is also legally exposed.
There are two other notable items in the affidavit. One had potential to stop the runaway success of the Sonic comics, now Archie’s top selling adventure comic, dead in its tracks. Penders alleges that the early alignment with both of Sonic’s television series posed a conundrum for Archie once those series concluded, and Archie considered cancelling the series shortly thereafter. Penders says the Endgame arc, told from issues 47 through 50, was originally conceived as the comic series finale:
In the summer of 1995, (then Sonic comic editor Scott) Fulop advised me that both the Saturday morning animated series and the syndicated weekday Sonic animated television series were being cancelled. Because comic books licensed from another media (such as television) historically were cancelled within 8-12 months once the original media was no longer in the public spotlight, Fulop told me that Archie expected the Sonic Comics comic book series would be cancelled within the next year.
Undeterred, I continued to innovate with my work on the Sonic Comics, creating additional new characters and storylines, including perhaps the most renowned storyline for the entire series titled “Endgame”, which appeared in issues 47-50. This storyline was initially conceived as the last story in the series, featuring the character’s final battle against his greatest enemy.
Despite Archie’s fears, however, the Sonic Comics proved to be the exception to the licensed comic book rule, and actually saw sales increase after the animated shows were taken off the air. As a result, I rewrote the original conclusion of the “Endgame” story thereby allowing the series to move forward rather than terminating.
The other disclosure Penders makes in the conclusion is more personal and more sobering. It involves the current motion to dismiss his attorney has prepared, on account of a lack of jurisdiction. Penders says he is too poor to make the trip to New York for a trial. Penders says, as of the date of the affidavit, he has less than $500 in his bank account and “limited liquid assets”–potentially making travel costs an issue. With no income available to him other than unemployment checks, Penders states “The costs associated with having to travel to and stay New York City [sic] connected to this lawsuit would pose a hardship to me under my current circumstances.”
As reported yesterday, Archie Comics has responded and opposed Penders’s motion to dismiss with a declaration of its own penned by president Mike Pellerito. But it does not appear any decision will be made in the case until June 7th, the next scheduled court conference. No formal trial date has been set.