They Exist, But Remain in Dispute
TSSZ News has obtained through sources copies of two work for hire agreements Archie Comics claims Ken Penders signed during his tenure with the Sonic series.
A five page “Revised Newsstand Comic Independent Contractor’s Agreement” and a three page “Licensed Comic Books Independent Contractor’s Agreement” are the heart of a current legal battle between Penders and Archie. The comic publisher submitted the documents when it filed a complaint against Penders in November, but it had never been available electronically for public review. Because the documents contain personally revealing information, such as address information that is pixelated in the above image, TSSZ News has elected not to publish the documents in full.
Both work for hire agreements carry Penders’s alleged signature, dated December 12th, 1996–more than three years after he started work on the series. They also carry the alleged signature of Archie’s then vice president of finance Edward Spallone, dated November 25th, 1996. In theory, that makes the long passage of time between Penders’s first contributions and the execution of said agreement important, were it not for Archie including the following paragraph Newsstand specific ICA:
18. Contractor represents that all of his/her contributions to any Properties or Works have been commissioned by Archie and prepared at the request and expense of Archie and that all past, pending and future contributions of Contractor to the Works and Properties are and shall be Works for Hire owned by and for the benefit of Archie. 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), and that Contractor’s past and pending Contributions to the Properties and/or the Works, if any, were created pursuant to such earlier agreements and are Works for Hire.
You may have noticed a blank space in the above paragraph. The document has that space intentionally left blank, as are other potentially key spaces in both agreements. Whether those may become points of contention in the case is to be determined.
Still, to be sure, the contract states in paragraph 19 that any other works a contractor makes to a work or property–in this case, the Sonic series–that are not directly subject to the agreement are to have all rights assigned to Archie.
“Contractor will and hereby does assign to Archie any right, title and interest that he/she has or may obtain therein, including all copyrights, patents, trademarks and other proprietary rights,” the paragraph reads.
The Newsstand Comic ICA also states the agreement will be governed by the laws of New York State, where Archie is headquartered. That has become a new point of contention in the case, as counsel for Penders has moved to relocate the case to California, if not have the case thrown out completely.
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.
TSSZ News has also learned neither Archie Comics nor Sega responded to the US Copyright Office’s request for any challenge of the claims Penders sought when he filed for copyright protection, and that there was a 30 day window to do so. This paved the way for his works to be registered beginning in June of 2010.
Research and evidence continues to be collected in the case, with the next conferences scheduled for June. We will continue to bring you more developments as they enter into the public record.
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Kenny, just take Sally. Take her away. That’s the best you could make out of this.
I didn’t understand a word in this article. Is there a point? What does this document reveal?
@Tails the Hedgehog, He didn’t even create Sally, so he can’t take her away.
And honestly, that’s a good thing. He can take away all of his damn echidnas, service men to the King Maximmilian, Mina Mongoose, etc. etc., but he best not touch the Freedom Fighters.
58: In a nutshell, because Archie may have been so lax in the contract, Ken may have a chance of winning his case. If he does, the impact on the Sonic comics could be profound.
-T
@Tristan And that’s what really gets me about all of this. He’s pretty much kicking all the fans to the curb, not caring what might happen to the franchise we care so much about and have stuck with through thick and thin. Seriously, it’s the fans who have kept this comic running as long as it has, not because of anything the writers ever did, really.
Yeah, I understand the importance of a creator owning the rights to his/her work, and getting money they deserve. I also understand that if Penders really is low on cash then he may be getting desperate. But this isn’t an author who wrote some series or a creator of a tv show, or anyone who has made something ORIGINAL. Everything he did was part of or derived from the Sonic Universe–games and tv shows.
Which is why even if he does have the one up on Archie, I think Sega will step in if they have to and lay on the smack down. He wouldn’t have any of his knuckles-verse characters without knuckles–who’s owned by Sega. And Sega, being a company, cares about money (any real sonic fan knows this–he’s been milked like crazy, and for a bunch of crappy games too. Sega cares about the money, not really about the character, in the way we do). The Archie comics are a source of income for Sega’s mascot, as well as a way to spread him around in different mediums–aka more money. So if something (someone) threatens that source of income, they’ll step in. They’ve got waay more money and muscle than Ken does.
It’s possible Penders has the upper hand with Archie, but I don’t see him having anything on Sega. He should’ve considered this.
I think this is pretty open and shut.
+Ken wants the case moved to California.
-the contract makes it clear jurisdiction is in New York
+Ken claims these are forgeries
-why would Archie forge signatures placing the contract two years after his first issue? (STH#11 1994)
+There is some nebulous wording over who the owner is
-It’s still clear the owner is either Sega or Archie, not any of the creators. Saying it’s either A or B doesn’t mean it can be C.
So Ken might have some claim to the characters and stories between STH#11 and STH#31. During that time he didn’t write every issue, and the writing credits were sometimes shared, which would bring those up for dispute with the other writers.
So that means Ken would get, at best, rights to Geoffrey St. John and minor royalties from a handful of Sonic Archives. All of his Knuckles stuff, and the stuff mostly associated with his time on the book, came later.
Even if he wins, all he’s winning is scraps.
You have some good points, Goodman, but I don’t think it’s fair to say his work is not original. Sure, it takes place in an already established universe, but the ideas and characters he created, even if he did choose to loosely base them upon and tie them in with other characters he did NOT create, are still quite original.
He could quite easily take his “Knuckles-verse” and adapt it into something 100% original, just by changing the race of the characters and the name of the protagonist. It’s not as if Sega are the only people to have ever used a floating island or a guardian character before. The majority of the work there (and literally everything that made those stories cool) is pretty much Ken’s original work.
I can’t be bothered to read all this legal mumbo jumbo, so I don’t really know who technically has a right to what, but I just thought I’d step in and comment when I saw you say he didn’t do/create anything original.
@Greg: Mina Mongoose was created by Karl Bollers, and not Ken.
Penders should just give up.
Here’s my two cents on the matter, and this is a matter of common sense then trying to tap dance around legal wording. If I’m wrong on this, I apologize, this is more of a personal opinion than fact.
If someone creates a character specifically for an official franchise, then you better be expecting that those characters then belong to the FRANCHISE. You cannot take these characters away, expecting them to still belong to you, and set them up to make a story about characters in a universe that you DID NOT CREATE to begin with! You would need licencing from SEGA to go that far.
SEGA has every right to protect their property, and only ARCHIE COMIC PUBLICATIONS has the licence to print their stories, and even then, SEGA has to keep an eye on the stories and make sure everything goes the way they want it to be portrayed.
Ken may have been in this business a long time and understand how the industry works more than I could ever hope to know about, but I think he’s lost his common sense this time.
@ChaotixFox Yeah I see your point– much of his work is original, but at the same time, some key concepts–such as chaos emeralds and the like, aren’t. But you’re right saying he could just make some changes and have a wholly “original” work, and if you ask me, he should just do that. Because as is, Sega still has the upper hand as long as Ken keeps his character’s/setting’s relation to the sonic-verse blatantly apparent–ie as long as they all look like knuckles, use chaos emeralds, so on. Claiming everything as is won’t get him anywhere, IMO. It would like be trying to publish a book based solely on Ewoks, with original char’s and plot ideas, but without the star wars name, and still attempt to win out in court. Would that person be entitled to their original names/characterizations/plot ideas? Sure. But as Ewoks? No.
And it isn’t like we as fans wouldn’t “get it” or enjoy his stories any less just because they come in a differently colored package. I’m sure fans will still love Julie-Su whether she’s Julie-lu or Bob. But alas, instead of being smart about it and adapting his story, he has to go and do all this. Which puts us fans at risk, cause it could potentially screw things up. Say he does get the rights to the characters and more importantly, plots and concepts he created, which are still used today–what the crap will Archie do then? Reboot? Will he just act God and dictate what Archie uses and can’t use? That’s what I don’t appreciate about what Penders is doing. AT ALL. He’s tossing in a giant wrench that isn’t necessary. Aargh
I’m not sure Sega really gives enough of a crap to step in unless asked. The Archie-verse has long been the red headed stepchild of the franchise in general and I don’t think Sega’s really spared much thought about it in a long time. Regardless, most of these kind of things are based around the understanding that the franchise owner – being Sega – retains all rights to pretty much anything added in supplemental material unless contracts state otherwise, so if push comes to shove Penders is probably going to lose anyways.
At best it’s probably a contract dispute with Archie; getting rights to characters is not exactly a realistic goal.
@Goodman: Not all fans keep buying it when it’s bad though, so the writers are pretty important to it’s survival as well. I stopped getting the Archie Sonic comic when it went down the toilet a long time ago. If I’m not enjoying it, then why waste the money?
Hell, I like Batman far more than Sonic and I won’t put up with any crappy comics starring him either. I just read the good stuff.
@ChaoticFox: That’s the thing though; no matter what, it wouldn’t be that simple. You could argue he could just change the race and name of the central character, but that’s useless. He’ll essentially have to start from scratch, because he won’t have any of the past body of work to reference or use as continuity. Best case scenario, he’d have to do all those comics over again with the new changes, in which case… well what’s the point? You may as well just start from scratch because it’s not even worth it; you’ve lost everything that matters at that junction. Besides which, he wouldn’t need to win a court case to be able to reuse his concepts or write similar plots.
I honestly do not get what he’s out to gain here.
@dl316bh
I’m not necessarily saying that’s what he SHOULD do, I was just using that as an example to show that his characters and story concepts are still technically “original”, even if they are based on or include a few borrowed characters/settings. I was defending his originality, not necessarily his case.
I have no idea how this legal battle should be handled, and frankly I don’t really care. I haven’t kept up with the Sonic comics since shortly after Endgame, and after the cancellation of the Knuckles series, I just haven’t been interested.
I’m throwing this out there. Hasbro owns My Little Pony. They don’t have/lost the rights to the My Little Pony characters like Knight Shade, Baby Heartthrob, and the human children, who were created specifically for the 80′s My Little Pony cartoon.
Would it be that much of a stretch to believe that SEGA could lose the rights to Archie Sonic universe characters created by Ken Penders like Julie-Su and Hershey the Cat? Also don’t quote me on this, but I *think* the Fleetway Sonic exclusives like Grimer and Metamorphia can not be used (beyond parodies) without permission from their creators.
Again I’m no pro when it comes to this level of legality @__@;
Oh and before I forget, I’m not siding with Ken or anything, he’s causing more problems than solving problems here.
@ChaoticFox: Endgame probably should have lived up to the title and been the endgame of the Archie universe. They’ve been trying to come up with suitable villains since killing the original Robotnik – including having a new one – as it is. But in fairness, the comic didn’t become unreadable until a good while afterwards. Somewhere in the early hundreds, I’d say.
I’m actually pretty bitter about Archie Sonic and, truth be told, would not shed a tear if it went away or was rebooted. I think Penders claim is pretty asinine though.
What he SHOULD be doing is making it a case about reprint rights. Now that, as he claims, is his ultimate goal, but he’s basically shooting for the whole enchilada and making his case pretty ridiculous. Had it just been a matter of being paid for reprints he would likely have even had fan support.
@SEGAMew: Ten to one those examples fall under “unless the contract states otherwise” in what I said earlier. That’s what the deal is with the Super Mario RPG: Legend of the Seven Stars characters. Contracts and all that behind the deal gave Nintendo and Square co-ownership over the original characters created for the game. Nintendo hasn’t used them since – aside from a quick cameo or two of the Geno doll – since they’d have to go through Square and likely pay some royalties.
I’m not a person who understands legal battles. At all. But, to clarify, if Ken wins, he’ll get full rights to the characters he created within the Archieverse, including Geoffry and the service men, along with the truckfull of echidnas? (Please correct me if I’m wrong.)
I really doubt that Archie would make such a huge mistake with there contracts that would allow Penders to win.
I want it known up front that I’m the technical person who manages Ken’s Web site, So if you want to claim bias on my part, I can’t deny that. However, a few comments above indicate the need for elaboration.
@Goodman You’re right. If you try to make a story about Ewoks, you will lose in court. The reason is simple: Ewoks only exist in the Star Wars universe and were created for that universe. However, echidnas are a real animal, thus having echidna anthropomorphic characters based on the RL echidna animal is not unique to Knuckles. Other examples include rabbits (Bugs, Oswald, Ricochet…), ducks (Daffy, Howard, Donald…), bears (Yogi, Baloo, Vincent…), and so forth. And names can not be copyrighted, only trademarked in relation to the visual image of the character.
@Mobius427 The problem is that the contract was never duly executed, thus making the entire contract null and void. There are a number of points within the contract that Archie failed to comply with in addition to just those listed by Tssznews that I’m not at liberty to discuss at the moment. Let’s just say the courts have thrown out contracts by bigger corporations for far fewer violations. If the contract is declared unenforceable, then the jurisdiction reference is moot as is the whole A/B/C thing.
@Sonic Remix You’re right to a point. But let me point you to the copyright office of the United States, reference 201(c): Contributions to Collective Works. — Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.
http://www.copyright.gov/title17/92chap2.html
The Sonic comic is a collective work: multiple authors contributing multiple stories to a single work: the comic. Archie would own the copyright to the comic…they would not own the copyright to Ken’s stories unless said copyrights were expressly transferred to them. This regulation actually protects both Ken and Archie. Ken can’t take Archie’s comic and print copies to sell, while Archie can’t take Ken’s story and use it anywhere else except in the comic itself.
Oh, an interesting point of fact: A search of the Copyright Office’s database indicates neither Archie nor anyone else (like Sega) has ever registered a copyright on the Sonic comic. You’d think they would at least take that step!
And lastly,
@dl316bh When a case first goes to court, you always go for the “whole enchilada” because you typically don’t get more than that, and usually wind up getting less. It’s strictly a starting point for negotiations, if both parties so desire. Ken has already indicated to Archie through his lawyer that he was willing to sit down and hash this out with them…they were the ones that filed first. So I think it’s safe to say they aren’t interested in negotiating.
If there’s one thing I can say about Ken, whom I’ve known for over 15 years now, is that he’s a fair and impartial individual, looking out for others far more than he does himself. This action was not something he entered easily or on a whim…he spent almost two years looking the situation over, exploring options, learning about copyrights, and seeking professional consultations. He’s not out to destroy the Sonic comic — that would be Archie’s decision. On the contrary, the Sonic comic is something he holds very close and dear. He just wants a fair treatment as others profit from his intellectual properties.
First off Penders is a moron. I don’t know if he’s trying to start his own comic or just trying to get money but, I think its time to let go. All of a sudden he’s fighting for rights for characters he made years ago and expects to have full rights over them? Julie-Su and Geoffery were made in the STH comics and are to remain there with or without Ken. Sega owns Archie and Archie owns all characters in STH. LET IT GO KEN. He’s trying to destroy something he helped create and has no respect for the fans whatsoever.
Second, please people stop telling us about how much STH comics suck. Yes you have your own opinions, but its really getting old. Yes Sonic has changed, yes new characters have taken centered stage but, Sonic the hedgehog is still the same Hog. No offense but, old Sonic was full of cheesy jokes and puns.
Ps: Why is Batman always comapred to Sonic….their like two different worlds.
To be fair, Geoffrey’s appearance is based off of an existing nameless SatAM character, would Ken have to completely change the way Geoffrey looks if Ken were to obtain copyrights to the Geoffrey character?
As for echidna characters based of of echidnas. True, you can create characters based off of an echidna animal. However, Knuckles is a STYLIZED echidna. And furthermore, his design is based off of MULTIPLE animals. This is why Knuckles looks nothing like an echidna. Ever seen an echidna with a black nose like a dog? Ever seen an echidna with a white chest crest like a bear? Ever wondered why Knuckles’ hair looks similar in shape to Bark the Polar Bear? Yes, you can have characters based off of bunnies, hedgehogs, chipmunks, etc, but you are likely to run into problems trying to publish works about The Brotherhood and the Dark Legion and keep their appearances looking like Knuckles recolors with the occasional cybernetic implants and Star Wars inspired outfits.
@BobR I know we could both delve into a wonderful debate about all of this, but I’m sure neither of us has the time, nor do I care to. If you’re still sparing some glances over here, then just answer me this: Say Ken wins, completely–what then? What does he plan to do once he officially and fully owns all his characters, concepts, stories; basically much of the foundation of the book?
Because, that’s what I really care about. How I feel about Ken aside, I can understand wanting proper credit or ownership of one’s work. I understand–I’m not saying he should get it. But I want to know plans–what he is going to do in the event that he does win. Will he simply ask to be paid his dues, will he begin to dictate what can and can’t be used–does he plan to just let Archie continue on, get his money, but keep this thing as a trump card to pull out on Archie when he wants to?
If I recall properly (when this whole thing began), Ken didn’t just “copyright” characters, or stories: he copyrighted ideas. And lets face it: he’s responsible for some of the core, foundational concepts the book works off of–such as the multi-verse. If ken wins and all he wants is money, then fine. He can have it. But if he’s gonna screw up the book somehow, then therein lies my biggest problem.
So, what’s it gonna be?
@Goodman “Screwing up the Sonic comic” really falls into Archie’s territory, not Ken’s. They are the ones that control what goes into the book. Should Ken prevail, there are a number of paths that can be taken. But the ultimate decision of which path they want to take really does belong to Archie Comics…and even more so, SEGA. It was never Ken’s intent to “screw up the comic,” a property in which he’s invested a lot of time, talent, and I dare say love.
@Robot521 I’ll just ignore that really intelligent lead-off sentence there, Robot521. But I’m sure the executive board over at Archie Comics would be startled to hear that they’re now owned by SEGA. (Point of fact, Archie is a privately held company owned and operated by the heirs of the founders.)
@BobR First, I appreciate you taking the time to respond. Second: if I can keep my opinions of Ken on the sidelines, I ask you do the same about yours–that quip was not what I meant at all, and you know it. I understand you’re defending him, and that Ken (and maybe you as well) don’t agree with Archie’s direction, but that’s irrelevant, and I know we can both avoid taking shots. As far as Ken’s intent–I can only guess at what that is. However, let me be the first to say I never once believed he set out to hurt the book; let me also be the first to say that doesn’t mean the book won’t be hurt, whatever his intent was or is.
Also, you never answered my question. I understand there are many possibilities– I listed some of them. What I still want to know is, which does he plan to take. And please don’t pass the ball into Archie/Sega’s court; yes, they can and undoubtedly will influence much. But it was Ken who initiated this, and as you both have suggested yourselves, he didn’t go and jump in willy nilly. He had a purpose, and he had–has–a plan (or idea if you prefer, though I know it’s more than that) for what he’s going to do, in either case, win or lose. To say otherwise would only go to show him to be unprofessional, rash, and unwise (not to mention his lawyer). That is not an insult–I would say the same of anyone who did the same thing without sparing a second thought.
So I ask again–what does he intend to do, should he win completely? Undoubtedly, this is tied with his purposes for setting out on this course to begin with. As I said previously, I care because it’s all tied to the comic book, which I care a lot about. Apparently Ken and I share common ground on this, and as his friend I’m confident you can identify. Therefore I ask you understanding of my intent and that you answer my question.
Thanks BobR. I’m glad you have enough free time to answer our comments and concerns. Please excuse my lack of knowledge about the inner workings of legal matters. Unfortunately I’m just one of the concerned and slightly agitated fans who is worried that Mr. Penders might endanger a longtime running comic series. “Point of Fact” this is an issue about money. If Mr. Penders does indeed win this affair, Archie comics will be effect regardless of how much he “loves” the comic he helped built.
Ps: Thank you Goodman.
Know what’ll fix this? Series reboot. Remove all of Penders’ characters, remove the echidna smorgasbord, remove it all. Problem solved!
Mouko, Penders characters are too important to the book to get rid of.