Complaint Claims BioWare Approached Penders for Help on Sonic Chronicles
The lawsuit Ken Penders filed against Sega and Electronic Arts alleges both direct and indirect copyright infringement by both companies, and unfair competition. But perhaps most damning in the complaint is the revelation that employees of Sonic Chronicles developer BioWare, a subsidiary of Electronic Arts, allegedly approached Penders for help on the game.
This, according to the 18 page complaint obtained by TSSZ on Thursday through public record. Ten “John Does” are also named as defendants, with the caution that the plaintiff does not know their true identity, be it corporate or individual, but nevertheless, according to the suit, “have infringed Penders’ copyrights, have contributed to the infringement of his copyrights, or have engaged in one or more of the wrongful practices.”
Penders is seeking unspecified monetary damages in the lawsuit from all parties, along with attorneys’ fees, and other damages deemed appropriate by the court. Penders is also seeking a jury trial.
Much of the initial Facts Common to all Causes of Action read a lot like Penders’s defense against Archie Comics, which is currently seeking a declaratory judgment as to who owns the work he contributed to the ongoing Sonic comics, and reaffirms many of his contributions to the comics are presently registered with the US Copyright Office. In paragraph 23, attorneys for Penders write that the writer/artist was at times not paid by the Archie even after submitting ideas that were further developed:
23. Archie did not pay Penders for several projects he created and submitted to Archie for consideration on both Sonic The Hedgehog and the core Archie titles, even after giving Penders approval for further development.
Paragraphs 33 and 34 reaffirm Sega was notified by the US Copyright Office of Penders’s intent to register, and never responded.
The corner’s turned beginning at paragraph 38, when attorneys for Penders outright accuse the defendants of infringing “upon Penders’ exclusive rights by creating, publishing, distributing and selling a video game titled “Sonic Chronicles: The Dark Brotherhood” (the “Infringing Game”) embodying elements of the Works without permission or license from Penders,” according to the complaint.
The complaint provides a screenshot from a promotional video BioWare allegedly used to promote Chronicles before release. Attorneys for Penders in the complaint argue that the video’s contents demonstrated “the breadth and richness of the Sonic universe, specifically mentioning the comic books Penders was largely responsible for,” adding that a display for issue 14 of the Sonic comic, a portion of which falls under Penders’s copyright claims, was featured.
In Paragraph 41, attorneys for Penders claim the following:
Employees of EA’s BioWare division approached Penders during development of the Infringing Game and inquired of Penders whether he might be available to assist them in the development of the Infringing Game.
There is little explanation beyond that, and no additional exhibits or evidence were disclosed to support that claim. But Attorneys for Penders did afford in the complaint a side by side comparison between copyrights Penders holds, the specific work in question as they relate to those copyrights, and characters and settings in Chronicles that the plaintiff believes are infringing. Among the highlights is the claim Shade infringes on Julie-Su, the claim of The Dark Brotherhood infringing on both Brotherhood of the Guardians and The Dark Legion, and The Twilight Cage infringing on Penders’s The Twilight Zone inside the comics.
“The Infringing Game bears a substantial similarity to the Works, because the total concept and feel is similar, if not identical, between the story and characters in the Infringing Game and the Penders’ Works, and because Sega has created a genuine documented confusion in the marketplace as to Penders’ actual involvement with the Infringing Game,” the complaint reads in part. “Reviewers and players have stated their belief that the Infringing Game was adapted from or heavily influenced by the Archie comic book series, including the Works and other creative works that Penders developed and produced.”
In short, if you’ve ever had an inkling of deja vu between pieces of Chronicles‘ characters and story and Penders’s past work, you may in fact be strengthening the case against Sega and EA. That said, no supporting documentation for the above claim was filed to complement the complaint.
Attorneys for Penders claim the approval process Archie Comics had with Sega renders the latter liable for damage, because aside from Sega publishing Chronicles, Sega also had to approve work inside the comic, including Penders’s, before any issue went to publication–giving cause for Penders to believe Sega was well aware of him and his contributions.
Both Sega and EA have 21 days from the time they are formally served a summons to file a response, both with Penders’s counsel and with the court. Interestingly enough, that would pinpoint any elevation on the matter to around the time of Sonic’s 20th anniversary. We will keep tabs.
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no supporting documentation for the above claim was filed to complement the complaint.
Nor does it have to be. A complaint, especially in federal court, just has to provide ‘notice’ of the claims. It doesn’t have to prove them. Evidence generally gets introduced much later, after discovery.
People are getting confused by the different claims and the different elements of each claim. (Easy to do, even for lawyers!) Whether or not BioWare approached Ken I think they included to support the ‘knowledge’ requirement for contributory liability. It’s not required for the basic claim of copyright infringement, i.e., creating a derivative work (in this case). All you need for that is access to the work which is basically a given in a case like this where the comics were sold nationwide, and substantial similarity. The video / photos of BioWare with the comics, etc., could be used to establish both access and hint at substantial similarity. It doesn’t matter who gave BioWare the comics (Ken, Sega, Comic Book Guy in Springfield)…
Copyright in the U.S. is confusing. Copyright exists the moment a work of (at least) a “modicum” of creativity is fixed in a permanent medium of expression. I.e., the minute you write something down on a cocktail napkin, there’s a valid copyright in it. Ken registered his copyrights a couple of years ago, but registration just provides additional protections (prima facie evidence of validity, the ability to recover statutory damages and attorney fees, etc). (I imagine his claims for attorney fees are linked to the “unfair competition” claims, ’cause I don’t think he can get attorneys fees with these registrations and these claimed infringements, but I could be wrong, I haven’t looked that closely at this case.)
Not necessarily. That’s why (I’m guessing) Ken’s attorneys spent so many paragraphs basically laying out the elements the courts look at to determine if someone was an independent contractor: Community for Creative Non-Violence v. Reid Independent contractors don’t give up their copyrights… Most will be asked to execute a proper assignment / transfer of all rights, which has to be in an express signed writing: Effects Associates, Inc. v. Cohen…
I don’t think it’s as clear-cut one way or the other as people here seem to think. Maybe we need something like Groklaw for these cases?
@The Bob no supporting documentation for the above claim was filed to complement the complaint.
Nor does it have to be. A complaint, especially in federal court, just has to provide ‘notice’ of the claims. It doesn’t have to prove them. Evidence generally gets introduced much later, after discovery.
So, it’s possible that Ken made the claim without any evidence to back it up. Won’t that make him look stupid in the courts.
If SEGA gets sued and the budget for Sonic Generations drops, and the game ends up bad…
I’m gonna track this guy down and rip his balls off!!!
Penders is a jealous and selfish man who wants to destroy the Sonic comics.
I hope that he loses his case.
Man, that Pender guy is a real idiot >.<
Imma kick him in the balls if he actually wins that case!
@Tristan you said the article provided a screen shot of a supposed video advertising the game–could you in any way post it, or provide a link? I’d really like to see it, because I’ve combed through what videos of Chronicles I could find and haven’t yet discovered anything directly related to or specifically mentioning the comics.
And neither do I remember ever seeing such, and since I’ve been a pretty big long time fan of the comics, I’d like to think I would remember ever seeing Sega or anyone else providing evidence that comic related material could appear in a sonic game. But like I said, I don’t.
The other thing is, I just don’t see how he has a legitimate case here: I’ve played through the game, and yes, there are elements that seem to be taken from the comics. But here’s the thing, elements–depending on how they’re defined–aren’t copyrighted. And the elements we’re talking about here aren’t specific characters, names or settings: they’re characterizations, archetypes, themes, ideas. Does Ken really think that Julie-Su is the only female character to ever be a B.A. turned good who helps to fight her own people? Yeah, totally original–never heard of that one before. Has there never before in fiction been a ‘twilight zone’ where people are exiled to? (what of the name? I must say, I certainly never heard of a TV show bearing that title!) Or a dark sect of people who the good guys have to battle? Yeah, Ken was truly inspired to create what no author of fiction ever had before. Gimme a break. Look, there’s no doubt that the game was influence by Ken’s work, but that doesn’t mean it was illegal! Or that they “stole” any of it! This sort of thing happens all the time–just look at movies. I can’t count the number of times I’ve seen a movie and said “matrix knock-off” or “Lord of the Rings knock-off”. And that’s just what much of Chronicles is: a knock-off of Ken’s work.
Really, when you think about, they pulled the same trick Ken is allegedly planning to pull with his Brotherhood books. A fiction about a bunch of characters ripped off of knuckles, protecting a chaos emerald on a floating island–all owned by Sega. And yet from BobR’s own mouth there are ways of getting around the echidna issue, as apparently only the design with the name knuckles is copyrighted, not the animal itself. Sega apparently isn’t the only one to ever use a floating island either, so Ken’s good to go with that. They have reassured fans multiple times that the book will be fine legally, and will have plenty of original material to make it through the copyright infringement detectors. Does any of this sound like Chronicles, yet? Not in name, but in practice is does, because they basically did the same thing. Use basic concepts but add enough originality to them to avoid trouble, and maybe tweak a few things that the original author never really owned anyway, like Sega’s floating island, or Ken’s Twilight Zone. If he can manage to use the Brotherhood and the rest of the knuckles-ripoffs, Bioware can use a Julie-Su ripoff, for pity’s sake.
This Ken Penders guy has a face that i just want to slap… 24 times… with a hammer. Anybody else get that urge?
@SAVE_US.222
I got that urge long time ago…
@Heagehawg
tell me where he lives and we can take turns doing that!
It’s possible but pretty unlikely. What people usually do is state things they already have evidence to prove (‘cuz they have documentation or testimony in hand already) as facts, like, “The suits approached walrusman in an alley, offering hookers in Julie-Su costumes in exchange for $5,” maybe because there’s security camera footage or testimony they already have.
Stuff they’re sure they can prove (‘cuz they know it happened) but don’t have a lot of evidence for yet, but think they can get it through discovery, will be qualified as “walrusman is informed and believes, and based upon such information and belief alleges, that the hookers inside the costumes were actually albino offspring of the parents of t.A.T.u.,” maybe because they were hanging at Hyde and overheard the parents of t.A.T.u. talking. Then they use the power of the court (subpoenas, depositions, other discovery tools like requests for admission etc) to get the evidence necessary to prove it.
Oh one thing I forgot before …. pretty much everyone puts “DOES 1-10″ (the max you can have in federal I think) in a complaint, even if you think you know everyone adverse to you, discovery might reveal, oh, hey, the parents of Hanson also contributed albino offspring, they should be named, too, good thing we left placeholders in the complaint in the form of DOES 1-10.
@shan the hedgehog
He lives on earth
@Heagehawg
All we need is a spaceship and we-
Oh yeah, we live on Earth too! XD
I pray that Ken has a jury who knows at least a tiny bit about Sonic or comic books in general cause if they get a couple of old folks or people uninformed all they might see is a pathetic, stupid, little man with no money and take pity on him because he pissed the little money he had away on this stupid case. His claims are bogus and he should not get off on his false entitlement.
Ken Penders pisses me off to no end. I will agree with one of his points just that he should get some payment over use of the archives. That is ALL he is entitled to in my opinion. He comes off as a complete idiot thinking that he owns rights to characters that (and I cannot stress it enough) make no sense outside of Sonic comics. They are f–ing Mobians, ALL of them! Aside from that he tries to play the victim over this and is doing it for the money BUT he wastes his time with this bullshit when he could be f–ing writing! But NO he just wants to shill out the Echidna stuff he already planned out that he CAN’T write for anymore because he doesn’t work for Archie anymore. He’s lazy and stubborn.
I really hope that Archie can finally win and maybe he’ll quit. I think this is mostly over how much it kills him inside to see that the comic series can survive and do well without him. He can’t get over that he’s not in charge and has no say in anything that goes on in there. And rightfully so, he doesn’t work for them anymore!
Give me a break. Legally this is what is referred to as “a work for hire”. Anything you create while working for a company legally belongs to them since you are their employee. This lawsuit has no basis. Anything he created was because SEGA allowed them to contribute their ideas to the Sonic universe, that being said, everything belongs to SEGA regardless of whose idea it was.