Penders Appeals Sega/EA Case Dismissal to 9th Circuit

Penders Appeals Sega/EA Case Dismissal to 9th Circuit

by April 19, 2012

Judge who Dismissed Says Appeal “Not Frivolous,” “Presents a Substantial Question”

While we wait for word on the motion for summary judgment in Archie v. Penders on the east coast, counsel for embattled ex-Sonic comic writer Ken Penders have a small victory on their hands on the west coast.

It concerns the recently dismissed lawsuit Penders filed against both Sega and Electronic Arts concerning copyrights to characters and storylines he still has, and their alleged unauthorized use in Sonic Chronicles: The Dark Brotherhood.  In the dismissal, U.S. District Judge Otis D. Wright essentially told Penders to wait on the case until the Archie matter is settled.  But in filing an appeal on that decision to the Ninth Circuit Court of Appeals, that same judge granted Penders the right to appeal without posting a security bond and other associated court fees up front, according to public records obtained by TSSZ.

“The Court certifies that the proposed appeal is not frivolous and presents a substantial question,” Judge Wright wrote in his decision.  “The within moving party is authorized to prosecute an appeal[….] to the United States Court of Appeals for the Ninth Circuit without pre-payment of any fees or costs and without giving security therefor.”

In a nutshell, this allows Penders to explain why his claim against Sega and EA should stay alive in front of a higher authority, regardless of the ongoing proceedings in New York.  That doesn’t mean any decision made in Archie v. Penders would not impact the matter, however.  Any declaratory judgment in Archie v. Penders could either significantly enable or cripple Penders’s argument and potential offense versus the two video game companies.  Keep in mind that Penders is the plaintiff against Sega and EA, while versus Archie, he is the defendant, fighting for the validity of the copyrights he filed.

What could this mean?  With one case already at the Ninth Circuit, it is possible Penders, Archie, Sega, Electronic Arts, or some combination of all four are willing to see this through the appeals process up to the US Supreme Court, depending on future judgments.  For now, it’s best to take it one step at a time, as we will with any future developments.