![Settlement Talks Break Down with Much at Stake Archie Comics is in serious danger of having its lawsuit against former Sonic comics writer Ken Penders dismissed, potentially making a bad […]](http://www.tssznews.com/wp-content/uploads/2011/01/ken_penders_header.jpg "Archie Fighting Proposed Dismissal of Penders Copyright Case")
Settlement Talks Break Down with Much at Stake
Archie Comics is in serious danger of having its lawsuit against former Sonic comics writer Ken Penders dismissed, potentially making a bad situation for fans of the series and those involved with its production worse.
Counsel for Penders have requested the case be dismissed on the basis of a affirmation during a January status conference that both parties agreed to settlement terms, as well as an indication from Richard Berman, the judge overseeing the case, that the matter would be dismissed after January 21st no matter what, according to public documents filed with the US District Court for the Southern District of New York on Monday and obtained by TSSZ. But counsel for Archie have disputed the claim that any settlement is official, and have filed an endorsed letter in the case urging judge Berman to deny Penders’s request.
“We submit that this court may not dismiss this action ‘with prejudice,’ as requested by Mr. Penders’ counsel. This would inappropriate [sic] and greatly prejudicial to ACP’s interests, since ACP has not had a full and fair opportunity to litigate in this proceeding any of the issues that are raised in the parties’ pleadings,” writes ACP attorney Joshua Paul in his letter to the court.
Paul’s letter alleges that both Penders and Archie “concluded an understanding of the basic parameters of settlement during a mediation session held on November 29, 2012 and reduced that understanding to five deal points covering 15 lines of text in a signed Term Sheet.” But as we reported in December, a letter from Paul did use more concrete language in claiming “the parties reached agreement on the terms of settlement.”
Counsel for Penders asserts that is enough, and cites the transcript of the January status conference between both sides. The transcript shows an irritated judge Berman trying to understand why it’s taken so long for the settlement to be finalized. In one exchange, Berman appears to scold Paul for the delay:
Paul said the exchange that “the core of the agreement will be in schedules” and that settling this matter “is the most important thing that [Archie] is dealing with right now, is to get rid of this litigation.”
Judge Berman than appeared to set a deadline of January 21st, “at which time I’m going to dismiss the case,” including counterclaims, according to the transcript.
But January 21st has come and gone with no settlement finalized. Paul’s letter on behalf of Archie alleges there is one matter still in dispute; it appears to be the extent of which Penders’s copyrighted characters can appear like a Sonic character–in of itself a whole other can of legal worms:
A material term of settlement involved the scope of Mr. Penders’ claim of rights to exploit certain claimed proprietary rights in the future. Pursuant to the Term Sheet, Mr. Penders’ asserted rights [….] if exploited by Penders in the future, would not “look and feel like they are a part of a ‘Sonic Universe.’
[….]
The parties have attempted without success to reach agreement on the metes and bounds of Mr. Penders’ Claimed Rights (Schedule A). In the absence of agreement on this key point, there can be no agreement between the parties.
In a nutshell, attorneys for Penders hope to hold Judge Berman to his word on dismissing the case, whether there’s a settlement in place or not. If that happens and no terms are in place, Penders would retain total copyright control over the matters in dispute with Archie, including some characters, storylines, and more–making it very difficult for Archie to continue with catalog releases, or bringing back characters widely believed to be purged in Sonic #244 back to the series. A dismissal with prejudice would not allow Archie to refile the lawsuit again.
It could also become a nightmare for both Sega and Electronic Arts. You may remember that Penders filed a suit in 2011 against both companies, alleging material under his copyright was used in Sonic Chronicles: The Dark Brotherhood. That case was dismissed but appealed to the 9th Circuit; the outcome of the Archie matter may determine how far this separate suit can go. Having a whole set of tested, undisputed copyrights intact would be an incredible advantage for Penders against Sega and EA, and could potentially cost both companies dearly if they hold a second time.
Judge Berman has requested briefs by next week. When we know something more about this case, we will pass it along.
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I know how things could get worse: the whole series could get cancelled and end in a cliffhanger just like Sonic SAT AM and Fleetway’s Sonic the Comic.
@SEGA_Queen As it has been posted before, your claim that Penders’s characters aren’t original doesn’t hold up. If Josie and the Pussycats, Clark Kent, Jimmy Olsen, Lois Lane and other characters can be copyrighted as original characters, Penders’s characters are no different. Without a contract that says otherwise, an artist owns what they create. Trademark law deals with use of a mark in commerce, so it’s true the law is different there.
@TLSonic From what I read Penders says he became concerned because books and electronic games using the characters he created were being reissued without recognition and compensation to him as writer and creator. He took the necessary steps to protect his work from being exploited. The rest of your statement is conjecture on your part. It makes perfect sense for Penders to wait to fight back until the work was being used without permission. Rather than blaming Penders for sticking up for his rights, blame Archie. They should just stop giving writers the shaft and give them the recognition they deserve. But obviously you don’t care about that. It’s selfish on your part to just want what you want, regardless if the people who created the stories you loved in the first place get the short end of the stick. Seems to me that makes you the greedy one.
@truebluesonicfan:
Let me clarify my thought on trademarks.
There’s a part of trademark law that covers “consumer confusion”. BobR gave a great example of this:
“Archie is worried about consumer confusion generated between the two comics if they look too much alike, as any company would be when another company brings out a competing product that looks like theirs.”
Theoretically, I believe Sega could also sue Ken on the basis of “consumer confusion”.
Why? Because if Ken continues to use characters that look like Knuckles, consumers may think his comic is officially endorsed and licensed by Sega.
@truebluesonicfan
Oh my f**king god did you not look at the pic I posted. Let me make this clear his “creations” do not appear in the game and the story of the Brotherhood is different than Ken’s Dark Legion. Again if you believe that Lara-Su is different than Knuckles then why can’t the Brotherhood be different than the Legion you have yet to answer this. Did you ever even play Sonic Chronicles, I have and I can say Ken’s playthings don’t appear in it. Again have you not played the game?
And also since the design of the characters are based on Knuckles how is he going to convince people that his book is not associated with Sega? Do you not know what “consumer confusion” is? Please answer this.
P.S. http://img832.imageshack.us/img832/3123/kencopyright.jpg
Really hope we get an update on this whole situation soon.
@TLSonic I didn’t answer because your logic isn’t logical! You keep comparing apples and oranges. Of course I’ve played the game. I don’t remember reading anywhere that Sega got Ken Penders involved in creating it (without a contract) so how can you remotely claim the situations are the same?
I can post links to pictures too. Here’s one with Josie and the Pussycats.
http://tvseriesfinale.com/assets/josieandthepussycats12m.jpg
Here’s another with Archie and the Gang.
http://tinyurl.com/ArchieJugReg
They look similar, so what does it prove? The look of the characters doesn’t have anything to do with who legally created them. Clark Kent looks a heck of a lot like Superman, last I checked.
The concept of customer confusion in trademark law has to do with using a specific mark in commerce. That’s why you can have Spock, the Vulcan, Vulcan from X-Men, Vulcan the restaurant gear and Vulcan the Greek God. The tradeMARK for each of these is different. Now if Mr. Spock began making and selling ovens or Vulcan from X-men grew pointed ears, started using Mr. Spock’s greeting and wearing a tight blue t-shirt with a Starfleet insignia, you might have some problems with trademark.
I’m no attorney, but unless Lara-Su suddenly becomes a red, male echidna like Knuckles, I think Sega would be hard pressed to win this one. Disney can’t trademark every mouse in the universe. Mighty Mouse and Mickey Mouse can co-exist without copyright or trademark infringement. Unless Mickey suddenly drops his red shorts and starts flying and wearing yellow tights, or vice versa, neither would have much of a case.
Nothing you have posted so far cuts the mustard when it comes to trademark or copyright. If it did, you would never have had Sean Connery, who once starred as James Bond, be able to star as James Bond in a film that wasn’t sanctioned or produced by the Bond Franchise. Can you say, Never Say Never Again, anyone?
If having the star who rose to fame as James Bond, play James Bond in a non-Bond sanctioned (meaning technically non-James Bond) James Bond film wasn’t confusing, how then is having independent stories about a purple female echidna too confusing for fans of comics about a red, male one? Unless they’re color-blind, I think they’ll know the difference between the two characters.
I’ll restate my earlier observation about this case. Pass the popcorn, please.
@truebluesonicfan
The James Bond example is a really bad one since a judge later prevented them from making more non-EON sanctioned Bond movies.
@truebluesonicfan
It’s true that Ken characters don’t look exactly like Knuckles. However, they still look like Sega’s Sonic characters, so consumers could still mistakenly think Ken’s comic is officially licensed and approved by Sega.
Now, Ken could put some sort of disclaimer in his comic stating that it’s not affiliated, endorsed, etc. by Sega. But I’m not sure if that would protect him from any legal action from Sega.