232 replies to this topic

[blue]

He's also neglecting his actions here are pretty much the same actions Bioware took which made him mad in the first place. What a jerk.

Well, seems like he's a hypocrite when it comes to copyright infringement.

[furrykef]

...Knuckles, and, basically, the echidna design itself, are owned by Sega themselves. Unless he's doing this Lara-Su Chronicles thing for free (in which case, it would be nothing more than a fan comic lololol), he has no right or permission to make any kind of profit on it.

It would be a problem for him even if it were free. Not making a profit doesn't mean you're free of copyright problems. A place like FUS is fairly low profile, so we can get away with doing Sea3on, but Ken worked for Archie and so has a big following (or at least had until his assholery came to light -- who knows, maybe he still does). He'd be painting himself as a target unless he used a pseudonym and pretended not to be Ken Penders, which of course he isn't doing.

Soooooo how is he going to explain it when/if Sega takes him to court over that?

I think he's honestly under the deluded belief that his characters are not derived from Sega property. Sure, they're blatantly based on Sega's echidna design, but apparently he doesn't think so.

The Archie thing, I can understand, with the whole contracts and legality thing (trust me, this isn't the first time Archie's screwed over a creator. Look up Dan De'Carlos sometime)

I don't think Ken was screwed at all. Your creations being work for hire is something everybody knows going into this industry. I know it and I'm not even remotely connected to the comics industry. It was probably also common knowledge in 1993 or whenever it was he started. Now, if Archie had explicitly promised him that he'd still own his creations, then said "psych!" and kept the rights, that'd be one thing -- but it's also very unlikely, and Ken hasn't made any such claim.

[Vampfox]

Update on Archie vs Penders.

Defense Requests Delay, But Doesn’t Get Much

It’s been a while since we’ve seen or heard much in the ongoing legal dispute between Archie Comics and Ken Penders. But on Monday, a single letter surfaced in the electronic public record. It was a letter from a member of Penders’s defense team seeking an adjournment to arguments apparently scheduled in court next week concerning both sides’ motion for summary judgment.
To refresh your memory, both sides are now seeking judgment in favor of their side, without having to endure a full trial. For Penders, that judgment ideally would affirm his ownership of several storylines and characters from his tenure on the Sonic comics that he later copyrighted. For Archie, it would be a declaration those materials belong to the company as a result of Penders’s work for hire agreement.
The hearing was set for Monday morning at 10:30AM. But a counselor for defendant Penders, Phillip Daman, Esq. wrote to judge Richard Berman, who is presiding over the case. Daman requested an adjournment, or a delay in that hearing, to early August due to “a site inspection in Los Angeles in another matter early that morning and then depart on a previously scheduled vacation later that afternoon for the remainder of the week,” according to the letter.
Daman did note in his letter that attorneys for Archie Comics had consented to an adjournment. But Judge Berman did not appear easily influenced. An adjournment was granted by him, but only to 2:30PM the original scheduled day of arguments, July 16th. Each side will be granted five minutes to state their case.
The bottom line: From this development, we could learn a lot more about where this case is going–if not the outcome itself–by late next Monday. The impact of such a short adjournment remains to be seen, but if one of Penders’s attorneys is not present for arguments, it could have an impact on his defense. If we learn anything more, we will pass it along.

Source: http://www.tssznews....penders-motion/

[RedAuthar]

Great! This lawsuit has been going on forever.

[furrykef]

This lawsuit has been going on forever.

Welcome to the legal system.

Didn't you know the Supreme Court didn't make a ruling on Janet Jackson's boob until the other day?

[RedAuthar]

Meh....Legal system gets lazy sometimes.

[PuffinGrandeur]

The legal system is pretty damn slow, but there's been a lot of requests for extra time. I'm surprised that they've all been honored, and the judge giving them a week instead of a month is pretty expected.

Really, a vacation? That's what you need an extension for?

[Vampfox]

Update.

No Summary Judgment Granted in Archie v. Penders Case
“Parties are directed to engage in good faith settlement discussions,” Among Other Advisement

Anything that wasn’t a summary judgment in Archie’s favor would have been good news for Ken Penders and his legal team Monday, as US District Judge Richard Berman heard both sides argue their case in the ongoing civil dispute over the validity of Penders’s copyrights.
That is exactly what the Penders defense got. Moreover, a court order obtained by TSSZ shows both parties’ motions for summary judgment were tossed by Berman, as well as both parties’ motions in limine, which attempted to limit evidence on both sides in the case.
First, here is why Penders and his defense team have reason to celebrate. Archie’s attempts to invalidate signed affidavits by Scott Shaw, Karl Bollers, Scott Fulop, and Mike Kanterovich for the case were for naught. You may remember us telling you about what they said a few months back. Judge Berman rules those affidavits are valid, as the trial, originally scheduled for January, was delayed:

Archie’s timeliness arguments are unpersuasive. Even assuming, [....] that Penders disclosed any witnesses late, no prejudice to Archie has resulted because the Court vacated the January 30, 2012 trial date [....] leaving Archie ample time to prepare any rebuttal.
[....]
The affidavits of Karl Bollers, Scott Shaw, Joshua Ray, Scott D. Fulop, Elliot S. Maggin, and Mike Kanterovich are relevant and admissible, even though they do not have personal knowledge of whether Penders signed the Agreements, because those affiants are freelance artists who previously worked for Archie and claim that Archie never required them to sign any work-for-hire contracts. [....] The affidavits of Fred Mausser and Justin Gabrie are relevant and admissible because those
affiants are former Archie employees who claim that “[f]reelance creators, including Ken Penders, were not required to sign contracts . . . before they could do work for [Archie].”

That said, the judge did conclude portions of affidavits, including some areas of Penders’s own affidavit, are inadmissible due to several reasons, including extrinsic evidence and hearsay. Some of that concerns small details regarding Ed Spallone, his departure from Archie Comics, and what he allegedly knew or did not know regarding Penders’s contract. The latter was to be a centerpiece of Penders’s defense, and it appears most of that portion will survive.
The judge also found that Archie’s argument of an E-Mail exchange between Penders and Archie’s Victor Gorelick was not enough to merit summary judgment:

Archie’s contention that “a series of emails written by Penders to Victor Gorelick . . . admit that Penders did, in fact, sign [the] [A]greements” is unpersuasive on summary judgment. (Pl. Mem. at 16.) The emails, dated December 4, 2008, December 15, 2008, and January 5, 2009, reference a “work-for-hire form”
from “back in late ‘95” and do not resolve the genuine issues of material fact regarding the authenticity of the Agreements which are dated December 12, 1996. [....] Because the existence or nonexistence of authentic Agreements is a question of fact for the jury, Archie’s motion for summary judgment is denied.

However, Penders also had his motions denied, and several pieces of evidence his team sought to toss, including duplicate copies of the work-for-hire agreement he allegedly signed, were allowed to stay in the case. A jury will ultimately determine their authenticity. In addition, the defense’s cross-motion for summary judgment was denied. An argument that the contract was unenforceable, even if authentic, did not convince the judge:

[....] The record appears to show that Penders submitted invoices to Archie for payment without expressing “any issue or concern with receiving payment from [Archie] in this method or form.” [....] And, Penders’ argument that, “even if [the] Agreements are found to be authentic, valid and enforceable[,] all Works submitted before December 12, 1996 cannot qualify as work for hire” is unpersuasive. (Def. Opp’n at 15.) The Agreements provide that if any Works “do not qualify as a work for hire, [Penders] will and hereby does assign to Archie any right, title and interest that he/she has or may obtain therein, including all copyrights.”

In a nutshell, it means both parties are back to square one facing a possible jury trial, albeit with most of their ammunition intact. Judge Berman has ordered both parties to submit pre-trial orders, jury instructions, and verdict sheets jointly by August 10th, as well as any motion in limine. One last pre-trial conference is scheduled for September 10th to try and hammer out a settlement.
“The parties are directed to engage in good faith settlement discussions prior to the conference,” Berman advised.
If those attempts fail, we should see a trial, and if gets that far, make no mistake; advantage: Penders.
Why should you care if it gets that far? Any thought of Archie losing this case or a settlement may give the company reason to put the brakes on future releases that include Penders’s work, including but not limited to the long-awaited Sonic Comic Encyclopedia. There is, of course, no indication that will happen at this point, but should we see a trial and a jury render a verdict, anything in Penders’s favor would make a release like that quite difficult.
We will continue to offer developments in this case as they come in.

[SBaby]

The scary thing about this is if Penders somehow gets a favorable ruling (which is looking like a more realistic possibility with each passing day), it opens the door for countless other people to copyright their own characters that are based on these series'. This could be a nightmare scenario if that happens. And it may not just be limited to Archie's franchises either.

From a business perspective, this is seriously starting to worry me.

[RedAuthar]

Marvel has already beaten cases like this.

The other thing is if Penders does win he'll never work for another comic company again. Either way he loses.

[furrykef]

The scary thing about this is if Penders somehow gets a favorable ruling (which is looking like a more realistic possibility with each passing day), it opens the door for countless other people to copyright their own characters that are based on these series'.

Only if the publishers are as stupid as Archie. If you sign an agreement saying the publisher owns the characters (as is standard), they own them. The only reason this case may be different is there's the possibility Penders never signed such a document, and that'd be Archie's fault.

[Speedy_25]

so which means, we lose such charactersas: Julie-Su, Lara-Su, the whole Dark Legion, we may not see the rest of the Knuckles Comics coming to archives like they are now, the whole 'future Mobius' was for nothing because of this.......

[RedAuthar]

Never liked Julie-Su or Lara-Su, anyways.

[Vampfox]

I really don't like how TSSZ really tends to over dramatize everything. That article makes it sound like Penders is winning.
He's not. Right now it's a draw. Nether side was able to get summary judgement.

Personally I still think that Penders is lying about never signing a contract. If Archie really was that stupid with their contracts then why has it taken so long for all this to be revealed?

[RedAuthar]

It's possible TSSZ is getting their information from a source that leans more towards Penders.

[furrykef]

I really don't like how TSSZ really tends to over dramatize everything. That article makes it sound like Penders is winning.
He's not. Right now it's a draw. Nether side was able to get summary judgement.

He's clearly not winning, but the case is going further than any sane person initially expected. So it's not surprising that the article is written as if Ken's odds just shot way up, because they did.

It's possible TSSZ is getting their information from a source that leans more towards Penders.

Probably has more to do with it seeming more dramatic if you err on the side of making Penders's chances look good. "Big corporation crushes stupid little man who deserves it" isn't much of a story. "David beats Goliath" is always a story whether or not David is in the wrong.

[LaserX5]

Never liked Julie-Su or Lara-Su, anyways.

Eh, I think they're pretty good characters. They just haven't been portrayed properly in my estimation by Penders or Ian for that matter.

[Robthe1st]

I meet Ken Penders once... seens nice. But I'm sure inside of him he's a selfless @$$hole and doesn't care for anyone but himself. And he made Archie Comics to kill off Hershey the Cat (Which of my females favorite) because he still own the rights for that charcter! What's with this nerd anyway?

[acstrife]

Like everyone says, even if he wins (And thats a big if since it seems to be evenly matched) he loses. No company will ever hire this guy. He basically ended his professional career.

[Keen Bean]

Something interesting, if you saw the first previews for Sonic Select Book 7 you would have saw Geoffrey in the bottom left. Recently he has been replaced with Espio. Geoffrey was one of the characters Penders was gunning for, but then again Archie has been known to change covers from time to time. Here's one of the articles I saw about it:
http://www.tssznews....t-book-7-cover/