NeonZephyr

Wait. I love this. Hold on.

The filing includes a surprise affidavit that could damage Penders’s defense. Former Archie Vice President of Finance for Archie, Ed Spallone, alleges in his remarks that he has executed copies of independent contractor agreements signed by Penders in 1996, and they are attached to the affidavit as exhibits. That’s important as Spallone was the individual within Archie who prepared the work for hire agreement for Penders. It is also important because according to the case’s pre-trial report (which we’ll dive into later this week), Spallone was lined up as a witness for Penders and the defense.

“I know that ACP [Archie Comic Publications] did in fact send these agreements signed by me out to Ken Penders and that ACP did receive these agreements back from Ken Penders, signed by him, several weeks later,” Spallone says in the affidavit.

Best part in bold. I'm childish and immature, but blast it....

Killer defense you've got lined up, Penders. It's tearing you down faster than your own hypocrisy.

"Could damage Penders' defense"? More like utterly destroyed it.

I actually can't wait to see his response to this.

_{I am a terrible person}

[WARNING: VERY LONG POST. Quotations and reactions follow]

[First of all, I agree with furrykef on his copyright vs. trademark issue. Penders cluelessness about the professionalism here actually offends me, as I'm a college student, and not even in law, and I can grasp this better than he can.]

Now, I'm sure those of you brave enough to lurk Penders' forum (like Darkfox) have seen that little cartoon that was posted to point out his hypocrisy in stating that Shade was too derivative of Julie-Su, and then posting his Knux-recolor-in-a-wig "redesign" of Lara-Su. I personally found it amusing, and agree with it 100%. It's no surprise he was mad about it.

Here's his response

@mavrickindigo:

Remember this message you posted on Saturday, August 20, 2011?

I don't think Knuckles should have been made into a super-intelligent hyper mutant was the right way to go. It really diverged far from the character in the games, and with all the other stuff that was in the Knuckles comic, giving him all of these super powers (like resetting reality in the Image crossover) seemed necessary and kinda stupid.

On the one hand, you're saying I'm derivative, on the other hand you're saying I'm not. That's okay. I've no problem with moving targets as long as I know what I'm dealing with.

As for the cartoon you posted, it clearly shows your lack of awareness of all of the issues involved. It's a lot easier to frame any argument that fits one's POV if one fails to take into account all the opposing arguments.

I'm not going to get into a debate here with anyone whether I'm right or wrong as that will be up to the court to decide.

Let's agree the following facts are indisputable:

* I created Locke, Julie-Su, Lara-Le, Lara-Su, Wynmacher, Constable Remington, Sabre, Kragok, Lien-Da, Dimitri, Edmund, Steppenwolf. Menniker, Enerjak, the Dark Legion, Brotherhood of the Guardians, Echidnaopolis, Cobar, Hawking, Moritori Rex, Thunderhawk, Portal, Jordan and Kayla-La for starters. (The list is actually longer but let's stop there for now.)

* None of these characters or concepts ever appeared in any Sega games prior to their creation.

* I legally own the copyrights to my work. (This is not a debatable fact. Either I have standing in the Federal Courts or I don't. Last time I checked, my copyrights give me standing to protect my work, which is what I'm doing. However you or anyone else feels I have the right to do what I'm doing is irrelevant.)

* Archie owns the copyright to only the printed matter they initially publish. Absent a contract with a freelancer, they do not own the rights to even reprint the work after the first printing. They do not own anything beyond that.

* As other people have pointed out, the indicia on every Sonic comic reads ©Sega. That means Archie owns nothing. So anyone crediting a ©Archie on any fan art is actually perpetuating a misconception. Knuckles©Sega and Julie-Su©Ken Penders are correct tagging on drawings featuring those characters. ©Archie on either of those characters - or any character featured in the Sonic titles they publish - is incorrect, both legally and factually.

Can we at least agree that much?

No, Penders. I cannot. You have not presented me with EVIDENCE. All you have is WORDS. You have no outside sources SHOWING these "copyrights," or anything else, for that matter. Your credibility to me is absolute zero. Show me physical proof, and maybe I'll reconsider, but it's really not likely at this point.

My bullet-by-bullet response:

-And these are all DERIVATIVE. For a comic based on a VIDEO GAME CHARACTER. With their designs all heavily BASED on him, some of them having BLOOD RELATION and PERSONAL CONNECTION to the character being the primary reason why they were even on the page. You were brought on board to expand the universe of ANOTHER COMPANY'S CHARACTER. Also, every character listed is an Echidna. Who are all dependent on Knuckles for their initial relevancy (Example, I adore Remington, but if he'd starred in his own comic and never appeared in Knux's, I wouldn't have cared about him or been interested to learn more). Even Hershey was more interesting on her own at her introduction then these recolors/retools were at theirs. (And, who was Portal? Wasn't that a city? Cities aren't characters. Get "your" own continuity straight. You've had plenty of time to prepare.)

-Again, because you were brought on board to EXPAND THE UNIVERSE FOR THE COMIC. The games were their own continuity. Like how SatAM was its own, and Underground was its own, too. I mean, the creator of Manik and Sonia couldn't reclaim their charcters and keep them as Sonic-y hedgehogs while trying to publish their own material about them. And, they were never in SEGA games, either. Also, I call bull on the "concepts" part. Knuckles has ALWAYS been the Guardian of the Master Emerald, and it is thus heavily suggested that there were others before him. The Floating Island was introduced SECONDS before Knux in Sonic 3, and the first ZONE was even called Angel Island. Your concepts are DERIVATIVE. And not just of SONIC and KNUCKLES either. Your Echidnas are also reminiscent of Star Wars and Star Trek and various other works that existed LONG before Sonic or your recolors. I mean, come on, you named a dimension "THE TWILIGHT ZONE."

-Please show me the documentation of even SOME of these "character copyrights." TSSZ has done a better job of showing their homework than you. Remember this article?: http://www.tssznews....pyright-claims/ [They use quotes from the Copyright Office and so forth, and even had a link. The article is too long to quote fully, so here's a small taste. I suggest reading the full thing.]

In fact, while Penders claimed he outright owns many of the characters he created, the records in the Copyright Office mostly show him only claiming ownership to stories in which they star, and not the characters themselves. As an example, TSSZ News found four entries regarding Geoffrey St. John, as part of a 1998 series. But in all certificates, Penders only claims himself as the “author of story text.” We also couldn’t find in any of the claims he registered anything regarding a claim of ownership to Lien-Da, be it story text or otherwise. The same is also true for Rob O’ the Hedge, who Penders also singled out in his Wednesday announcement.

Penders had better luck on only one other character claim. Another record seeking copyright protection for material in Sonic Super Special #11 contains a claim for art on Hershey, which was not contested by the Copyright Office.

The bottom line is that an overwhelming majority of the 135 active certificates are for storylines and artwork Penders created. Those concerned about whether he legitimately owns the rights to several side characters in the comics can worry a bit less, as those claims appear few and far between–if they were granted at all. Whether the rights on the storylines will be upheld–and if Penders gets any withheld compensation for them–may be for the courts to decide, if and when counsel for Archie Comics elects to pursue the case.

Your copyrights are for art and story. WHERE IS YOUR PROOF THAT YOU HAVE THE CHARACTERS COPYRIGHTED? (Seriously.) I notice your willing to recall TSSZ articles that suggest support in your favor, but you've NEVER managed to dispute this little issue....

-Without physical proof either way, I can't comment on this. I won't accept it as true, but beyond your lack of evidence, this won't be used against you (I can be nice. Ish.) Though, I must say, if you were just after royalties, I might still be on your side.

-In your own words, "the indicia on every Sonic comic reads ©Sega." So... you're suing SEGA for something that EVERY issue of the comic states is © to THEM? You just brush by the little fact that your DERIVATIVE characters are "indicia" of Sonic the Hedgehog, just like Princess Sally, or Manic and Sonia, or Scratch and Grounder, or Chris, or any other Derivative character. And thus, they are © to SEGA, too. Please, try harder. Really. I feel bad ripping apart such a glaring flaw.

Also, this:

When JK Rowlings had her first Harry Potter novel published, all the publisher got was first print rights and probably some reprint rights if the book hit certain sales figues. What the publisher did not receive was the copyrights to her work. And yes, all of that was spelled out in writing before the book was published.

YOU. DID. NOT.

(Note: I kinda blew up here, and actually yelled/cursed at my screen. Which is extreme for me.)

You did NOT just compare your little fiasco to Rowling's life work. Yeah, she kept all the rights. Guess what? HER WORK IS ORIGINAL AND SET IN HER OWN UNIVERSE AND WRITTEN ON HER OWN. You, Penders, wrote a series of stories and characters for a DERIVATIVE work. Notice that word I keep capitalizing? DERIVATIVE. What you did was your own work, but it was FOR another company's (SEGA's, ultimately) universe. Rowling, whether you like her work or not, created her own universe, every character she used was either original (Harry) or in the public domain/historical (Nicolas Flamiel, though he was more MENTIONED). She also published it on her own, not in a LICENSED comic book, and not in conjunction with a team of writers (and, your "teamwork" ploy here falls VERY flat, considering you didn't give a darn about what the other writers wrote or did while you were hired.). Comics and Original Novels are VERY DIFFERENT materials, both in storytelling methods (basics are same, but, that's a rant for another day), and in Copyrighting/Publishing issues. At least compare your situation to a similar one concerning Derivative works. You're comparing Oranges to Pomegranates here. Please stop.


If Penders (And I mean PENDERS. Not BobR or PaulWhatever or whoever his lackeys are. Penders.) comes forth with physical evidence that he's right, that he has the CHARACTER copyrights, not just art (which he can keep, ugh) or story (the bitter taste is heartbreaking), then I'll be willing to accept that. I cannot consider your point of view if you just say "I'm right in these facts" without sources or evidence. We're not talking about the sky being blue, here. Laws have physical proof. USE IT. But, it will always stand that his work is Derivative and was always intended as such. Every time he plays the victim in this in such an arrogant matter, it just reminds me of how someone I once considered to be my favorite comic writer PERIOD is a huge jerk and has slipped from not just having no respect from me anymore, but is actually dropping into the negative, something no one, especially not a previous childhood hero/influence, as ever managed to accomplish in my life.

Even Voldemort has better standing with me.


Also, Lammy said on Penders' board:

If your fans are really that dedicated to you, they'll buy your stuff even if you use a different art style.

THIS. If you loved your fans more than your own ego/money, you'd see this. But, as I've learned personally, you clearly DON'T.

Also, Lammy, who are you? Because I love you for this.


TL;DR: Penders ranted at people's arguments, and compared himself to a work that is vastly more successful, more recognized and ultimately more original (and not-derivative) than his own. He has no proof on this, and I really want to call him out on his lack of evidence. Also, Lammy is awesome and I love him/her.

Bitter? Yeah, I guess so. Heartbroken? More than you can imagine.

(I almost want to join his forum just to post this there, but I feel dirty just lurking there. Plus, this has distracted me from Finals for an hour and a half already...)