I'm going to talk about Ken Penders for a bit, because apparently somewhere along the line my blog became the Internet's foremost resource for information on Archie v Penders. And I never did get around to writing about the conclusion to the other suit, Penders v Sega et al, so I should probably start there.
To read my previous Ken Penders coverage, peruse the handy Ken Penders tag.
The gist: Archie forgets to make Ken Penders sign work-for-hire agreements prior to his work on the Sonic the Hedgehog comic, Penders asserts that he still owns or co-owns the copyrights to all that work and will be working on his own sequel, Archie sues him and writes all his characters out of the comic, fanboys flip out, Archie and Penders settle for undisclosed terms. And that's where I left off back in 2013.
Well, there were two lawsuits: Archie v Penders, where Archie sued Penders to assert that his work was for-hire and he held no ownership stake in it, and Penders v Sega et al, where Penders sued Sega and EA over Sonic Chronicles: The Dark Brotherhood, a game which featured characters similar to the Dark Legion he had created in the Knuckles the Echidna comic.
Last I talked about this, Penders v Sega was still awaiting resolution, but I learned recently that last year it was dismissed on a technicality.
I took a look at Ken Penders's messageboard a little while ago (I'll come back to that in a future post), and he linked to a Tumblr post by TheAmazingSallyHogan, citing it as an authoritative and scholarly rundown of the case.
I have a couple of minor, tangential quibbles with Ms. Hogan's piece, such as how she defines work-for-hire; I'll get to them in a later post. But they're not relevant to the specifics of the Penders case, which, near as I can tell, she has exactly right, and describes in great detail.
And as for the conclusion of the Sega case, here's what she has to say:
On September 26, 2011, Penders’ lawsuit against SEGA/Electronic arts was dismissed, with the Judge essentially telling Penders that he needed settle matters with Archie first, and then he could re-file. Penders re-filed on September 30, just four days later. The same Judge dismissed the case a second time, saying very firmly that Penders needed to settle matters with Archie before re-filing against SEGA/Electronic Arts.
In May 2012, Penders’ council appealed the dismissal of his case against SEGA and EA. Penders’ determination to have a case in progress against SEGA/Electronic Arts, instead of just waiting to re-file, was because there is a three year statute of limitations on US copyright claims – a legal time limit intended to make sure cases are tried while the evidence is fresh. Sonic Chronicles was released September 25, 2008, almost exactly three years earlier. Filing a new case later would mean he would lose the chance to sue SEGA for Sonic Chronicles’ sales, so Penders appealed the dismissal. The importance of these dates was not stated in his appeal, an omission that would later prove crucial.
On October 11, 2013, Penders’ appeal (concerning his case against SEGA/Electronic Arts) was heard. While the judges agreed that the timeline was highly relevant and that if the case was dismissed he would largely lose the ability to seek compensation for Sonic Chronicles, his previous lawyer had failed to state why the dates were important in the appeal, and thus the judges could not take that issue into consideration. Shortly after, the court rejected his appeal and upheld the dismissal. While he could re-file, Sonic Chronicles had been released September 2008. It was now well past three years later, putting essentially all sales outside of the three year statute of limitations window. However, any new usage of the characters introduced in that game (such as an appearance in the comic), could potentially lead to a lawsuit from Penders. Late October, Penders stated “this case may yet end up in the US Supreme Court if a resolution isn’t found prior to that”.
So there it is: due to a mistake in Penders's lawyer's legal filing, Penders v Sega was dismissed, and he missed the statute of limitations for collecting any of the money generated by Sonic Chronicles. No ruling, no settlement, no resolution. While I wouldn't be surprised to see some fanboys take the words "case dismissed" to mean that Penders's case against Sega was flimsy or lacking in some way, that is not what this dismissal means; the case was dismissed due to a mistake in filling out the paperwork, and no other reason.
I wouldn't expect to see Sega re-release Sonic Chronicles any time soon, as that would open them up to a new suit.
Penders's allusions to a Supreme Court case notwithstanding, this is most likely the end of it, though he's still got his own series coming at some point, whatever form it may take.
I noted before that a lot of the other writers and artists who worked on Sonic around the time Penders did could potentially file for their own copyrights (and that Scott Shaw already had). I haven't heard anything more about that. However, given how the Penders case went, I would expect Archie to quietly settle with any other creators who made similar claims, on similar terms, without suing them, and it's entirely possible this has already happened. It's one of those things we'll most likely never know.
Meanwhile, if you're interested in the case at all, I highly recommend that you read the entire piece by TheAmazingSallyHogan. It's as good and thorough a summary of the case as you'll find anywhere.