Category: Games

Go, Ken, Go! -- Part 5: Settlement!

For my previous coverage, check out the Ken Penders tag. In particular, the first post has a relevant disclaimer that (1) I tend to side with creators over publishers generally and (2) I corresponded with Ken Penders in the 1990's and he was a nice guy.

Anyhow, looks like I'm a bit behind on this, but last week brought the biggest news yet: per TSSZ News, Archie and Penders have settled and the suit has been dismissed.

What I predicted in Parts 3 and 4 still holds: we'll learn some of the terms of the settlement in the coming months (we already know Ken is moving forward with The Lara-Su Chronicles so I think we can safely say he has the rights to publish original comics with Lara-Su in them); some will stay confidential. Penders v Sega and EA is still ongoing, though this puts him in a better position as it establishes that he does have standing to sue for infringement, even if it still has to be established that Dark Brotherhood infringes his copyrights.

I think it's also safe to say that Ken would be happy for Archie to continue using his characters and reprinting his stories -- so long as they pay him his share for that use. And that if, say, the echidnas stay lost in that warp ring, that's Archie's decision not to pay Penders, not Penders's decision not to let Archie pay him.

But I think there's something much bigger coming.

Penders wasn't the only guy freelancing for Archie's Mamaroneck office in the mid-1990's. And he wasn't the only guy doing it without signing a contract first.

There are potentially dozens of other Sonic alums who have been watching this case and waiting to see if they've got a shot at winning their rights back, too. Scott Shaw has already filed for copyrights on his Sonic work. He won't be the last.

Archie v Penders is over. But this is only the beginning.


Update 2015-09-24: And Penders v Sega is over too; it was dismissed in 2014. I discuss it more in Part 6.

As for Scott Shaw and other creators seeking to reclaim their copyrights in the same way that Penders did, I haven't heard any news on that front, though I suspect we won't; given how the Penders case turned out, Archie is unlikely to file any more lawsuits, and I suspect that if other creators raise similar challenges Archie will settle with them quietly without getting the courts involved. It is possible that this has already happened, though it's likely that we'll never know.

Summer

Well, it's officially summer now. As opposed to three weeks ago when it wasn't summer, just a 113-degree spring.

Mostly indoors in the air conditioning lately, and catching up on TV and video games. Didn't realize I was so close to finishing Mario Galaxy when I quit playing it like 5 years ago.

Course, if it weren't for the backlog and money being a little tight at the moment, I'd be perusing the various Internet game sales on right now. GOG's got a big one, Steam has plenty of deals, the Humble Bundle has both a weekly bundle and an Android-themed bundle going right now, and Amazon has a bunch of stuff for cheap too. (That last one's an affiliate link; if you buy something through it I get a small kickback.)

I don't have the time to play the games I already have. But I picked up the free download of Torchlight and maybe I'll get to it one of these days. And I've had al little more time this past week, anyway.

The Zappas on Video Games

The benefits of being a pack rat:

Sharkey posted this on his blog in...according to the date stamp, November of 2002.

I remembered it a couple days ago and I thought, you know what? I bet I don't even have to dig through old hard drives to find it. I bet my obsessive process of backing up data and copying it over from old computer to new has survived two new computers, four different Linux distributions, and I don't even know how the hell many hard drives. (I am, after all, the guy who corrupted his hard drive when he installed Windows 98 and recovered the data in 2008.)

Anyhow, I was right. Sitting right here on my current computer, after all those moves.

(And then I get to thinking, "Wait...I've only gotten two new computers in the last decade?" But then I remember no, there's also the Mac Mini I used to have hooked up to my TV and now use as a backup server, the Win7 desktop I currently have hooked up to my TV, my laptop, my phone, my tablet, and assorted old towers that have managed to pile up in my office and get used occasionally for various purposes. Plus my wife's desktop and two laptops.)

You know, just the other day my coworkers were talking about Hoarders, and I commented that the nice thing about being a digital packrat is that the data I've been holding on to for decades doesn't take up a hell of a lot of space. My comic collection, on the other hand...

Anyhow, not the point. The point is, here's Innerview: The Zappas on Video Games, by Merl H Reagle, JoyStik, January 1983. Scanned by, and from the personal collection of, Scott Sharkey, and preserved through over a decade's worth of computer migrations by packrat Thaddeus R R Boyd.

Innerview, Page 1Innerview, Page 2

Interesting, but not altogether surprising, that games were already being scapegoated by politicians and the media for juvenile delinquency as far back as 1983.

I also love the story of Frank recording the noise in an airport arcade and then listening to it on the plane. I think he also tells the story in The Real Frank Zappa Book -- that or I've been misremembering where I read it for the past decade.

(Christ. An interview from 30 years ago which I've been copying from hard drive to hard drive for one-third of that time...)

Magic Fingers

Speaking of covers that might not be as good as the original but can still be plenty of fun: Magic Fingers as performed by Katie Jacoby, Eric Slick, Eric Svalgard, CJ Tywoniak, and Matt Rothstein, posted by Eric Slick.

I'll be honest: it's a lot better than Ancient Stone Tablets.

Hyrule: Just Visiting

As I've said before, the upcoming Legend of Zelda: A Link Between Worlds has me torn between excitement and cynicism. I see stuff like this

and there's a part of me that's giddy in spite of myself -- I feel excitement at how good this game could be, and trepidation at how mediocre it will probably be.

Jeremy Parish, who played the demo at E3, wrote a piece called Yoshi and Zelda Demonstrate the Trouble With Playing It Safe which articulates my concerns about the game perfectly: so far it seems to be running on nostalgia, a glitzy cover tune lacking in the genius of the original.

Could be it's just a professionally-created fangame.

So what happens when you do get a professionally-created fangame based on A Link to the Past?

As it happens, there is one: The Legend of Zelda: Ancient Stone Tablets, a game for the Japanese Satellaview add-on.

It's about what you'd expect from a modestly-talented developer playing with the LttP engine: the pieces are there but they just don't fit together as well.

First of all, there's the exploration. Good big chunks of the world are covered by Fog of War as the game begins, and it doesn't feel like the world opens up naturally to you as you go so much as that you're ushered through it region by region. Part of this is simply the nature of its design -- it was designed to be played across four days, with each day revealing a different portion of the world map -- but, well, just because there's a design constraint giving it a good reason to feel confined doesn't make it feel any less confined.

Indeed, from pretty early on you're encouraged to make use of instantaneous travel rather than encouraged to hoof it across Hyrule before being given the keys to the ocarina.

But if the overworld doesn't seem to offer much that's new, the dungeons just seem perfunctory.

They're shorter, they're smaller, and they're a lot more straightforward. The puzzles are simple (though in at least one case the "push a block down a hole" bit is implemented much better than its original use in LttP's Ice Palace, one of the weakest, most convoluted puzzles in the game -- though it at least rewarded players for taking the levels out of sequence), and the thematic elements of the dungeons are gone, replaced with a weird sort of mishmash of different tilesets and bosses. Why the fuck does the Water Temple look like the East Palace inside, and have the sandworms from the desert level as its boss? Who the fuck knows?

It's not that I haven't had a bit of fun playing Ancient Stone Tablets. It's like a cover tune on open mic night -- it's fun to hear somebody new try out your favorite song, even if they're not as good as the original band.

But I haven't had any great urge to finish it, either.

Guess we'll see how the new game goes. Maybe it'll be a lot more ambitious than it looks.

Or maybe it'll be pretty much a remake with less-inspired level design. That would be a shame -- but it'd still probably be worth playing through once or twice.

Go, Ken, Go! -- Part 4: Bibliography

I think this'll round off my Ken Penders coverage for now -- maybe I'll post more when there's news; maybe I'll write a post about why I care enough about the rights to silly mid-1990's Sonic the Hedgehog comics to spend so much time and so many words on the subject, just as soon as I figure that out myself.

Anyway, here's a list of articles about Archie v Penders and the related legal disputes. I posted comments in many of these threads myself, and it's interesting (to me at least) to watch as I go from initial skepticism -- "Penders signed a contract, he had to have" -- to eventually realizing that the root of Penders's claim is that no, he didn't sign a contract, and then slowly come to believe that he's right and Archie really did forget to make him sign one.

Far and away the most legwork on this story has been done by Tristan Oliver of TSSZ News. TSSZ's coverage has been extensive, and I intend to link a few highlights here; please understand that this is by no means an exhaustive sample of everything Oliver and his associates have written on the subject. For a more thorough list, check their Penders+Copyright tag.

By the way, though: I would advise not reading the comments section on any TSSZ News story about the Penders case. The comments section is a wretched hive of scum and villainy.

(Also: My sister-in-law owns cats named "Tristan" and "Oliver". That's kinda weird.)


Ken Penders Presents... by Ken Penders, kenpenders.com, 2010-07-07. Ken's opening salvo, where he first claims that he owns or co-owns the copyrights to everything he ever wrote or drew for Archie's Sonic the Hedgehog, Knuckles the Echidna, and assorted related specials.

Has Archie Lost Rights to Sonic Reprints? by Johanna Draper Carlson, at her blog Comics Worth Reading, 2010-07-11, mirrored on archive.org. This is the first I heard of the story; Ken's name was a bit of a blast from the past and I was surprised to hear it in the comics news.

Ken Penders Claims Sonic The Hedgehog Rights by Rich Johnston, Bleeding Cool, 2010-07-10. The first of Bleeding Cool's long-running coverage of the case.

Archie v Penders thread at Brontoforumus, 2010-07-12 to present -- this thread is assembled from all the posts I (and others, but mostly I) have written on the subject for the past several years across multiple threads. It makes for a good quick run-down to read it all end-to-end.

Archie Comics Files Federal Lawsuit Against Ken Penders, by Tristan Oliver, TSSZ News, 2010-12-01. While there had been legal wrangling prior to this, this is where the lawsuits actually started. And it is important to remember, throughout this discussion, that while fanboys continue to misstate the basic facts of the case, Archie sued Ken Penders, not the other way around. (Penders has sued Sega and EA -- we'll get to that in a bit -- but he has not sued Archie. Archie sued him.)

Penders Affidavit Offers Intimate Look At His Sonic Comics Tenure by Tristan Oliver, TSSZ News, 2011-03-03. Oliver looks over the affidavit. This is where the meat of the dispute starts to become clear: Penders is claiming he never signed a work-for-hire agreement; Archie has submitted documentation to the contrary but Penders is disputing its authenticity; Penders has other creators from the same period who back up his story. Money quote: "First, the signatures are not believed by me to be authentic."

Inside Ken Penders's Alleged Work for Hire Agreements with Archie by Tristan Oliver, TSSZ News, 2011-03-07. Oliver highlights the contracts Archie has submitted as evidence, and notices a number of discrepancies in them.

Ken Penders Files Lawsuit Against Sega, Electronic Arts by Tristan Oliver, TSSZ News, 2011-06-01. As the name implies, this is the filing of Penders v Sega and EA, over the game Sonic Chronicles: The Dark Brotherhood, which features characters who resemble the Dark Legion from Ken's Knuckles comics.

Inside Ken Penders’s Copyright Lawsuit Against Sega, EA by Tristan Oliver, TSSZ News, 2011-06-03. More detail on the suit, notably including Penders's allegations that BioWare approached him about helping develop Sonic Chronicles, which would certainly imply they were familiar with his work and the Dark Brotherhood's resemblance to the Dark Legion is not coincidental.

The Ken Penders/Archie Comics Lawsuit Continues by Rich Johnston, Bleeding Cool, 2011-06-24. More coverage of the contracts Archie submitted as an exhibit in the case, and Penders's claim -- with support from Scott Shaw and Elliot S Maggin -- that the contracts are illegitimate.

Coming Soon in 2012, by Ken Penders, kenpenders.com, 2011-12-01; Ken's statement of intent to publish his characters in his own comics, without Archie or Sega (or Sega's trademarks). At the time of this writing the thread has posts in it on up through last October; a lot of it is just Ken going in circles patiently trying to explain copyright and trademark law to his forum trolls, but if you can get through it there's a lot of edifying information on the claims he's making in the case and the legal tack he's taking with them.

Ken Penders To Publish Sonic The Hedgehog Characters On His Own by Rich Johnston, Bleeding Cool, 2011-12-04; a response to the above post. The comments thread has some interesting discussion and links related to how Archie handled the TMNT license; the TMNT Adventures comic ended around the same time the Sonic comic started.

Inside the Archie v. Penders Pre-Trial Report by Tristan Oliver, TSSZ News, 2012-02-13. Notes some of the names on the witness list; a number of former Archie editors and freelancers were slated to testify and corroborate Ken's claim that Archie did not make him or other Sonic freelancers sign work-for-hire agreements.

Penders Case: Scott Shaw Claims Copyright to his Archie Sonic Work by Tristan Oliver, TSSZ News, 2012-03-20. Includes an affidavit from Shaw, as well as one from Maggin saying he never signed a work-for-hire agreement for an issue he did of Archie's Super Teens around the same time.

Ken Penders Stops Diamond From Distributing Sonic Collections by Rich Johnston, Bleeding Cool, 2012-09-14. This was an early sign that Penders's claims were causing trouble for Archie; in the months since Archie has continued to put out reprints of Penders's Sonic work through Diamond, but among other measures it's altered covers so that his characters don't appear on them.

Settlement Terms Reached in Archie v. Penders Copyright Case by Tristan Oliver, TSSZ News, 2012-12-04. For a minute there, it really looked like it was almost over.

Flynn Addresses Altered Sonic #244; Fans Look To Penders Settlement by Tristan Oliver, 2012-12-27. A recent issue of Sonic the Hedgehog has most of the Knuckles the Echidna supporting cast sent through a Warp Ring and effectively written out of the series indefinitely. Notably, the characters in question are among those Penders created and is seeking to claim copyright on.

Archie Fighting Proposed Dismissal of Penders Copyright Case by Tristan Oliver, TSSZ News, 2013-03-27. And then the talks broke down and Penders moved for dismissal. In one of my favorite legal filings ever, Archie's lawyer argues against dismissing the case with prejudice because this would be, and I quote, "greatly prejudicial".

Penders Counsel Asks Court to Ban Knuckles Archives #4 Sale, Related Material in Dispute by Tristan Oliver, 2013-04-19. Ken's tightening the screws and pushing for an injunction; the judge has not made a decision yet.

Archie Desperate To Settle, But Can’t Without Sega – The Latest In The Ken Penders Sonic Comics Case by Rich Johnston, Bleeding Cool, 2013-05-09. A fantastic transcript of a May 2 court session; the judge quotes Laurel and Hardy but the transcript reads more like an Abbott and Costello routine. Counsel for both Archie and Penders state that they want to settle but that they haven't been able to get Sega to sign off on their terms.

And here we stand -- there's been no news since. The judge granted both parties more time to bring Sega to the table to approve their settlement, and that's the last we heard; neither Bleeding Cool nor TSSZ News has posted any updates on the case since.

I suspect all sides are hoping to settle rather than go to trial. If they settle, most of the terms will be private. But if talks break down, the case will go to trial. And from there, probably an appeal by whichever side loses. This could stretch on for years more. But like I said yesterday, I hope it doesn't -- I hope it gets settled on terms that are favorable to Ken.

Of course, while that would close the book on Penders's case, it wouldn't preclude all the other Sonic freelancers from that era from coming forward with claims of their own. As we've seen, there are lots of creators making the same claims Ken has -- and if he gets a settlement, they'll be angling for settlements of their own.

Stay tuned...


Update 2013-07-09: Archie v Penders has been settled. Two more related links:

It's Over. by Ken Penders, kenpenders.com, 2013-07-01. Ken announces that he is moving forward with The Lara-Su Chronicles.

Judge Officially Dismisses Archie v. Penders Case by Tristan Oliver, 2013-07-02. TSSZ News confirms that the case has been settled and the suit dismissed.


Update 2015-09-24: I'm late on this, but I recently found out that Penders v Sega et al was dismissed (due to a mistake in how the paperwork was filed, not due to any decision on the merits of the case itself).

TheAmazingSallyHogan has the most thorough summary of both cases that I have seen to date; it is well worth reading in its entirety.

Go, Ken, Go! -- Part 3: The Stakes

My Penders coverage continues. See previous installments under the Ken Penders tag.

So what's actually at stake in Archie v Penders?

What does Ken want?

Penders wants a court to rule, decisively, that he never entered into any contractual agreement with Archie Comics beyond first print rights, and to grant him sole ownership of every story that he both wrote and drew, and co-ownership of every story where he did one or the other but not both.

This includes various Sonic stories from issue #11 all the way up to #140, some specials, and the entire Knuckles series, and any original characters and locations introduced therein.

Contrary to how the enraged fanboys would have it, this does not mean that Archie would not be allowed to reprint those stories or reuse those characters -- it just means that Archie would have to compensate him for that use.

First of all, in many cases, Ken wouldn't have full ownership over those stories, characters, and locations -- as mentioned, he would only gain full ownership over stories that he wrote and drew; he would only gain co-ownership of stories where he worked with other writers or artists. (Usually half-ownership, because a comic typically has two creators, writer and artist -- but some of the stories had multiple writers and/or artists.) Sega would retain the remaining share of the rights -- at least, until and unless Ken's partner(s) on a story came forward making similar legal claims and asserting their co-ownership -- and retain the right to do whatever it wanted with them, so long as it compensated Ken for his portion of ownership.

And secondly, it wouldn't be in Ken's interest to halt the reprinting of any of those stories or the reuse of any of those characters. He wants Archie and Sega to continue using them -- so that he gets paid for their use.

Ken also wants to continue the stories he began in Knuckles the Echidna. He wants to be able to use the original characters he created and continue to build that world, through a publisher of his choosing, without oversight or approval from Archie or Sega.

The rub is, even if Ken gets all the copyrights he's seeking, he won't get the trademarks. Even if he can use Rob o' the Hedge, he's going to have to make him look a lot less like Sonic the Hedgehog. Likewise, his echidna characters are going to have to look significantly different from Knuckles.

Also for trademark reasons, while Ken will have the reprint rights to everything he wrote or drew for Archie, in the vast majority of those cases he won't actually be able to exercise those rights without permission from Sega. He'll be allowed to reprint any story that doesn't have any of Sega's characters or anyone who looks like Sega's characters in it, but nothing with Sonic, Tails, Knuckles, Sally, et al, and if he wants to reprint stories with Locke, Rob o' the Hedge, or other trademark-derivative characters, he's going to have to redraw them first.

A decisive victory for Penders would include damages and back pay for all the years Archie has continued to exploit his copyrights, and would lead to a ruling in his suit against Sega and EA that those companies had likewise violated his copyrights and owed him back pay and damages for Sonic Chronicles: The Dark Brotherhood.

What does Archie want?

Archie wants a decisive declaration that Ken signed a work-for-hire agreement and that all his work was produced under for-hire conditions, that he agreed to a flat page rate, and that it was paid. Archie wants the court to rule that it doesn't owe Ken anything more than what it's already paid him, and is free to continue reprinting his back issues and using his characters without any additional compensation.

Short of that, Archie wants to minimize any potential payout it may have to make. It's already gone to some efforts to remove the disputed characters from the covers of reprints and to write them out of its universe. If Archie has to pay Ken, it will want to pay as little as possible, and have as little obligation to him going forward as it can get away with.

How big could this be?

The smallest impact this litigation could possibly have is, well, the impact it's already had: Ken's characters get benched awhile until this gets sorted out, and Archie eventually brings them back. A ruling that's favorable to Archie would pretty much ensure this happens.

Even in the case of a ruling favorable to Penders, Archie could still bring the characters back and continue to issue reprints of Penders-era stories; all it would have to do is compensate him for their use. I have to stress, here, that Penders is not seeking to halt Archie and Sega from profiting from his work -- he just wants a cut. If Archie does permanently drop Penders's characters and cease reprinting his comics, make no mistake: that's out of spite, not legal obligation. That's not Archie being forced to stop using those works, it's Archie choosing not to use them so it doesn't have to pay Penders for them.

As for the biggest potential impact? Well, it involves the character Robo-Robotnik.

Robo-Robotnik is a character who first appeared in Sonic the Hedgehog #19, by Penders, Mike Kanterovich, Dave Manak, and Art Mawhinney. He's a parallel-universe version of Robotnik.

Now, the "original" Robotnik -- the one who resembles the version from the Saturday morning cartoon -- dies in issue #50.

In #75, a new Robotnik steps in; as you'd expect, he more closely resembles the Robotnik from the games (and as the games gave up the "Robotnik" name for the original Japanese "Eggman", the comics followed suit).

But here's the rub: the new Robotnik in #75 is Robo-Robotnik, hopping from his parallel universe to Mobius Prime and creating a new body for himself.

So the ramifications of this are potentially huge: technically speaking, the Eggman who has been the main antagonist in the Sonic the Hedgehog comic from issue #75 to present was co-created by Ken Penders. Best case for Ken and worst for Archie, a court agrees that Ken co-owns the rights to this version of Eggman.

Now, Archie could still kill him off and have yet another parallel universe Eggman take his place; that'd be trivial enough and would keep them from having to compensate Penders for Eggman's future appearances.

But that would still leave the entire run of the Sonic comic from #75 to today -- approaching issue #250 -- featuring a Penders-derived character in a primary role.

Now, Archie is big on reprints. Huge on reprints. And they can choose not to reprint any stories containing, say, Julie-Su the Echidna -- but they can't refuse to reprint any issue containing Robo-Robotnik; that would gut their back catalog. They would have to play ball and offer Penders compensation for reprints.

What would a settlement entail?

Of course, the thing about out-of-court settlements is that they're typically not disclosed to the public. If Penders and Archie do settle, we'll never know most of the details.

But what we do know, because it's been mentioned in the public record, is that both sides are seeking an agreement where Penders is allowed to publish his own comics featuring his original characters, provided he alters their appearances to avoid infringing on Sega's trademarks.

Other than that, all I can offer is conjecture.

At a guess, Penders will allow Archie to continue to use his characters, and probably allow Sega co-ownership rights. (This will be useful to Sega and Archie in case their other co-creators come forward seeking the copyrights.) Archie will want to offer him a one-time payment for these rights; Penders will be seeking co-ownership and a guarantee of royalties or at least some form of profit-sharing agreement. It's unclear which of those will happen.

Given the leverage Penders has with Robo-Robotnik, I think Archie will push for him to sign away the rights to that character in particular, guarantee that he will never try to claim an ownership stake in him, and that he is indeed the same character as Sega's Dr. Eggman and not an original character at all. I think Penders is likely to agree to this -- while co-ownership of Robo-Robotnik could be one of the strongest victories he could make, it's also going to be one of the trickier ones in court. My guess is Penders will give up his claim to Robo-Robotnik in exchange for something else he wants -- either a reasonably-sized one-time payout, or a stronger position with the rights to the other characters who he can actually use in his own comics. (Robo-Robotnik is, of course, a complete non-starter for use in Ken's own comics; he's so fundamentally tied to the character of Eggman that Ken would have to change him so substantially that he might as well just create a new character anyway. The only reason Penders would want Robo-Robotnik would be for reprint royalties.)

What does Sega want?

To crush freelancers, see them driven before them, and to hear the lamentation of their women.

Sega doesn't want to give Penders anything. It wants him to lose, decisively, and serve as a lesson to any other freelancers with any bright ideas.

Archie might convince Sega to agree to a settlement -- but there's no way Sega will do that unless Penders agrees to drop his litigation against Sega and EA. And there's no way Penders will do that without some sort of payout. While I believe he's totally sincere in wanting to keep his original characters and continue Mobius: 20 Years Later on his own terms, Sega and EA are the biggest fish here and he's not going to drop his case over Dark Brotherhood without receiving some form of compensation.

Realistically, I think if a settlement is reached, it will involve Sega (and possibly EA) giving Penders a one-time payout with no admission of wrongdoing, and Penders signing documents to the effect that he recognizes the Dark Brotherhood as distinct from the Dark Legion and will never claim otherwise again.

I think this would probably work out all right for all parties -- Dark Brotherhood was years ago and no sequel appears to be forthcoming. Penders might be better off taking a one-time sum than gambling on future royalties that may or may not materialize; Sega, on the other hand, will want to keep the option of using the Dark Brotherhood again even if that never actually happens.

But again -- all of this is conjecture on my part. I don't know what Sega's, Archie's, EA's, or Penders's lawyers are thinking on this. If there is a successful settlement, we'll know a few of the terms -- like copyright assignments, whether Ken ends up making his own comics with Knuckles-derivative characters, whether Archie brings back Ken's characters in its comics universe -- but we won't know any financial agreements, or specific restrictions on the use of the copyrights.

Still, I'm hoping for a settlement that treats Ken decently and allows him to make a living. He's really put a lot on the line in bringing his case this far; if it goes to jury I hope he wins, but I hope he doesn't have to go through that ordeal (and the appeals that would inevitably follow). Here's hoping for a resolution that works out well for him.

Go, Ken, Go! -- Part 2: The Curious Case of the Contracts

Archie is the most anti-creator publisher in the comics industry.

DC's bad. Marvel's worse. But Archie is the worst.

To this day, Archie's official company line is that Archie (the character) was created by company founder John Goldwater, while Bob Montana merely created "the original characters' likenesses". And it took an out-of-court settlement for Bob Montana to get even that half-assed credit.

And talking of court cases, what happened when Dan DeCarlo tried to get a piece of the Josie and the Pussycats movie? He was fired. After freelancing for the company for forty years and becoming the definitive Archie artist (and indeed the definitive "good girl" artist). And firing him apparently wasn't enough -- Archie actually started removing his name from reprints.

Archie has the gall to continue to claim that Dan DeCarlo didn't actually create Josie -- a character who is named after his wife.

Archie creators don't even get royalties or any form of profit sharing -- you get a page rate and that's all.

So it was against this historical backdrop that I heard Ken Penders claim that his Sonic comics had not been work-for-hire, and I was skeptical. Well, "skeptical" is one of the politer words I used at the time -- I also said his claims "strike me as some legitimately crazy shit".

(I suspected for awhile that this was why I was never approved to post on Ken's messageboard; now I'm more inclined to believe it's just an automated system that filters out four-letter names as probable spambots. At any rate, it was still a rude thing to say and I now believe it was factually inaccurate besides.)

That was my read on the case for the first couple years it ran, but not long after that, the other shoe dropped and the scope of what Penders was really claiming became clear: Archie never made him sign a contract. If you look through my posts from around that time (and I'll have a bibliography post in the next couple days), you can watch the scope of the claim begin to dawn on me and my view of the case start to shift to Penders's favor.

Hard as it was to believe, it was starting to look like Archie, the company that had been so iron-fisted in its treatment of its own creators over the past 70 years, really had dropped the ball. Ken wasn't the only creator making these claims. Scott Shaw, Elliot Maggin, and a laundry list of others were too.

Here's the thing about work-for-hire: under the Copyright Act of 1976, work-for-hire agreements must be made in advance, in writing. If Ken did not sign a contract before producing his work, then it was not work-for-hire.

Which still doesn't necessarily mean, in and of itself, that he didn't transfer the rights to Sega by way of Archie -- he could have sold the rights, even if the work wasn't produced for-hire.

But that doesn't seem to have happened.

Archie has produced some contracts which appear to have Penders's signature on them -- but they're sloppy, incomplete photocopies, and they're dated years after Ken first started writing and drawing Sonic comics. Ken has implied, though he's been very careful not to say it outright, that his signature may even be forged on them.

And personally -- and please note that this is pure unsubstantiated conjecture on my part -- I think he's got proof. Because by the end of last year, Archie was talking settlement.

Indeed, Archie's lawyer recently said the company was "desperate" to settle. But it hasn't.

And that's because this isn't just about Ken Penders and Archie. Sonic is a licensed comic; Sega owns the rights. Not just to the original characters, but to all the comics and everything in them. If Archie lost the license, Sega would retain the rights to reprint everything through another publisher (like how Dark Horse can reprint Marvel-era Conan and Star Wars).

At least, that's how it's supposed to work. But, if Ken is right and Archie never made him sign a contract, that means he owns, or at least co-owns, all the material he wrote or drew.

The way the contracts were supposed to work is that the writers and artists sign them and immediately give up the rights to Sega. According to Penders, Shaw, Maggin, et al, that didn't happen.

So Sega is denied the ownership it expected, because Archie screwed up the paperwork.

And, not to put too fine a point on it, Sega's been sued over it. And might be again.

Because I've been talking about Archie v Penders here, but there's another suit out there: Penders v Sega and EA.

The Sega/BioWare game Sonic Chronicles: The Dark Brotherhood included villains who resembled Penders's Dark Legion characters. I will grant that I've never played Dark Brotherhood -- but I'll also say that the very first thing I thought when I saw the advertising materials was "Oh, it's the Dark Legion."

So Archie v Penders has a direct bearing on Penders v Sega and EA -- because the outcome of Archie v Penders will determine whether Penders owns the Dark Legion and has grounds to sue for their appropriation in the first place.

If I were representing Sega, I'd be pretty angry at Archie for fouling up the paperwork and putting my company into this position. And I'm willing to bet that Sega is a lot less interested in settling than Archie is. Because even if it reaches an arrangement where it pays out a small, one-time settlement fee and doesn't have to worry about paying Penders for reprints or for any future games or reissues, a settlement opens the door for more writers and artists to assert their copyrights and pursue compensation.

So that's where things stand as of last week. Archie wants to settle but Sega hasn't granted approval for a settlement.

The judge is pushing to bring Sega in on the negotiations ASAP, and that should determine whether the suits are settled or go to trial. There should be more news any day now.


Update 2013-07-08: Archie v Penders has been settled; see Part 5 for my thoughts.

Go, Ken, Go! -- Part 1: Sonic Fandom ca. 1996

I'd like to talk about Archie v Penders, because it fascinates the hell out of me. In fact, I've got enough to say about it that I'll be on the subject for most of the week, if not longer.

But I should probably get some disclosure out of the way first.

First of all, my feelings on creators' rights are pretty well known.

And second, I corresponded with Ken Penders for years in the mid-1990's and he was pretty cool to me.

It may be hard to remember in these days where I can just get into a political debate with Ethan van Sciver or ask Kurt Busiek about his unpublished Final Fantasy comics, but it wasn't so long ago that most people didn't have the Internet and it wasn't common for fans to connect directly, personally, and regularly with comics creators.

The first cartoonist who I ever knew to directly engage his fans online was Ken Penders. (Not the first person, and not even the first person who worked on Sonic the Hedgehog at Archie -- that honor goes to editor Paul Castiglia, who likewise was a class act -- but the first person who was actually writing, drawing, and inking the things.)

In those days, the main place where I participated in Sonic fandom was on a mailing list run by Ron Bauerle. And when I say "mailing list" I mean something less sophisticated than an automated majordomo system; I mean people E-Mailed Ron and he forwarded those E-Mails to a list of addresses, manually, with some edits and comments of his own.

Ken was kind, engaged, patient, and forthcoming. He took the credit or blame for ideas that were his, and he was entirely candid about decisions that were forced on him by Archie or Sega.

I always liked the guy, though I grant I often had a funny way of showing it. I was thirteen, fourteen years old, and behaved about like you expect an angry, entitled, teenage member of comic book fandom to behave. And Ken was always patient and polite with me (and others), even when I didn't earn it.

In my defense, there were times when he actively and transparently trolled the fans. The biggest thing that ever happened on Ron's mailing list was when one day Ken posted -- in a fake casual, "oh by the way" manner -- that he'd just written a script where he killed off Princess Sally.

He may not have deserved all the vitriol he got for that -- but he did very clearly and deliberately invite it.

(And while I remember being nastier than I should have been, I won't recant the substance of my criticism of the story -- if possible, my disdain for the "women in refrigerators" and "revolving door of death" tropes has only deepened in the intervening years. It was a terrible idea, a terrible execution, and, all right, at least the "Director's Cut" reissue of #50 shows that editorial meddling made the comic even worse than if Ken had done it the way he wanted to.)

But again, I always liked Ken -- he was a nice, friendly, forthright guy, who made time for his fans. Even when I didn't like the comics he was writing or drawing, I still liked him.

And, nontrivially, I also think he's a big part of why Archie's Sonic comic is still out there.

The mid-1990's were a weird time for Sonic fandom. The cartoon had ended, and the games were going through what would become the longest dry spell in their history.

Nobody expected, fifteen and twenty years ago, that Sonic the Hedgehog would still be running in 2013, zooming toward issue #250. (And that fact is essential to understanding the current legal disputes. It looks to me like Archie got sloppy with its paperwork, precisely because this was a licensed comic that they didn't think would last. But more on that tomorrow.)

Indeed, Ken didn't tell us at the time, but there was every possibility that the book was going to end with #50. I mean, given that the story arc was called Endgame, that should have been obvious, in hindsight.

But Ken, more than anybody else, is the guy who kept the book afloat. He's the one who took the wheel in the teens (#16?) and decided the book should depart from the slapstick roots of the Scott Shaw/Mike Gallagher/Dave Manak era and generally start to look more like the Saturday morning cartoon. He wrote more complex, character-based stories. That's how the comic attracted an audience outside its 8-to-12-year-old target, how it managed to keep its 8-to-12-year-old target, and generally the reason there's still a Sonic comic at all. Ken believed in the book, he took it seriously, he made it the best he could. It wasn't always great -- in fact, there were times it was downright lousy. But a Ken Penders story was still usually better than anything printed in the first 15 issues.

And look, I quit reading Sonic comics ages ago. People say Ian Flynn is great and I take them at their word. I definitely acknowledge the possibility that he's writing better comics than Ken ever was. I don't know.

But I am pretty confident that Ian Potto would never have gotten a job writing Sonic the Hedgehog if not for Ken Penders. Firstly, because there wouldn't have been a Sonic comic if Ken hadn't shepherded it through some of its most turbulent years, and secondly, because it was guys like Ken, Paul, and Karl Bollers who interacted directly with the fandom and created an environment where fans like Flynn and Dawn Best could actually make the step to pro.

So anyhow, that's my bias in all this. I like Ken Penders as a dude. I like a lot of what he did when he wrote and drew Sonic and Knuckles. I don't like a lot of what he did, too -- and while a lot of that's down to editorial meddling by Archie and Sega, some of it is indeed down to decisions made by Ken himself.

But that's not why I think he's right and should win the case against Archie -- indeed, when he first announced he was pursuing legal remedies I thought he must be crazy, and said so, rather rudely.

But as the facts have come out, I've found myself believing Ken isn't just morally in the right, he's legally in the right.

And that doesn't have anything to do with whether I, or anyone else, actually like him, as a person or as a writer or as an artist.

That's a point Sonic fanboys just can't seem to grasp in this case: whether or not you personally like Ken Penders's Sonic and Knuckles comics is completely irrelevant to the merits of his legal case.

Zeldas

It's kinda funny how Parish's Anatomy of Zelda 2 series got me interested in replaying the game, and now it's halfway to convincing me not to finish it.

And talking of Zelda, Nintendo's gone and announced A Link to the Past 2. Don't go writing checks you can't cash, now, Nintendo; you wanna use that title you'd better be damn sure.

I've spent the past twenty years trying to find another game like LttP. I've only really found one: Link's Awakening.

My gripes about the 3D Zeldas are well-worn and don't need repeating. But even the top-down ones haven't managed to capture my interest. I played a bit of the Oracles games and Minish Cap but they just didn't quite do it for me. Four Swords was great, but it was a bitch getting four Game Boys together to actually play the thing. I expect we'll hear about a Wii U sequel any time now given that the console seems to be made for exactly that sort of thing.

I've tried other games in the genre, from the new -- I'm enjoying Bastion quite a bit but it's about as far from open-world exploration as it gets -- to games closer to LttP's own vintage -- I dig Soul Blazer all right but the sudden difficulty spikes at the bosses are pretty discouraging.

So, what the hell, Nintendo, show me what you've got. Show me a big open world with a bunch of off-the-path secrets for me to stumble on, and don't waste my time with a bunch of goddamn mandatory fishing minigames, and I just might save up and get myself a 3DS.

There's more to LttP than the enemies and mechanics. I hope the crew on this game understands that and doesn't deliver us yet another rote Zelda sequel.

Still, even if it is a rote sequel, it's nice to be looking down at it from overhead for a change.