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Stan Lee Media takes another stab at Marvel character rights

Spider-manSay what you will about the shareholders of Stan Lee Media, but despite suffering one loss after another in their decade-long battle for the rights to Marvel’s best-known characters, they’re still unwilling to concede defeat.

In papers filed Tuesday in federal court in Philadelphia, and first reported by Deadline, the failed dot-com now seeks a declaratory judgment that it, and not Disney or Marvel, owns Spider-Man, Iron Man, the X-Men, Thor and other superheroes.

The move, which comes just three months after an annoyed federal judge dismissed their multibillion-dollar claim against Disney, springs from a lawsuit filed in September by the media giant against the American Music Theatre, which is accused of using elements of Spider-Man, Mary Poppins and The Lion King in a stage revue without permission. In a surprise twist, the Lancaster, Pennsylvania-based theater responded last month that it has a license to use Spider-Man and numerous other Marvel heroes — through an exclusive agreement with Stan Lee Media. Somewhat conveniently, American Music Theatre filed a third-party counterclaim against Stan Lee Media, opening the door for Tuesday’s filing.

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Ohio state worker downloaded thousands of comics, movies with government computers

From the inspector general's report

From the inspector general’s report

An employee of the Ohio Department of Health has reportedly confessed to illegally downloading, television series and more than 30,000 comic books from torrent sites to state computers.

The Cleveland Plain Dealer reports that Edward Jones Jr., who has worked in information technology for the agency since 1992, admitted to the activity during an investigation by the inspector general’s office initiated last year after an allegation by media giant Viacom that copyrighted material had been downloaded using a state IP address.

According to the inspector general’s report, Jones initially suggested that Viacom might have simply detected him downloading “suspicious programs” or viruses to an unauthorized third computer for analysis as part of his job. Shortly after that first interview, in April 2012, Jones reportedly attempted to delete more than 5,000 files from the computer and an external hard drive; investigators were later able to recover those video and comic book files. They also determined that Jones was a member of several torrenting websites, where he both downloaded and uploading files.

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Appeals court refuses rehearing in Jack Kirby copyright battle

Fantastic FourWith just nine words — “It is hereby ordered that the petition is denied” — the Second Circuit Court of Appeals on Tuesday seemingly ended a four-year effort by the children of Jack Kirby to gain a copyright stake in many of the characters their father created or co-created for Marvel.

As Deadline reports, the Kirby heirs had petitioned for rehearing, either before a panel of the Second Circuit or the full bench of judges, of whether they had the right to file 45 copyright-termination notices in 2009 for some of Marvel’s best-known, and most lucrative, characters, including the Avengers, the X-Men, the Fantastic Four, Iron Man and the Incredible Hulk.

Quickly responding to those notices, Marvel (later joined by then-new parent company Disney) sued to invalidate the heirs’ claims, arguing that Kirby’s creations for the publisher were work for hire, made at the company’s direction and expense, and therefore weren’t eligible for copyright termination. A federal judge agreed, ruling in July 2011 that, as works for hire, the copyrights to those characters belong to Marvel.

The Kirby family appealed, but in August 2013 a three-judge panel of the Second Circuit upheld the district court’s decision, reaffirming that the heirs had no termination rights. The judges also upheld the lower court’s exclusion of expert testimony offered by John Morrow and Mark Evanier on behalf of the Kirby heirs, agreeing that “their reports are by and large undergirded by hearsay statements, made by freelance artists in both formal and informal settings, concerning Marvel’s general practices towards its artists during the relevant time period.”

Grumpy Cat made off (and made money) with Kate Beaton’s joke

grumpy catOn an Internet whisker-deep in cat photos, cat videos and cat memes, Grumpy Cat is the indisputable king — or, rather, queen, as the peevish feline is actually a female named Tardar Sauce. She has her own meme manager, her own book, her own book tour, a litter-pan full of web awards, a movie deal and a company valued at $1 million.

Out of all of that, strangely enough, “meme manager” may give the most pause. (Or is that paws?) Ben Lashes, former frontman for the band Lashes, is profiled, along with his client, in the latest issue of New York magazine, where we learn how he transformed Grumpy Cat from a single link into a furry little industry. (Did we mention the Friskies deal, the coffee line, the plush toys and the T-shirts?)

Among the most popular shirts, Gawker points out, is one that combines a photo of Grumpy Cat with the caption “I HAD FUN ONCE/IT WAS AWFUL,” which, after a stop off at Reddit, where it became attached to the feline, actually originated with cartoonist Kate Beaton’s popular webcomic Hark! A Vagrant! Gawker, which concluded that the best way to get rich from memes is to “steal other memes,” contacted Beaton for her take.

“No, I never authorized anything. And some people will argue that I never wrote the joke, that it’s ‘been around forever,’ she tells the website. “But I made a comic, and one panel became a meme, and that’s fine. The nature of a joke is to take on a life of its own. At some point, the meme was applied to Grumpy Cat, where it fit well. It is only how Grumpy Cat is aggressive about protecting their brand with that joke as part of it that has ever rubbed me the wrong way.”

Indeed, the New York article makes a point of how diligently the people making money from Grumpy Cat police uses of her likeness. “No one’s a chump,” Lashes tells the magazine. “We’ve got a saying over here in team meme: ‘Respect the cat.’ ”

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This Charming Charlie in takedown tussle over Smiths lyrics

charming charlie3

As Morrissey once wrote, “I know it’s over/And it never really began”: This Charming Charlie, the delightful blog that mashed up Peanuts panels with The Smiths lyrics, has closed (at least for now), less than two months after its launch. But the culprit might not be who you think.

Techdirt notes that the blog’s mastermind Lauren LoPrete announced last week that The Smiths license holder Universal Music Publishing Group — rather that Peanuts Worldwide — began inundating her with takedown notices, leading her to advise her readers that she’s ending the Tumblr. However, she isn’t giving up without a fight.

LoPrete tells Motherboard that as soon as she posted the farewell, she began getting offers from lawyers to accept her case pro bono. And so now, with a little help, she’s filing counter-notifications with Tumblr, insisting the mash-ups fall under the fair-use exception of U.S. copyright law.

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Comics A.M. | Archie’s Silberkleit files sexual harassment suit

Nancy Silberkleit

Nancy Silberkleit

Legal | Archie Comics Co-CEO Nancy Silberkleit is in court again, this time claiming sexual harassment by former friend Sam Levitin, who was her liaison to Archie after her legal feud with the company and C0-CEO Jon Goldwater was settled last year. Levitin has responded that Silberkleit “lacks functional communication skills and has an unstable temperament” and has a “venomous and destructive effect” at the company. Levitin asked the court in December to remove Silberkleit as a trustee of the company, and she responded in April with the allegation of sexual harassment against both Levitin and Archie Comics. An outside firm hired by Archie determined that her claims were “unfounded,” and the publisher is not a party in the latest lawsuit. [New York Daily News]

Legal | Jeff Trexler takes an in-depth look at the copyright battle between Marvel and Jack Kirby’s children. [The Comics Journal]

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Studio JMS sues self-publisher in feud over ‘Sidekick’ character

Sidekick #1, featuring the Red Cowl

Sidekick #1, featuring the Red Cowl

In a preemptive move, Studio JMS has sued a self-publisher who threatened legal action over a character in J. Michael Straczynski’s Sidekick. The dispute centers on the Red Cowl, the former masked mentor of the protagonist in the upcoming series from Joe’s Comics and Image Comics.

Straczynski and Image Comics Publisher Eric Stephenson received a cease-and-desist notice in late May from an attorney representing Richard A. Hamilton of Dial “C” for Comics, insisting that the Cowl (as he was then called) infringes on his client’s trademark and copyright for a costumed character of the same name in the series Miserable Dastards.

According to the lawsuit, filed late last month in federal court in Los Angeles, despite seeing no similarities between the two characters, Studio JMS changed the name to the Red Cowl in hopes of arriving at an “amicable resolution,” and “for other creative reasons.” It’s when Hamilton’s lawyer was notified of the alteration that the conflict got interesting — or at least extremely prickly.

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Ghost Rider lawsuit heads to trial in November

marvel spotlight5Marvel will defend its ownership of Ghost Rider before a jury after a federal judge on Thursday set a Nov. 4 trial for writer Gary Friedrich’s lawsuit against the publisher.

U.S. District Judge Katherine Forrest made the order a little more than two weeks after the 2nd Circuit Court of Appeals overturned her 2011 decision rejecting Friedrich’s claims that the copyright to the Spirit of Vengeance reverted to him a decade earlier. According to Deadline, Marvel’s lawyers indicated Thursday in a conference meeting that they won’t challenge the appeals court ruling, and will file a motion for a jury trial.

Friedrich, long credited as co-creator of the character with Roy Thomas and Mike Ploog, filed the lawsuit in April 2007, shortly after the release of Columbia Pictures’ Ghost Rider movie, accusing the studio, Marvel, Hasbro and other companies of copyright infringement, false advertising and unfair competition, among other counts. The film grossed $228 million worldwide; the 2012 sequel, Ghost Rider: Spirit of Vengeance, earned $132.5 million.

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Mattel fights rights claims by ‘He-Man’ minicomics writer

he-man and the power swordMattel hopes it has the power to tamp down claims by writer Donald Glut that he has a copyright stake in the original Masters of the Universe minicomics packaged with the action-figure line three decades ago.

In a lawsuit filed Friday in federal court in Los Angeles, and first reported by Courthouse News Service, the toymaker seeks a declaration that it is the sole owner of the lucrative multimedia franchise, asserting that Glut’s four stories were work for hire. Mattel refers to the writer’s claims of ownership as “both baseless and stale,” insisting the statute of limitations long ago expired.

According to the complaint, Glut was commissioned in 1981 to write “He-Man and the Power Sword,” “The Vengeance of Skeletor,” “Battle in the Clouds” and “King of Castle Grayskull” and to create backstories for He-Man and other characters under the direction of the toymaker (“Mattel told Glut what the toys could do and directed him to have the characters in the minicomics do these things as much as possible,” the document states). The company notes the writer acknowledged as recently as 2001 that the minicomics were work for hire for which he received neither credit nor royalties.

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‘This case is by no means over,’ vows lawyer in Superman battle

From Action Comics #1

From Action Comics #1

Despite a series of seemingly definitive decisions in DC Comics’ favor, the nearly decade-long legal fight over the rights to Superman continues, with the estate of co-creator Joe Shuster asking an appeals court just three weeks ago to overturn a ruling barring the family from reclaiming the artist’s stake in the Man of Steel. At the center of the battle is tenacious and controversial attorney Marc Toberoff, the longtime nemesis of Warner Bros. who represents the heirs of Shuster and his collaborator Jerry Siegel.

He’s the subject of a lengthy feature in the latest issue of Bloomberg Businessweek, in which he pledges he’ll take the Superman dispute to the Supreme Court, if necessary. “This case is by no means over,” he tells the magazine. “My clients and I are prepared to go the distance.” It’s an interesting article that’s part history lesson and part personality profile, with several tidbits (of varying importance) that I can’t recall seeing previously:

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Shuster estate urges appeals court to reverse Superman ruling

From Action Comics #1

From Action Comics #1

If you thought the nearly decade-long legal battle for the rights to the Man of Steel had come to an end last month, think again: On Thursday, the attorney for the Joe Shuster estate asked the 9th Circuit Court of Appeals to overturn an October ruling that the family was prevented from reclaiming the artist’s stake in Superman by a 20-year-old agreement with DC Comics.

At issue is a 1992 deal in which the estate relinquished all claims to the property in exchange for “more than $600,000 and other benefits,” which included paying Shuster’s debts following his death earlier that year and providing his sister Jean Peavy and brother Frank Shuster with a $25,000 annual pension. On Oct. 17, U.S. District Judge Otis D. Wright found that the agreement invalidated a copyright-termination notice filed in 2003 by Shuster’s nephew Mark Peary. Less than three months later, the 9th Circuit overturned a 2008 decision granting the heirs of Jerry Siegel the writer’s 50-percent share of the copyright to the first Superman story in Action Comics #1, effectively granting DC full ownership of the character.

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Pirates spend 300% more on content than the rest of us do

piratechart

According to a survey commissioned by U.K. communications regulator Ofcom, the classic Pareto principle is in full effect for people who use pirated versions of copyrighted material. The top 20 percent of copyright infringers account for 88 percent of all infringements (with the top 10 percent being responsible for a whopping 79 percent).

What’s surprising, however, is that the top 20 spent £168 (about $253) on content during the six-month monitoring period. That’s not just more than the amount spent by the lower 80 percent (£105, or about $158), it’s significantly more than the £54 ($81) spent by the average person who never pirates anything. In other words, the worst pirates get the vast majority of their stuff for free, but they take in so much media that they end up spending 321 percent more than people who never pirate.

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Quote of the Day #2 | Piracy or fair use?

thingblackbeard

“Copyright is fundamental to creative industries, those who believe it’s not relevant are mistaken”

I find that interesting on a few levels. And by “interesting” I mean “bullshit.”

J.A. Konrath

Konrath is an author who escaped the midlist wilderness of traditional publishing to do extremely well for himself (to the tune of about $3,000 a day) by self-publishing on Amazon. As you may expect, he’s become an advocate for self-publishing and a strong critic of the traditional model and those who defend it. His quote above is in response to a tweet by the U.K’.s Publishers Association from the London Book Fair.

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Judge denies DC’s claims against attorney in Superman feud

action1Following a series of devastating legal blows to the estates of Superman creators Jerry Siegel and Joe Shuster, their lawyer has finally received some good news: A federal judge denied a bid by DC Comics to force Marc Toberoff to pay $500,000 in attorneys  fees.

According to Variety, U.S. District Judge Otis Wright on Thursday rejected the publisher’s 2010 claims that Toberoff illegally interfered with its copyright claims to the Man of Steel when he convinced the Siegel and Shuster heirs to walk away from “mutually beneficial” agreements and seek to recapture the rights to the first Superman story in Action Comics #1. They argued that the attorney stood to gain a controlling interest in the property.

But Wright sided with Toberoff and the Siegel and Shuster heirs, saying that DC had waited too long to make its claims of tortious interference. “The point here is that DC had more than enough knowledge by November 2006 to have tickled a suspicion that its business relationship with the Shusters was being tampered with,” the judge wrote. “It was then—and not when DC gathered the smoking-gun evidence supporting each element of its cause of action—that it should have filed suit.”

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No digital quarter bin? Court raises obstacle to reselling files

gavel-legal1From the quarter bin to the slabbed copy sold at auction, sales of used comics are an important factor in the collectors’ market. Many a childhood comics habit started out with with secondhand copies picked up at thrift shops or garage sales for a dime, and a hefty area of the floor at every comics convention I have been to has been set aside for dealers with tables and tables of longboxes filled with old issues.

That’s one comics tradition unlikely to translate to the digital era: A federal judge has ruled the doctrine of first sale does not apply to digital files. In this case, they’re music files, but the case is being closely watched by book publishers.

The doctrine of first sale basically says that once you’ve bought a copyrighted product, you can re-sell it, rent it out, lend it, or do whatever you like with it — except reproduce it — without any obligation to the copyright owner. This allows comics shops to sell used comics and libraries to lend out graphic novels without having to pay royalties, but for obvious reasons, its application to digital products is problematic.

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