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In a surprising conclusion to their rights dispute, Edgar Rice Burroughs Inc. and Dynamite Entertainment this morning announced an agreement for the worldwide release of John Carter comics, archival material and the publisher’s Lord of the Jungle line.
ERB Inc., the family-owned company that controls the existing rights to the Tarzan and John Carter of Mars novels, sued Dynamite in February 2012, accusing the publisher of trademark and copyright infringement and unfair competition through the release of its Lord of the Jungle and Warlord of Mars comics. Dynamite responded, insisting that its series were based on material that’s lapsed into the public domain, and noting that other publishers have released Burroughs-inspired comics, using similar titles, without a license from ERB Inc.
Now that the two parties have settled their differences, and ERB Inc. has reacquired the John Carter comics rights from Disney and Marvel, Dynamite will be able to relaunch Warrior of Mars later this year as John Carter: Warlord of Mars, and introduce characters and plot elements “that were, until now, absent from recent comic book interpretations” (presumably because they remain protected by copyright). Dynamite will also republish John Carter archival material, dating back to the early 1940s comic strips written by Burroughs’ son Coleman Burroughs.
The U.S. Supreme Court will debate in a private conference on May 15 whether to weigh in on the five-year copyright battle between Jack Kirby’s heirs and Marvel/Disney, Deadline reports.
The odds are against the artist’s children, as the Supreme Court receives about 10,000 petitions each year, but hears oral arguments in only about 75 to 80 of those cases. However, if the Justices decide to take up the case, oral argument will be scheduled later this month for the court’s next session.
The Kirby family filed a petition with the high court on March 21 arguing “it is beyond dispute” that the artist’s Marvel output between 1959 and 1963 was not produced as “work for hire” and, therefore, is subject to a clause in the U.S. Copyright Act that permits authors and their heirs to reclaim rights transferred before 1978.
That appeal followed an August decision by the Second Circuit upholding a 2011 ruling that Kirby’s Marvel works were indeed made at the publisher’s “instance and expense” and, therefore, fell under “work for hire.” As such, the courts found, the 45 copyright-termination notices the artist’s heirs filed in 2009 for such characters as the Avengers, the X-Men, the Fantastic Four and the Incredible Hulk were invalid.
Graphic novels | BookScan’s list of the bestselling graphic novels in bookstores in March divides neatly into eight Image Comics titles (six volumes of The Walking Dead and two of Saga), eight volumes of manga (four Attack on Titan, four Viz Media titles) and four volumes of media tie-ins. For the second month in a row, not a single DC Comics or Marvel title cracked the Top 20, although an older DK Publishing character guide to the Avengers (not actually a graphic novel) came in at No. 11. The top-selling title was the 20th volume of The Walking Dead, and the No. 2 was the third volume of Saga. It’s also interesting to note that the first three volumes of Attack on Titan charted higher than the most recent release, which suggests new readers are still coming into the franchise in substantial numbers — and sticking with it. [ICv2]
Claiming an appeals court “unconstitutionally appropriated” Jack Kirby’s copyrights and gave them to Marvel, the late artist’s heirs have taken their fight with the comics publisher to the U.S. Supreme Court.
In a petition filed March 21, and first reported by Law 360, Kirby’s children argue “it is beyond dispute” that the artist’s Marvel work between 1959 and 1963 was not produced as “work for hire” and, therefore, is subject to a clause in the U.S. Copyright Act that permits authors and their heirs to reclaim copyrights transferred before 1978.
The appeal follows an August decision by the Second Circuit upholding a 2011 ruling that Kirby’s Marvel works were indeed made at the “instance and expense” — that term plays a significant role in the heirs’ petition — with the publisher assigning and approving projects and paying a page rate; in short, they were “work for hire.” As such, the courts found, the 45 copyright-termination notices the artist’s heirs filed in 2009 for such characters as the Avengers, the X-Men, the Fantastic Four and the Hulk were invalid.
Filed in federal court in Philadelphia, and first reported by Deadline, Disney’s reply is the latest volley in what began last summer as a relatively straightforward lawsuit against the Lancaster, Pennsylvania-based American Music Theatre, which was accused of using unlicensed elements from Spider-Man, Mary Poppins and The Lion King.
However, as the media giant’s attorneys later noted, that “simple case” was “transmogrified” with the surprising assertion that the theater had licensed Spider-Man … from Stan Lee Media, which was named in a third-party counterclaim (it should be noted the license was obtained after Disney filed suit).
The failed dot-com, which hasn’t been connected to its co-founder and namesake in more than a decade, in turn sued Disney on Feb. 7, seeking a jury trial regarding ownership of Spider-Man, and, presumably, other characters co-created by Stan Lee. Disney responded with a motion to dismiss, which was of course opposed by SLMI; the company maintains none of the previous court cases has directly addressed ownership of the characters.
According to The Hollywood Reporter, a federal judge last week sided with the toymaker in its 2013 lawsuit against writer Donald Glut, who claimed he created the characters in 1981, owns the copyrights and merely licenses them to Mattel (a license, he said, that would expire in 2016).
The company insisted Glut was commissioned 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 noted the writer acknowledged as recently as 2001 that the minicomics were work for hire for which he received neither credit nor royalties. Besides, the toymaker argued, if there were any confusion about the rights, Glut had a legal obligation to come forward years ago.
Glut’s attorneys countered that his delay wasn’t unreasonable, as he believed his claim fell within the termination period stipulated by U.S. copyright law. But Mattel insisted that because the minicomics were work for hire, Glut never owned the copyright to be able to license or terminate it.
Glut, who wrote the novelization of The Empire Strikes Back, also penned episodes of such animated series as Spider-Man and His Amazing Friends, The Transformers and Centurions, as well as issues of Marvel’s Captain America, Conan Saga, The Invaders. Kull the Destroyer and The Savage Sword of Conan.
Legal | Eriq Gardner delves into the issues underlying the continuing legal battle over unauthorized replicas of the Batmobile from the 1966 Batman television series and the 1989 film: This summer the Ninth Circuit will consider the appeal of Gotham Garage owner Mark Towle, whose Batmobile replicas were found in February 2013 to violate DC Comics’ copyrights and trademarks. While Towle argues that Batman’s ride is a “useful article,” meaning a utilitarian object not protected by U.S. copyright law, a federal judge ruled the Batmobile is “a copyrightable character.” Gardner notes that if the appeals court sides with DC/Warner Bros., “Hollywood studios would win a powerful weapon to stop products that are similar to props like light sabers and ruby slippers.” [The Hollywood Reporter]
Legal | The Hiroshima, Japan, police arrested a 36-year-old man on Monday for illegally uploading the manga series Gin Tama to the Internet; he was charged with copyright infringement. This comes just a few days after the arrest of another unemployed man for uploading a volume of Berserk. In both cases, the publisher and the creator of the manga involved have sued the suspects. [Crunchyroll]
Creators | Batman writer Scott Snyder talks about the women of Gotham City. [Comicosity]
Creators | In the first part of a two-part interview conducted at WonderCon, writer Kelly Sue DeConnick discusses how she grew up reading comics in the 1970s, her work for Tokyopop and Marvel, and what Carol Danvers means to her fans. [Toucan]
Continuing its long, and so far wholly unsuccessful, fight for ownership of many of Marvel’s best-known characters, the tenacious Stan Lee Media has sued a Walt Disney Co. subsidiary, seeking to join a dispute about licensing Spider-Man for the stage.
In September, Disney Enterprises, Marvel and Cameron Mackintosh Ltd. sued Lancaster, Pennsylvania-based American Music Theatre, saying it violated copyrights and trademarks by using elements of Spider-Man, Mary Poppins and The Lion King in its musical revue Broadway: Now and Forever (Disney and Mackintosh jointly hold the copyright to the Mary Poppins stage production). The theater responded in November with the surprising claim that Disney doesn’t own Spider-Man. Instead, the counterclaim stated, the character belongs to Stan Lee Media, which licensed the rights to the American Music Theatre.
“I think it’s very interesting that you bring up Shia because I just brought him up to Mike [Carey] the other day. I was proposing that we introduce a character based on him, because he does crystallize a lot of what we talk about. We’ve had a lot of discussion about whether copyright is a good thing or a horrible thing. What would happen if Superman was copyright-free? And people could add onto his story? Maybe we would end up with incredibly powerful stories that add a whole dimension of life to our existence because they would be able to build in a way that they can’t build otherwise. I don’t know. On the other hand, I want to get paid for what I do. […] I think we should write to Shia and his people for permission to use him and his likeness in our story. If they said ‘No,’ it would bring up a lot of interesting issues. Wouldn’t it?”
– The Unwritten co-creator Peter Gross, commenting on Shia LaBeouf, the public domain and storytelling, in an interview with Comic Book Resources
Although an appeals court seems to have brought to an end the Joe Shuster estate’s bid to reclaim the artist’s stake in Superman, The Hollywood Reporter reminds us that the fight by Jerry Siegel’s heirs is far from over.
According to the website, attorney Marc Toberoff — he represents both families — is scheduled to file a brief next month on a pending appeal of a March 2013 ruling that affirmed the writer’s family relinquished any claims to the Man of Steel by accepting a 2001 offer from DC Comics that permits the publisher to retain all rights to Superman (as well as Superboy and The Spectre) in exchange for $3 million in cash and contingent compensation worth tens of millions.
Toberoff maintains the Siegels never accepted the DC offer (the Ninth Circuit Court of Appeals found otherwise), but even if there was a contract, then the publisher failed to perform. That explains the addition last year of the line “By Special Arrangement with the Jerry Siegel Family” to the credits of any DC title featuring Superman, a stipulation of the 2001 agreement.
However, Wright noted that breach-of-contract claims are a matter for state court, and don’t affect the enforceability of the 2001 agreement. So, a separate lawsuit remains an option for the Siegels, even if — or perhaps when — they exhaust their copyright case.
As The Hollywood Reporter points out, while the Siegel heirs still face “incredibly long odds,” their fight isn’t over yet.
In the latest — and, quite possibly, final — legal blow to the estate of Joe Shuster, the Ninth Circuit Court of Appeals has denied a petition for a rehearing of its November decision that effectively brought to an end what a three-judge panel described as “the long-running saga regarding the ownership of copyrights in Superman — a story almost as old as the Man of Steel himself.”
Deadline reports that the one-page order closes the door to any more petitions for rehearing before the Ninth Circuit, leaving the Supreme Court as the only option left to attorney Marc Toberoff, who last year pledged, “My clients and I are prepared to go the distance.”
Legal | As the dust begins to settle on the ruling last month by a federal judge that Arthur Conan Doyle’s first 50 Sherlock Holmes stories have lapsed into the public domain in the United States, out march the analyses pointing out the buts. Chief among them, of course, is the possibility of appeal by the Conan Doyle estate, which contends the characters were effectively incomplete until the author’s final story was published in the United States (the 10 stories published after Jan. 1, 1923, remain under copyright in this country until 2022).
However, Publishers Weekly notes that because U.S. District Judge Ruben Castillo didn’t rule directly on that “novel” argument, the estate may be satisfied with the ambiguity of the decision, given that uncertain creators still may seek to license the characters to steer clear of any trouble. Estate lawyer Benjamin Allison also insists that the Sherlock Holmes trademarks remain unaffected, an assertion that puzzles author and scholar Leslie Klinger, who brought the lawsuit. “There is a very good reason why the Estate did not assert trademark protection: The Estate does not own any trademarks,” he told PW. “They have applied for them, and there will be substantial opposition.” There’s more at NPR, The Independent and The Atlantic. [Publishers Weekly]
After last week hiring a skywriter to pen an apology to Daniel Clowes, Shia LaBeouf appeared to bait the cartoonist Tuesday on Twitter with a photo of the “Storyboard for my next short ‘Daniel Boring,'” an obvious reference to both Clowes’ Eightball serial “David Boring” and the actor’s seemingly unending plagiarism controversy.
But while LaBeouf didn’t get a rise out of Clowes, he did receive a cease-and-desist letter from the cartoonist’s attorney — which the actor promptly posted on the social media platform.
After pointing out that the storyboard drawings are copied from “David Boring,” Clowes’ attorney Michael J. Kump notes that, “if the foregoing isn’t outrageous enough conduct by your client, Mr. LaBeouf in his tweet today plagiarized Mr. Clowes’ own description of ‘David Boring'” as “it’s like Fassbinder meets half-baked Nabokov on Gilligan’s Island.” (Also worth noting: The photos fanned out beneath the drawing are of actors Patton Oswalt and Seth Rogen, who recently mocked LaBeouf’s ongoing Twitter apologies.)
Graphic novels | Image Comics had a strong December in bookstores, snagging nine slots on BookScan’s Top 20 chart: Eight volumes of The Walking Dead (including the very first one, at No. 4), plus the first Saga collection, which was originally released in October 2012. The first two volumes of Attack on Titan, which are more than a year old, were also on the chart. [ICv2]
Legal | Colleen R. LaRose, aka “Jihad Jane,” was sentenced Monday to 10 years in prison for her role in a failed conspiracy to murder Swedish cartoonist Lars Vilks, who drew images of the Prophet Mohammed that offended many Muslims. [The New York Times]