TheAmazingSallyHogan

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    Sonic the Hedgehog, Ken Penders, Bioware, Electronic Arts, Archie Comics, Creator Rights, etc. - A review

    Since I’ve seen some requests for one, here’s a review/summary of the situation between Archie Comics Publications, Ken Penders, SEGA, and Bioware/Electronic Arts, with a little look at the effects upon Archie’s Sonic the Hedgehog comics.

    I’ve tried to go in chronological order and stick to the facts, although I added a few details not directly related to the legal proceedings for anyone not very familiar with the people involved. This was compiled with the information in interviews and information made publicly available through the court filing system (although a great deal of information is sealed and not available to the public). Keep in mind that none of the cases described here actually went to trial. Everything discussed is pre-trial.

     

    In 1992, Archie comics secured the license for Sonic the Hedgehog (and all spinoff characters such as Knuckles) from Sega of America (SEGA). Under the terms of this contract, Archie had the exclusive rights to publish Sonic comics in America (but only in America – SEGA sold licenses to make Sonic comics in the UK and Japan to other publishers). This licensing agreement was renewed repeatedly from 1992 until 2010, with SEGA always renewing the agreement before the expiration of the license.   The series quickly became a companion to the “Sonic Saturday Morning (SatAM)” cartoons, as former Archie editor Paul Castiglia explained.

    “In the beginning, SEGA instructed our editorial team to reflect the art and story styles of the syndicated series, but it soon became apparent from fan reaction that the Saturday morning series was the one striking a nerve. The comic soon followed suit with a mix of the two styles, but a heavier emphasis on the dramatic … As the comic series and the animated shows were simultaneously developed, the tight, advanced scheduling of the comic industry kept us from keeping up with last-minute changes made to the shows. This resulted in Sally being printed in various color schemes that didn’t match her TV counterpart as well as Rotor being referred to as Boomer.”

    Former Archie writer Ken Penders expanded on this, stating

    When the book was initially produced, Mike Gallagher and Scott Shaw! were basically given a directive to create a book based on both animated series being produced by DiC, as well as the first two SONIC games. This format was pretty much adhered to until Mike Kanterovich and I came along as it had proven to be a popular one when Mike and Dave Manak worked on the ALF series for Marvel.

    Our initial stories were likewise produced with this format in mind as we were directed to, but once we sold the first several stories, two things happened: 1) I sat down and watched the SatAM episodes I had recorded on videotape for my son, and 2) Editor Scott Fulop took control of the book.

    I became enamored of the storylines in the series but was told we couldn’t tie-in directly to the stories in the series as DiC - just like SEGA - refused to cooperate with us in allowing us access to their material for the purpose of tying together the continuity of the book with the show, something I was very much interested in, as was Scott. It was only during the time when it was uncertain whether or not ABC would even renew the series for a third season that DiC provided us with scripts and other materials, probably out of hope that maybe the book would help attract more viewers if it were tied in more closely with the show. Mike and I were even invited to submit outlines with the idea we would be contributing to the third season as scriptwriters . … It was only when we we learned the show was cancelled that I changed my mind about embracing the show as it was and instead decided to proceed as if the book were the third season and continuing beyond that. There were many reasons for this but the most important one boiled down to simply this: the book’s very survival. We never, ever felt the book had much of a shelf life beyond the existence of the games and animated series if we didn’t develop it into its own unique series.

    It was understood at the start that since Sonic is licensed, SEGA would clearly own all rights to characters created for the comic (provided Archie did the paperwork right…). While working on the title, Ken Penders explained this situation, stating “Part of the contract Sega has with Archie stipulates any and all characters created in the Sonic and Knuckles comic books become property of Sega … Thus, Sega now owns everything I created in the Knuckles series, including Locke, Lara-Le and Julie-Su, to say nothing of characters like Geoffrey St. John, Hershey, Doctor Quack and Rob O’ the Hedge, to name but a few. As a professional, I knew that going in, and had no qualms at the time.” (Penders would later explain that he had been misinformed in regards to his own rights).

    Because Sonic is only licensed to Archie, SEGA would have been able to let another publisher reprint comics which Archie had produced (like how Dark Horse reprints Conan comics that Marvel produced) except that the 1992 agreement gave Archie exclusive publishing rights for Sonic comics. Were this exclusivity removed, SEGA could allow anyone they wanted to reprint the Archie books. As Penders would later put it, “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.”

    In 1993, editor Paul Castiglia learned that the book’s first writer might be leaving. Needing more stories for the book if that happened, he approached writer Mike Kanterovich. Kanterovich had no familiarity with Sonic, and contacted Ken Penders (who he knew had a son that was a Sonic fan) offering to collaborate. This began Ken’s long involvement with the company. To create an issue of the Sonic the Hedgehog, Archie invited writers and artists to create an outline, often with some rough instructions – this amounted to artists/writers being invited to “pitch ideas”. Archie and SEGA then reviewed the submitted outline and either approved it with instructions for modifications, or rejected it.  Approved outlines were commissioned to be expanded into larger works (this required drawing crude pages, at least in the early days of the title) and needed approval from SEGA and Archie again before anything could be printed.  Penders received work for Archie in this month-to-month manner until 2005. He became one of the main contributors to the book, and is generally recognized as one of the main factors in shaping the title and moving it toward more serious stories

    Archie Comics maintains that Penders signed a Work for Hire contract. Under Work for Hire contracts, a creator is paid a flat fee for producing content. All artwork, stories, characters, plots, symbols, etc. become the property of the employer (or a third party, which would be SEGA in this example).  Under Work For Hire, a creator does not receive further compensation/royalties if their work is reprinted, if their characters are reused due to popularity, or even if their work results in merchandise/mass media. This is not a salaried position – at any point a publisher can decide to simply stop asking a creator to submit work. These “no royalties” contracts are no longer the norm in the industry for creators working extensively on titles.

    To give an example of Work for Hire, Dan DeCarlo had worked at Archie for 43 years, during which time he created the modern visual style of Archie, as well as creating characters such as Sabrina the Teenage Witch, Cheryl Blossom, and Josie and the Pussycats (Josie was named after his wife). In 2001, when a Josie and the Pussycats movie was in production, DeCarlo and Archie became involved in a legal dispute. DeCarlo sought additional compensation for the use of his creations, leading to Archie ending his decades-long employment. The courts ruled in Archie’s favor, determining that DeCarlo had done Work For Hire (DeCarlo died later that year). Archie attempted to use this case as precedent in the Penders dispute.

    When asked to elaborate on working for Archie, Ken Penders later stated that unless a creator’s “contract allows for him to be paid royalties, he isn’t seeing a dime from any of the new reprint releases in any format featuring his work. He also more than likely doesn’t have a health care program paid by the company, nor can he collect unemployment insurance in the event he were cut loose. Chances are there’s no vacation pay or reimbursement for expenses either.”

    In 1995, both of the Sonic the Hedgehog cartoons on TV were canceled. Editor Scott Fulop indicated to Penders that Archie assumed the Sonic comic would be canceled within a year. The 1996-1997 storyline “Endgame” was originally intended to be an ending for the series. Penders took precautions in case the series might continue, and when sales actually went up he quickly retooled the ending of Endgame to allow the title to survive.

    From 1997 to 1999, Penders wrote the Knuckles the Echidna spin-off comic, in which he introduced many notable characters, such as Enerjak, Julie-Su, Lien-Da, Dmitri, the Dark Legion, Locke, and Lara-Su. Penders indicated that there were initial difficulties how to write Knuckles, stemming from the fact that SEGA had asked to be allowed to specify a direction for the character, but after considerable time had not come up with one (Knuckles was actually meant to be the first mini-series, but due to SEGA’s trouble committing to an idea, Princess Sally received one first). Part of the problem was that the games at that point had not specified a great deal except that Knuckles was a lonely last of his kind (“There was absolutely nothing in the video games or anywhere else to base a viable long-running series on utilizing the Knuckles character”).  Editor Scott Fulop asked Penders to come up with ideas for how to develop Knuckles to pitch to SEGA since they had been unable to suggest anything themselves.  Penders would later state “I wanted to set up a scenario where we get to explore the character and his environment and his history – how did this character come to be, okay, to be the last of his kind? And in setting up the elements to explain how he was supposedly the last of his kind, it turned out he really wasn’t. And [SEGA] pretty much let me run with it, you know, as they saw the stories starting to progress and develop.” He stated that one aspect the games had established was that Knuckles was an isolated “last of his kind” in a world that seemed almost deserted. This struck him as a poor fit for the more densely-populated Mobius in the comics, where Knuckles could have more easily met and befriended others, making Knuckles’ “loner” status somewhat forced. By revealing a lost Echidna society that Knuckles would never fully integrate into, effectively making him an isolated outsider among his own people, Penders indicated he felt that a core character trait had been adapted in a way more suitable for the world established in SatAM and the Archie comics. In response to criticisms that he had changed too much, Penders stated “To say I failed ignores the fact of other licensed properties such as the Nintendo titles in comic book series crashing and burning early in their runs because they were too faithful to the source material, which did not allow for serial narratives in their set-up.”

    During this period the Archie writers enjoyed increased freedom from SEGA supervision. At one point Penders indicated that he and fellow writer Karl Bollers had become so accustomed to SEGA approving their story proposals that they began writing scripts before even sending SEGA the proposals.

    He added that he had volunteered for the Knuckles comic since the character was more of a “blank slate” than Sonic, allowing him more freedom to create his own supporting cast and villains. This would become a source of conflict after the book was canceled and its cast was folded into the Sonic ongoing (initially in backup stories), and other writers such as Karl Bollers had an opportunity to use the characters. Penders preferred not to incorporate anything others did, stating “The fact is I never relied on any other Archie-Sonic writer’s material for any of my stories, not even when I was working with Mike Kanterovich [his original partner]. I would always come up with the basic plots and Mike would throw in bits to improve them, then we would work on the dialogue. I didn’t rely on Mike Gallagher’s material to drive my stories, nor did I ever pay attention to anything Karl was doing beyond supplying him with bits of info whenever he was incorporating one of my characters into his stories … I never used a Karl-created character until I used Mina in SONIC #150, due more to a conversation with Mike Pellerito” He continued stating that he avoided using characters “beyond the core characters established in the original games and animated DiC series in the early 90’s, as well as the settings of Robotropolis and Knothole Village, and a character or two like Lupe and Amy Rose” and “didn’t hesitate to push for killing off Robotnik and fighting to keep him dead.” Later he would add “I don’t consider anything Karl or Ian or any other writer do with the character [Locke] to be official. They didn’t create him, and they didn’t do the heavy lifting of establishing him as a pivotal character to the Knuckles saga.”  Penders would characterize the conflict between himself and Bollers as a “donnybrook,” and refer to “Karl’s hissyfit in his attempt to undermine whatever I did in MOBIUS: 25 YEARS LATER”. He would later state that “neither Ian [Flynn] or [editor] Mike [Pellerito] know what to do with the characters, which isn’t surprising as I was the only one who really had any idea how everything fit in the total narrative that I was constructing”. He also clarified that he only used new characters from the games when he was ordered to do so, and did not use other writers’ “creations except in rare times when circumstances demanded it,” such as a transition from someone else’s story to his own.

    Penders was also known for a high degree of fan interaction while writing the title, and frequently answered questions on his message boards, including requests for advice in putting together portfolios for seeking a career in comics. In 2001, Penders employed artist Dawn Best as an assistant, helping her secure employment at Archie.

    In December 2003, Archie published the start of a story by Penders titled “Mobius: 25 Years Later” (M:25YL). This story would have an emphasis on Knuckles, his father Locke, his “domestic mate” Julie-Su, and their daughter Lara-Su.

    Ben Hurst, one of the main writers of the Sonic SatAM cartoon that had been canceled in 1995, contacted Penders by phone at one point, expressing an interest in writing for the book.  Penders has stated that he then contacted Justin Gabrie (then the editor of the book) to pass on the request, but Hurst lost interest upon discovering what Archie paid per page of script.  The two later considered collaborating on a movie (Hurst had repeatedly tried to revive SatAM and felt a movie was a possible way to do so).

    According to Hurst:

    “I was given the name of a SEGA executive and had a most pleasant conversation. She had to go to a meeting, but said she would like to talk to me more about the idea.

    The next day, I got a call from Ken Penders, who had been alerted by his contact in their office that I was interested in getting a Sonic movie going. I generously offered to include him in the effort and told him my strategy. Get SEGA to become invested in the idea by hiring us to interview their creative game designers, execs, etc and see if we could develop a story line that would fulfill the third season - and simultaneously give them creative ideas to develop new games. A win-win, situation. 

    Then, I called SEGA back, but I was shocked when the exec "lit” into me, telling me, “People pay US to develop Sonic product, we don’t pay them!” Then she hung up on me. Obviously, Penders had related my strategy to them in a less-than-flattering way. Thanks for the knife, Ken.

    Penders indicated not long after the deal fell through he felt Hurst’s plan was basically to have SEGA pay them to make a movie, an idea he felt was unrealistic. Penders was subsequently contacted by Larry Houston, an animation Director/Producer, about creating a Sonic movie. He has stated that he had made presentations to SEGA with favorable responses, and assembled a “pitch” rough draft of the plot, an outlined budget, production art, financial backers, and had Houston lined up as producer/director. Houston and Penders were in development talks with SEGA for four years, hoping to release a movie for Sonic’s 20th anniversary, but the project never went into production. Penders was informed of what Hurst said had happened after Hurst had passed away, and he indicated that he did not want to elaborate on his side of events out of respect for the dead, adding “Since the man is dead, nothing I say will sound anything but self-serving, so give it a rest.” 

    Penders recounted a story about the planned movie, stating that in September, 2003, “My team met with two Sega of Japan executives along with Sega Licensing Manager Robert Leffler for a meeting over breakfast at the hotel restaurant where they were staying in Hollywood just off Sunset Blvd at the time.”  He learned that since a plot close to the American stories would be seen as a “rival” to Sonic X, the project was not expected to gain much traction until after that cartoon was well over. Leffler kept the project under consideration for four years, after which his departure from the company and untimely death brought the effort to a close. During this period Penders continued work on the Sonic comic, was hired to produce storyboards for a Britney Spears movie, and did storyboards for the shows Alien Racers and King of the Hill.

     In January 2006, following changes in editorial at Archie, a statement was posted on Penders’ website:

    “I’ve been working in the comics industry for almost twenty years, going back to my first assignment for DC Comics. Back in 1986 I worked for their WHO’S WHO IN STAR TREK mini-series; and, I can state from first-hand experience and the testimony of others that as hard as it is to break in, it’s even harder to make a career of it – unless you’re adaptable. You can go from assignment to assignment and then, one morning, wake up wondering why there’s no work.

    That’s partly why I became a writer, in response to having to wait for other writers’ scripts that I was assigned to illustrate. I figured if I got into the game at the initial stage of creation, I could generate my own assignments. In the case of SONIC, it also offered me a chance to jump onto a book that was looking for one thing (writers) instead of the other (artists). You do what you have to, y'know?

    What I didn’t count on was ever staying as long as I did on the series. I figured I’d do a few issues and move on to something else at Marvel and DC. After all, working on SONIC back then was an issue-by-issue proposition. Even the publishers had no clue at all how long the book would last, hedging their bets by offering only six-issue subscriptions instead of the twelve-issue subs they offered on all their other titles. And when the original SONIC animated series were cancelled, even my then-editor Scott Fulop was pessimistic of the book itself lasting much longer. The history of similarly licensed-titles in the comics industry did not bode well for Sonic. It was at that point that I wrote up an outline of stories designed to take the series to issue 50. The culmination of which was the final epic battle between Sonic and his arch-nemesis Dr. Robotnik. All the while I knew there were no guarantees we would even make it to the 50th issue.

    The only time I had any sense of stability was probably when I wrote the first twenty-five or so issues of Knuckles. When artist Manny Galan moved on to Nickelodeon, things seemed to fall apart. The book, as you know, was cancelled rather abruptly with issue 32.

    After that, it became one long roller coaster ride, never knowing how long it would last. Finally, this past October, editor Mike Pellerito told me he wanted to make a change. The MOBIUS: 25 YEARS LATER 2-parter I had recently turned in would be the last story I would write for Archie Sonic in the foreseeable future. He did, however, allow me the chance to continue working on the book in an artistic capacity. I accepted those assignments at first. Then, while working on an assignment, I discovered that there were more pressing family matters as well as other opportunities elsewhere that I couldn’t afford to turn down any longer.”

    Penders was not the only writer whose employment at Archie came to an end. Long-time writer Karl Bollers submitted his final issue just five issues before Penders’.

    Writer Ian Flynn took over as the writer of Archie’s Sonic the Hedgehog with issue 160 (although Archie had previously approved a short story by him, which was meant to be printed six issues earlier. Archie postponed printing that story and asked Flynn to do full issues).  Flynn had been active in the fan community for years, and indicated that he was a fan of Penders’ work.

    In September 2008, SEGA released Sonic Chronicles: The Dark Brotherhood, a game developed by BioWare which appeared to have been significantly influenced by Penders’ work. Since Sonic is licensed to Archie, it was understood that all content (including Penders’ creations) produced for the comic belonged to SEGA, allowing them to freely produce games influenced by the comic (provided Archie did the paperwork right……)  In an interview, game developers at Bioware indicated they were aware of the comics, with one stating “The world of Sonic is much broader and richer than most people realize; I mean there’s a lot of folks that are of course fans of the TV shows and comics and they know that there’s a lot there, so it was a great chance for us actually to look at this huge bunch of stuff and pick really cool things to have the player do".

    According to public record, Penders claimed that in December 2008 he called the editor-in-chief at Archie, asking for the return of any of his original artwork still in their possession, and for copies of any contracts he may have signed. He asserts he was told these did not exist.

    In January 2009，without Archie’s knowledge, Ken began filing applications at the U.S. Copyright Office to claim ownership of various stories, characters, and art that he had created for Archie. From 2009 to 2010 he filed nearly 200 copyrights, at significant processing cost to himself.

    In January 2010, Penders posted a lengthy negative review of the stories that had been in Archie’s Sonic title since he had left (although he had not read them): “Reading everyone’s comments leave me with the impression neither Mike Pellerito or Ian really know what to do with either the characters or the stories beyond regurgitating what came before … From where I sit, all Mike and Ian are doing is living off the work done by others that came before them … I especially don’t consider anything either does with any of the echidna characters - especially Locke - to be canon as neither created the characters nor established them in stories as the viable fan favorites they’ve become.” 

    He went further, accusing Flynn of stealing his ideas: “many of the stories that appeared in issues #160 through #175 were based off an outline I submitted to Mike Pellerito around the time I turned in the script to SONIC #157.” When he posted the outline in question, however, of the many stories he had proposed, the only areas of overlap were that both had come up with a story starring the “King Sonic” from the future and a story in which Bunnie and Antoine got engaged after being a couple for over a decade (Flynn had the two quickly get married, whereas Penders planned to have Bunnie take time just to accept the engagement, with the wedding planned for issue 200). Penders said he wanted it to be known that his comments were not “sour grapes” since “The fact is I’m extremely happy where my life has led to these days. Not everyone gets the experience I do directing a film in Hollywood with real stars and trying to sell it to the studios and networks. My tenure on SONIC alone has given me serious street credit in this town and opened some very unexpected doors. I have nothing to be resentful over and much to be grateful for.” When asked about a possible return he added “if I were to go back to working on something like SONIC, I’d pretty much pick up where I left off, ignoring everything that came after since, which was pretty much what I was in the process of doing so after Karl left…”.

    Flynn responded to the accusations by stating “Mr. Penders is mistaken in his assumption that we used material he had prepared before his departure from the book. All stories and the over-all story direction was of my own creation. Specifically, the marriage of Antoine and Bunnie was the logical progression of their relationship, and was meant as a strong positive “high note” to be juxtaposed with the tragedy of STH#175.” He later added to this, stating “I know he had written the M25YL story, which I was asked to rewrite in a pinch.” This story took place in Sonic 166 and 167, and bore no apparent similarity to the plot synopsis Penders had posted online.  Penders himself stated that the story he had handed in had been heavily influenced by Mike Pellerito, stating "This was the storyline that convinced me it was time for me to move on as Mike Pellerito kept on injecting his own ideas into the plotting, something that never occurred with previous editors to the extent it did during the writing of this.” He also indicated that SEGA had apparently been starting to take a more active role in the book’s production, with greater desire to see characters from the games, although he did not elaborate upon this.

    By April 2010, the U.S. Copyright Office had approved Penders’ applications (the copyright office generally does not conduct detailed investigations into ownership itself - after giving an initial opportunity to contest claims it leaves any disputes to be settled in court).

    On April 21, 2010, the U.S. Copyright office informed Penders that they were sending mail notifications to Archie and SEGA, informing them of his ongoing copyright registration process and giving them 30 days to challenge his claim of ownership.        

    On July 7, 2010, Penders posted a message

    “I am now officially recognized by the U.S. Government as the owner of every single SONIC and KNUCKLES story I ever created … anyone seeking to use my characters, concepts and stories … must first contact me for permission. .. while it does not prevent [Archie] from publishing the SONIC series, they are not allowed to use any of my characters, concepts or stories without further discussion with my representatives. For now, they cannot reprint any of my stories in any media whatsoever, nor can they use any of my characters. … Every story since issue #160 that features my characters and concepts is essentially unauthorized … I am currently at work creating a new story featuring my characters, the first of which is a tale of Lara-Su learning about her family, in particular the early days of her grandparents [Knuckles’ parents] leading up to the time of the birth of their child. Whether or not this new story or others will feature SONIC and KNUCKLES is a decision only SEGA can make … ” 

    Penders elsewhere stated that he had sought out legal council, and had been told that many things he’d taken for granted about his rights (particularly that he had signed away ownership) were untrue. He also said that cease and desist letters would be sent to those using his works without permission, and indicated frustration that Archie did not believe in paying contributors for reprints of their work (“if Archie had been paying some form of royalties to all their creators prior to this, in all likelihood this discussion would never be taking place at all”).  Through his lawyer, Penders accused Archie of infringing on his copyrights. Among the characters he expressed a claim to was “Robo-Robotnik,” an alternate reality version of Robotnik who became the book’s primary antagonist from issue 75 to present day, and “Evil Sonic” a parallel reality Sonic later renamed Scourge. Penders explained “When Robo-Robotnik becomes the new Eggman, it isn’t done off-panel. Neither is Evil Sonic’s transformation into Scourge. My characters are literally shown being given makeovers and a name change, thus they have no degree of separation from being my characters.”

    After some initial back and forth, Archie Comics filed a Federal Lawsuit against Penders on November 23, 2010 alleging that he had broken his contract with them. However, Archie’s claim had a big hole – they were unable to produce a contract from the start of his work for them. They had what they alleged were photocopies of two documents from December 1996, but there were several problems.

    1. As photocopies their legal validity was in dispute.

    2. Penders maintained that the documents were faked (stating that a company that had been doing graphic reproduction for decades had sufficient knowhow to produce forgeries).

    3. Penders had started at Archie in 1993, not 1996, and thus even if the contracts were judged valid they might not cover his first years of work (including when he created the Dark Legion characters that were the alleged inspiration for Sonic Chronicles). This may be disputable, however - according to the contract, a creator gives Archie the  rights to “any past, pending or future contributions” to comics published by Archie. Archie had previously been successful in arguing that the contracts covered content produced for Archie that were made before the contract was signed.

    4. The paperwork seemed incomplete at points, with the several boxes never filled in, and no mention of SEGA, Sonic the Hedgehog, Knuckles, etc.            

    On December 31, 2010, SEGA allowed their license with Archie to expire for the first time since 1992, in order to negotiate a new and less “friendly” contract. Temporary agreements allowed the book to continue being printed during negotiations.

    On May 31st, 2011, Ken Penders filed a civil lawsuit against SEGA and Electronic Arts (owners of Bioware), alleging that Sonic Chronicles: The Dark Brotherhood infringed on his copyrights of the Dark Legion and various characters.

    Again: when writers/artists on Sonic signed their contracts, the rights to their creations were meant to immediately go to SEGA. Failure by Archie to properly handle this would mean SEGA did not have the ownership it expected to have, a situation that could result in a creator suing them and potentially winning in court.

    However Penders had witnesses stating that they had never received such contracts from Archie, including Elliot S! Maggin (a highly respected comic writer known for nearly two decades of work on Superman) and Scott Shaw, the original artist of Archie’s Sonic comics.

    In August 2011, depositions were taken in the Archie vs. Penders case. Penders’ attorney contacted former Archie staff and claims he was told about a problem that had occurred in 1996: Archie had been storing contracts in boxes at their on-site warehouse, but in Fall 1996 they discovered at least one employee hired to work there had been incompetent and destroyed an unknown number creator agreements. The company tried to downplay this and presented numerous creators with “revised” contracts. They hoped that by acting casual, pretending nothing had happened, and presenting the contracts to several creators it would not be obvious that they were actually desperate to re-obtain the signature of George Gladir (who had co-created the incredibly profitable Sabrina the Teenage Witch with Don DeCarlo) before he discovered what had happened. Although Gladir did not sign, it is possible that Penders was one of the other creators asked to sign these documents, and that this is the source of the photocopied 1996 documents of questionable validity (provided that the story was true).

    In October 2011, Archie completed their negotiations with SEGA. All the details of the new contract are not known, however it would appear that Archie lost their exclusive rights to publish Sonic comics. Because SEGA owns all contents of the Archie books and simply had an exclusive publishing agreement with Archie before 2011, theoretically SEGA could now not only allow other publishers to print Sonic comics, they could allow other publishers to print reprints of comics that had been made by Archie. Archie apparently also lost the contractual privilege of being offered the chance to publish any Sonic spinoffs before the offer was made to other companies. Archie alleged in court documents that the damage to their relationship with SEGA was a direct result of Penders’ actions, and were demanding a quarter of a million dollars in damages.

     On October 24, 2011 Penders received new council. The trial, which was set to begin on October 31st was postponed until January 21, 2012 (it would end up being postponed indefinitely).

    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.

    On December 2, 2011, Penders announced “I’ve decided now is the time to finally launch the continuing saga of the Brotherhood of the Guardians and Dark Legion in graphic novel format”.  This planned graphic novel using his characters would become known as The Julie-Su Chronicles. He would later clarify “the story does indeed pick up where MOBIUS: 25 YEARS LATER left off at the end as seen in SONIC THE HEDGEHOG #144” and that it would “feature the majority of characters I’ve created during my run on the Sonic titles”.

    Sometime during 2012, SEGA began filing with the US Copyright Office to establish their ownership of large numbers of Sonic the Hedgehog comics, indicating that the case had their attention.

    In January 6, 2012, Archie filed for summary judgment, essentially arguing that their case against Penders was so airtight that a judge could give a quick ruling without the case going to a prolonged jury trial. Their request was denied. Penders asked that Archie’s case against him be thrown out. His request was denied.

    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.

    During this period, writer Ian Flynn continued to use characters created by Penders in the Sonic the Hedgehog books, stating that he had been assured of the legality of doing so by his superiors at Archie. Penders responded to this saying “For Ian to announce he’s going to feature the “Anti-Brotherhood” shows he doesn’t respect creator rights either”. Penders continued to maintain ownership of Robo-Robotnik (who was being used simply as “Eggman” in the book at the time) and Anti-Sonic (also known as Scourge). He would later state “Evil Sonic is mine simply because - despite the apparent source material - he’s a totally different character. For starters, he doesn’t behave or look like Sonic” … I introduced the concept of the multi-verse to the SONIC series as it exists. While the games had zones or levels, they did not have alternate timelines, nor did they feature doppelgangers of any kind of any of the characters,” and thus, he argued, any and all characters from “alternate timelines” belong to him.

    By mid-August 2012, Archie had fired their original legal team and brought in new attorneys. At the same time, other former creators had also claimed that they had not signed Work for Hire contracts, backing up Penders’ story.

    On October 16, 2012, at the New York Comic Con, Archie revealed a redesign for Sally Acorn that was closer to the House Style of SEGA’s Sonic Team. Artist Ben Bates later confirmed that he had been asked to redesign Sally in “early 2011,” which would put the decision for a redesign during the period in which SEGA was renegotiating the contract with Archie, in light of events concerning Ken Penders. It would later be learned that all the Freedom Fighters had been redesigned. Writer Ian Flynn indicated that it was felt the Freedom Fighters needed to be brought more in line with SEGA mainstream if they were to survive, and that he had suggested redesigning the characters as a way to keep them in the book as it underwent changes. He expressed sympathy for those that didn’t like the changes, but added “To draw a parallel: we’re driving in a car and we’re about to hit a tree, killing everyone with us. I suggest we change course to avoid the tree. So, yeah, it’s my fault everyone survived for a future drive. And, thankfully, the driver listened and took us in a nice direction. I’m sorry if you don’t like the new scenery my suggestion brought.

    …wow that’s an extended metaphor.”

    By November 2012, Penders had sent a copyright infringement notice to Diamond Comic Distributors, prompting them to halt shipment of Knuckles Archives #3.  Sonic the Hedgehog 244 arrived that month. The story had originally planned to make heavy use of characters Penders created, including Julie-Su, Lien-Da, Saffron Bee, and The Dark Legion. Instead, the story established that all characters created by Penders had been teleported to another dimension before the issue started.  November’s Sonic Universe 46 was originally meant to feature other characters created by Penders, who were edited out and replaced with new characters fulfilling the same roles. Solicits of subsequent issues of each book had shown characters created by Penders who did not appear in the issues. These characters have not appeared in new issues since then.

    On November 29th, 2012, Archie agreed to terms for settlement with Penders. While all the terms are not known, it’s public record that the settlement stated Archie did not agree with Penders’ claims of ownership, but would not pursue a legal claim against him should he use the properties. Penders and Archie representatives signed a “Term Sheet of Agreement”.

    In March 2013, Penders’ legal council requested that Archie’s case against Penders be thrown out, stating that Archie had settled and that the Judge had previously indicated the case would be dismissed after January 21st even if a settlement had not been reached. Archie indicated that the settlement had not been finalized, and that Archie still needed to be sure Penders’ future works would not “have a look or feel as though they were part of a Sonic universe,” and additionally Penders still needed to clearly define the boundaries of what he was claiming ownership of.

    In April 2013, Penders’ legal council asked the Judge to prevent sale of Knuckles Archives #4, which contained disputed material. April also saw the start of “Worlds Collide,” a lengthy crossover between Archie’s Sonic and Mega Man comics. The crossover was set in an alternate reality, normal plotlines were put on pause, and the story featured a reality-rewriting machine. Writer Ian Flynn indicated that the timing of the long-planned crossover had been fortunate, since it gave people working on the comics a chance to figure out what to do in light of the changes occurring.

    On May 2, 2013, lawyers from both parties met with the Judge (who began the meeting by stating “So this looks like a fine mess”). Archie’s new council stated that the previous council had made a mistake by not addressing the possibility that since SEGA was only licensing the Sonic properties to Archie, everything in the comic might be considered a “derivative work” and thus owned by SEGA regardless of anything Penders may or may not have signed.

    Judge: So are you saying prior counsel blew it?

    Archie Council: Absolutely, your Honor.  

    Judge: Well, give it to the jury. That’s the way we’re going to deal with it. … My God, this thing has been litigated up, down…

    Archie’s Council stated they desperately wanted to settle and not go to trial, although they still needed assurance from Penders that his future works would not “have a look or feel as though they were part of a Sonic universe,” and Archie still needed a clear written statement from Penders setting the limits to what he was claiming he owned. Penders’ council generally agreed this was the case, and also wanted to settle, although he felt Archie was being difficult in terms of working out the boundaries of Penders’ claim.

    The problem was, as Archie’s council stated, that the dispute wasn’t just between Archie and Penders - SEGA was involved too, SEGA expected Archie to solve the dispute in its favor, and Archie would have to pay for SEGA’s future legal fees in dealing with Penders. To resolve matters with Penders in a way that would make SEGA happy, Archie felt they needed a representative from SEGA take part in the negotiations. SEGA, in turn, had explicitly asked Archie not to contact SEGA’s lawyers about the case. The Judge encouraged mediation to arrive at a settlement.

    On July 1, 2013, councils for Penders and Archie indicated to the judge that they had reached a settlement, and had signed a formal Settlement Agreement. The judge signed an order dismissing Archie’s case against Penders. Penders then announced on his website that he would be continuing to work on The Lara-Su Chronicles. The final details of this settlement are not known, and the parties cannot release the details of the mediation agreement because those details are under a confidentiality clause. However the initial agreement from November 2012 to October 2013, seemed to indicate that Archie would not acknowledge Penders’ ownership of anything, and would simply agree not to pursue legal action against him for using certain specified things.

    On July 22, 2013 Penders attended the San Diego Comic Con to introduce a panel for his friend Eliot S! Maggin (who had previously submitted an affidavit backing up Penders’ claims that Archie had not supplied all workers with Work For Hire contracts). While there he check in on the panel of current Archie staffers, without incident, and was  interviewed by sonicstadium.org, yielding the following exchange :

    TSS – There are some fans who are very upset that some of their favorite characters may not be returning to the comics, what would you say to them to make them feel more at ease?

    Penders – Well, I really can’t talk about that settlement per-se, but what I can say is that Archie has the ability to go forward with these characters if they so choose. That’s their option and that’s all I’m gonna say on that. I have the right to move forward myself. My copyrights, my characters and that’s what I’m doing. 

    Soon afterward, Penders requested that any fans wishing to use his characters in fan projects first write him for permission and make sure to include “© and ™ Ken Penders".

    On August 27, 2013, in response to fans attempting to raise money to license his characters so they could appear in Archie’s comics, Penders indicated that any licensing of his characters would be contingent upon certain stipulations, including: the deaths of any of his characters would have to be approved by him first (but aside from death he would give complete freedom with his characters, except for Locke, Julie-Su, and Lara-Su), nothing involving the characters Julie-Su, Lara-Su, and Locke could contradict his stories about them set in the future (somewhat difficult, since Locke had been killed after Penders left the book), and any story involving Lara-Su had to be read and approved by him first (he indicated that he did not need to read and approve stories by any of his other characters). However, he clarified that he did not have a strong need or desire for his characters to appear in the Sonic books, stating on September 3 “Frankly, at this point, I really DON’T CARE if my characters are EVER seen in any upcoming story in the SONIC series.”

    It should be noted that Penders made clear that these stipulations were referring to licensing in general, not specifically about Archie, and that he spoke “with the caveat that my response and terms I set down are neither confirmation or denial of any points of agreement I may or may not have with Archie Comics.”

    Penders did not specify if he meant that the settlement allowed Archie to use the characters freely or if he meant Archie could use the characters if he was paid a licensing fee. When asked if his statements meant that Archie Comics Publications would have to pay him to use his characters, he replied “I really can’t confirm or deny any of the terms agreed to between Archie and myself. When people have asked whether or not Archie can use my characters, the correct answer - without devulging any of the terms we agreed to - is that they can. Whether they choose to or not is a business decision only they can make”.  It should also be noted that any usage of the characters would have to be approved by SEGA, the company Penders is seeking legal action against. This could, theoretically, have some negative impact on the odds of his creations appearing, if anyone at SEGA were to bear any ill will toward the man trying to sue them. It should also be noted that any deal with Penders would likely be extremely complicated due to Archie’s apparent refusal to acknowledge his ownership of any content (possibly done since acknowledging his ownership could have a negative effect on Archie’s relationship with SEGA).

    In August 2013, the plot device of a reality-warping machine in Worlds Collide was used to rewrite the timeline of the Sonic comics. 

    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”.

    On October 26, 2013, while taking part in a charity fundraiser for the Sick Kids Foundation, writer Ian Flynn offered to take questions about the Sonic books, but with the caveat that he could only answer questions about characters from the games, the Sonic the Hedgehog Saturday Morning cartoon, and those characters he had created himself. This places Archie’s future use of all the other characters in question. As of November 2013, the only characters to reappear in the book and previews are those from SEGA’s games, those from the cartoon, and those created by Flynn. With the exception of reprints, no characters created by Penders or any other previous writer on the Sonic the Hedgehog comic have appeared in Archie publications as of late November 2013.

    On December 2, 2013, Jon “Dubs” Gray, artist and Art Director for the Sonic books responded to a fan who asked why the Freedom Fighters were still in the book after so much non-game material appeared to have been excised. Gray stated that the staff contributing to the book felt strongly that the Freedom Fighters had been a mainstay from the book’s start and were part of what made it unique, adding that since the contributors on the book didn’t “have to” use just the SEGA characters and get rid of the Freedom Fighters, “we fought to keep them in above all else”.

    On March 5th, 2014, Penders posted on Twitter, stating that in the Lara-Su chronicles, Lara-Su would not be “an echidna nor an animal, but an alien,” adding that her species’ name was “Echyd'nya”.

    11/27/2013 - Added thestickyseat’s information, and a link to the charity marathon.

    4/3/2013 - Added additional information regarding character redesign from Ben Bates.

    4/4/2014 - Added clarification of the claims made regarding the alleged photocopies of Penders’ contract.

    4/5/14 - As of late April 2014, no characters or concepts created by Penders or any previous contributors to the comic have reappeared or been mentioned in solicits.  Writer Ian Flynn has repeatedly stressed that he is not allowed discuss cut content (including clarification of what content is cut). 

    8/26/14 - Former Sonic writer Karl Bollers (currently the head writer for the Eisner-nominated Watson and Holmes) indicated on his twitter that he had no idea his characters had been removed from the Sonic comics. If his permission is required to use the characters, Archie has apparently not contacted him.

    9/8/14 - Ken Penders posted the cover of the first volume of The Lara-Su Chronicles, demonstrating how he intended to make it visually distinct from Sonic.

    9/15/14 - This writeup was cited as a useful resource on Linkara’s Atop the 4th Wall. Way past cool!

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