Although recently convicted on a single count of federal corruption, Blago, as he is known to fans, had a mistrial on 23 others, so he’s still out and about. And what does a pol do while out on bail to feed the family?

He takes it to the people, and makes a little spending money by signing autographs at Wizard World Chicago/Chicago Comic-Con. Blago is well aware that cashing in on celebrity is the best followup to a political fall, and while thwarted in his attempt to appear on I’m a Celebrity… Get Me out of Here!, has been a contestant on Celebrity Apprentice. So he’s gone where all reality stars go.

Blagojevich will appear at a photo session at 10:30 a.m. to 11:00 a.m. and then sign autographs from 11 a.m. until 4 p.m.

“I’m looking forward to meeting loyal supporters and other fans on Saturday,” said Blagojevich, whose many recent television appearances included a stint on “Celebrity Apprentice.”

“Wizard World Chicago Comic Con is all about pop culture, and Rod Blagojevich is as relevant to today’s news as it gets,” said Gareb Shamus, CEO of Wizard Entertainment. “We think the court of public opinion will show him to be a popular figure at the show.”

As you’ll recall, in May DC/WB’s newly hired hotshot of their own, Daniel Petrocelli, filed a suit alleging that Toberoff had interfered with the Siegel and Shuster heirs by turning them against DC for his own personal gain. According o the suit, Toberoff had a 47.5% stake in the rights which the Siegels are aiming to recapture.
But,

Toberoff’s attorney, Richard Kendall, filed motions on Friday in U.S. District Court in Los Angeles seeking to dismiss the suit. Among other things, he cited protections from California’s “anti-SLAPP” laws, designed to curb lawsuits filed with the intention of intimidating the opposition by delay and legal expense. (SLAPP stands for “strategic lawsuit against public participation”).

So if this were a comic book, it might be called Legal Night: The Battle Against S.L.A.P.P.

Author Ted Johnson digs up many more intriguing details in the filings, including DC’s claim that in 2002, Toberoff had dissuaded the Siegels from settling the case.

Perhaps most intriguing about DC Comics’ suit against Toberoff was the inclusion of an unsigned document, called the “Superman-Marc Toberoff Timeline,” that spelled out a series of tactics on the part of Toberoff through which he purportedly claimed as “much ownership of the Superman copyright personally as he can.”
The DC suit says that the document was written by an attorney previously employed at Toberoff’s firm. It was delivered to Warner Bros. in 2006 along with a pile of other files that Toberoff says were privileged attorney client documents stolen from his firm. 

US District Judge Judge Barbara Crabb has made a decision following the June court appearance by Neil Gaiman and Todd McFarlane over profits for the characters Dark Ages Spawn, Tiffany and Domina. Gaiman held that these cast-members of the Spawn-i-verse were derivative of Medieval Spawn and Angela (characters that he co-owns, as ruled after the epic 2002 court battle), thus he was entitled to half the profits from these characters. McFarlane held the opposite and had refused to provide information on the profits.

Judge Crabb sided with Gaiman, citing the similarity of the characters in a decision (readable here) which shows she spent a lot of time reading up on Spawn:

Both Medieval (Gaiman) Spawn and Dark Ages (McFarlane) Spawn committed bad deeds in the past for which they want to make amends, both have sisters whom they loved who married men who were or became the Hellspawn’s enemies; both made a deal with the devil to let them return to Earth; and both use their powers to help the defenseless. The two characters are visually similar: both wear metal helmets and face masks with rivets; both ride horses and carry oversized swords and battle shields; both have armor shoulder pads with spikes. Both have aspects of the first Al Simmons Spawn: a “neural parasite cloak,” a particularly shaped face mask, green eyes and a red “M” on the chest.
[snip]
Tiffany and Domina are visually similar to Angela and share her same basic traits. All three are warrior angels with voluptuous physiques, long hair and mask-like eye makeup. All three wear battle uniforms consisting of thong bikinis, garters, wide weapon belts, elbow- length gloves and ill-fitting armor bras. Angela and Domina each wear a long cloth draped between their legs and a winged headdress. Tiffany and Angela are shown in the Spawn Bible as having sharp wings. Tr. exh. 16 at 9, 20. All three of these female characters are warrior angels who fight in the war between Heaven and Hell. When plaintiff conceived of Angela, he saw her as part of an army of 300,000 “female, kick-ass warrior angels, who are hunters, merciless and not very nice.” Hrg. Trans., dkt. #311, at 16. Tiffany and Domina are part of this same heavenly army.

While McFarlane contended that writer Brian Holguin had created Dark Ages Spawn out of whole cloth, Judge Crabb notes that the character could have been anything else — “an idealistic recruit of Simon Bolivar in the 19th century, a companion of Odysseus on his voyages” — pointing out the two characters “differ slightly in their backgrounds, but these are elements of their characters that make them individually copyrightable, not ones that prevent Dark Ages (McFarlane) Spawn from being found derivative.” Finally, she even uses Spawn continuity to seal the case:

In fact, the basic concept of the Spawn series raises questions about the individuality of Dark Ages (McFarlane) Spawn. In Spawn No. 9, plaintiff conceived of a new direction in the story line, introducing a courtly Hellspawn of the middle ages, the twelfth century, to be exact, who stopped to help a damsel in distress and who spoke “medieval.” According to the rules of the Spawn universe, only one Hellspawn could be on Earth at the same time and the Al Simmons Hellspawn was already around.

McFarlane must turn over information on money earned by the contested character must be turned in by September 1.

Gaiman has some commentary on his blog:

I wish I took some kind of joy in this, but I don’t.

At this point all I hope is that Todd can do an accounting for all the comics I wrote for which he paid no royalties, and the rest of it; and that he’ll settle up and I will make some comics charities very happy; that his comics company will finally come out of bankruptcy; and that I can forget this forever.

Then out of nowhere, I recently received an email from a person who had read my online article, “Rare Eisner: Making of a Genius”, telling me he had obtained a copy of the transcript and asking if I’d like to see it.

I could hardly type my affirmative reply fast enough.

In short order, my benefactor (who has requested anonymity) sent me a PDF file of transcript. For the next couple of hours I poured over the contents–and was stunned. It was like sitting in the courtroom listening to history. In my opinion, this transcript is one of the most important documents related to comic book history to ever come to light.

The transcript is not what you might have expected.

Quattro promises more testimony from Jerry Siegel, Max Gaines, Sheldon Mayer, and Jerry Iger. For comics historians, it’s a damned treasure trove.

The week saw a scaled down direct-to-video sequel to 2002’s “epic legal battle” between Todd McFarlane and Neil Gaiman for copyrights to characters Gaiman created in an issue of SPAWN. Out of all the press reports we’ve seen, Gaiman’s own account, blogged today, is by far the most clear and accurate — well, he is a beloved author after all — and it makes clear that character rights were not the issue this time. What consitutes derivative works was and what the profits from the original characters was, is:

There are some knock-offs of the characters I’ve co-created that Todd published and made toys of over the years, and I felt they were derivative of the characters I’d created (or in one case, one actually was the same character I’d created). Todd didn’t want to pay anything at all on them so he (not me/my lawyers) took it back before the judge. Nobody “stole characters” and there’s no argument over “ownership of characters” going on. We’re now waiting for a ruling on if those characters are (in my opinion) derivative or (Todd’s opinion) not of the characters I co-created and have an established copyright interests in. It’s not an “epic battle”. The epic battle was fought and won in 2002.

If you think Gaiman is biased, the CityPages blog has a fuller account. There’s also a brief account of Monday’s court appearances:

Lawyers for McFarlane and Gaiman have since been trying to figure out how much McFarlane owes Gaiman. In the meantime, Gaiman’s lawyers at Foley & Lardner are seeking co-ownership rights for an additional three characters, arguing that those three are derivative of the three Gaiman co-created. On Monday, Judge Barbara Crabb heard from both sides. Gaiman argued that similarities between the six characters are not incidental. McFarlane, however, said that they’re similar only in that they belong to the same Spawn universe.

Brian Holguin, writer of Dark Ages Spawn, also testified, stating that that character is not related to Medieval Spawn.
For his part, McFarlane tweeted:

COMMENT: Nearly all lawsuit against me or my companies have been driven by an ‘ambulance chasing’ lawyer looking to hit the lottery.

Gaiman links to the decision in the 2002 case, which is actually a very interesting document in many ways, and when you have some time deserves a read through.

Times change tangential: When the first trial went on back in the fall of 2002, The Beat vividly recalls that the Pulse, which we were writing for, CBG and ICv2 were among a handful of outlets covering the story. Milton Griepp and Maggie Thompson were in the courtroom and we were watching at home, and adding legal commentary from various experts. Now a Google news search turns up hundreds of results for this minor scuffle. What changed more — Gaiman and McFarlane’s relative levels of fame or the nature of online media?

In a written opinion, Crabb wrote that Gaiman has a plausible claim with respect to the three newer characters: Dark Ages Spawn, Domina and Tiffany. She said each of the characters are visually similar to the others and have similar back stories.

Angela, Tiffany and Domina “are warrior angels with voluptuous physiques, long hair and mask-like eye makeup,” Crabb wrote. “Their ‘uniforms’ consist of thong bikinis, garters, wide weapon belts, elbow-length gloves and poorly adjusted armor bras.”

Well, you gotta love Judge Crabb already just for her powers of observation.

The original suit involved the characters Medieval Spawn, Angela and Cogliostro, which Gaiman was found to have copyright interest in. However, while Gaiman won a settlement, it has never been paid; thus the reincarnation of the suit. More particulars of the original case are here. Of course, the rights to Miracle/Marvelman are also somehow involved in this, but we gave up trying to figure that one out a million years ago. Kimota!

Perry’s friend Rick Veitch is running some of Perry’s emails and last court documents over at the revamped Pulse. The story involves much strife with Perry’s ex-partner, Krystal, the mother of his young son Leo. Perry was engaged in a bitter custody fight with her at the same time he was battling terminal bladder cancer. Here’s is an excerpt of Perry’s own account, from an email to Steve Bissette:

I finally, on Thursday AND Friday, DID WHAT child services WANTED ME TO DO – GOT A DOMESTIC VIOLENCE INJUNCTION AGAINST Krystal — UNAWARE SHE HAD OPENED A CUSTODY CASE FOR Leo.
Here’s WERE THINGS GOT CRAZY: two DIFFERENT Judges HAD ISSUED TWO DIFFERENT ORDERS — ONE JUDGE GAVE k CUSTODY, THE DOMESTIC VIOLENCE INJUNCTION GAVE ME CUSTODY. But my Injunction was not granted until Friday at 4pm.
She came Friday at 3 pm with cops “to take Leo from the home”. Cops investigated, realized she had lied, saw Leo lived with me, discovered he HAd been living with me FOR 14 MONTHS, that he was happy, had his own room, was in a good place. They looked at my Safety plan but paid no attention to it. They looked at a copy of my Injunction but ignored it because it had not yet been granted, just filed, and the cop said it probably would be denied. But the cop said he was not blind or stupid – he could see where Leo lived. He could see Leo was distant from Krystal, and did not seem to want to be around her. It seems she had told them that for the last year I had been “keeping Leo from her”. The lead Cop threatened to take me to jail for obstructing her parental rights unless I was reasonable and cooperated. I have always been reasonable and never stood in her way while, during the last 14 months, she had abandoned Leo to go with her new boyfriend and work in the carnival.

Without disrespecting the many fond memories of Perry to his friends and family, this story has tru TV all over it — dismemberments, bloody vans, OxyContin, repossessed cars, restraining orders. It’s a sad end to the career of a man whose work many people still respect, and as the economy for creative types increasingly favors floating freelancing and entrepreneurship over 30 years at the same company, Mark Evanier reminds a lot of us that we could all be in the same boat someday:

Writers and artists are often extremely vulnerable and prone to forget, or to perhaps shove into a corner, the concept that long-term financial security is necessary in this world. We often have an emotional response to opportunities, grabbing at bad (or non-existent) deals because some project looks like it would be fun to do, looks like it will allow us to produce what we think will be our best work. This lust on our part is often exploited — sometimes deliberately but sometimes innocently — by those who control the money end of our business. The unintentional exploitation can be the most damaging because that’s the kind you really don’t see coming.

Often, too often, we encourage our own exploitation by allowing ourselves to get desperate. There’s a vicious cycle in the marketplace: When you’re desperate, or at least when you look that way, you get fewer jobs and the ones you do get do not pay as well. And that, of course, only serves to keep you desperate…and we all know where that leads.

Meanwhile a second trial is coming up, following a judge’s ruling that prosecutors held back evidence in the first trial:

The motion to lower George’s bond was filed one day after the Michigan Court of Appeals released a ruling May 5 that said Biernat did not abuse his discretion in determining that George was entitled to a second trial after his defense lawyers said they discovered new evidence that could point to another killer.

The Macomb County Prosecutors Office is planning to appeal that decision to the Michigan Supreme Court.

The complaint, filed in U.S. District Court in Los Angeles, lists similarities including a carnival that can magically appear and disappear to collect protagonists, a young boy who develops special abilities, a carney or hero running through the woods chased by a mob, a circle of mirrors tied to the key plot, similarities in dialogue, and more.

As anyone who has been reading comics or watching TV for more than, oh, five minutes can attest, none of those elements are particularly novel or special. Fact: we edited a carnival story once ourselves and at least one of those elements was in it.

However, a look at the complaint by Kevin Melrose and specifically the side-by-side art comparisons show that it may very well be that the writer/storyboard artist/director for the episode had a copy of Wild’s book nearby when things were being planned.


This opening shot isn’t very persuasive — carnivals have light strings and ferris wheels, and both shots are a fairly hackneyed way to set the scene. But then we get to things like this:

According to the complaint:

“Above is the ‘House Of Mirrors’ from both series. The camera angle of the House Of Mirrors and the design, specifically the title above the entrance and pull away red curtains, are substantially similar. The scene seems to be directly storyboarded from Carnival of Souls.)”

And then this:

“Above is the picture of the Jamaican Witchdoctor from both stories. Note the glowing white eyes.”

Hm, we can see two people coming up with ferris wheels, house o’ mirrors, and sinister carnivals that steal souls separately but when they both include a Jamaican witch doctor with dreads and glowing white eyes? Now it’s getting a little hot and sweaty in there. The Robot 6 post has other specific plot similarities that make it look like Jazan wasn’t so wild in his suit, even if he was stealing from Ray Bradbury to begin with. Good luck on the $60 million thing, though.

§ NBC has made it official that they are putting Heroes out of its misery after four years of steadily diminishing returns. The show debuted to dynamite ratings and fan reaction but has gone downhill ever since. The show hasn’t aired since February, and the peacock is considering a TV movie to wrap up loose ends, but the show is so expensive, it’s still only a possibility. The show may have sucked in recent seasons, but it did give us Masi Oka, Hayden Panettiere, Milo Ventimiglia and Zack Quinto, so it certainly gave us lots of nerdlebrity news.

AND on the bright side, THR reports that NBC has a pilot called The Cape in the works, so they haven’t given up on the superhero genre entirely, even if Edna Mode would NOT approve.

§ Nikki Finke reported last Friday on a tunning turn in the Superman copyright case: Warners new, top gun lawyer is suing Siegel family attorney Marc Toberoff claiming he has a financial stake in the outcome and would end up owning most of the rights to Superman once copyright is transferred back to the families. Finke writes:

It’s a hardball and some might say also despicable tactic by Petrocelli and the studio’s new general counsel John Rogovin (hiding behind DC Comics), especially because it hinges on documents stolen from Toberoff’s office by a Toberoff employee. (I’ve learned that Warner Bros claims the documents mysteriously “arrived” on its doorstep and that the employee was a lawyer in Toberoff’s firm and a “whistleblower”. Toberoff has indicated that something much more nefarious may have happened. (See his response below.) What’s also ironic about Petrocelli’s tactic is that, when he defended Disney against the Slesinger family’s Winnie The Pooh underpaid royalty claims, he was able to get the entire case thrown out of court by alleging that the Slesinger’s were basing some of their documentation on paperwork “stolen” from a dumpster on the Disney lot. Oh, how the worm has tuned.

But then she also writes:

Warner Bros has to be careful, very careful, not to piss off the Superman fans who are steadfastly in the Shuster and Siegal corners.

meaning she had evidently never read the comments here or anywhere else including ehr own bord, where the “greedy” Siegel and Shuster families are constantly repudiated for trying to steal from the nice corporations.

§ Daily con wars update: Disney fans muse upon the idea of Comic-Con in Anaheim. Would there REALLY be enough hotel rooms?

Comic book pirating website www.htmlcomics.com has been shut down and all of its servers confiscated, following an FBI search based on a warrant alleging criminal copyright infringement. The FBI investigation was performed in coordination with the U.S. Department of Justice, a consortium of comic publishers and their legal counsel, a team of Katten Muchin Rosenman LLP attorneys specializing in the areas of intellectual property, publishing and comics, as well as local counsel in Miami.

Prior to the combined efforts of the consortium and the authorities, Htmlcomics was believed to have been the largest, best-known and most easily accessible website of its kind, producing rampant copyright infringement on a daily basis and depriving artists and publishers of hard-earned and much-needed revenue. By April 2010, the website claimed to have an average of 1.6 million visits per day and more than 6,630,021 pages of comic books offered for unrestricted viewing. Ridding the Internet of such a large source of pirated content is a major victory for the comic industry and the publishing industry in general.

Htmlcomics was run by a fellow named Gregory Hart, who claimed he was doing nothing wrong: the comics were not downloadable (although computer savvy readers were quickly able to find a workaround) and he said that by only putting up older comics, major publishers were not upset. An interview at Nerd Society showcases the attitudes of Hart and his readers. In part 1, the interviewer describes using the site and why its okay:

Woah! What happened? For over 10 years I had stopped seriously reading comics with just a pick here or there. I found a great site called: http://www.htmlcomics.com This site offers almost every comic ever made. You can read them for FREE and move on to the next one without dropping a penny. How do they do it you ask–are you fuming that it’s illegal! They are taking food from hard working comic guys! NO, THEY AREN’T. All books are unable to be copied. The books are also not up to date, they are a year behind so the current titles can sell.

In part 2, the actual interview with Hart he explains his justifications:

GH: Both Marvel and DC leave me alone as long as I stay 6 months to a year behind. Image is more complicated due to their book titles changing often. Also, htmlcomics.com is non commercial, we don’t sell the books for download and they are unable to be downloaded–consider it like a lending library.

Perhaps the most startling aspect of the story for some is the claims of 1.6 million visits per day. Do that many people really like comics? If just 10∞ of these pirates could pay what a happier industry it would be. In a topic on Yahoo wondering what happened to the downed website, readers lament their missing stash:

I really hope they weren’t taken down. I don’t see how HTML Comics is stealing from companies by letting me read “Defenders” issues from the 70’s and “Suicide Squad” issues from the late 80’s.

and

It’s still down. I just checked. I need my comics fix….must…..read….comics…..

The main argument FOR htmlcomics from a publishing standpoint is that free sampling works, and many people ended up purchasing print comics only after sampling them for free.

Doran’s post has much more information, with some links to rather bizarre and odd behavior by Hart over the years. According to the PR, Marvel Comics, DC Comics, Dark Horse Comics, Bongo Comics, Archie Comics, Conan Properties Int’l LLC, Mirage Studios Inc., and United Media all banded together, for once, to get the site taken down. Now if they would only band together to find a way to sell digital comics at a price point some consumers found palatable.

Full PR below:

Comic book pirating website www.htmlcomics.com has been shut down and all of its servers confiscated, following an FBI search based on a warrant alleging criminal copyright infringement. The FBI investigation was performed in coordination with the U.S. Department of Justice, a consortium of comic publishers and their legal counsel, a team of Katten Muchin Rosenman LLP attorneys specializing in the areas of intellectual property, publishing and comics, as well as local counsel in Miami.

Prior to the combined efforts of the consortium and the authorities, Htmlcomics was believed to have been the largest, best-known and most easily accessible website of its kind, producing rampant copyright infringement on a daily basis and depriving artists and publishers of hard-earned and much-needed revenue. By April 2010, the website claimed to have an average of 1.6 million visits per day and more than 6,630,021 pages of comic books offered for unrestricted viewing. Ridding the Internet of such a large source of pirated content is a major victory for the comic industry and the publishing industry in general.

Htmlcomics creator Gregory Hart, 47, acquired pirated copies of more than 5,700 series of comics spanning every major comic publisher in the United States, and made them available for public viewing on his site. The comics could be viewed from cover to cover and page by page and the infringing copies were reproduced on Hart’s servers and publicly displayed without authorization. Titles available included Spider-Man, Superman, Batman, The Simpsons, Futurama, Avengers, Incredible Hulk, Wolverine, Dilbert, Peanuts, Catwoman, Flash, Green Lantern, Wonder Woman, Hellboy, Star Wars, 300, Predator, The Mask, Iron Man and Buffy the Vampire Slayer, among thousands of others.

The FBI’s Tampa Field Office headed the investigation leading to the warrant. The consortium of publishers cooperating with law enforcement include Marvel Comics, DC Comics, Dark Horse Comics, Bongo Comics, Archie Comics, Conan Properties Int’l LLC, Mirage Studios Inc., and United Media.

As the link explains, this is another “vertical integration” case, which charges that Warners undercut the producer’s share of syndication profits by selling the show at a lower price to its own affiliates. Since TV shows are so expensive to produce, they usually break even and become profitable in syndication — hence the worries over keeping the price artificially low.

Causes of action for breach of contract and breach of fiduciary duty are alleged against Time Warner and its divisions — WBTV, Warner Bros. Domestic TV Distribution, the now-defunct WB network, where the show started — and the CW, a co-venture with CBS. The complaint says WBTV made license fee deals with the WB and then the CW that “were not arms-length.” The complaint does not specify damages but, given the allegations and the longevity of the series, they could total in the tens of millions of dollars.

“Warner Bros.’ practices of unfair self-dealing include licensing the series for broadcast on its own affiliated WB and CW networks for unreasonably low, below-market license fees, resulting in lower gross revenues for the series and less compensation for plaintiffs, and failing to renegotiate the series’ license fee to cover its production cost,” the suit claims.

Despite the squabble, Smallville has been renewed for a 10th season.

The move comes after a series of legal maneuverings that left little doubt that this is where the matter was headed. In September, the Kirbys formally filed for copyright termination on 45 Marvel characters. In December, Marvel filed its own lawsuit, asking a judge to set aside the copyright termination on the grounds that the characters were created as work-for-hire.

If successful, the Kirbys would control half the copyrights to many of Marvel’s best known characters — including, as the above list shows, many who have lucrative films based on them — or planned films, such as Ant-Man and the Avengers.

At the heart of the matter is whether the great work of Kirby was created as work-for-hire or not. The Kirby family claims that this was not the case until 1972, when Kirby signed an agreement with Magazine Management Co., assigning copyright going forward. They claim that before this, he worked as a freelancer, with no work for hire agreement in place.

Marvel’s prior lawsuit claims that Kirby worked only under editorial direction so the works were indeed WFH.

The Kirbys are represented in the matter by Marc Toberoff, a well-known lawyer who specializes in copyright matters. Toberoff also represents the Siegel family in their ongoing battle to regain control of their half of the Superman rights. This suit has successfully tied up Warners in legal battles for the better part of a decade. It’s likely the Kirby matter could similarly entangle Marvel and Disney, especially with so much IP, all created under varying circumstances, at stake.

More later.

UPDATE: Jeff Trexler has some comments on the Handley case that give it a bit more context, including the fact that between the prosecution and sentencing a new prosecutor took over the case.