Last time, we discussed the beginning of the Archie Comics series Sonic the Hedgehog and how one man wove his personal mythology and history directly into the character Knuckles the Echidna. While there were many contributors to the comics at that time, Ken Penders was the only one who seemed to make such an indelible mark on the weird stories being crafted for a comic book that was ostensibly still based on the video games being by Sega. Sonic had, over the years, drifted further and further from his origins, but corporate mandates still required the comic to reconcile the differences with each new game release. This is how we were introduced to Eggman, even though the evil Dr. Robotnik had been killed off earlier in the series. Sega seemed happy to allow the comics to create their own universe, so long as they could be used as a compliment to their games. This all changed, though, with a seemingly innocuous entry into the series.
SONIC CHRONICLES: THE DARK BROTHERHOOD
In June of 2007, Sega of America, Inc., SEGA Europe, Ltd., and Canada-based development studio BioWare Corp announced their partnership in creating a Sonic video game for the Nintendo DS (GameSpy: BioWare to Develop Sonic RPG. - Page 1, n.d.). The game was notable for being the first, and so far only, RPG entry into the Sonic series, and featured Knuckles the Echidna being captured, as well as the disappearance of the Chaos Emeralds (Casamassina, 2012). In the game’s lore, four thousand years prior saw two rival civilizations co-existing peacefully with each other: the Knuckles Clan and the Nocturnus Clan (Sonic chronicles: The dark brotherhood, 2008). The former was the keeper of the Master Emerald and sought to expand its territories. The Nocturnus Clan, however, soon declared a war against their counterparts. Eventually The Knuckles Clan home was lost when the events of Sonic Adventure happened and the island floated into the sky. Meanwhile, the Nocturnus Clan and everything associated with it disappeared for unknown reasons, never to be seen again.
For those who had been following the Sonic comic, this would all sound pretty similar. The creators at BioWare had decided to open the toy box and take inspiration from everywhere within the Sonic media, including Archie Comics (Sonic Chronicles - Behind the Scenes 1, 2008). In fact, one person on Tumblr posted pictures of the Sonic comics in the archives of BioWare with stickers that labeled them as their property for research purposes (Thanks, Ken Penders, 2020). The Nocturnus Clan was a direct reference to the Dark Legion from these early comics. Both were groups of ancient Echidnas that were sealed away in a Twilight Zone or Cage depending on which media you follow. The game also featured a character named Shade, who was a female Echidna that defected from the Noctornus clan, which is again heavily based on the character Julie-Su, a female Echidna that defected from the Dark Legion. This is where some of the trouble starts to creep in. Julie-Su was clearly a favorite of Penders. He put a lot of time and backstory into her and the other Echidna characters, even writing that she “soultouched” Knuckles, making them soulmates at first sight (Schroeder, 2022). This is expanded on at one point when Penders put together an entire family tree for his Echidnas, unexpectedly revealing Julie-Su and Knuckles as distant cousins- pointing, again, to the more Dungeons and Dragons/fantasy inspiration that Penders had for this series. In short, Penders was quite upset that his creations were being used for a video game without proper compensation.
WORK-FOR-HIRE
To further explore the implications of this, we should talk about how work for major comic publishers, such as DC and Marvel, as well as work for franchised properties, such as Sonic, are handled legally. Most of these cases are handled as “work-for-hire”, meaning they fall under the collective work provision. The Copyright act defines collective work as “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” Major publishers often include specific language in their contracts that require freelancers to sign away any and all rights they may have in contributions to a character or series over to the publisher themselves. How these agreements tend to favor large corporations at the expense of the workers is an important conversation to have, as it has directly led to several Marvel contributors needing to seek help with medical bills while Marvel Entertainment rakes in billions off of their contributions (Avengers: Endgame, n.d.). This is not specific to Marvel, but I use them as an example considering the entirety of the Marvel Cinematic Universe is built off of these characters and it has become the largest grossing movie franchise by a long margin, but you don’t have to look far to see the same thing at DC or elsewhere. This is, in part, why The Hero Initiative was first created (Hero Initiative, 2021). That organization helps bring financial support to many of the comic book creators who have been left without healthcare and survice largely on low royalty payments. That said, the agreements between the creators and the companies are legal and have been upheld for decades, so it would seem Ken Penders was out of luck. He even said as such in an interview with Sonic HQ, stating:
“Part of the contract Sega has with Archie stipulates any and allcharacters created in the Sonic and Knuckles comic books become property of Sega.(The SOLE EXCEPTIONS being Sonic Super Special #7 and 10, for obviousreasons.) 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.Now that I'm creating my own series, however, I must admit certain ideaswill probably never make it into the Sonic books, as I'm keeping those for my own use.” (Sonic HQ News, n.d.)
THE LAWSUITS
So with the understanding that he was working as a freelancer in a work-for-hire scenario and that he owned nothing of the works he created, Penders decided to copyright “his” characters (Archie Comic Publications, Inc. v. Penders, 2010). The U.S. Copyright Office sent letters to both Sega and Archie informing them that if this matter wasn’t addressed, the copyright would be given to Penders (Penders, 2022). While the actual filing only mentions the text and art created, Penders would loudly proclaim this would mean he would own the characters. I’m not a lawyer, so I’m not sure if this holds any water, but it is clearly a thorny issue for anyone trying to publish a comic. This, of course, led Archie to sue Penders, and as part of the suit he signed an affidavit explaining exactly why he felt it was appropriate to take this action:
“58. I came to understand that in order to seek remedies through the courts, it would be necessary to obtain copyright registrations for my works. In November 2008, I therefore began the process of compiling the information and materials necessary to undertake the registration of my numerous Sonic Comics works.
- Before undertaking these Copyright Office filings, I wanted to make absolutely certain of my position as the owner of all rights in the works I created which were published in the Sonic Comics. I therefore telephoned Victor Gorelick, editor-in-chief of Archie Comics, in December 2008. During that conversation, I requested that Archie (i) return to me original artwork still in its possession, and (ii) provide me with copies of any agreement I may have signed with Archie Comics relating to any of the freelance work I did for them. Gorelick told me that no such documents existed.
- Following our December 2008 telephone conversation, I reached out to Gorelick several more times by e-mail and telephone seeking written confirmation that no documents existed, but Gorelick never provided the requested written confirmation, nor returned my original art to me.
- Nonetheless, with Gorelick’s confirmation that there were no agreements between myself and Archie Comics that impacted on my ownership of all copyrights in the works I created for the Sonic Comics, I proceeded with the copyright application filings.” (Archie Comic Publications, Inc. v. Penders, 2010)
Penders makes a fairly valid argument in this filing. If there was, in fact, no contract stipulating the nature of his relationship with Archie and Sega, then the works he created could reasonably be understood as his own. With that knowledge, Penders filed nearly 200 copyrights to protect his intellectual property (T., 2022). In response, Archie produced two photocopies of the legal agreement between them and Penders signed in 1996, but there were a few problems with this (Archie Comic Publications, Inc. v. Penders, 2010).
- As photocopies their legal validity was in dispute.
- 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).
- 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 part could be in dispute, though - as 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.
- The paperwork seemed incomplete at points, with the several boxes never filled in, and no mention of SEGA, Sonic the Hedgehog, Knuckles, etc.
In August 2011, depositions began in the Archie vs. Penders case. Penders’ attorney contacted former Archie staff and claimed they were made aware of an issue that happened in 1996: Archie had been storing contracts in boxes at their on-site warehouse, but found that an unknown number of creator agreements had been destroyed. When this happened, the company provided creators with “revised” contracts, which essentially would replace what was lost. It’s 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.
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 several other characters (Kenneth Penders, II v. Sega of America, Inc., 2013). The lawsuit was dismissed twice while the current Archie case was pending and eventually fell out of the statute of limitations. The reason it was dismissed twice was that the judge specifically told Penders he needed to wait for a ruling in the Archie case and Penders refiled only four days later and the same judge refused to hear it. This, as you can imagine, would not make Sega very happy with the mishandling of proper legal documents by Archie, so Archie apparently lost the contractual privilege of being offered the chance to publish any Sonic spin-offs before the offer was made to other companies. The publisher 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 (Archie Comic Publications, Inc. v. Penders, 2010).
The Archie case, meanwhile, still needed to prove that Penders had signed a work-for-hire contract that was legally binding. Afterall, the only thing they’d produced was a photocopy of a document, which would mean they had lost two different contracts. Penders tried to get the suit dismissed due to lack of jurisdiction since it was filed in New York and he claimed he was living off of unemployment and could not travel to New York (Archie Comic Publications, Inc. v. Penders, 2010). This is probably a sound reason, but he did file copyright claims on around 200 characters (an expensive endeavor) and decided to sue Sega and Electronic Arts, two of the largest video game companies in the world, so, regardless, his notice to dismiss was denied. Several comic creators argued that they were never given work-for-hire contracts at Archie and that they, too, would be filing copyright claims on their creations. As more information came out, it was all looking really bad for Archie. In fact, here’s a snippet of the transcript between Mr. Paul, lawyer for Archie Comics and the judge during a hearing on when to go to trial:
- PAUL: So what's been missed, your Honor, is this. The question is, this is a derivative work. The underlying rights here don't come from Archie. They come from a contract between Sega of America, which owns the copyrights, which then granted to Archie the right to use the copyright for a particular purpose. Archie, in turn, hired Mr. Penders. The cases have said that in this circumstance, the ownership of the derivative work is governed by the intention of the licensor and the licensee in the grant, and it's that I'd like to be able to write, at least explain that authority.
THE COURT: So are you saying prior counsel blew it?
- PAUL: Absolutely, your Honor. So I will say that this — the issue will need to be addressed in one forum or another, and we're hoping — we're hoping that you'll allow us an opportunity to explain the issue and to explain our proposal, our proposal for dealing with it in a way that will not further inconvenience and drain resources, but will still allow this Court to apply the correct law. I can't be as —
THE COURT: Well, give it to the jury. That's the way we're going to deal with it. We're not going to have more motion practice. My God, this thing has been litigated up, down. If it's a valid issue, you and counsel will discuss it, meet and confer. If you need to revise the joint pretrial order and the jury instructions, you'll do that, and the jury will decide it. So I get back to my original question. When would you be ready for a trial?
- PAUL: I did not come today prepared to answer that question, but I will —
THE COURT: That's really surprising to me because what else would we be talking about today? (Archie Comic Publications, Inc. v. Penders, 2010)
On November 29th, 2012, Archie agreed to terms for settlement with Penders (Archie Comic Publications, Inc. v. Penders, 2010). The exact terms aren’t known, but it’s public record that Archie did not agree with Penders’ claims of ownership, but would not pursue a legal claim against him should he use the properties. By 2013, a full settlement agreement was signed and the case was dismissed, but we aren’t done with either parties.
GENESIS WAVE
During the lawsuit, Archie started slowly removing any of the characters that Penders claimed a copyright to and changed several of the references in reprints moving forward. As things progressed, it became clear that they needed to make much more monumental changes to the series if it were to make sense, so they introduced the idea of a “Genesis Wave” that would rewrite reality (Flynn et al., 2013). Characters were purged from existence and the entire comic book line ended up looking a lot more like the video game series with a few of the added characters from the Saturday morning cartoon show. While it is often reported that Sega added new mandates for the series moving forward, very little evidence is ever provided, with Ian Flynn stating:
“If they’re looking for an itemized list on corporate letterhead, no, that doesn’t exist. Never said there was. It’s rules and guidelines handed down thru approvals that change with the brand’s direction over time.” (Flynn, 2020)
While Sega’s editorial decisions may have not completely changed due to the lawsuit, Archie’s Sonic universe clearly did. The purge of characters that resulted from all of this, it turns out, could have been easily avoided. Penders just wanted Archie and Sega to pay him for the continued use of his characters- something that both companies were extremely reluctant to do since they could continue using their own characters with no financial obligation.
PENDERS
As a result, Penders decided in 2021 that he would like to license the characters out to anyone that wanted to use them (Penders, 2021a). The details of the agreement were laid out in a post on Twitter, stating:
“A $10,000 advance against royalties for a 2-year license automatically renewable if my characters continue to be used. Said renewal would also include an advance against royalties at that time.” (Penders, 2021a)
The 2-year, $10,000 licensing agreement created by Penders could have easily been where this story ends. Unfortunately, this is where we have to talk about Scourge the Hedgehog. Scourge originated in the comics as Anti-Sonic, which is to say he looked just like Sonic except he wore a leather jacket and sunglasses and was a bad-dude from an alternate dimension (Kanterovich et al., 1994). It wasn’t until 12 years after his creation that writers Ian Flynn and Tania Del Rio would change Anti-Sonic into the green-furred, super-strong villain powered by the Master Emerald (Del Rio et al., 2006). This version of the character would skyrocket in popularity among fans, making his exclusion due to Penders lawsuit an interesting wrinkle. Penders co-created the character in as much as he made an evil version of Sonic that commits petty crimes and wears greaser clothes. The more identifiable and popular version of this character was introduced by other writers. The green fur, the super-strength, and the supervillain-esque tendencies were not part of the character when Penders created him, so the idea that it would be owned by Penders annoyed many fans. This came to a head when it was announced that the character was licensed to RUSH! Comics for a 4-issue limited series titled “Scourge the Speed Demon” (Penders, 2021b). The absurdity of this scenario is hard to describe. A character created as an evil-alternate dimension version of a massive video game was licensed to a company that could not in any way reference his origins. If RUSH! Comics used any of his backstory, it would be infringing on their own copyrights since they own Sonic as a character. Regardless, Scourge was announced with cover art featuring a slightly redesigned green hedgehog smoking a cigar. When a fan pointed out that Ian Flynn should be credited along Penders and Kanterovich for the massive changes he added, such as his name, appearance, and superpowered origins, Penders argued to the contrary, stating:
“In another life. Ian had no problem taking credit for things I did when he was working for Archie. Also, he was on the opposing side when I was fighting my battle with Archie. He could’ve chosen to stay neutral but didn’t. This is a result of that battle.” (Penders, 2021c)
Fans then decided to look into the creative team behind the comic itself and found some even more interesting points. For one, in the previous comic published by RUSH!, there was a sexual harassment scene in which the hero strips the female villains nude in public because he thinks they’re hot (Roby et al., 2018). What ended up being slightly more troubling was the list of accounts followed by the lead artist on the series. The long list included Steven Crowder, Ben Shapiro, PragerU, Breitbart News, and Paul Joseph Watson- all of which are known to promote conspiracy theories, “alt-right” talking points, and far-right ideologies (@caldroids, 2021). Paul Joseph Watson, in particular, has a history with GamerGate and worked with Alex Jones for years. Breitbart used to employ Milo Yiannopoulos and allowed his stories to be solicited from or stolen from Neo-Nazi and white supremacist groups. Due to this, “The artist is a white supremacist” became the main talking point of the series. The artist and the company were harassed to the point that just four days after announcing the comic, Scourge the Speed Demon was canceled.
A point should be very clearly made here in that the accounts followed by someone are in no way an indication of how that person actually feels about those accounts. For instance, I have at many points followed Scott Adams or Ethan Van Sciver to keep a tab on some of the things that they are saying. I fundamentally disagree with nearly everything these two men constantly talk about, and, yet, I follow them. There is a reason I did not list the name of the artist on the Scourge comic. They do not deserve to be harassed based on assumptions made by others. That being said, if they were truly politically aligned with the far-right personalities that they actually followed, then let this be a lesson in free-association in the market of ideas. As often argued by the political right, the free-market stamped out a product that they did not want to associate with.
LARA-SU CHRONICLES
As far as Penders goes, this brings us to what he’s spent the majority of his time working on over the last few years. Essentially: he’s creating a graphic novel sequel to his Echidna stories. One of the last story arcs he ever did for Sonic was a story titled Mobius: 25 Years Later, which follows our heroes 25 years in the future. The main protagonist of this series was the daughter of Knuckles and Julie-Su, named Lara-Su. After leaving Archie and having a very public legal battle over the characters, Ken decided to continue Lara-Su’s story in The Lara-Su Chronicles by replacing Knuckles with a character named K’Nox and changing the species to the Echyd’nya. This series has been in development for years and the artwork has been widely mocked online. Due to the battle with Sega and Archie, Penders can't have the characters look like the characters from Sonic, so, instead, they all look oddly human with animal features and the promotional materials usually feature poor coloring and graphics. That’s pretty much entirely Ken Penders life at the moment. It has been years of just coasting on the promise that someday this book might exist.
IDW
As for Archie, they found themselves back in court over other Sonic related business. Namely, they were sued by Scott Fulop, another writer who wanted to have the ownership of the characters he created (Narrative Ark Entm’t LLC v. Archie Comic Publ’ns., Inc., 2019). The details of the case were pretty similar to the one for Penders, but the outcome was wildly different. Fulop claimed he owned the rights to the stories he worked on, and Archie claimed he didn’t, but Fulop argued Archie’s use of his stories constituted infringement. In any lawsuit concerning ownership of a copyright, the claim must be brought within three years of discovering evidence of the disputed ownership. Fulop brought these claims well after three years after the dispute and the case was dismissed, negating Fulop’s claim to copyright infringement. With multiple costly lawsuits, a very probably angry licensor, and the revelation of complete mismanagement at Archie, it was no surprise when Sega released a statement on July 20th, 2017, reading:
“After 24 years of memorable storytelling, SEGA of America will conclude their Sonic the Hedgehog publishing partnership program with Archie Comics. This does not mark the end of Sonic in comics, but signifies SEGA of America's decision to take a different direction for the series that will be announced at a later date. SEGA would like to thank Sonic's amazing fans for their loyalty and passion over all the years. SEGA looks forward to providing more information soon.” (Schedeen, 2017)
While the news of the longest-running licensed comic book coming to an end is incredibly sad, the follow up was fascinating, specifically for myself. See, they announced this on July 20th and July 21st just happens to be my birthday. So younger Derek, sad that a fun comic book series ended, was surprised to find that Sega announced on my birthday that they had found a new home at IDW. While details weren’t fully revealed at the time, it would later be announced Ian Flynn and several of the beloved creators from the Archie series would be following Sonic over to IDW with the tone and subject matter of the stories being set firmly in-line with the video game series. Fan-favorite characters would be introduced in the comics and given smaller spin-offs to broaden the scope of the new universe while working alongside Sega for brand cohesion. In fact, Ian Flynn was hired to write for the next video game, Sonic Frontiers, and added multiple lines of dialogue to refer to characters that originated in the comics. While Sonic may have ended at Archie, the comic book stories are actually going stronger than ever at their new home.
CONCLUSION
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We will be back soon with another deep dive into the world of comics, but until then you can find more exciting adventures at your local comic shop.
REFERENCES
Archie Comic Publications, Inc. v. Penders, CS1 (2010). https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?112289809472361-L_1_0-1
Avengers: Endgame. (n.d.). Box Office Mojo. https://www.boxofficemojo.com/release/rl3059975681/
@Caldroids. (2021, November 15). okay, joke’s over everyone, the lead artist for this comic is a white supremacist https://t.co/ISQncBWGZ4. Twitter. Retrieved December 7, 2022, from https://twitter.com/Caldroids/status/1460349048452435978?s=20&t=vUSgjlOwnzgsMKbe43Ti0A
Casamassina, M. (2012, May 13). Sonic Chronicles: The Dark Brotherhood Interview. IGN. https://www.ign.com/articles/2008/02/15/sonic-chronicles-the-dark-brotherhood-interview
Del Rio, T. (w)(p), Flynn, I. (w), Yardley!, T. (p), Amash, J. (i), Workman, J. (i), Jensen, J. (c), Hunzeker, B. (c). “‘Birthday Bash’ - Part One (“Giving and Receiving)” Sonic the Hedgehog #160 (March 2006), Archie Comic Publications, Inc.
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Flynn, I. [@IanFlynnBKC]. (2020, March 28). If they’re looking for an itemized list on corporate letterhead, no, that doesn’t exist. Never said there was. It’s rules. . . Twitter. Retrieved December 7, 2022, from https://twitter.com/IanFlynnBKC/status/1244063776221073409?s=20&t=IpSiDJp74hyeaj8728qKsA
Flynn, I. (w), Stanley, E. (p), Lovallo, V. (p), Austin, T. (i), Archer, K. (i). “At All Costs Part Two: A New Lease on Life.” Sonic the Hedgehog #252 (October 2013), Archie Comic Publications, Inc.
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Penders, K. [@KenPenders]. (2021a, August 24). Instead of people speculating and saying it’s not worth the hassle to use my characters, allow me to clarify matters. Twitter. Retrieved December 4, 2022, from https://twitter.com/KenPenders/status/1430048623778144260?s=20&t=E-EjWGeDHf6n2hS5-2tH3w
Penders, K. [@KenPenders]. (2021b, November 15). At long last I’m happy to present the team working on a character I originally co-created with Mike Kanterovich in. . . Twitter. Retrieved December 7, 2022, from https://twitter.com/KenPenders/status/1460308395223748612?s=20&t=i_pBq9WcNK7UCdRYRu5guw
Penders, K. [@KenPenders]. (2021c, November 15). In another life. Ian had no problem taking credit for things I did when he was working for Archie. Also. . . Twitter. Retrieved December 7, 2022, from https://twitter.com/KenPenders/status/1460338250875170817?s=20&t=i_pBq9WcNK7UCdRYRu5guw
Penders, K. [@KenPenders]. (2022, April 17). From the files: This is the letter both SEGA and Archie received from the US Copyright Office clearly alerting them. . . Twitter. Retrieved December 2, 2022, from https://twitter.com/kenpenders/status/1515900348224876547?lang=en
Roby, A. (w), Fowler, O. (p)(i), Kaiser, N. (c). “Ember’s Elegance” Rush! #1-2 (January 2018), RUSH! Comics.
Schedeen, J. (2017, July 22). Archie Comics Says Farewell to Sonic the Hedgehog. IGN. https://www.ign.com/articles/2017/07/20/archie-comics-says-farewell-to-sonic-the-hedgehog
Schroeder, B. (2022, May 5). I read every Sonic comic by Ken Penders, and they’re wilder than you could ever imagine. Medium. https://ponett.medium.com/i-read-every-sonic-comic-by-ken-penders-and-theyre-wilder-than-you-could-ever-imagine-1f9dd05ae433
Sonic Chronicles - Behind the Scenes 1. (2008, September 5). [Video]. YouTube. https://www.youtube.com/watch?v=iB4AW6-2R-I
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Sonic HQ News. (n.d.). https://web.archive.org/web/20190219103243/http://www.sonichq.net/nostalgia/shqclassic/news/archive/News/7_99.htm
T., A. (2022, March 30). How One Man’s Lawsuit(s) Broke the Sonic Universe - SUPERJUMP. Medium. https://medium.com/super-jump/how-one-mans-lawsuit-s-broke-the-sonic-universe-e7a6032c01d2
Thanks, Ken Penders. (2020, December 31). Hi there. I live in the same city as BioWare. My friend’s mom works there. One day he asked me. Tumblr. https://thankskenpenders.tumblr.com/post/639064919074045952/tannersturnpike-submitted-hi-there-i-live-in
