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THE LAW IS A ASS for 12/19/2000
DOCKET ENTRY
"The Law is a Ass" Installment # 74
Originally written as installment # 63 and published in Comics Buyer's Guide issue # 617, September 13, 1985 issue
From the ridiculous to the sublime.
In this column you'll find a report on not only my first major comic-book convention in over a decade, but also my first major convention since I started my column. You'll also find a discussion of a letter sent to me which featured one of the most ridiculous attacks against the column I've ever received and my response to it.
Ridiculous and sublime. You get to figure out which is which.
******
"The Law is a Ass"
Installment # 74
by
Bob Ingersoll
Well, Chicago has come and gone.
The Chicago ComiCon, that is, not the rock group. (They may be gone, too. My knowledge of contemporary music starts with Gilbert and Sullivan and ends with Rodgers and Hammerstein. I don't know if it's the Festering Boils or the Electric Vomit that's on top this week.)
But Chicago was fun and I want to thank all the people who came up to me and told me how much they enjoy my column. I also want to thank all the people who didn't come up to me and tell me how much they hate the column. I can take criticism as well as the next guy; but all things being equal, why don't you save the criticism for the next guy?
I hadn't done a major convention since the 1975 July Con in New York. I still remember it. I walked around the Dealers' Room for hours scrounging up the best bargains I could to fill up the holes in my collection. I attended the panels to learn what was coming from Marvel and DC. I stayed up late and partied. And I stared with awe-filled eyes at these people who were producing the works I so greatly admired.
In Chicago I walked around the Dealers' Room still trying to scrounge up some bargains to fill my holes. I attended panels. I stayed up late partying. I looked with blood-shot eyes at everything. And I learned something about myself.
I'm getting old!
I can't stay up till two or three in the morning for three straight days anymore. My systems crash.
And now, I want to give out the Ingies, the not annual, probably never to be bestowed again awards for the most memorable moments of the 1985 Chicago Con.
Best line of the convention: Dick Giordano when asked what DC thought about Squadron Supreme answered, "I guess Marvel can do the JLA/Avengers crossover by themselves now."
Most embarrassing moment: Upon meeting Frank Miller, I said, "I really enjoy..." realized none of his present--but eagerly awaited--projects were out yet, so lamely finished, "...uh... your work." Well it may not seem like much to you, but it embarrassed the hell out of me.
Biggest disappointment: That Jerry Siegel wasn't able to attend due to illness. I wanted to meet him very much.
Second biggest disappointment I didn't get to ink a figure on the 100th Everett True.
Biggest jerk of the convention: Only one person could qualify for this award--(JUSTIN NOTE: What the heck are you trying to do, Ingersoll; get me sued?)
Biggest thrill: Meeting Julius Schwartz. This is the man who started the Silver Age of Comics and probably saved the medium. I am second to none in my admiration for Stan Lee and Jack Kirby and what they accomplished at Marvel. But let's face it, if Julie hadn't spearheaded the super hero revival of the fifties with Flash, Green Lantern, and JLA, I'm not sure that Stan and Jack would have found Marvel so willing to try the Fantastic Four in the sixties. Julie, we all owe you.
Saddest moment: Reading an advance copy of Crisis # 8. I knew it was coming. I knew Flash was going to die. The clues dropped in Flash # 350 as to Flash's ultimate fate were about as subtle as Green Arrow's latest diatribe. But Flash is the character who revived super heroes, and he's been around comics longer than I have, and--despite what you may think from past columns--he's an old friend. I, for one, will miss Flash. Good-bye, Barry. I'm glad that before you went, you got back your dignity.
Most often asked question: "What are you going to do for columns, now that Flash is gone?" Exactly what I'm doing now: vamp for time, until someone writes a story with law in it.
Seriously, I will continue the column. I enjoy writing it too much to give it up now. (Besides, if I stopped writing it, I wouldn't be able to deduct all my comic books as a business expense. I don't think I can afford to give it up.) And I'm not worried about The Flash being gone; there will be other books to write about. Come back next time. I already have two books that have come out since the Chicago Convention just waiting.
******
Remember earlier I talked about taking criticism... I get my share of it. I don't mind it. I welcome it, and accept it placidly. It's one way in which I can determine what is working and what isn't.
But I do draw the line at criticism which is factually incorrect or just plain unfair. Case in point: a letter from R. C. of Sacramento, California. (No, R. C. isn't his real name and, for all I know not his real cola. But, I thought it would be kinder to leave R. C.'s real name out of print.
R. C. wrote me to complain about my recent Squadron Supreme column. He took, shall we say, exception to my statement, that the federal court of New York ruled that the Fawcett Captain Marvel infringed on DC's copyright on Superman. I'll tell you what, let's not say "exception." let's say what R. C. said.
"I am surprised that a lawyer & comic buff like yourself can make such a bone-headed, irresponsible statement like that! For the record, Fawcett settled out of court." R. C. went on to say some equally pleasant things, which culminated in his accusing me of saying DC should sue Marvel over Squadron Supreme so that I could earn big bucks representing DC in the suit.
Let's take 'em one at a time, shall we?
Yes, R. C., Fawcett did settle out of court. I never disputed that. In fact, I even said so in my column. But, if you read the column again, you'll see the timing behind when Fawcett finally decided to settle the case. Fawcett, which had been fighting this particular case for over a decade, finally entered into a settlement with DC after the federal court of appeals for New York ruled that Captain Marvel violated Superman's copyright and remanded the case back to the trial court so that the proper amount of damages could be determined. What had happened was that the trial court ruled that Captain Marvel infringed Superman's copyright but ruled DC had abandoned the copyright so couldn't enforce it. The court of appeals agreed that Captain Marvel infringed Superman's copyright, but disagreed that DC had abandoned the copyright. The court of appeals ruled that DC still had a valid, enforceable copyright, so remanded the matter back to the trial court for damages assessment.
At that point, Fawcett realized it could not win the trial. In fact, Fawcett had already lost the trial. The court had already ruled that Captain Marvel infringed Superman's copyright. That issue could not be re-litigated. All Fawcett could do at this point was to try to minimize the damages it would have to pay DC. Fawcett also realized that by the 1950s, when the court of appeals ordered the case returned to the trial court, comic sales were depressed. So, in an effort to minimize the damages it was going to have to pay and because its sales weren't all that good anymore, anyway, Fawcett did settle out of court.
That's what I said in the original column, and I stand by it.
R. C. also sought to prove that Fawcett settled out of court by quoting at length from a statement by Otto Binder and another from C. C. Beck in which they both denied that they copied Superman and affirmed that Fawcett settled out of court for economic reasons. R. C. finished by saying, "I suggest before you toss off another important legal case of infringement such as DC vs Fawcett, you get you [sic] facts straight."
R. C., if you want to argue facts with me, fine. But, before you do, I suggest that you learn where to find out exactly what the facts are.
In the first place, the statements of Binder and Beck are self-serving. Neither of them may have thought they were copying Superman. And, in point of fact, neither Binder nor Beck did make it a practice to copy Superman. But they weren't the only people to work on Captain Marvel. Yes, they were the main creators, but they weren't the only creators the Big Red Cheese had.
During the trial some of the other creators of Captain Marvel, particularly the creators in the some of the earliest Captain Marvel stories did testify that they were ordered to copy Superman. Again, not saying Binder and Beck were so ordered or that they copied Superman, only that other CM creators were so ordered and did copy Superman. So, there was a basis in fact for DC's claim that Captain Marvel infringed on Superman's copyright; the fact being that some CM creators did copy from Superman.
Moreover, whether or not one story constitutes copyright infringement is a legal opinion not an artistic one. Neither Binder nor Beck were lawyers, so they were hardly in a position to comment on what the judge ruled in the case.
And that, of course, brings us to the second place. In the second place, you want to dispute my comment that a New York federal judge ruled Captain Marvel infringed on Superman's copyright, feel free. But understand this: if you want to dispute what a judge said in a published opinion, you can only do so after you've researched what the judge in question held in the published opinion. In other words, if you want to dispute what a judge said, you must first read the judge's published opinion from the actual case. Now, I did read the opinion in question, so I know what the judge held in the case. Did you, R. C.?
For the record you can find the case printed in volume 191 of the Federal Reporter, 2nd Series at page 594 (the court of appeals case) and volume 93 of the Federal Supplement at page 349 (the trial court opinion). These books are available in any law library, and I sure that they have one in Sacramento. It is, after all, the state capital, so it must have a lawyer or two hundred hanging around needing law books.
Go to said law library, R. C. Find the reported cases. Read them. If you do, you will learn that, as I reported--and despite what Messers Binder and Beck said--the trial judge ruled that Captain Marvel did infringe Superman's copyright. You'll also fine that when the court of appeals reversed the trial court, it fully agreed with the trial court's ruling that Captain Marvel infringed Superman's copyright. It only disagreed with the trial court's ruling that DC had abandoned its copyright on Superman. So, R. C., that's two out of two courts that ruled Captain Marvel copied Superman and infringed on Superman's copyright. Want a recount?
For the record, the court of appeals also ruled that an issue-by-issue comparison of Superman and Captain Marvel stories needed to be made, so that the actual amount of infringement, thus the actual amount of damages, could be assessed. It was at that point, after the court had ruled that Captain Marvel infringed on Superman's copyright and ordered the laborious task of reviewing all the Captain Marvel and Superman stories published to that date, that Fawcett settled out of court. Fawcett realized that such an undertaking, while fun for you and me, would be very expensive. Both Fawcett's law firm and DC's law firm would have to have interns and associates spend hours and hours--or as we lawyers like to call it billable hours and billable hours--going over all those Captain Marvel and Superman comics. And, even though it would be the low-paid associates doing the grunt work, the work would be billed at the hourly rate of the partners in charge of the case who assigned the grunt work. It would, in other words, be expensive. That's why both DC and Fawcett were willing to settle out of court rather than do this expensive, painstaking work to determine the actual amount of the damages.
Check the facts, R. C.! You'll see that the official holding in the DC vs Fawcett case was, as I reported.
One more point, R. C., personal attacks on my integrity ill become our forum, and probably should be ignored as the uninformed rantings that they are. However, for the record, I did not suggest that DC sue Marvel over the Squadron Supereme, so I "could handle the case for D.C." That was an unfair and cheap shot criticism. And, again, a simple check of the facts would prove its fallacy.
DC has a very fine staff of lawyers, who would do far better in a copyright infringement case than I could. I have stated repeatedly that I am a public defender. My speciality is criminal defense. I am not conversant enough with civil law or intellectual property law to attempt such a suit.
Moreover, I am not now, nor have I ever been a member of the federal bar in New York City. I could not represent DC in this suit, even if I wanted to, because I do not have standing to practice in the court that would hear the suit.
Gee, did I seem a little strident there? That's what I get for writing this right after I finished the Donning Press collection of Harlan Ellison's An Edge In My Voice columns. Sorry about that.
Good book, though.
******
Earlier I talked about saying good-bye to an old friend, specifically Barry (The Flash) Allen, who died in Crisis on Infinite Earths # 8. So that I could show my proper respect to Barry I, in-between my writing about comics and practicing law on the side, went to several kitchen supply stores looking for an old-fashioned butter dish with a clear plastic top of the type they don't hardly make no more. I found one, put down a bed of cotton in it and my Kenners Super-Powers Flash action figure is now lying in state within it.
For any of you who may think that this is a little tacky; it was Isabella's idea.
BOB INGERSOLL
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