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THE LAW IS A ASS for 04/23/2002
DOCKET ENTRY
"The Law is a Ass" Installment # 141
Originally written as installment # 289 and published in Comics Buyer's Guide issue # 1481, April 5, 2002 issue
MTV has it. And occasionally, so do I.
The real world, that is. Sometimes I do columns about real world concerns, real-life cases that have a comic-book aspect to them. Such as the Superman versus Captain Marvel suit or the topic of today's column, Joe Simon's lawsuit against Marvel Comics over his attempt to have the copyright on Captain America revert to him under a new provision in the copyright law.
It's my custom, when I do such columns, to wait for the case to be over. I'm not one of those on-the-air kibitzers, like the OJ groupies who discussed the case in intimate detail almost simultaneously to the case itself. ("Well, Jim, Mr. Darden appears to be worried about something, he's wearing his blue tie with a green shirt. Clearly his mind wasn't on his wardrobe today.") No, my custom is wait till it's over, then recap what it was all about.
NothingI have to say is so earth-shattering, that it can't wait a few months.
One more thing, technically, the case isn't over, as Joe Simon has said he intends to appeal the trial court's decision. But the initial judgment has gone against Mr. Simon and that's enough closure for me to discuss the case to this point.
Beside which, if I wait until the Court of Appeals rules, I write only about that decision. If write about the trial and then the Court of Appeals happens to reverses the trial court, I get to do another whole column.
By the way, when this column ran in Comics Buyer's Guideit was edited more heavily than any other column I've done for them. This is your chance to see it, as I intended it.
******
THE LAW IS A ASS
Installment # 141
by
BOB INGERSOLL
"I wasn't there. And if I was there, I didn't do it. And if I did do it, it was self-defense." Or so goes the joke. The joke being that the law is the only profession where people put forth contradictory arguments with a straight face. I don't have Dick Tracy's chin, so don't know about the straight face part, but I've asserted my share of contradictory arguments. It's called representing your client zealously. Don't believe me, just ask Marvel Comics.
Of course, the question requires a little background. Here it is.
Not everyone thinks copyrights are wonderful. Laws granting creators the exclusive right to control who can print or profit from their work, are at loggerheads with the belief that art should be free and available to all. Congress, which survives by trying to do what Abe Lincoln said we couldn't do--please all of the people all of the time--solved this loggerhead the way it solves all loggerheads; it hedged its bets. It enacted a copyright law with built-in limited lifetimes for the copyrights. So, eventually all works fall into public domain.
A few years ago, the copyright of many works were due to expire, including early Mickey Mouse cartoons. If that happened, anyone would be able to sell "Steamboat Willie" and Disney wouldn't be able to make a dime from it. If you've priced a cheeseburger at Geppetto's Village Haus, you know Disney likes to make money--lots of money. It should come as no surprise, that Disney--and other copyright holders--begged Congress to extend the copyright period. As others opposed these extensions, Congress again hedged its bets. It extended the copyrights, but built an exception into the extension to benefit creators, who had assigned their copyrights to others. Congress said after the original copyright was fifty-six years old, creators who had sold their rights had a five-year window to file a notice of termination and get their copyrights back. Congress, not content with hedging only one bet, hedged its hedge, building an exception into the exception and said work created as work-for-hire was excluded from termination.
Jerry Siegel's widow's using termination to try to reclaim the copyright on Superman. Joe Simon tried to use it to reacquire the copyright on Captain America. Thus ends the background, bringing us to the reason we're here today. Joe Simon lost his lawsuit, I want to explain why.
He lost, because he tried before, in 1967, when the original copyrights to Cap were due to be renewed. Simon sued Marvel to reclaim the copyrights, arguing he was Cap's sole creator so had the sole right to renew the copyrights. Ultimately, Simon and Marvel settled and signed an agreement "acknowledg[ing] and agree[ing] that all [Simon's] work on the Materials, and all of his work which created or related to the Rights, was done as an employee for hire of [Marvel]."
When Simon sued in 2000, under the new copyright termination law, Marvel put forth multiple arguments why Simon should lose. The first was res judicata, fancy Latin for the principle that a person can't re-litigate claims which were, or could have been, resolved in a prior suit. Marvel said Simon's 1969 settlement agreement stipulated Cap was work-for-hire and he was precluded from re-litigating the issue.
The second argument Marvel used was equitable estoppel. Marvel argued that because it has invested money in the exploitation of Captain America and, because many of the witnesses it could have called to counter Simon's claims have died, equity demanded that Simon be estopped--or precluded--from raising the question at this late date, as it put Marvel at a disadvantage.
The third argument Marvel used was basic contract law. It said in 1969, Simon signed a settlement, a contract which said Cap was work-for-hire and work-for-hire was excepted from the reversion provisions. Marvel said Simon was bound by that contract and couldn't reclaim Cap.
(Okay, so Marvel's arguments weren't contradictory. I needed an opening joke. Sue me.)
Here's why good lawyers use multiple arguments. Marvel lost its first argument. The court ruled copyright termination was a new, recently-created claim. The earlier lawsuits couldn't have resolved claims raised under this new law, as termination didn't exist back then. Moreover, Simon's original case was settled and voluntarily dismissed. Case law has held settlements and voluntary dismissal orders should include findings of fact which set out what issues were decided in the settlement, otherwise other courts won't what issues were decided. If there are no findings of fact, then res judicata won't preclude further litigation. As there were no findings of fact in Simon's earlier case, Marvel lost its res judicata argument.
Marvel also lost its second argument. The court ruled Congress built the lengthy delay into the copyright termination process. Congress knew witnesses for either side might die in the fifty-plus years which must pass before a creator can seek copyright termination, but Congress didn't draft any equitable estoppel exception in termination. The court refused to do by fiat what Congress had declined do when it wrote the law; so would not add equitable estoppel to the law.
But for Marvel, it was a case of third time's the charm, not three strikes and you're out. The court ruled the earlier settlement between Simon and Marvel was a binding contract stipulating that Captain America was created as work-for-hire, which excepted Cap's copyright from termination. The court noted that work-for-hire had existed for years and as Simon was represented by attorneys, he or they should have known what work-for-hire meant. It gave no weight to Simon's argument that he didn't know what he was signing."Mere dissatisfaction in hindsight with choices deliberately made," is not grounds to void a contract. The court refused to interfere with the legally-binding contract Simon and Marvel created in 1969 and ruled in favor of Marvel.
And that's why good lawyers put forth multiple arguments. One, two or even most of the arguments might lose. But you only need one to work to win.
******
BOB INGERSOLL, who can be reached at P.O. Box 24314, Lyndhurst, OH 44124-0314 or law@wfcomics.com, can't lie to you anymore. The real reason lawyers assert multiple arguments has nothing to do with zealous representation. When you've submitted a padded fee bill, using only one theory looks so damn tacky.
Bob Ingersoll
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