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From ComiCon's the Pulse 6/19/03
BY HEIDI MACDONALD
An appellate court today upheld a lower court ruling in the case of Marcel Walker vs. DC Comics in favor of the comic publisher.
Walker, a graphic artist, and cartoonist and creator of the self-published Smoking Guns, had sued for unspecified damages for copyright infringement over an Elseworlds springboard he submitted to DC in 1998 entitled "Superman: Last Son of Earth." The premise was that instead of escaping to earth from a doomed Krypton, Superman was instead the sole survivor of Earth. He had even gone so far as to notarize a copy of the springboard, mail it to himself, and keep the unopened envelope. However, the premise was rejected by DC.
Walker was thus shocked when the 2000 Elseworlds miniseries SUPERMAN: LAST SON OF EARTH by Steve Gerber and Doug Wheatley was published with the same premise and title. After consulting legal counsel, he decided to sue, using the submissions guidelines, which DC then gave out to prospective creators, as evidence that his idea was protected. (Neither titles nor concepts are subject to copyright, which explains why there are so many stories about giant robots.)
DC argued, successfully, that Walker could not claim to own the copyright to a story that featured characters that DC held the copyright to. (In addition Gerber had never seen Walker's springboard.) A Pennsylvania court dismissed Walker's suit, but he appealed the decision. Yesterday, the Court of Appeal for the Third Circuit upheld the lower court decision.
Walker had argued that DC's Submissions Guidelines allowed him to use their characters as "fair use." In a non-precedential decision, the judge found that "while there is room to read into the 1998 Guidelines the possibility that DC might read a Superman 'storyboard," it is not possible to interpret them as granting a license to create derivative works or authorization to use DC's copyright-protected material." The judge also found that "fair use" had no application in the case, since it was reserved for "criticism, comment, reporting," etc.
Walker's second argument was that he had copyright protection over the original elements that he had added. However, the judge found that since the "underlying work" was copyrighted by DC, Walker had no protection.
DC has since removed Submission Guidelines from its website, and changed its submission policy: unsolicited submissions are no longer accepted. |
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