While the Siegel and Kirby families continue to fight their battles in court, readers who want to a fun and accessible overview of the legal issues at stake should pick up the special All-Lawsuit Issue of Comic Book Comics, out in comic shops today.

Comics Alliance has a generous preview, and tonight in New York Evil Twins Fred van Lente and Ryan Dunlavey will be signing copies of the book at the 64 Fulton Street location of Midtown Comics. I’ll be there too for the panel discussion, since I served as the book’s pro bono legal consultant.

The Comics Journal provides a valuable inside look at the reason behind Christopher Handley’s guilty plea in the controversial manga obscenity case, straight from Eric Chase, Handley’s own oft-but-unjustly criticized attorney.

In his must-read reflection, Chase underscores a couple of points previously made here–the risk calculus in facing a local jury and the pervasive misunderstanding of the Ashcroft child porn case within the comics community. I strongly recommend that folks interested in the Handley case read Chase’s explanation, if not my own lengthier explanations of the law, to see how ideals of free speech play out in the rough and tumble of arrest and trial–particularly if you are a reader or retailer of sexually explicit manga.

Beyond the Chase article, I want to add my own brief reflection on the significance of the Handley sentencing. While I understand the round condemnation Handley’s six-month sentence and probation has received, the fact is the U.S. Attorney could have recommended–and the U.S. Probation Office did indeed recommend–a far more harsh punishment under the plea.

In addition to recommending a relatively light sentence (coupled with a token $200 punitive fine), the U.S. Attorney’s sentencing brief went out of its way to underscore the uniqueness of the Handley case, most notably with the Chandleresque opening, “This is an unusual case, involving an unusual man.” Equally noteworthy is the fact that the sentencing brief went out of its way to distinguish Handley’s manga from such works as Alan Moore’s Lost Girls, which the prosecution expressly linked with Nabakov’s Lolita as a non-obscene literary work with “arguable scientific, literary, artistic, or political value.”

That the the U.S. Attorney’s office shifted so dramatically from breathless condemnation to careful caveats may very well reflect a signficant shift within the Justice Department office itself. The Handley prosecution and plea were conducted by a Bush appointee. Handley’s sentencing, however, was overseen by a different prosecutor–Nicholas Klinefeldt, President Obama’s appointee as the new U.S. Attorney for the Southern District of Iowa.

The aggressive use of child porn prosecutions to curb all forms of sexually explicit material was a priority for the Department of Justice under President Bush. Now, as Obama appointees replace the old guard, we may be seeing the previous administration’s evangelical zeal replaced with a more nuanced approach. Simply dismissing existing cases and guilty pleas would be political suicide–clear fodder for opponents to accuse the Administration of condoning child porn–but the Handley sentencing could be a sign that the Obama administration is subtly scaling back the government’s anti-obscenity offensive.

Just a few months ago, Archie Comics Publications signed with storied talent agency CAA to spearhead the company’s strategy for developing new opportunities beyond print. However, Deadline Hollywood Daily has the scoop on a stunning turnaround, as Archie Comics has reportedly left CAA for William Morris Endeavor–whose CEO, Ari Emanuel, is the inspiration for Entourage super-agent Ari Gold.

Heidi MacDonald & Graeme MacMillan have raised the pertinent question of what role DC’s new executive team might have played in replacing the company’s outside counsel.

As any number of folks have observed, Time Warner’s decision to reorganize DC under the leadership Diane Nelson–who had a proven track of developing another literary property, Harry Potter, into a multimedia juggernaut–reflects a broader interest in maximizing the exploitation of DC’s intellectual property. It’s only natural that the corporate eye should turn to the seemingly intractable dispute with the Siegel family over Superman and Superboy.

Superman, of course, has long been vulnerable to magic, so the possibility that Harry Potter’s best friend at Warner Bros. may have placed an avada kadavra spell on Superman’s lawyers only seems fitting. In this regard, the mere fact of a legal change accompanying regime change is, for me, less interesting than the specific form the change takes. Time Warner could have easily chosen a lawyer known for resolving disputes through negotiation–after all, the Los Angeles area’s federal courts are national leaders in alternative dispute resolution, which has given rise to an equally vibrant marketplace for business lawyers adept at negotiating favorable settlements. Instead, the company went for a nationally known aggressive litigator.

I don’t have any inside information as to why Time Warner et al. chose Petrocelli in particular, though I look forward to posting any that may become available. It is true that new DC president Diane Nelson came to Time Warner from Disney–in particular, Walt Disney Records–but that hire seems to have taken place before Petrocelli became Disney counsel in the Winnie the Pooh case and at a time when Nelson would have been relatively siloed from legal in PR.

More tantalizing hints can be found in Time Warner’s connections to the firm in which Petrocelli is a partner, biglaw stalwart O’Melveny and Myers. Not only is Warner Bros. General Counsel John Rogovin a former O’Melveny partner, but Time Warner has engaged O’Melveny as counsel in several high-profile intellectual property & other disputes outside DC.

Perhaps not coincidentally, an important case for which Warner Bros. engaged O’Melveny was a copyright action involving one of the company’s most lucrative licensed film properties: Harry Potter.

Folks who’ve read the court documents linked in my previous post may have noticed that in addition to replacing Weissmann Wolff, Time Warner also dismissed another firm, Fross Zelnick, as outside co-counsel.

This too was a rather interesting decision, especially given Fross Zelnick’s prior dealing with the law of copyright termination, the very legal principle at the heart of the Siegel lawsuit. As the firm’s website notes, Fross Zelnick was counsel in a case that marked “the first judicial treatment of Section 304(d) of the U.S. Copyright Act, which was enacted as part of the Copyright Term Extension Act of 1998. Section 304(d) gives authors and their heirs the opportunity to recapture the authors’ copyrights by permitting them to terminate pre-1978 copyright transfers in the authors’ works.”

Why might Time Warner no longer want to be associated with a firm with experience in fighting a copyright termination claim?

Perhaps this summary of the case provides a clue:

After over three years of court challenges at every level, including before the U.S. Supreme Court, Fross Zelnick successfully represented Stephen Slesinger, Inc. in preserving royalty rights, estimated in the press as exceeding $50 million, related to the exploitation of Winnie-the-Pooh and related characters. These court victories thwarted an attempt by Disney and author A.A. Milne’s granddaughter to terminate Slesinger’s right to receive royalties from merchandising rights that were granted by the author in 1930.

In short, Fross Zelnick opposed Disney in the Winnie the Pooh litigation, and as I noted yesterday, Disney’s legal team in that case included none other than DC’s new outside counsel, Daniel Petrocelli.

This makes for a rather interesting game of legal connect-the-dots. Petrocelli has a direct line to Disney, which recently acquired Marvel, a company fighting a termination claim by the family of Jack Kirby. Now the same lawyer is representing Time Warner/Warner Bros./DC in its own fight against a termination claim by the family of Jerry Siegel, and the firm that crossed Disney is out.

It’s a small world after all.

UPDATE (2/28): Superman, Marvel and Winnie the Pooh

UPDATE (3/1): Did Hermione curse Superman’s lawyers?

In a move that could indicate DC is moving toward a courtroom showdown in the Siegel lawsuits, the company has replaced its local outside counsel with Los Angeles “Super Lawyer” Daniel Petrocelli.

Petrocelli is perhaps best known for his work in several high-profile trials, including a major intellectual property case involving a cartoon character. Besides defending Enron CEO Jeff Skilling in a case that has reached the Supreme Court and helping the Goldman family win a multimillion dollar judgment against OJ Simpson, Petrocelli successfully defended the Walt Disney Company in a long-running dispute over the royalties from Winnie the Pooh.

Time Warner’s decision to bring on such a high-profile litigator as its new outside counsel would seem to signal that the company does not expect a settlement with the Siegel family in the foreseeable future. It’s equally possible that the hire is itself a negotiation tactic, as it’s not unusual for a party in a lawsuit to bring in big name counsel in an attempt to intimidate a seemingly intractable opponent.

Whatever its effect on the Siegels and their own high-powered counsel, the move to Petrocelli is a serious loss for DC’s previous outside counsel, Weissmann Wolff Bergman. The firm had previously succeeded in defending the company in Winter v. DC Comics, a right of publicity action in which the California Supreme Court ruled that a Jonah Hex parody of celebrity musicians was protected by the First Amendment.

Speaking of the Siegel litigation and Judge Larson’s decision to resign his judgeship, more details are out on the Superman case calendar between now and November 2nd.

• The judge has offered to help mediate the case. The Siegels have agreed to go forward with that; the lawyers for DC, Time Warner & Warner Bros. are consulting with their clients.
• Certain issues will be reviewed in connect with motions for reconsideration, with that hearing date scheduled for October 19.
• The parties could not agree on a special master, so the judge is providing a list of approved individuals, along with a description of the special master’s duties and responsibilities should one be appointed.

Yesterday the first issue of Superman: Secret Origin appeared in comic shops, and I’ve been asked whether about its legal ramifications in regard to DC’s claim on the ownership of Superboy.

As I describe in more detail in these two posts, the question of who owns Superboy has undergone some interesting twists and turns. At one point a judge ruled that the Siegels owned the character, but then Judge Stephen Larson came on the case and granted DC’s motion to reconsider the earlier judgment.

For reasons I explain in more detail here, Judge Larson’s opinion could have led DC to conclude that the worst it could end up with is co-ownership of the Superboy character. That changes the copyright landscape considerably. If the Siegels owned the character, DC arguably couldn’t publish new Superboy stories without the Siegels’ approval, but if Superboy is a joint work now co-owned by the Siegels and DC, both sides would have the right to publish new Superboy stories–though they’d have the share the profits and the Siegels would have to be mindful of trademark concerns.

There’s actually a fun historic precedent in this regard. As Michael Patrick Hearn relates in The Annotated Wizard of Oz, the original publication of The Wonderful Wizard of Oz was registered as a joint work co-owned by its author, L. Frank Baum, and illustrator, W.W. Denslow. After the pair had a falling out, Baum and Denslow went on to publish their own separate individual Oz stories. These competing versions of Oz even extended to the Sunday comics section, with “Denslow’s Scarecrow and Tin-Man” a rival to Baum’s “Queer Visitors from the Marvelous Land of Oz.”

Precisely who owns what percentage of Superboy has yet to be determined. Judge Larson had prioritized the Superman litigation, with the Superboy trial scheduled to follow the resolution of the Superman case. Now that Judge Larson has decided to leave the bench to tend to his seven children, we’ll have to wait to see if Superboy gets another legal retcon.

While the Kirby estate’s copyright termination filing is justifiably making headlines, the Superman case has some news of its own.

First, the parties have reported the results of their latest court-ordered mediation. In short, the case goes on:

In response to the Court’s Order of August 20,2009, the parties scheduled and conducted a day-long mediation in front of Hon. Daniel Weinstein (Ret.) on September 11,2009, which was the only date Judge Weinstein had available for in-person mediation within the Court-ordered period. The parties exchanged written settlement proposals prior to that mediation, and continued their settlement discussions in the week following the mediation, but were unable to settle these cases.

The fact that the case is continuing makes the next bit of legal news truly significant. The Hon. Stephen Larson, the judge in the Superman case, shocked the legal world by announcing his resignation, effective as of November 2, 2009. His stated reason: the judicial salary of $169,300 a year is not enough to support his seven children.

Larson had been pushing the case toward a settlement, and key issues remain unresolved. What Larson’s departure means for the case remains to be seen, but it could have a decided impact.

As I’ve noted before, the judge in the ongoing Superman and Superboy lawsuits has been using his decisions to push the parties toward a settlement. The decision awarding addition material to the Siegels was no exception–Judge Larson may have pushed DC by giving the Siegels Krypton, but he also pulled back from a broader ruling that would have given the Siegels the copyright in Luthor and other key material.

Whatever the implications for copyright and comics history, Judge Larson’s opinions serve as paradigmatic example of judging as case management, as each new major ruling reminds the parties that the court is likely to issue a verdict that will satisfy neither side.

Accordingly, Judge Larson’s latest order should not come as a surprise. Here’s the text of that August 20, 2009 order, including the name of the court-appointed mediator and the schedule for the next month:

In light of the Court’s rulings to date in these companion cases, which have narrowed the areas of dispute between the parties, the Court believes that it would be prudent at this juncture for the parties to once again engage in meaningful settlement talks.

Previously, the parties utilized the good services of their jointly chosen mediator, Judge Daniel Weinstein (Ret.). The Court has also been informed that former California Supreme Court Justice Edward A. Panelli has graciously agreed to provide his services as a mediator for the parties if they so choose. The parties may contact Justice Panelli at (415) ***-****.

Regardless of which mediator’s services the parties wish to utilize, the Court hereby ORDERS the parties to devote the next thirty (30) days to engaging in good faith efforts to settle their dispute in the Superman and Superboy litigation. At the conclusion of this period, on September 18, 2009, the parties are to file a joint report, outlining the efforts that they have taken in furtherance of settlement (without, of course, revealing any of the substance of those efforts).

If the parties have not settled these cases at that point, the Court ORDERS a Status Conference to take place on September 21, 2009, at 11:00 a.m. to set further dates for the remaining phase two accounting trial in the Superman litigation.

(more…)

Longtime readers of these posts on the Superman case may recall what happened after I posted the stripts & scripts from the previously unpublished 1934 collaboration between Jerry Siegel & Russell Keaton.

As Judge Stephen Larson recounts in a new opinion issued today (p.36), this post led the Siegels’ lawyer, Marc Toberoff, to contact pioneering publisher Denis Kitchen regarding Kitchen’s comment noting the existence of additional unpublished Siegel-Keaton material, and the correspondence led to the plaintiffs’ discovering a script for a Superman story that Siegel and Shuster would later adapt for Action Comics #4:

Plaintiffs have submitted declarations evidencing that the script in question was in the possession of Russell Keaton’s widow who turned it over, along with other materials, to the family’s literary and marketing agent, Denis Kitchen, in 1993. Mr. Kitchen thereafter on August 21, 2008, posted a comment in response to a blog story titled “Russell Keaton, Superman’s Fifth Beatle,” wherein he disclosed that, in addition to the subject of the story (which concerned the illustrated strips, but not the scripts, Siegel and Keaton had created concerning the version of Superman as someone from Earth’s future), “there’s LOTS more correspondence and scripts.” Plaintiffs’ counsel thereafter ran across Kitchen’s post while searching the Internet, and after contacting him obtained a copy of the script, which he then promptly produced.

As explained earlier, the discovery of this material led the Siegels to seek the copyright to additional Superman material beyond Action Comics #1:

According to Toberoff, the script he discovered due to the Newsarama post provides conclusive proof that other Superman material by Jerry Siegel should not be considered work for hire. The football story in Action #4 “was unquestionably recaptured” by the Siegels, he concludes, and it “gives rise to a strong inference” that the material in Action Comics #2-6 was also written earlier. Moreover, based on other evidence, Toberoff argues that the court should award the Siegels co-ownership of other Superman material published during a five-year termination window that ends on April 16, 1943, including the Superman dailies, Action Comics #7-61 and Superman #1-23.

Judge Stephen Larson has just issued his ruling on this claim, and while they didn’t get everything, the result is another notable victory for the plaintiffs: the Siegel heirs are now co-owners of the Superman material in Action Comics #4 as well as certain other key early pages & newspaper strips.

I’ll have more after I’ve read the entire ninety-nine page opinion. For those who can’t wait, here’s the conclusion:

At the conclusion of this final installment regarding the publication history of and the rights to the iconic comic book superhero Superman, the Court finds that plaintiffs have successfully recaptured (and are co-owners of) the rights to the following works: (1) Action Comics No. 1 (subject to the limitations set forth in the Court’s previous Order); (2) Action Comics No. 4; (3) Superman No. 1, pages three through six, and (4) the initial two weeks’ worth of Superman daily newspaper strips. Ownership in the remainder of the Superman material at issue that was published from 1938 to 1943 remains solely with defendants.

At the San Diego Comic Con Comics Arts Conference, Kim Munson presented material from her ongoing research on the landmark 1983 Comic Art Show at the Whitney Museum. Her slides from the panel offer a useful overview the event, which helped set the stage for comic art becoming a staple of major museum exhibits around the globe.

The judge presiding over the Siegel Superman trials has set December 1, 2009 as the start date for the apportionment phase, with a pre-trial hearing scheduled for November 9. But that doesn’t mean the case will be dormant until then.

Citing the difficulties evident in determining the fair market value of the Superman properties, the judge has provided for the appointment of a special master/court-appointed expert to issue a report before the trial. The parties have until July 31 to make a joint stipulation as to who this master/expert should be.

As the court indicates, the appointment of a special master is appropriate in cases that involve accounting issues and other complex matters that could be difficult for a judge to resolve effectively.

In other news, Variety reports a statement from the Siegels’ lawyer, Marc Toberoff. Besides conceding the fair market value issue was always going to be a difficult one to win, Toberoff states that this phase pales before the larger accounting issues and particularly the imminent reversion of the remaining 50% of the Superman copyright to the Shuster heir in 2013. In addition, Toberoff asserts that “the Court pointedly ruled that if Warner Bros. does not start production on another Superman film by 2011, the Siegels will be able to sue to recover their damages.”

As I noted earlier, claims by the parties in a case should be read with care. DC/Warner Bros. celebrated a clear victory, but the opinion was actually more nuanced–the judge did not so much pronounce the movie licenses as clear fair market value deals as conclude, with evident frustration, that he did have enough information to rule otherwise.

Similarly, while the judge does indeed note that the plaintiffs “plaintiffs could bring an accounting action at that time to recoup the damages then realized for the Superman film agreement’s failure to contain a reversion clause,” technically that’s no so much a formal ruling as dicta. Whether such a lawsuit would succeed or be cost effective remains an open question, as is evident from the judge’s discussion of the “challenged” state of the Superman property and the relatively limited value of a shared copyright.

The judge also hedges the assertion that the remainder of the Superman copyright will revert to the Shuster estate in 2013. While the potential is there for a Siegel-Shuster partnership of considerable value, the judge also notes that “it is by no means a foregone conclusion that the Shuster estate will be
successful in terminating the grant to the Superman material published in Action Comics No. 1,” given the difficulty in “successfully navigating the formalistic and complex termination provisions in
the 1976 Copyright Act.”

As I indicated last night, the judge continues to exert pressure for a settlement in subtle but recognizable ways, but each side also continues to press its claims in what is at base an extremely complex set of circumstances. While the Siegels have an incentive to settle the case early to avoid the possibility of a judicially determined low valuation, they also have clear incentives not just to get judicial validation of their financial claim, but to use the appeals process to–at the very least–run out the clock until 2013. Likewise, Warner Bros. should be concerned that the next phase may not be lacking in data that the judge could use against it, even as it no doubt is equally convinced that an appeal could result in its favor.

If I had to make a prediction, I’d say that one thing is certain–anything could happen.

As noted last night, yesterday’s Siegel opinion contains a number of interesting points beyond the outcome. One that deserves its own post: its revelation concerning the state of the Superman movie franchise.

In the court’s discussion of the lack of any reversion clause, the judge observes that for the “plaintiffs to succeed in proving that the Superman film agreement was in fact below fair market value, they must establish that there would have been a film sequel or a reversion of rights by this point if the agreement contained such a reversion clause keyed to film development.” However, the Siegels could not demonstrate this, in part because there is no sequel currently in the works.

As Warner Bros. President & Chief Operating Officer Alan Horn testified,

aside from his “hopes” to develop the Superman character, at present the property is not under development at Warner Bros. (Trial Tr. at 166). No script has been written, filming has not commenced, and the earliest a Superman film could be theatrically released would be in 2012. (Trial Tr. at 155). As Mr. Horn explained, “we had hopes to keep the [Superman] character alive and to once again reinvent Superman. We are — our hope is to develop a Superman property and to try again. What hurt us is that the reviews and so on for the Superman movie . . . did not get the kind of critical acclaim that Batman got, and we have other issues with Superman that concern us.” (Trial Tr. at 153). Thus, in the seven years since the Superman film agreement was executed a single movie has been released and no further development has occurred.

This statement in regards to the Superman movie being stalled is part of Warner Bros.’ broader assertion that the character is, in the words of the defense, “damaged goods.” A key element of the company’s strategy at this point is to talk down Superman’s value, which is why Warner Bros. believes there are problems with the films going forward–the property is “viable . . . but challenged,” as evidenced not only by the latest film but the fact that the character’s circulation numbers put him number 4 in popularity “on a good day,” behind the X-Men, Spider-Man and Batman.

The judge also makes an interesting observation regarding Superman and gender. The context: his discussion of the incomparability between the Superman franchise and the film deals presented by the plaintiffs, such as musicals (e.g., My Fair Lady), adaptations of bestselling novels (Tom Clancy) and other comic book films (the Green Hornet, “a low-tier comic book character that appeared mostly on radio during the 1930s and 1940s and that has not been seen since a brief television show in the mid-1960s”). Besides these apples-to-oranges comparisons, the judge observes, the plaintiffs made a comparison that he found completely absurd, as they likened Superman to

even more incredibly, a web creation then popular with little girls — the NeoPets.

So there you have it–even a federal district court has found that comics aren’t for girls.

On the surface, the latest court ruling in the Siegel Superman lawsuit is relatively straightforward: the court examines whether Warner Bros. paid fair market value for the Superman movie & Smallville licenses, and the ruling finds in favor of the defendants. However, there’s much more to this opinion than who won.

One clear theme that emerges in this opinion is the judge’s dissatisfaction with how the plaintiffs have been arguing their case. For example, the judge repeatedly asserts that the plaintiffs did not provide pertinent comparative data and failed to address what was arguably the central issue in this phase–namely, the value not of the Superman property as a whole, but of the rights in Action Comics #1 shared by Warner Bros. and the Siegels. The judge also makes a striking argument that DC unreasonably failed to include a standard clause for reversion of rights should Warner Bros. fail to make another Superman movie, only to conclude that he lacked a basis for ruling against Warner Bros. on this issue as well.

All told, the judge makes a point of stating in regard to the Superman movie rights that the reason he found in favor of the defendants was “insufficient evidence”–in other words, it’s not so much a determination that the licenses actually reflected fair market value as the lack of needed evidence for finding otherwise.

Whether the judge is correct on this point I’ll leave to the Ninth Circuit Court of Appeals–what I find most significant is the extent to which he is arguably signaling that the Siegels may not want to count on the present court to provide a significant amount over what they might get in a settlement. The judge’s evident frustration sends a message that is all too common in situations such as this–namely, that while the plaintiffs may have won a moral victory, that might not necessarily translate into significant cash, at least not without clear documentation and convincing arguments. In this regard, it’s worth noting that the judge calls attention to how different the original Superman was in contrast to his current incarnation–it will be most interesting to see how he assesses the value of the Siegels’ copyright interest in relation to current material.

In addition, there are a number of other reasons why this opinion is well worth reading:

As noted earlier, the next phase of the case involves apportionment of the value of the relevant Superman material between the Siegels and Warner Bros. That is ultimately the real prize, and I’ll post the details on the schedule as soon as they’re available.

Shortly after I posted the opinion the following statement from DC & Warner Bros. appeared in my inbox:

DC Comics and Warner Bros. Entertainment are very gratified by the court’s thorough and well-reasoned decision in this matter. The decision validates what DC and Warner Bros. have maintained from the beginning, which is that when they do business with each other, they always strive for – and achieve – fair market value in their transactions. We are very pleased that the court found there was no merit to plaintiffs’ position that the Superman deals were unfair to DC Comics and, by extension, the plaintiffs.

No big surprise here–the judge is always smart when you win. But is that all that the opinion says, or is there more than meets the eye?

Check back soon for more from this fascinating opinion.

Last year a federal court awarded the Siegel heirs half of the copyright in the Superman material in Action Comics #1. Remaining to be decided, however, was how much that copyright interest was worth.

Today the court released its ruling on the first issue related to this question: namely

“whether the license fees paid” by Warner Bros Entertainment Inc. (“Warner Bros”) to its corporate
sibling, DC Comics, for the audiovisual rights to the Superman copyright pursuant to various
licensing agreements entered into during the 1999 to 2002 period “represents the fair market value
therefor, or whether the license for the works between the related entities was a ‘sweetheart deal.’”

A more complete explanation of the details of the opinion will have to wait for another time–I have about two minutes to write this before another commitment. In a nutshell, the judge agreed with Warner Bros. that the license fees paid were not below fair market value.

Remaining to be decided at a future date: how to allocate the relevant profits between the Siegels and Time Warner.

As many of you no doubt have read, a federal appeals court has refused to grant the petition for rehearing in the Dwight Whorley case. Whorley had been convicted of possessing child porn, receiving obscene manga and sending obscene email.

The court ruled 10-1 against rehearing the case, but the focus of attention has been the lengthy dissent, in which Judge Roger Gregory urged Whorley to take the case to Supreme Court. Among other things, Gregory argues that Whorley’s conviction violated the First Amendment insofar as it punished speech pertaining to “imaginary children.”

Judge Gregory’s may have struck a chord in the comics & manga communities, but odds are that it will not make a similar impression on a majority of Supreme Court Justices, let alone appellate judges in his or any other federal circuit. The Court established years ago that fiction and drawings can be obscene. There is no split among the federal circuits regarding that issue, and the Supreme Court is not likely to view protecting pornographic depictions of children as a compelling reason to overturn decades of established obscenity jurisprudence.

Anti-censorship advocates, including Judge Gregory, have been wont to quote passages from the 2002 Ashcroft v. Free Speech Coalition decision regarding the unconstitutionality of banning virtual images, but these passages don’t prove what people think they do. In short, the quotes are being taken out of context–the Aschroft case dealt with a statute that banned virtual images regardless of whether they were obscene, a constitutional problem that current law arguably corrects.

There are equally substantive issues with Judge Gregory’s argument that obscenity communicated over the Internet should be regarded as personal, akin to private thoughts or matter read in one’s home, rather than connected to interstate commerce and thus a legitimate subject of federal law. This blog is not the place for an extensive analysis of Commerce Clause jurisprudence and the regulation of electronic communications, but suffice it to say that for Whorley to prevail on this point, the Supreme Court would essentially be nullifying precedent that provides the basis for much of Congress’s present legislative authority, let alone analogous principles that have enabled Congress to regulate obscenity sent by mail or through Customs.

Still, if people want to file appeals claiming that the Internet is intrinsically private or that images of fictional children cannot be obscene, that’s their right–it is, after all, a free country, at least in regard to the freedom to pay lawyers to make quixotic arguments.

The following is a new animated video by Takashi Murakami for Louis Vuitton. Besides the LV logomania, the cartoon is rife with interesting visual references, from Yellow Submarine and Alice in Wonderland to Doctor Who, Pulp Fiction and C.S. Lewis.

The scenario: a meet cute involving a girl who goes back in time to the 1897 workroom of 14-year-old Gaston Louis Vuitton. How the events in this video affect the timestream is unclear–clearly this calls for a sequel.

President Obama has appointed Charles Rivkin–former Jim Henson Company CEO and current producer of Yo Gabba Gabba!–to serve as U.S. Ambassador to France.

Nikki Finke provides the political backstory. I really don’t have any additional observations, except occasionally it’s a relief to note law-related news that doesn’t involve damages, injunctions or plea bargains.