Walker v. DC Comics, Inc.

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-18-2003
Walker v. DC Comics
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3058
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Recommended Citation
"Walker v. DC Comics" (2003). 2003 Decisions. Paper 450.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
NO. 02-3058
___________________
MARCEL WALKER,
Appellant
v.
DC COMICS, INC., a New York For Profit Corporation
________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. No. 01-cv-01758)
District Judge: Honorable Robert J. Cindrich
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
May 19, 2003
Before: SCIRICA, Chief Judge, NYGAARD and BECKER,
Circuit Judges
(Filed June 18, 2003 )
_______________________
OPINION
_______________________
BECKER, Circuit Judge.
This is an appeal by Marcel Walker from the grant by the District Court of
summary judgment in favor of defendant DC Comics. We affirm.
Walker had composed a one-page “springboard” or story idea for DC Comic’s
“Elseworlds” series of comic books. The “Elseworlds” series places familiar DC heroes,
such as Superman, in unfamiliar settings or plot sequences. Walker’s “springboard,”
entitled, “Superman: The Last Son of Earth,” reversed the traditional sequence of the
Superman story and had Superman born on Earth but then sent to Krypton. Three years
after Walker sent his “springboard” to DC, DC published a two-part “Elseworlds” comic
book series, entitled, “Superman: Last Son of Earth.” Although the DC comic books
shared the same title and general plot idea (Superman born on Earth and sent to Krypton),
the details and thrust of the stories were substantially different. Importantly, Walker
attached an exhibit showing how his “storyboard” was derived from what he called the
“established character history” and how DC’s version copied Walker’s transformations of
DC’s traditional plot sequence for Superman.
DC contends that Walker’s “springboard” is an unauthorized derivative work of
DC’s copyrighted Superman character and thus cannot be protected by copyright law.
We agree. One of the two essentials in a copyright infringement case is ownership of a
copyright (the other is copying of the copyright). Dam Things from Denmark v. Russ
Berrie & Co., Inc., 290 F.3d 548, 561 (3d Cir. 2002). The Copyright Act defines a
derivative work as “based upon one or more preexisting works, such as a translation,
musical arrangement, dramatization, fictionalization, motion picture version, sound
recording, art reproduction, abridgment, condensation, or any other form in which a work
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may be recast, transformed, or adapted.” 17 U.S.C. § 101 (emphasis added).
Walker does not dispute the District Court’s conclusion that his “springboard” is a
derivative work. Rather, he makes two arguments for why he is entitled to some form of
copyright protection: first, that DC granted him permission to use its copyright or that his
“springboard” was a “fair use”; and second, that he is entitled to copyright protection for
whatever original elements he contributed to the derivative work.
With respect to the first argument, Walker presents what he calls DC’s Submission
Guidelines from 1998. Leaving aside the forceful argument that this is irrelevant because
Walker sent his work to DC in 1997 and that he failed to raise the consent argument in the
Complaint, there is nothing in the 1998 Guidelines that purports to grant Walker a license
to use DC’s Superman copyright. The 1998 Guidelines apply only to “unsolicited
submissions” and states that “[many] of our editors (such as the SUPERMAN and
BATMAN editors) are unwilling to read unsolicited submissions for their titles.” 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.
Further, Walker claims in his brief that the 1998 Guidelines “effectively granted”
him “permission to make Fair Use of [DC’s] characters for purpose of submission.”
Walker appears to be mixing up the term of art “fair use” with the concepts of license and
authorization discussed above. At all events, the “fair use” doctrine is inapposite to this
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case. The Copyright Act provides that “the fair use of a copyrighted work . . . for
purposes such as criticism, comment, news reporting, teaching (including multiple copies
for classroom use), scholarship, or research, is not an infringement of copyright.” 17
U.S.C. § 107; see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)
(holding that “parody, like other comment or criticism, may claim fair use under § 107").
Walker does not and cannot allege that his submission of the “storyboard” to DC falls
under any of these purposes.
Walker’s second argument – that he has copyright protection over whatever
original elements he added to the Superman copyright in his “storyboard” – is foreclosed
by our decision in Dam Things. In that case we explained that “[a]n author’s right to
protection of the derivative work only extends to the elements that he has added to the
work; he cannot receive protection for the underlying work.” 290 F.3d at 563. However,
“if the underlying work is itself protected by copyright, then he will receive no protection
at all; on the contrary, he is a copyright infringer, because in order to create his work he
has copied the underlying work.” Id. (emphasis added). Thus, because Walker copied
DC’s copyright in his “springboard” without authorization, he is not entitled to any
protection for his derivative work.
The judgment of the District Court will be affirmed.
TO THE CLERK:
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Kindly file the foregoing opinion.
/s/ Edward R. Becker
Circuit Judge
5
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
NO. 02-3058
___________________
MARCEL WALKER,
Appellant
v.
DC COMICS, INC., a New York For Profit Corporation
________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. No. 99-cr-00089-2)
District Judge: Honorable Robert J. Cindrich
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
May 19, 2003
Before: SCIRICA, Chief Judge, NYGAARD and BECKER,
Circuit Judges
_________________
JUDGMENT
________________
This cause came on to be heard on the record from the United States District Court
6
for the Western District of Pennsylvania and was submitted pursuant to Third Circuit
LAR 34.1(a) on May 19, 2003.
On consideration whereof, it is now here ORDERED AND ADJUDGED by this
Court that the judgment of the said District Court entered July 11, 2002 be, and the same
is hereby affirmed. All of the above in accordance with the opinion of this Court. Costs
taxed against appellant.
ATTEST:
Clerk
Dated:
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