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In February, Kirkman was sued in California state court by Michael Anthony Moore, a childhood friend and collaborator who claimed to be entitled to as much as half the proceeds from the franchise.
Moore now has followed up on this still-pending case with a new lawsuit, this time filed on Tuesday in federal court, which seeks a declaratory judgment that Moore is a joint author of The Walking Dead and other works. If successful, Moore could create quite a headache for Kirkman and others involved with the show.
In the original lawsuit, Moore alleged that in 2005, Kirkman and his agents fraudulently induced him to assign his copyright interests over to Kirkman’s company. Moore contended that his deal entitles him to 60 percent of “Comic Publishing Net Proceeds” in connection with Walking Dead and 20 percent of “motion picture net proceeds.” Moore also said he was given an interest in other projects.
Moore’s February suit in state court claimed promissory fraud, breach of written contract, breach of implied covenant of good faith and fair dealing. He argued that he had never received much revenue nor any profit statements. He also demanded a rescission of the copyright assignment.
In March, Kirkman filed a countersuit against Moore that stated he had actually overpaid Moore for his work and was entitled to money back. Kirkman also filed counterclaims on the premise that Moore had breached the confidentiality provision of their contract.
Moore is unhappy with how the discovery in the lawsuit has been playing out so far.
“Kirkman is a proud liar and fraudster who freely admits that he has no qualm about misrepresenting material facts in order to consummate business transactions, and it is precisely that illicit conduct which led to the present lawsuit (and to Kirkman’s business ‘success’ generally),” says Moore in his Tuesday lawsuit.
The new filing was prompted after arguments in the discovery stage over what documents Moore is entitled to get.
In late April, Moore filed a business records subpoena on Image Comics, which distributes Kirkman’s comics and according to documents, is now owned by the Walking Dead creator. Moore sought info on Kirkman’s relationship with the company, Kirkman’s compensation and further communications to butress the larger claims of fraud.
Image objected, according to court records, on grounds that Moore shouldn’t have any documents that went outside potential royalties owed, which in its view only concerned eight comic books. Image further contended that Moore was precluded from anything more because copyright disputes should be brough in federal court.
At first, Moore’s side objected to what it saw as a “recast” of their claims into a limited royalties fight and asked a judge to intervene. His attorneys believe that the dispute is much larger and entails the theft of intellectual property rights “from inception to the present,” and that Moore is entitled to an equal share of all profits, and thus deserves intrusive document production. Further, since filing the lawsuit, Moore’s attorneys now assert that they have learned “there was no television deal on the table” at the time that Moore relinquished his copyright share. As such, he accuses Kirkman of concealment.
Not content to wait for a state judge to determine the scope of the dispute and what documents should be produced, Moore has launched a federal lawsuit to make it clear that he means business. According to the new lawsuit:
“In order for the State Court to properly award the correct amount of money due and owing to Moore resulting from Moore’s returned copyright interests, and because Defendants now dispute Moore’s co-authorship status, Moore requires a judicial determination that he is a co-author of the Works.”
If Moore is successful, he hints at what’s to come, saying he would “then pursue his rights as a co-owner to proceeds generated from the Works,” which include not just Walking Dead, but also Battle Pope, Brit, Dead Planet, and My Name is Abraham.
As a joint author, Moore would also have other advantages. Copyright law permits each co?owner an independent right to use or nonexclusively license the work provided that he account to the other co?owner for any profits, meaning Moore would potentially be able to license Walking Dead on his own so long as he accounted to Kirkman.
“Yes, that is definitely a possibility that (Moore) would exploit the property,” says Devin McRae, Moore’s attorney.
But Kirkman’s attorney Allen Grodzky says the newest claims stand no chance. “His lawyer finally realized, ‘Oh crap, we filed in the wrong place,'” comments Grodsky. “Our position is that it is never going to get to that issue because he is never going to be able to show fraud, plus the statute of limitations on co-ownership has passed. Also, he’s not a co-owner.”
Kirkman himself was recently asked about the original lawsuit at a Walking Dead panel of Comic-Con International and is reported to have responded, “It’s an unfortunate thing that I’m glad you asked me about. There’s clearly a disagreement there and we’re working through it.”
E-mail: firstname.lastname@example.org; Twitter: @eriqgardner
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