INFANTINO V. DC DISMISSED

[MattBrady]

According to papers filed electronically with the New York Southern District Court, the complaint by Carmine Infantino against DC Comics which sought $4,000,000 in damages has been dismissed as of September 20th.

The dismissal came not through a decision by the judge, but rather pursuant to Fed. R. Civ. P. 41(a)(1)(ii), which allows the plaintiff to dismiss an action without order of the court by filing a stipulation of dismissal signed by all parties who have appeared in the action.

That is, the plaintiff, in this instance, Infantino, has opted to dismiss, and the court has agreed. According to the filing, the dismissal is made without prejudice, that is, Infantino could revise his complaint and refile if he so chooses.

As of the filing for dismissal, DC had not responded to Infantino's complaint.

Infantino’s complaint alleged that he was owed damages by DC due to continued copyright infringement by the publisher, as Infantino claims that he created the Silver Age Flash, Batgirl, and a host of other DC characters as a freelancer, and therefore owns them.

As Newsarama reported earlier:

The core of Infantino’s complaint centers on The (Silver Age) Flash, the Rogues Gallery, and Black Canary, which, the complaint states, were created between 1943 and 1959. The Flash and the Rogues Gallery, as the complaint states, were based on Infantino’s creations, Captain Whiz and the Colors of Evil, respectively. According to the complaint, Infantino’s source characters were created years before he was assigned to redesign the Flash and create a collection of villains for the hero, whole cloth.

Neither DC nor Infantino’s lawyer chose to comment when asked by Newsarama.

[cncoyle]

Hey kids, can you say "settled out of court"?

[BriGuy]

Originally posted by cncoyle
Hey kids, can you say "settled out of court"?

Hmmm... I dunno. If it was settled would that "without prejudice" language be in there? I can't imagine DC coming to any sort of settlement that would allow Infantino to bring later action on the matter. And DC hadn't even filed an answer yet...

Perhaps, they are just seeking to amend the complaint.

[Cliffy]

Could be settled, but I doubt it. A settlement wouldn't necessarily effect the "without prejudice" language -- that's standard when a Plaintiff drops a case. The general rule is that the first time you drop a case it's without prejudice, but if you refile and then redrop, that's with prejudice (that is, you're done) unless the Court orders otherwise.

I'm not surprised that Infantino dropped this case. Regardless of the ultimate merits, in my worthless opinion it was a very poorly conceived Complaint. It didn't ask for the relief Infantino may have had a chance at getting and it made many factual allegations that anyone who watches the comics scene would know were incorrect. The smart play once they figured that out was to drop, get a lawyer with more experience in these matters, and refile.

--Cliffy

[SpyGuy]

This is just supposition, but it sounds like Carmine's lawyer probably got ahold of his client and told him that he had no chance in hell of winning that lawsuit.

Hopefully, though, this will clear the way for reprints of Infantino's material, such as the long-awaited FLASH ARCHIVES VOL. 4...

[The Escapist]

I've said it before and I'll say it again-

Cliffy, if not for you, I'd have NO clue what the hell happened in the Gaiman/McFarlane stuff, the Twist/McFarlane stuff, or just about ANY of the numerous filings, suits, and thingamajigs.

Thanks! You, sir, are a prince among geeks.

-Dave

[The Letter D]

Highly doubtful that a settlement has been effected with a dismissal without prejudice. Generally, you file a dismissal with prejudice with a settlement to prevent the plaintiff from ever being able to bring the claim again.

The effect of the dismissal with prejudice is minimal, they can bring it again, as long as the statute of limitations hasn't run.

www.theletterd.blogspot.com

[Kolimar]

Hurrah for DC

[Sean Walsh]

When this was first announced I was VERY skeptical that it would survive.

I mean, it came like 2 weeks after Julie Schwartz - the only person who could've REALLY sunk Infantino's whole case - died. To me, that was all the proof I needed to see there was something shady going on here...

[GuitarSmashley]

had it been settled it would have said, Infanto and DC settled out of court for an undisclosed settlement."

[Nakedmanatee]

I don't know about y'all, but once I read the phrase "Captain Whiz and the Colors of Evil," I started giggling uncontrollably and all legalese just vanished into the ether.

Captain Whiz. What's *his* super-power? Hee-hee-snort!

--Dave

[gschienke]

What a surprise. IMO, this suit is almost a definition of "nuisance lawsuit."

Most classy of all was Infantion waiting until the last person there at the creation died before bring the suit in the first place.

Greg

[Tim Robertson]

I was wondering why he waited all these years? If he actually had a case, and was simply hoping that DC settle...

[David P. Lyons]

Originally posted by BriGuy
Hmmm... I dunno. If it was settled would that "without prejudice" language be in there? I can't imagine DC coming to any sort of settlement that would allow Infantino to bring later action on the matter. And DC hadn't even filed an answer yet...

Perhaps, they are just seeking to amend the complaint.

If that were the case Infantino would, I think, simply have amended. It's been a while since I've looked at it, but I think Federal Rule 17 allows a plaintiff to amend the complaint once as a matter of right if the opposing party has not replied.

[Rockin' Rich]

They settled. Carmine got a check.

(At least that's my guess.)

As a graduate of the "Close Cover Before Striking" School of Law, I can also semi-reliably tell you that there was nothing in Matt's report that precluded such a settlement.

Charmin' Carmine had no case...and he and his lawyer probably knew it, but they DID succeed in getting DC's attention, so bully for them!

And if DC DIDN'T cut a check for Carmine to just go away, maybe they gave him a pile of work to do (for which he'll be handsomely compensated).

THAT would be a win-win-win, if that's what happened...with the third "win" being for the fans, who get to see some new Infantino DC art!

Hope so!

[Shinigami]

Originally posted by Tim Robertson
I was wondering why he waited all these years? If he actually had a case, and was simply hoping that DC settle...

He waited for one simple reason. Very nearly every other person who'd worked on those books had more of a legitimate case than Infantino. With Jules dead, Infantino is FINALLY the first in line. Which is to say, scraping the bottom of the barrel.

Now, don't get me wrong, I don't have anything against the guy. However, he most certainly doesn't have a claim on the rights to those characters. For one thing, DC could very successfully argue that many of the characters were based of pre-existing characters, ie. Jay inspired Barry, both in the comics and in real life. At the best, Infantino's contributions would have been the costume anyway, since he wasn't the writer or editor of the books, he was the artest.

Also, on the matter of settling it, it WAS NOT settled. Firstly, there is no way that DC would have settled this out of court and not insisted that the case be closed with prejudice. It doesn't make much sense to pay a person to go away and then give him a loop hole that'll let him come back in two or three years and ask for more money. Secondly, as I said, Infantino had almost zero case. Most of the people who were involved at the time are dead, so it essentially becomes his word against DCs. Thirdly, if DC did settle with him, the flood gates are open on everybody. If Infantino could sue and get money from DC for his work on Flash and Batgirl, imagine Marv Wolfman's claims on, well, just about everything at this point. No, I'd imagine that the entire reason DC didn't even reply by the time the case was dismissed was because they were making sure they'd dotted every i and crossed every t so that they could hammer this issue down in one single blow. I can easily imagine that the idea of settling would have come up, sure, but the precident it would have set within the company would have destroyed DC and most likely Marvel in the long run, and I'm sure most people in those meeting rooms would have realized that and spoken against it.

[spiderrob8]

Originally posted by Rockin' Rich
They settled. Carmine got a check.

(At least that's my guess.)

As a graduate of the "Close Cover Before Striking" School of Law, I can also semi-reliably tell you that there was nothing in Matt's report that precluded such a settlement.

Charmin' Carmine had no case...and he and his lawyer probably knew it, but they DID succeed in getting DC's attention, so bully for them!

And if DC DIDN'T cut a check for Carmine to just go away, maybe they gave him a pile of work to do (for which he'll be handsomely compensated).

THAT would be a win-win-win, if that's what happened...with the third "win" being for the fans, who get to see some new Infantino DC art!

Hope so!

DC would not have settled and then allowed it dismissed w/o prejudice. It just doesn't work that way. Why give him, say $ 1million if he could just bring the suit the next day and still win the character, theoretically. That's not how it would work. It wouldn't make any sense. When you settle, as the defendant, you want the fcase GONE FOR GOOD!

[Cliffy]

I think it's probably not a settlement, but the w/o prejudice language isn't necessarily inconsistent with a settlement. As a Defendant, DC would certainly want the case dropped with prejudice, but as the song says, you can't always get what you want. It's actually not that big a deal. If the case had been dismissed with prejudice, and Infantino were to bring it again, DC would just write a one-page response, attach a docket sheet, and be done with it.

However, if there really is a settlement whereby Infantino gave up his right to sue, then the w/o prejudice language isn't a "loophole" that will allow Infantino to bring suit again in the future. If he does, DC will have to work a little harder and attach a copy of the settlement agreement to its response. Then the court in the 2d suit would have to enforce that agreement as a contract (which is what it is). That means some litigation, and it may be difficult to keep the terms of the settlement confidential, but assuming the settlement isn't unconscionable and that all the t's are crossed and the i's dotted, the end result will be the same and Infantino's 2d suit would be dismissed.

In summary, the w/o prejudice language is something DC would have wanted if there's a settlement, because it saves them time, money, and a small amount of risk in the future if Infantino ever tries to take a second shot, but it isn't a big deal and DC wouldn't be smart to make it a deal-breaker if they could negotiate a settlement they were otherwise happy with but Infantino was entrenched. It's also conceivable that there was a settlement that the Court wasn't willing to sign off on for whatever reason, and the parties cannot agree amongst themselves that a dismissal will be with prejudice -- that's a determination that the Court makes, and so if the Ct. isn't happy with the parties' settlement, the Ct. can refuse to play ball.

Like I said above, this is all hypothetical. While the language used doesn't preclude a settlement, I don't think there was one. I think Infantino (or his lawyer) realized that it was an ill-drafted Complaint, it made allegations that were clearly false, and it didn't advance the legal theories that actually have some chance of success. So they pulled it and are reworking it now (hopefully with input from an IP lawyer) and will refile in the future.

--Cliffy

P.S. While the fact that this was filed right after Schwartz's death does have a certain aroma to it, there are alternative explanations. There has been a lot of development in the area of comic-book IP law recently (specifically, Gaiman v. McFarlane and Simon v. Marvel) which may have opened new legal theories. I didn't see any evidence of that in my three-second review of Infantino's Complaint, but that's not itself surprising; those theories might have come up later, such as in a response to a DC motion to dismiss.

[Anaximander]

Never mind.

[J.C. Bakken]

If could be that Infantino TRIED to get money, but when DC and their laywer did their work, Infantino and his laywer found that they could not sue at this moment. Maybe if they dig deeper and work harder they might come back with better evidence, but as of now, they can't fight The Big Corp.

My 2€.

[Anaximander]

Originally posted by Cliffy
However, if there really is a settlement whereby Infantino gave up his right to sue, then the w/o prejudice language isn't a "loophole" that will allow Infantino to bring suit again in the future. If he does, DC will have to work a little harder and attach a copy of the settlement agreement to its response. Then the court in the 2d suit would have to enforce that agreement as a contract (which is what it is). That means some litigation, and it may be difficult to keep the terms of the settlement confidential, but assuming the settlement isn't unconscionable and that all the t's are crossed and the i's dotted, the end result will be the same and Infantino's 2d suit would be dismissed.

Sure, the settlement agreement would likely be enforced; but why would DC take the risk of paying their lawyers for future litigation, when they could get the dismissal with prejudice now. Also, maybe Infantino gets a sympathetic Judge who decides that the settlement agreement isn't enforceable for some reason. Even if the Judge is legally incorrect, then DC has to pay lawyers to appeal. Seems like this would be a huge mistake, and should just be taken care of up-front.

It's also conceivable that there was a settlement that the Court wasn't willing to sign off on for whatever reason, and the parties cannot agree amongst themselves that a dismissal will be with prejudice -- that's a determination that the Court makes, and so if the Ct. isn't happy with the parties' settlement, the Ct. can refuse to play ball.

There is no reason that the court would have to approve a settlement of this type of case. And there is nothing in the Rules of Civil Procedure that prevents a plaintiff from voluntarily dismissing a case with prejudice; 'with prejudice' does not require the court's approval.

Like I said above, this is all hypothetical. While the language used doesn't preclude a settlement, I don't think there was one. I think Infantino (or his lawyer) realized that it was an ill-drafted Complaint, it made allegations that were clearly false, and it didn't advance the legal theories that actually have some chance of success. So they pulled it and are reworking it now (hopefully with input from an IP lawyer) and will refile in the future.

Couldn't agree more.

[Matches Malone]

It hasn't settled. I'm a defense attorney. I would NEVER NEVER NEVER settle a case without getting a dismissal with prejudice. In fact, I usually draft the dismissal myself and send it to the plaintiff's attorney along with the check and release. There's no reason to take a dismissal w/o prejudice if you've signed a release of all claims.

More likely is that Infantino's lawyers weren't ready to make the case at this time, filed the claim to toll any applicable statute of limitations, and are using the year allowed after dismissal w/o prejudice to get their ducks in a row before refiling.

[Prof OddPassion]

Originally posted by Shinigami
No, I'd imagine that the entire reason DC didn't even reply by the time the case was dismissed was because they were making sure they'd dotted every i and crossed every t so that they could hammer this issue down in one single blow. I can easily imagine that the idea of settling would have come up, sure, but the precident it would have set within the company would have destroyed DC and most likely Marvel in the long run, and I'm sure most people in those meeting rooms would have realized that and spoken against it.

Well....that and they're probably still trying to figure out what the hell they're gonna do when they lose Superman and Superboy....

Not really, but that's what I'd be worried about if I were DC.

[Cliffy]

Anaximander, I'm not saying that it wouldn't be a good idea for DC to get a dismissal with prejudice had there been a settlement -- it would be. But if I were DC and that were the only thing holding me up, I wouldn't make it a deal-breaker, since I'd have the settlement agreement which covers the same ground. It's not as strong, but it's effective, and if that's what I needed to make the suit go away, it'd be worth the risk IMO.

--Cliffy

[Anaximander]

Originally posted by Matches Malone
It hasn't settled. I'm a defense attorney. I would NEVER NEVER NEVER settle a case without getting a dismissal with prejudice. In fact, I usually draft the dismissal myself and send it to the plaintiff's attorney along with the check and release. There's no reason to take a dismissal w/o prejudice if you've signed a release of all claims.

Exactly