Opposition Brief — DeCarlo v. Archie Comic Publications, Inc.

No. 03-1577

'

IN THE

Supreme Court of the United States

JOSETTE DUMONT DECARLO,

Executrix of the Estate of Daniel S. DeCarlo,

Petitioner,

V:

ARCHIE COMIC PUBLICATIONS, INC.,

Respondent.

ON PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

LeEoRA HERRMANN

Grimes & BaTTERSBY, LLP

488 Main Avenue

Norwalk, CT 06851

203-849-8300

Attorneys for Respondent

188644 ce}

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

1. Does Rule 56.1 of the Local Rules of the United States

| District Courts for the Southern and Eastern Districts of New

: York impose an undue burden on litigants and result in the

resolution of disputed issues of fact on motions for summary

judgment in violation of the nonmovant’s Seventh

Amendment right to trial by jury, or does it establish a

uniformly accepted mechanism for determining if there are

genuine issues of material fact?

2. Did the district court below resolve any disputed

issues of fact or make determinations on the credib.'ity of

witnesses as to whether:

(a) the contributions of Petitioner’s decedent, Daniel

S. DeCarlo (“DeCarlo”), to the creation of Respondent’s

Sabrina comic book property were prepared at Respondent’s

expense and, therefore, qualified as works-for-hire under the

“instance and expense” test of the 1909 Copyright Act?

(b) DeCarlo and Respondent had agreed that he

would own the copyrights in his contributions to Sabrina

despite the fact that they were created at Respondent’s

“instance and expense”?

(c) Petitioner was precluded by an earlier litigation

from asserting that DeCarlo owned Respondent’s Josie

property?

3. Did the district court abuse its discretion in holding

that the evidence that Petitioner proffered regarding certain

lost documents was so speculative and remote that a jury

could not make a rational determination of their contents?

I

4. Did the district court correctly hold that the relevant

provisions of the parties’ 1988 and 1996 work-for-hire

agreements were unambiguous and that, based on undisputed

facts, they resulted in an assignment by DeCarlo to

Respondent of any copyright interest he might have had in

any of the Cheryi Blossom and Sabrina works?

5. Did the district court correctly hold that there was no

dispute of fact as to whether the Cheryl Blossom characters

were Archie characters and that DeCarlo, therefore, waived

any claim to them when he executed the parties’ 1988 work-

for-hire agreement?

ee

il

STATEMENT PURSUANT TO RULE 29.6!

Archie Comic Publications, Inc. has no parent

corporation and no publicly held corporation owns 10% or

more of its stock.

1. Because Petitioner did not appeal the dismissal of her

counterclaims in 00cv5686, Respondent is the only named

counterclaim-defendant with an interest in this case and the other

named counterclaim-defendants are not included in this Statement.

iv

TABLE OF CONTENTS

Questions Seanad... esses reese ee eneesyes

Statement Pursuant To Rule | er ea ee a

Taba of COME «5c cs cass eres rereeet eters

Table of Cited Authorities ...-..---seerrrrrt

Citations of the Official and Unofficial Reports,

Opinions and Orders Entered in the Case ...---

Statutory Provisions ...-----+srrrrrsrt

panne RS al adil

Federal Rules Of Evidence ....---+-:-++°>

Federal Rules Of Civil Procedure ....-.--

Statement Of The Case ...-----sssr rrr

The Present Actions .....----sssrrrtrt!

Geosmmont OF Pacte «os. ce cs serrresrretee et

Reasons For Denying The Petition ....-sseseeees

Local Rule 56.1 Adopts An Accepted Judicial

Procedure That Has Been Uniformly Approved

By The Courts Of Appeals That Have

MED vi... eres Ft

vl

Contents

Application Of Local Rule 56.1 Was Not

Dispositive Of Respondent’s Motion ......

The District Court’s Summary Judgment

Ruling Did Not Depart From The Accepted

And Usual Course Of Judicial Proceedings; No

Disputed Issues Of Fact Were Resolved ...

Sabrina: Work-For-Hire ............

Cheryl Blossom and Sabrina: Waiver and

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Page

23

26

TABLE OF CITED AUTHORITIES

Cases:

Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809

C7? Ce, FEO - nkovcncse sp eaeeeees te ees

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)

¢$e¢e¢eeeouvseeee¢€&¢e486¢68660€ £28 CBS SP ee 8 ee ee 2 2 ee se

Archie Comic Publications, Inc. v. DeCarlo, 2004

U.S. App. LEXIS 4080 (2d Cir. Mar. 3, 2004) ..

Archie Comic Publications, Inc. v. DeCarlo, 2002

U.S. Dist. LEXIS 1595 (S.D.N.Y. Feb. 1, 2002) ..

Archie Comic Publications, Inc. v. DeCarlo,

No. 00Civ5686, 2001 U.S. Dist. LEXIS 10373

(S.DN.Y. ROY tas WOME) 4 a se ee yearns heen

Archie Comic Publications, Inc. v. DeCarlo, 141

F. Supp. 2d 428 (S.D. N.Y. 2001) ............

Archie Comic Publications, Inc. v. DeCarlo, 258

F. Supp. 24.315 (S.D.N.Y. 2065) «se snsevcess

Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found.,

G2 UB. STS CGT) sos es ¥0404 ee

Brattleboro Publ’g Co. v. Winmill Publ’g Corp.,

360 P.26 SES (OG CO, HOGS a ness cosa envainss

Calmaquip Engineering West Hemisphere Corp. v.

West Coast Carriers Ltd., 650 F.2d 633 (5" Cir.

FOGE? aviv eesvaxeeukoueeeee ee eee

Page

10

14

21

15

10

Vil

Cited Authorities

Page

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .... 13

DeCarlo v. Archie Comic Publications, Inc., 127

F. Supp. 2d 497 (S-D.N.Y. 2001) ..........0.. 4

DeCarlo v. Archie Comic Publications, Inc., 534 U.S.

1056 (2001) (denying certiorari) ............. 4

DeCarlo v. Archie Comic Publications, Inc.,2001 U.S.

App. LEXIS 11671 (2d Cir. June 1, 2001),

cert. denied, 534 U.S. 1056 (2001) ........... 4

Fidelity & Deposit Co. v. United States, 187 U.S. 315

Ee eee ee te te ti LD Nee 1 A 14

Frazier v. Heebe, 482 U.S. 641 (1987) .......... 12

GE v. Joiner, 522 U.S. 136 (1997) .............. 19

Gubitosi v. Kapica, 154 F.3d 30 (2d Cir. 1998) ... 10

Holtz v. Rockefeller & Co., 258 F.3d 62 (2d Cir. 2001)

UC a Te ee OT eT ae ree en 1]

Langman Fabrics v. Graff Californiawear, Inc.,

160 F.3d 106 (2d Cir. 1998) ....0 0.00.0... i, 17

Montana v. United States, 440 U.S. 147 (1979) ... 21

Nilsson, Robbins, Dalgarn, Berliner, Carson & Wurst

v. Louisiana Hydrolec, 854 F.2d 1538 (9" Cir. 1988)

Vill

Cited Authorities

Page

Northwest Bank & Trust Co. v. First Ill. Nat’l Bank,

Fae Fee FEE CO Gee BOOED bch icecceadancees 10, 11

Petrolite Corp. v. Baker Hughes, Inc., 96 F.3d 1423

Ga SHOE 0 chckouccdacus eavieereeeass 10

Playboy Enters. v. Dumas, 53 F.3d 549 (2d Cir. 1995)

eid b45 ks PARAM Oh ke eee eee eka eee 15,17

Rivera v. Riley, 209 F.3d 24 (1* Cir. 2000) ....... 10

Somlyo v. Lu-Rob Enters., Inc., 932 F.2d 1043

spe 8, Pere Pee rrr TT ere re 10

Stepanischen v. Merchants Despatch Trans. Corp.,

Fae ©.a% 922 (1* Cir, 1963) oc ce ccess Paras 12

Twist v. Meese, 854 F.2d 1421 (D.C. Cir. 1988) ... 10

United States v. Moser, 266 U.S. 236 (1924) ..... 21

United States v. United States Currency in Amount of -

$228,536.00, 895 F.2d 908 (2d Cir. 1990) ..... 21

Waldridge v. American Hoechst Corp., 24 F.3d 918

tS | rrr tree & 11

Yamaha Corp. of Am. v. United States, 961 F.2d 245

(OF oe re errr , 21

Statute:

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Se ee ee ae

Cited Authorities

Page

Rules:

oS 2 ee ear es ee 12

eo oiao 5s anak eneee ski eaens a 13, 44

ee Sr ee ee my te

ee a OU 6 bk np 6a nee ed ee ke KO eR 1,18

NR Serer err ey er Terre rere 1,18

Local Rules of the United States District Courts for

the Southern and Eastern Districts of New York,

EE Ore Pre re Tre rey eine passim

Other Authorities:

18 Moore’s Federal Practice — Civil § 132[2][d]

ae hua wae Geir ee eae ee 20-21

2-401 Weinstein’s Federal Evidence § 401.04[4][c]

EG ek eo a ce dda odo oa ie ad 19

x

CITATIONS OFTHE OFFICIALAND

UNOFFICIAL REPORTS, OPINIONS AND

ORDERS ENTERED IN THE CASE

In addition to the citations in the Petition:

DeCarlo v. Archie Comic Publications, Inc., 2001

U.S. App. LEXIS 11671 (2d Cir. June 1, 2001),

cert. denied, 534 U.S. 1056 (2001) (affirming grant

of summary judgment in related prior litigation)

Archie Comic Publications, Inc. y. DeCarlo, 2004

U.S. App. LEXIS 4080 (2d Cir. Mar. 3, 2004)

(affirming grant of summary judgment)

Archie Comic Publications, Inc. v. DeCarlo, 2002

U.S. Dist. LEXIS 1595 (S.D.N.Y. Feb. 1, 2002)

(substituting Petitioner as defendant)

Archie Comic Publications, Inc. y. DeCarlo, No.

00Civ5686, 2001 U.S. Dist. LEXIS 10373

(S.D.N.Y. July 23, 2001) (dismissing DeCarlo’s

second set of counterclaims)

Archie Comic Publications, Inc. y, DeCarlo, 141

F. Supp. 2d 428 (S.D. N.Y. 2001) (dismissing

DeCarlo’s first set of counterclaims)

oN ae ae ee ae eee

l

STATUTORY PROVISIONS

STATUTES:

28 U.S.C. § 2071. Rule-making power generally

(a) The Supreme Court and all courts

established by Act of Congress may from time to

time prescribe rules for the conduct of their

business. Such rules shall be consistent with Acts

of Congress and rules of practice and procedure

prescribed under section 2072 of this title.

FEDERAL RULES OF EVIDENCE:

Rule 1002. Requirement of Original

To prove the content of a writing, recording, or

photograph, the original writing, recording, or

photograph is required, except as otherwise

provided in these rules or by Act of Congress.

Rule 1004. Admissibility of Other Evidence of Contents

The original is not required, and other evidence

of the contents of a writing, recording, or

photograph is admissible if—

(1) Originals lost or destroyed. All

originals are lost or have been destroyed,

unless the proponent lost or destroyed

them in bad faith; or

(2) Original not obtainable.

No original can be obtained by any

available judicial process or procedure;

or

2

(3) Original in POSsession of

Opponent. At a time when an original

was under the control of the party

against whom offered, that party was put

on notice, by the pleadings or otherwise,

that the contents would be a subject of

proof at the hearing, and that party does

not produce the original at the hearing;

or

(4) Collateral matters. The writing,

recording, or photograph is not Closely

related to a controlling issue.

FEDERAL RULES OF CIVIL PROCEDURE:

Rule 56. Summary Judgment

Rule 83. Rules by District Courts;

* * * *

(f) When Affidavits are Unavailable. Should

it appear from the affidavits of a party opposing

the motion that the party cannot for reasons stated

present by affidavit facts essential to justify the

party's opposition, the court may refuse the

application for judgment or may order a

continuance to permit affidavits to be obtained or

depositions to be taken or discovery to be had or

may make such other order as is just.

Judge’s Directives

(a) Local Rules.

(1) Each district court, acting by a majority

of its district judges, may, after giving appropriate

public notice and an opportunity for comment,

make and amend rules governing its practice.

———

3

A local rule shall be consistent with—but not

duplicative of—Acts of Congress and rules

adopted under 28 U.S.C. §§ 2072 and 2075, and

shall conform to any uniform numbering system

prescribed by the Judicial Conference of the

United States. A local rule takes effect on the date

specified by the district court and remains in effect

unless amended by the court or abrogated by the

judicial council of the circuit. Copies of rules and

amendments shall, upon their promulgatior, be

furnished to the judicial council and the

Administrative Office of the United States Courts

and be made available to the public.

(2) A local rule imposing a requirement of

form shall not be enforced in a manner that causes

a party to lose rights because of a nonwillful

failure to comply with the requirement.

* * * *

Notes of Advisory Committee.

* * * *

Paragraph (2) is new. Its aim is to protect against

loss of rights in the enforcement of local rules

relating to matters of form... . Nor does it affect

the court’s power to enforce local rules that

involve more than mere matters of form — for

example, a local rule requiring parties to identify

evidentiary matters relied upon to support or

oppose motions for summary judgment.

4

STATEMENT OF THE CASE

This petition involves the second litigation between

Respondent Archie Comic Publications, Inc. and the late

Daniel S. DeCarlo, a freelance illustrator who began working

- for Respondent in the 1950s. [Record-192].?

On March 6, 2000, DeCarlo filed the first litigation

(“DeCarlo”) in-New York Supreme Court seeking a

declaration that he owned Respondent’s Josie property and

asserting claims for breach of contract, of fiduciary duty and

of the implied covenant of good faith and fair dealing.

[Record-333-50]. Respondent removed DeCarlo to federal

court. [Record-333].

The district court granted Respondent summary judgment

on DeCarlo’s declaratory judgment count, finding that it

asserted an artfully pled copyright ownership claim that was

time-barred, and on the pendant claims on the ground that

DeCarlo was equitably estopped from challenging

Respondent’s ownership of Josie. DeCarlo v. Archie Comic

Publications, Inc., 127 F. Supp. 2d 497, 508-11 (S.D.N.Y.

2001). [Record-178-181]. The Second Circuit Court of

Appeals affirmed. [Record-431-35]. This Court denied

certiorari. DeCarlo v. Archie Comic Publications, Inc., 534

U.S. 1056 (2001).

The Present Actions

While DeCarlo was pending, DeCarlo asserted ri ghts in

Respondent’s Sabrina property. [Record-369-70.]

In response, Respondent filed 00cv5686 seeking, inter alia,

a declaration that DeCarlo was barred from challenging its

2. References to the “Record” are to the Joint Appendices

submitted to the court of appeals. References to ~”, S_ *

and “C-__” are to the Appendix to the Petition.

a

5

ownership of Sabrina by the statute of limitations, laches

and equitable estoppel, and had assigned any rights in Sabrina

to Respondent. [Record-364—65].

On December 20, 2000, after DeCarlo filed state law

counterclaims against Respondent and the other

counterclaim-defendants alleging that he owned Sabrina

as well as Respondent’s character Cheryl Blossom and

other characters associated with her (collectively

“Cheryl Blossom’), the district court granted Respondent

leave to file a supplemental complaint adding claims for

injunctive relief relating to Cheryl Blossom. [Record-372,

392-97, 419-20, 422].

On April 27, 2001, the district court dismissed DeCarlo’s

counterclaims. Archie Comic Publications, Inc. v. DeCarlo,

141 F. Supp. 2d 428, 431-32 (S.D.N.Y. 2001). [Record-126—

27]. On May 3, 2001, DeCarlo filed amended counterclaims

alleging that he owned Josie, Sabrina and Cheryl Blossom

and asserting infringement claims. [Rec d-424—25, 427].

These were dismissed because DeCarle aad not obtained

copyright registrations. Archie Comic (Publications, Inc. v.

DeCarlo, No. 00Civ5686, 2001 U.S. Dist. LEXIS 10373 at

*2-3 (S.D.N.Y. July 23, 2001).

-On August 23, 2001, the district court granted

Respondent leave to supplement its complaint to request,

inter alia, declarations that Sabrina was a work-for-hire and

that the statute of limitations, equitable estoppel, and issue

and claim preclusion barred DeCarlo from making claims as

to Josie. [Record-26—57].

On November 29, 2001, Respondent moved for summary

judgment. [Record-188]. In compliance with Rule 56.1 of

the Local Rules of the United States District Courts for the

Southern and Eastern Districts of New York (“Local Rule

56.1”), Respondent filed a statement of undisputed material

6

facts (the “Rule 56.1 Statement”) which listed each of the

subsidiary facts that were material to each of the multiple

grounds asserted in its motion, most of which were ultimately

not addressed by the district court, and provided supporting

citations to the record. [Record-191-269].

DeCarlo died in December 2001 and Petitioner,

his executrix, was substituted as defendant on February 1,

2002. Archie Comic Publications, Inc. vy. DeCarlo,

No. 00cv5686, 2002 U.S. Dist. LEXIS 1595 (S.D.N.Y.

Feb. 1, 2002). Petitioner did not move to strike any portion

of Respondent’s Rule 56.1 Statement, nor did Petitioner file

a paragraph-by-paragraph response to it as required under

Local Rule 56.1. [Record-282-87].

On October 23, 2002, Respondent filed 02cv8466

seeking, inter alia, a declaration that DeCarlo’s contributions

to Josie were works-for-hire. [Record-67—78]. On November

19, 2002, Petitioner served an Amended Answer and

Counterclaims in 02cv8466 asserting that Respondent had

infringed DeCarlo’s alleged copyrights in Josie, Sabrina, and

Cheryl Blossom. [Record-97—107]. On January 3, 2003, the

district court consolidated 02cv8466 and 00cv5686, and

stayed all proceedings related to damages. [Record-464].

On March 31, 2003, the district court granted

Respondent’s motion for summary judgment, and on

April 23, 2003, it issued an amended decision which held,

inter alia, that:

(1) Issue and claim preclusion bar Petitioner from

relitigating whether DeCarlo was equitably estopped from

challenging Respondent’s ownership of Josie in the context

of an infringement claim.

a es

7

(2) With a few exceptions that did not further delineate

the property, DeCarlo’s contributions to Sabrina were works-

for-hire.

(3) By virtue of the waiver of rights and assignment

clauses of DeCarlo’s work-for-hire agreements with

Respondent, Respondent acquired title to any rights DeCarlo

may have had in Sabrina and Cheryl Blossom. Archie Comic

Publications, Inc. v. DeCarlo, 258 F. Supp. 2d 315 (S.D.N.Y.

2003). At Petitioner’s request, the court ordered that judgment

also be entered against her in 02cv8466. [A-4 (n. 1)]. In an

unpublished summary order, the United States Court of

Appeals for the Second Circuit affirmed. [B-1—B-3].

The district court’s decision castigated Petitioner for

failing to comply with Local Rule 56.1 and held that the facts

asserted in Respondent’s Rule 56.1 Statement could be

deemed admitted for purposes of the motion. [A-6—A-9].

However, the district court also stated that it had reviewed

the record and found that “the results here would have been

the same even if the Court disregarded entirely the

defendant’s failure to comply with Rule 56.1.” [A-8—A-9].

STATEMENT OF FACTS

For nearly forty years prior to DeCarlo, Respondent had

conducted itself as the sole owner of Josie and Sabrina, using

the properties in its comic books and licensing them for use

on a wide variety of goods. [Record-204—24, 470-73, 523].

Prior to November 1999, DeCarlo had never asserted the

alleged ownership rights that he claimed in DeCarlo.

[Record-473, 527-34, 541-54, 556, 561, 639-41, 643-44].

It is undisputed that DeCarlo drew the first Josie works,

although he claimed that he created them independently in

the 1950s while Respondent claims that it commissioned

them from him in 1961. [Record-235-—37].

ee

8

At his deposition, DeCarlo testified that, in 1962,

Respondent’s editor Richard Goldwater conceived Sabrina,

commissioned a detailed script for the first Sabrina story

from a freelance writer, and assigned the script to DeCarlo

to illustrate, asking him to begin by preparing a model sheet

showing proposed designs for the script’s characters so that

Goldwater could approve their likenesses before DeCarlo

prepared the finished artwork for the story. [Record-562-

65, 570-73, 576-93]. As was customary, DeCarlo was paid

a flat fee based on the length of the story. [Record-574—75,

606].

DeCarlo also testified that all of his subsequent Sabrina

works were commissioned by Respondent and that he was

paid a flat fee for them. [Record-575, 603—04, 607, 613-16,

626].

The Cheryl Blossom characters were created in 1982 as

additions to Respondent’s Archie property, which was

developed in the early 1940s and features Respondent’s

famous characters Archie, Betty, Veronica and their Riverdale

high school classmates. [Record-485, 505—06]. Throughout

the decades, Archie, Betty and Veronica have been involved

in a love triangle. Jd. In 1982, Respondent added two new

characters to the Archie property, Cheryl Blossom and her

brother Jason. [Record-485, 506]. Cheryl and Jason first

appeared in an Archie story which was published in 1982 in

Respondent’s longstanding series Betty and Veronica and

featured Betty, Veronica, Cheryl, and Jason. [Record-485,

506, 630-36.] The cover of this issue bears the legend

“Introducing Cheryl, Riverdale’s Newest Bombshell!”

[Record-630—36.] Cheryl and Jason were thus introduced as

additional Archie characters.

Over the next two years, the Cheryl Blossom characters

were written into a number of Archie stories that were,

published in Archie comics such as Betty and Veronica, Archie

9

and Archie at Riverdale High. [Record-507-08].

An occasional story involving Cheryl did not use any of the

original Archie characters, but this was the exception. [J/d.].

From 1984 until 1994, Respondent did not publish any new

stories involving Cheryl or her private school classmates.

[Jd.]. However, in 1994, Cheryl was resurrected for

Respondent’s Love Showdown series in which Archie

received a mysterious love letter propelling Betty and

Veronica into a frenzied battle over him. [J/d.]. In the end,

Archie chose Cheryl. [/d.]. The popularity of this story

led Respondent to publish comic books under the title

Cheryl Blossom. [Id.|. However, these comic books featured

the Cheryl Blossom characters as members of the Archie

universe. [J/d.].

To get paid, Respondent’s freelancers submitted a

voucher form for each job. [Record-594—95]. The earliest

surviving voucher is from 1981, almost twenty years after

Josie and Sabrina were created. [Record-292, 509-10, 525].

As early as the 1960s, Respondent’s paychecks to its

freelancers were stamped with an endorsement legend

containing terms that the freelancers accepted when they

endorsed their checks. [Record-525]. At his deposition in

this case, DeCarlo produced, for the first time, a handwritten

copy he had made of Respondent’s 1970 endorsement.

[Record-303—04, 597-99]. All other surviving copies of

Respondent’s endorsements date from the 1980s. [Record-

526]. These differ materially from the 1970 endorsement.

[Record-295, 324]. No evidence was produced or submitted

by either party in DeCarlo regarding the endorsements or

vouchers. [A-15—A-17; Record-108, 303-04, 597-99;

Petition at 22].

On October 25, 1988 DeCarlo signed Respondent’s

Newsstand Comic Independent Contractor’s Agreement

vV————— ee

10

which contained waiver of rights, assignment, and work-for-

hire clauses. [Record-79—85]. On December 12, 1996, he

signed Respondent’s Revised Newsstand Independent

Contractor’s Agreement which contained assignment and

work-for-hire clauses. [Record-86—91}.

REASONS FOR DENYING THE PETITION

LOCAL RULE 56.1 ADOPTS AN ACCEPTED

JUDICIAL PROCEDURE THAT HAS BEEN

UNIFORMLY APPROVED BY THE COURTS OF

APPEALS THAT HAVE ADDRESSED IT

Petitioner asserts that Local Rule 56.1 encourages district

courts to grant summary judgment in cases in which there

are genuine issues of material fact. Contrary to this, all of

the courts of appeals that have reviewed the application of

analogous local procedures have approved them and, in many

cases, have praised them for promoting the correct

disposition of summary judgment motions. See, e.g., Ammons

v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817-18 (7" Cir.

2004); Northwest Bank & Trust Co. v. First Ill. Nat’! Bank,

354 F.3d 721, 724 (8 Cir. 2003); Rivera v. Riley, 209 F.3d

24, 27-28 (1% Cir. 2000); Gubitosi v. Kapica, 154 F.3d 30,

31 n.1 (2d Cir. 1998); Petrolite Corp. v. Baker Hughes, Inc.,

96 F.3d 1423, 1425-26 (Fed. Cir. 1996); Twist v. Meese,

854 F.2d 1421, 1425 (D.C. Cir. 1988); Nilsson, Robbins,

Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec,

854 F.2d 1538, 1545 (9" Cir. 1988); Calmaquip Engineering

West Hemisphere Corp. v. West Coast Carriers Ltd., 650 F.2d

633, 636 (5" Cir. 1981).

“District courts do not institute Local Rules to frustrate

litigators, but to ensure the efficient and expedient execution

of justice.” Somlyo v. Lu-Rob Enters., Inc., 932 F.2d 1043,

1048 (2d Cir. 1991). The “purpose of Local Rule 56.1 is to

streamline the consideration of summary judgment motions

el

1]

by freeing district courts from the need to hunt through

voluminous records without guidance from the parties.”

Holtz v. Rockefelier & Co., 258 F.3d 62, 74 (2d Cir. 2001).

As the Eighth Circuit Court of Appeals explained, in

approving a local rule that, like Local Rule 56.1, requires

the party opposing summary judgment to expressly admit,

deny or qualify each of the factual assertions in the movant’s

statement of material facts, such rules

seek to aid the district court in passing upon a

motion for summary judgment, reflecting the

aphorism that it is the parties who know the case

better than the judge. ... Local Rule 56.1 exists

to prevent a district court from engaging in the

proverbial search for a needle in a haystack.

Northwest Bank & Trust Co., 354 F.3d at 725.

It is true that

summary judgment is not a paper trial, [and] the

district court’s role in deciding the motion is not

to sift through the evidence, pondering the

nuances and inconsistencies, and decide whom to

believe. The court has one task and one task only:

to decide, based on the evidence in the record,

whether there is any material dispute of fact that

requires a trial. (Citation omitted.) The parties,

in turn, bear a concomitant burden to identify the

evidence that will facilitate this assessment.

Waldridge v. American Hoechst Corp., 24 F.3d 918, 920

(7" Cir. 1994) (emphasis added). Local Rule 56.1 provides a

mechanism for this process.

Respondent has not found a single case in which a court

of appeals has found that such a local rule induced improper

fact-finding by a district court. Indeed, recognizing the value

12

of such rules, the First Circuit Court of Appeals recommended

that the District of Massachusetts “consider whether some

such rule is desirable” to minimize the risk of “district court

judges being unfairly sandbagged by unadvertised factual

issues.” Stepanischen v. Merchants Despatch Trans. Corp.,

722 F.2d 922, 931, 932 (1* Cir. 1983).

There is thus no conflict in the circuits as to the

advisability of local ; ocedures such as Local Rule 56.1.

Furthermore, the authority of the district courts to enact such

procedures, pursuant to Rule 83 of the Federal Rules of Civil

Procedure and 28 U.S.C. § 2071, is clear. Frazier v. Heebe,

482 U.S. 641, 646 (1987); Fed. R. Civ. P. 83 advisory

committee note (1995 Amendments).

Petitioner asserts that Local Rule 56.1 is unduly

burdensome because it requires the nonmovant to respond

to assertions of fact that are not material. However, the rules

of procedure provide a ready solution for cases in which the

movant’s statement includes immaterial facts: the nonmovant

can file a motion to strike. In the alternative, it can simply

abstain from responding to the assertions of immaterial fact.

While the unresponded-to factual assertions may be deemed

admitted for the limited purposes of the summary judgment

motion, if they are indeed immaterial, this will have no effect

on the disposition of the motion.’

Petitioner did not move to strike any of the factual

assertions in Respondent’s Rule 56.1 Statement. Furthermore,

it did not directly controvert any of the specific factual

3. Respondent is not aware of any application of Local Rule

56.1 to deem uncontroverted facts admitted for purposes other than

the summary judgment proceeding. In this regard, the local rule is

entirely distinct from Rule 36 of the Federal Rules of Civil Procedure

under which the failure to respond to a request for admissions can

result in a fact being deemed admitted for all purposes.

13

assertions contained in the statement, not even those that

were material to the summary judgment grounds that the

district court ultimately ruled on — i.e., the predicate facts

underlying Respondent’s assertion of issue and claim

preclusion as to Josie, work-for-hire as to Sabrina, and

assignment and waiver as to Sabrina and Cheryl Blossom.

Instead, as to those factual assertions that it did not

expressly admit, Petitioner listed 109 paragraph numbers

which she disputed “on the grounds that they are variously

inaccurate, misleading, irrelevant, hearsay, argumentative

and/or incomplete” and 79 paragraphs which she disputed,

without moving for leave to conduct additional discovery

pursuant to Rule 56(f) of the Federal Rules of Civil

Procedure, “because they relate to transactions and

discussions conducted out of [DeCarlo’s] presence, without

any participation, knowledge or consent on his part.”

[Record-286-87]. Petitioner’s separate statement of disputed

facts broadly restated some of the issues raised by

Respondent’s motion, rather than setting forth specific facts

that Petitioner claimed were in dispute. [Record-282-85].

These submissions utterly failed to serve the important goals

of Local Rule 56.1.

Rules like Local Rule 56.1 advance the interests of

litigants and the courts by facilitating the identification of

cases in which material facts relevant to the parties’ claims

and defenses are in dispute, as well as the “rights of persons

opposing such claims and defenses to demonstrate in the

manner provided by [Rule 56 of the Federal Rules of Civil

Procedure], prior to trial, that the claims and defense have

no factual basis.” Celotex Corp. v. Catrett, 477 U.S. 317,

327 (1986). There is nothing in Local Rule 56.1 or its

application in this case that departs from the accepted and

usual course of judicial proceedings or warrants an exercise

of this Court’s supervisory power.

14

APPLICATION OF LOCAL RULE 56.1 WAS NOT

DISPOSITIVE OF RESPONDENT’S MOTION

Local Rule 56.1 authorizes the district court to deem

admitted any facts set forth in a summary judgment movant’s

Rule 56.1 statement that are not specifically controverted by

the opposing party. This is entirely consistent with Rule 56(e)

of the Federal Rules of Civil Procedure which provides that

“the adverse party’s response, by affidavits or as otherwise

provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial” and that if “an adverse

party does not so respond, summary judgment, if appropriate,

shall be entered against the adverse party.” Fed. R. Civ. P.

56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). In the decisions cited above, the courts of appeals

have approved analogous provisions under which the failure

to controvert the movant’s statement of material facts results

in those facts being deemed admitted. Respondent has found

no circuit decision disapproving of such a procedure.

Such procedures do not deprive the nonmovant of the

right of trial by jury guaranteed by the Seventh Amendment

to the United States Constitution. See Fidelity & Deposit Co.

v. United States, 187 U.S. 315, 320 (1902). They merely

“prescribe[] the means of making an issue. The issue made

as prescribed, the right of trial by jury accrues.” Jd. Thus,

application of Local Rule 56.1 to deem facts admitted raises

no constitutional or other important federal issue requiring

resolution by this Court.

Furthermore, the application of Local Rule 56.1 below

was not dispositive of Respondent’s motion and, therefore,

does not warrant review. While the district court held that

the facts in Respondent’s Rule 56.1 Statement were deemed

admitted, it also reviewed the record and determined that

15

“the results here would have been the same even if the Court

disregarded entirely the defendant’s failure to comply with

Rule 56.1.” [A- 8-A-9].

THE DISTRICT COURT’S SUMMARY JUDGMENT

RULING DID NOT DEPART FROM THE ACCEPTED

AND USUAL COURSE OF JUDICIAL PROCEEDINGS;

NO DISPUTED ISSUES OF FACT WERE RESOLVED

Petitioner’s assertion that the district court resolved

issues of fact misrepresents what occurred below.

Sabrina: Work-For-Hire

The petition does not seek certiorari as to the standard

used in the Second Circuit and applied in this case to

determine whether DeCarlo’s pre-1978 works were works-

for-hire under the 1909 Copyright Act. Under this test, an

“independent contractor is an ‘employee’ and a hiring party

an ‘employer’... if the work is made at the hiring party’s

‘instance and expense.’” Playboy Enters. v. Dumas, 53 F.3d

549, 554 (2d Cir. 1995) (quoting Brattleboro Publ’g Co. v.

Winmill Publ’g Corp., 369 F.2d 565, 567 (2d Cir. 1966)).

The “‘expense’ requirement [is] met where a hiring party

simply pays an independent contractor a sum certain for his

or her work.” Playboy at 555. If the “instance and expense”

test is satisfied, the independent contractor’s work is

considered a work-for-hire unless he “demonstrate[s] by a

preponderance of the evidence that . . . acontrary agreement

was reached.” Jd. at 554-55. In applying this test, the

“ultimate determination, on settled facts, of whether a work

qualifies as a work-for-hire is a question of law.” Langman

Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 111

(2d Cir. 1998).

16

Petitioner asserts that the district court resolved a factual

dispute as to whether DeCarlo was paid for the alleged

Sabrina model sheet. Petition at 18, 22. This did not occur.

DeCarlo’s deposition testimony as to the Sabrina model

sheet was as follows:

¢ When Goldwater asked him to illustrate the first

Sabrina script, he told DeCarl. to start by preparing

a model sheet showing how he proposed to draw

the script’s characters. [Record-562-63].

* The purpose of the model sheet was to enable

Respondent to select a hairstyle for Sabrina (whom

DeCarlo drew using his “standard female face’) and

to review DeCarlo’s proposed depictions of the

characters before he prepared the final artwork for

the story. [Record-563, 565-70].

* When he received the story assignment, DeCarlo

understood that the model sheet was the “first step”

in his execution of it and that he would be paid a

flat fee for the entire project based on the number

of pages in the story. [Record-563, 573-75, 627].

DeCarlo clearly understood that the model sheet was

part of the larger assignment for which he was paid

a flat fee. [Record-194—95].

In addition to this testimony, Respondent relied on

uncontroverted evidence that it expected its freelancers to

write and illustrate stories about new characters as part of

their job and that neither it nor its industry competitors paid

extra for stories merely because new characters were

involved. [Record-492].

17

Based on this undisputed evidence, the district court

concluded that the “fact that [DeCarlo] was paid for each

assignment satisfies the expense prong of the work for hire

test” —i.e., that the payment given to DeCarlo for illustrating

the first Sabrina story sufficiently compensated him for any

model sheet he might have prepared in the course of

completing the assignment to satisfy the test. [A-27 (n. 85)].

Under the Second Circuit’s standard, not challenged here,

this holding resolved a question of law because it involved

the “ultimate determination, on settled facts, of whether a

work qualifies as a work-for-hire.”” Langman Fabrics, 160

F.3d at 111.

However, even if viewed as a question of fact, there was

no dispute to resolve. In light of DeCarlo’s characterization

of the model sheet as the “first step” toward completing the

story assignment and his acknowledgment that it was part of

the assignment for which he was paid a flat fee, no reasonable

jury could conclude that the model sheet was a separate

project that had to be separately paid for to sa‘isfy the

“expense” prong of the work-for-hire test.

Petitioner argued below that, even if DeCarlo’s

contributions to the creation of Sabrina were created at

Respondent’s “instance and expense,” they were not works-

for-hire because Respondents and its freelancers had

contracted around the work-for-hire doctrine; i.e., that they

had reached a “contrary agreement.” Playboy at 554-55.

The sole evidence that Petitioner submitted in support of this

position related to the payment vouchers and check

endorsement legends that Respondent required its freelancers

to sign when they submitted and were paid for their work.

Petitioner attempted to prove that Respondent used the term

“author” on its endorsements in 1962, when Sabrina was

created, arguing that this constituted an acknowledgment by

Respondent that its freelancers, and DeCarlo in particular,

owned the copyrights in their works. The Petition asserts that

18

the district court “made a sweeping factual finding . . . that

identification of DeCarlo as ‘author’ on check endorsements

did not apply to Sabrina.” Petition at 22.

However, the district court did not make a factual finding.

It ruled on the probative value of the evidence Petitioner

offered to prove the contents of the check endorsements that

were used in 1962, concluding that “any determination by a

_ trier of fact as to what the text was during the relevant period

_.. would be speculation.” [A-31]. As noted by the district

court, no copies of the endorsements and vouchers that were

used in 1962 have survived. [A-27]. The oldest existing copy

of an endorsement is the copy that DeCarlo made of a check

he received in 1970. [A-295]. The oldest voucher form dates

from 1981. [Record-292, 509-10, 525]. DeCarlo himself

could not recall the text of the documents Respondent used

in 1962, whether the check he received for illustrating the

first Sabrina story was even stamped with an endorsement

legend or whether Respondent’s vouchers from that era

referred to ownership of the freelancer’s work. [Record-304,

595, 598]. The vague declarations that Petitioner submitted

from two of Respondent’s freelancers did not specify whether

the endorsements and voucher forms that Respondent used

in 1962 used the term “author”. [Record-318, 321-22].

Applying the best evidence rule, Fed. R. Evid. 1002 and 1004,

the district court concluded that Petitioner had “failed to

sustain [her] burden of adducing admissible evidence which,

if credited, would permit a rational finding, by clear and

convincing evidence, as to the substance of [the] language”

of the endorsements and vouchers that Respondent used in

1962.4 [A-31].

4. The court further held that it “would reach precisely the same

result under a preponderance of the evidence standard as this Circuit

does ‘not permit an issue to go to trial on the basis of mere speculation

in favor of the party that bears the burden of proof.’” [A-31-A-32

(quoting Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 144

(2d Cir. 1999))].

19

“An evidential hypothesis is used in drawing an

inference, through deductive reasoning, from evidence

introduced in the trial to a consequential fact.” 2-401

Weinstein’s Federal Evidence § 401.04[4][c] (2004).

However, it is a basic principle of evidence that “when

speculation unsupported by evidence is necessary to conclude

the hypothesis, the evidence is not relevant and will be

inadmissible.” Jd. Such evidentiary determinations are

reviewed under the abuse of discretion standard. GE v. Joiner,

522 U.S. 136, 143 (1997).

The district court’s holding that the evidence that

Petitioner proffered was too remote and uncertain to permit

a jury to determine without speculation the text of the

endorsements and vouchers that Respondent used in 1962,

and the affirmance of this ruling by the court of appeals, do

not raise an important question of law or result in a procedural

irregularity warranting review by this Court.

Furthermore, this ruling was not dispositive. As an

alternate basis for its grant of summary judgment to.

Respondent as to Sabrina, the district court held that

even if one were to assume that the endorsements

and voucher agreement forms used from 1960

through the end of 1977 were the same as the

endorsement DeCarlo copied down in 1970, the

assumption would not permit an inference

(under either a clear and convincing or a

preponderance standard) that ACP and DeCarlo

agreed that DeCarlo would retain copyright in his

contributions to the Sabrina property.

[A-32]. Because the language of the endorsement was equally

consistent with a quitclaim “transfer of DeCarlo’s interest,

if any, in the works” as with “a transfer of a limited right,”

the district court held that it could not be the basis for a

nn

20

finding by a reasonable trier of fact that Petitioner had met

her burden of persuasion as to whether the parties had

contracted around the work-for-hire presumption. [A-34

(emphasis in original)]. Petitioner does not specifically

address this aspect of the district court’s decision, although

she quotes a portion of it in the Petition, and does not seek

certiorari as to the placement of the burden of persuasion on

her as to this issue. Petition at 25-26. As such, this Court’s

review of the district court’s refusal to allow a jury to

speculate as to the text of the 1962 endorsement and voucher

forms would have no effect on the outcome of the case.

Josie

Petitioner argued to the court of appeals that issue and

claim preclusion should not be applied as to Josie because,

inter alia, a jury could conclude from the evidence as to the

content of Respondent’s check 1962 endorsements and

payment vouchers, which had not been offered in DeCarlo,

that Respondent was not ignorant of DeCarlo’s ownership

claim, in which event equitable estoppel should not apply.

Brief and Special Appendix for Defendant-Counter-

Claimant-Appellant at 24. The Petition asserts that, in

addition to holding this evidence insufficient, the district

court erroneously faulted DeCarlo for failing to offer this

evidence in the earlier case, arguing that the district court

was “thereby making wholly improper witness credibility

determinations.” Petition at 18. However, the Petition

misstates the record and mischaracterizes the district court’s

ruling.

A party cannot “avoid issue preclusion simply by offering

evidence in the second proceeding that could have been

admitted, but was not, in the first, but rather bears the

consequences of inadequate litigation by waiving the right

to do so in a subsequent case.” 18 Moore’s Federal Practice

21

- Civil § 132[2][d] (2003); accord, Yamaha Corp. of Am. v.

United States, 961 F.2d 245, 254-55 (D.C. Cir. 1992);

see also United States v. Moser, 266 U.S. 236, 242 (1924)

(quoted in Montana v. United States, 440 U.S. 147, 162

(1979)). Preclusion can be avoided only if “without fault of

his own” a party was deprived of “‘crucial’ evidence or

witnesses in the prior action.” United States v. United States

Currency in Amount of $228,536.00, 895 F.2d 908, 920

(2d Cir. 1990), quoting Blonder-Tongue Labs., Inc. v. Univ.

of Ill. Found., 402 U.S. 313, 333 (1971).

Applying these established principles, which are not

challenged in the petition, the district court held that issue

and claim preclusion apply because DeCarlo possessed his

copy of the 1970 check legend during the DeCarlo litigation.

[A-108]. DeCarlo did not disclose the existence of the copy

until his deposition in this, the second lawsuit. [Record-302].

He was thus solely responsible for the fact that it was not

before the court in DeCarlo. He was also responsible for his

failure to obtain testimony in DeCarlo from other freelancers

regarding Respondent’s practices, as Petitioner did in this

case. [A-26, A-29—A-30]. DeCarlo was thus given a full and

fair opportunity in DeCarlo to litigate the question of

Respondent’s ignorance of his ownership claim. Rather than

passing on witness credibility, as the Petition asserts, the

district court held that DeCarlo’s failure to take full advantage

of that opportunity does not relieve his estate from the

preclusive effect of the DeCarlo litigation. [A-25—A-26].

Moreover, the check endorsements and vouchers are not

“crucial” or even relevant to the issue of equitable estoppel.

First, no endorsements or vouchers from the years prior to

1970 have survived. As set forth above, the district court

made an evidentiary determination that there was no

non-speculative basis for a jury determination as to the text

of the documents used prior to 1970. Second, even if it were

22

permissible to allow the trier of fact to speculate that the

endorsements and vouchers that Respondent used in the late

1950s and early 1960s were identical to DeCarlo’s 1970 copy,

this would not support an inference that Respondent was

aware that DeCarlo claimed to own the copyrights in his

commissioned artwork.

The 1970 endorsement, as copied by DeCarlo, states that

Respondent’s “check is accepted as full payment for all the

undersigned’s right, title and interest in and to the strip, copy,

art, continuity, characters, story or manuscript entitled or used

in” the story identified on the check. [Record-295]. It “affirms

that the maker of this check and/or its assigns are given the

full rights to use said property for publication, movies, talkies,

radio, television, broadcasting, advertising, or for any other

use” and have the right to make editorial changes. Jd. Finally,

it includes a representation that ““Endorser is the autor [sic]

or accredited agent in this sale and guarentees [sic] that the

work is free from libel or infringement.” /d. Rather than

reflecting knowledge that DeCarlo believed he owned the

copyrights in the works he prepared for Respondent, the fact

that Respondent required its freelancers to confirm its

ownership of its characters reinforces the reasonableness of

Respondent’s belief that it owned all rights in its freelancers’

works, including the right of first publication (common law

copyright).

In 1970, an attorney told DeCarlo that the check legend

was “garbage” and presented “no problem” as to his Josie

ownership claim. [Record-628-29]. However, DeCarlo never

communicated this to Respondent, nor did he tell it that he

claimed to own Josie. [Record-473, 643-44]. Thus,

Respondent remained ignorant that, despite the work-for-hire

doctrine and its use of the check endorsements and vouchers,

DeCarlo claimed to own the property.

23

The district court’s summary judgment ruling in favor

of Respondent as to the Josie property did not involve the

resolution of any issues of fact or determinations of

credibility. Rather, it involved the straight-forward

application of established principles of issue and claim

preclusion. Nothing in this ruling warrants review by this

Court.

Cheryl Blossom and Sabrina: Waiver and Assignment

The Petition baldly asserts that the parties’ work-for-hire

agreements were ambiguous, arguing that the district court

usurped the jury’s role in holding that DeCarlo had assigned

to Respondent all of his Cheryl Blossom works, including

any model sheet he may have prepared, as well as any Sabrina

works that were not works-for-hire. However, the relevant

provisions of the agreements are unambiguous and there are

no disputed issues of fact for a jury to resolve in applying

the agreements to these properties.

Paragraph 2(b) of DeCarlo’s 1988 independent contractor

agreement is the primary ground on which the district court

ruled in favor of Respondent as to Cheryl Blossom. [A-38].

It provides that “Contractor hereby expressly waives all claim

of right which it may have to any ownership interest in...

the ARCHIE property.” [Record-81]. There is no ambiguity

in this provision.

There was no disputed issue of fact as to whether the

Cheryl Blossom characters are part of the “ARCHIE

property.” The original stories featuring these characters and

nearly all of the subsequent stories involved the original

Archie characters. [Record-507—081. Indeed, DeCarlo’s

deposition testimony confirmed that the Cheryl Blossom

characters were created for the Archie property. [Record-617-

18, 623, 625]. He testified that Respondent’s editor, Richard

24

Goldwater, told him in 1982 that Respondent wanted to do a

story about a character richer and snobbier than the Archie

character Veronica; Goldwater asked him to draw the

character and her family; he drew a model sheet showing

Cheryl, Jason, their parents, and one of Cheryl’s friends; a

story conference was held with writer Frank Doyle

(deceased), Respondent’s then-president John Goldwater

(deceased), Richard Goldwater, and DeCarlo, at which

DeCarlo described Jason’s relationship with Betty and

Veronica, two of the core Archie characters, and Doyle then

wrote stories that were assigned to him to illustrate. [Record-

467, 617-24].

The district court’s determination that the Cheryl

Blossom characters are part of the “ARCHIE property” and

that the waiver clause of Paragraph 2(b) of the 1988

agreement applies to them thus did not require resolution of

any disputed issue of fact.

Likewise, there was no disputed issue of fact involved

in the determination that the parties’ 1996 work-for-hire

agreement assigned DeCarlo’s interest in the Cheryl Blossom

model sheet, if any, to Respondent. Paragraph | of the 1996

agreement unambiguously defines “Properties” as existing

and future-created “characters, artwork, stories, plots,

trademarks, logos and other creative expressions”

that “are commissioned by Archie and/or used in any of

Archie’s publications or licensed products.” [Record-86].

By DeCarlo’s own testimony, the model sheet was “artwork

_.. commissioned by Archie” and the Cheryl Blossom

characters are “characters ...used in... Archie’s

publications.” [Record-618—1 9}.

The 1996 agreement unambiguously defines “Works” as

the “past, pending and future uses of (the] Properties... .”

[Record-86]. That the model sheet and DeCarlo’s other

25

Cheryl Blossom story illustrations are “Works” is beyond

dispute.

Paragraph 19 of the 1996 agreement unambiguously

assigned to Respondent all of DeCarlo’s “past, pending or

future contributions . . . to the Works or Properties [that] do

not qualify as a Work for Hire... including all copyrights.”

[Record-89]. This assignment unambiguously encompasses

the copyrights in the Cheryl Blossom characters as well as

the model sheet and all other artwork in which the characters

appeared. To the extent that DeCarlo had any rights in the

Cheryl Blossom properties or works, he assigned them to

Respondent.

The same holds true for Sabrina. DeCarlo testified that

his model sheet was commissioned, and all of the Sabrina

characters have been used in Respondent’s publications and/

or licensed products. [Record-226-34, 562-63]. Hence, they

fall within the unambiguous definitions of “Properties” and

“Works”. Thus, the district court’s holding that DeCarlo

assigned to Respondent any rights he may have had in

Sabrina and Cheryl Blossom raises no issue for review by

this Court.

26

CONCLUSION

The Petition fails to demonstrate any valid ground for

review of the decision below and should be denied.

Respectfully submitted,

LEORA HERRMANN

GRIMES & BaTTersBy, LLP

488 Main Avenue

Norwalk, CT 06851

203-849-8300

Attorneys for Respondent