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NETZER v. CONTINUITY GRAPHIC ASSOCS.

April 7, 1997

MICHAEL NETZER, Plaintiff, against CONTINUITY GRAPHIC ASSOCIATES, INC., CONTINUITY PUBLISHING, INC., NEAL ADAMS, KRISTINE ADAMS, a/k/a KRIS HARTZ and PETER STONE, Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Defendants Continuity Graphics Associates, Inc. ("Continuity Graphics"), Continuity Publications, Inc. ("Continuity"), Neal Adams ("Adams"), Kristine Adams, a/k/a Kris Hartz ("Kristine") and Peter Stone ("Stone") (collectively, the "Defendants"), have moved for summary judgment under Rule 56, Fed. R. Civ. P., dismissing the complaint of plaintiff Michael Netzer ("Netzer") alleging, inter alia, that the Defendants defrauded him, breached certain undertakings and infringed his copyright in a comic strip character, Ms. Mystic. The complaint also alleges libel, invasion of privacy, and intentional tort arising out of the use by the Defendants of the names "Abu Netzer" and "Mike Nasser" (the "Names") in a comic book entitled "Crazyman."

 For the reasons below, the Defendants' motions will be granted.

 The Parties

 Netzer was born Michael Nasser and is a resident of Israel and a comic book artist, who in 1975, as a teenager, moved to New York and worked with Adams at his studio, Continuity Graphics. In 1981 Netzer moved to Lebanon, then to Israel in 1983, where he changed his name to Netzer. He came back to the United States in 1990 and returned to Israel in 1993.

 Adams was and is a comic book and commercial artist well known in his field for, among other things, his creation of Batman. Adams and Netzer initially had a close relationship, and Adams considered himself a mentor to Netzer.

 In 1984 Adams and Kristine, his daughter, began publishing comic books through Continuity, a New York corporation which published a Ms. Mystic comic book. Continuity ceased doing business in 1994.

 Stone is a New York resident who was a script writer for Crazyman in the strip which used the Names.

 Prior Proceedings

 Netzer filed his complaint in this action on August 20, 1993. The complaint alleged eighteen counts, including fraud in depriving Netzer of his rights in Ms. Mystic, fraudulent inducement to enter a contract with respect to his rights, breach of contract, breach of warranties, implied and in fact, negligent performance of the contract, failure to disclose material facts, failure of the Defendants to perform their duty to Netzer as a co-author, both at common law and in equity, rescission, unauthorized exploitation of Ms. Mystic, tortious interference with Netzer's business affairs, deceptive practices under General Business Law § 349, infringement of copyright and trademark, and with respect to the use of the Names in Crazyman, libel, invasion of privacy and intentional infliction of emotional distress. The allegations of the complaint were denied by the Defendants.

 Discovery proceeded, and on June 29, 1995 the Defendants filed the instant motions. After the motions were fully briefed, the action was transferred on January 28, 1997 to this court pursuant to Rule 16 of the Rules for the Division of Business Among District Judges of the Southern District of New York. After transfer, the parties agreed the motions would be considered on submission.

 The Facts

 This is a cautionary and perhaps generational tale of the falling out between two formerly close associates, Adams and Netzer, and the resulting dispute between them. The parties' versions of what happened in certain instances sharply diverge and in the context of this summary judgment motion, those divergences will be noted, notwithstanding that the Defendants' Statement under Rule 3(g) stands unopposed.

 According to Netzer, during the time Adams and Netzer were working together in 1977, Vinnie Colletta, an inker and art director at DC Comics, the industry leader, suggested the creation of a new character which Netzer conceived of as a witch who would be burned at the stake and resurrected by a deity which had appeared in a comic book Deadman drawn by Adams in the 1960's. According to Netzer, he began sketching this proposed character. Adams allegedly observed his work, offered to work together on the project, and then produced a drawing of a female super hero, Ms. Mystic, with a costume of Zipatone (an acetate stick-on material). The initial conversation between Adams and Netzer is referred to in the patois of the litigation as the "I can write it, you can draw it" conversation. Netzer has also testified at deposition that Adams proposed that he and Netzer be "Partners, 50/50" in Ms. Mystic, a proposal which Netzer testified that he accepted.

 According to Netzer, he prepared drawings and a story outline for Ms. Mystic, though no documentary support for these assertions has been produced. It is Netzer's position that DC Comics had made an undertaking to publish Ms. Mystic, and Netzer maintains that he was paid for 18 pages of pencilled drawings in July, September and November 1977. Although Netzer testified that he had submitted photocopies of his drawings, an original pencilled drawing has been produced with a 1978 DC Comics copyright stamp. Payment for all work performed for DC Comics was made by check bearing a legend stating that DC Comics owned all rights to the property for which payment was made. For perhaps personal reasons the relationship between Adams and DC Comics terminated, and no further discussions or actions took place with respect to Ms. Mystic. Netzer indicated that he considered the Ms. Mystic project "shelved" at that time.

 In 1979, Adams published New Heroes Portfolio, which contained six drawings of previously unpublished super heroes, including Ms. Mystic. The copyright notice credited Netzer as co-owner of Ms. Mystic. Both Adams and the producer of the portfolio have testified that this attribution was a mistake. In 1981 Netzer left the United States for the Middle East.

 The Ms. Mystic character next appeared in 1982 in a Pacific Comics Captain Victory comic book. Later that year, Pacific Comics published Ms. Mystic No. 1. The inside cover of Ms. Mystic's announces an upcoming issue of Ms. Mystic.

 A second issue of Ms. Mystic was published in 1984. In each of these publications, the copyright legend identified Adams as the sole owner. Pacific Comics ceased publishing, and in November 1984 Continuity published "Echoes of Future Past," and began publishing Ms. Mystic comics in 1987.

 Netzer became aware of Pacific's publication of Ms. Mystic in the summer of 1983, and he sought to obtain a copy of Ms. Mystic No. 1, which arrived in the summer of 1984. Netzer testified at his deposition that he called and spoke with Neal Adams in mid-1985 and was assured that the copyright attribution was a mistake and that no money had been made from Ms. Mystic. Netzer sought and obtained payment for the use of his layout work in connection with Ms. Mystic.

 Netzer, who had suffered a number of personal difficulties, returned to the United States in 1990 and saw a drawing of Ms. Mystic at Continuity in May 1990. Plaintiff testified that he knew by August 1990 that Pacific Comics had published Ms. Mystic No. 2 and that Continuity had published additional Ms. Mystic comics. In January 1991, Netzer had conversations with Kristine Adams and Neal Adams in which he asserts that he made an unsuccessful ownership claim to Ms. Mystic. Adams has admitted to telling Netzer in this context that "negative things" would happen if Netzer pursued his claim. In December 1992, Netzer claims to have learned for the first time of the New Heroes copyright attribution. The action relating to Ms. Mystic was filed on August 20, 1993.

 In 1993, Continuity published a comic book series "Crazyman" and in August 1993, 10,000 copies of Crazyman No.3 were shipped and published. Stone, a comic book writer, wrote the panel by panel breakdown in Crazyman No.3.

 The comic book series "Crazyman" tells the story of Danny, a "crazy" man who has extraordinary physical strength fueled by the internal chemical energy produced by his derangement, a concept developed by Adams in the late 1970's. Danny is deployed by the Aker Corps, a fictitious international extra-governmental agency dedicated to "helping the world." Various other characters in the Crazyman comic book series also have extraordinary powers. For example, the heroine Chris, an Aker Corps agent, has a mechanical eye capable of x-ray vision, video recording, and the like.

 The front cover of each Crazyman comic, including Issue No. 3, states that "any similarities to real people or places in fiction and semi-fiction is [sic] purely coincidental."

 Crazyman No. 3 concerns Danny's search for Marvin Grosser, a character who works for Tau Chemical (the fictitious corporate front for the villains in the series), who had tortured Danny in an earlier issue of Crazyman. At the beginning of Issue No. 3, Danny and the Aker Corps agents, including Dr. Aker, have arrived at a bank. Their mission is to retrieve from a safe deposit box the name and location of a doctor who is in hiding. To enlist Danny's assistance, Aker has told Danny that this doctor will be able to cure his insanity. Unbeknownst to the Aker Corps, Marvin Grosser, working for Tau Chemical, has hired terrorists to kidnap Dr. Aker and steal the information that he retrieves from the safe deposit box. During the fracas following the kidnaping, Danny kills the lead terrorist. The heroine Chris then feeds a video recording of the terrorist's face from her mechanical eye into a computer. In the next panel, the computer identifies the leader of the trio of terrorists from the crime files of Interpol. This identification is depicted in the comic book by a close-up drawing of the computer screen showing the dead terrorist's fictional crime file. In the computer screen, the names "Mike Nasser" and "Abu Netzer" are listed as aliases for Abu Nissir, the dead fictional terrorist character in the comic book. He is also described as a Moroccan with seven outstanding warrants for murder and terrorism.

 The clues in the computer screen lead the protagonists to Morocco where they are able to track down Tau Chemical's secret hideout and rescue Dr. Aker.

 The lead terrorist was drawn by a Georgia-based free-lance artist who had never met Netzer and who prepared the artwork before Adams and Stone decided to use the Names as aliases.

 Discussion

 I. The Standard for Summary Judgment

 Rule 56(e) of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991).

 "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060 (S.D.N.Y. 1995). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 A party seeking to defeat a summary judgment motion cannot "rely on mere speculation or conjecture as to the true nature of facts to overcome the motion." Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)). Rather, the responding party "must show the existence of a disputed material fact in light of the substantive law." Peer Int'l Corp. v. Luna Records, Inc., 887 F. Supp. 560, 564 (S.D.N.Y. 1995).

 II. The Ms. Mystic Claims

 Counts 1-14 and 18 of the Complaint assert claims arising out of the Defendants' publication of Ms. Mystic comic books. These claims are based on Netzer's assertion that he and Adam's co-authored the Ms. Mystic concept and that Adams made various representations that he would secure publication and that he and Netzer would share in the profits from Ms. Mystic's exploitation.

 A. The Copyright Claim is Time Barred

 Although Count 18 alleges copyright "infringement," and the complaint seeks traditional remedies for infringement, Netzer has conceded in his deposition testimony and on this motion that his claims are claims of co-authorship and co-ownership, not infringement. As the Second Circuit stated in Weissmann v. Freeman, 868 F.2d 1313 (2d Cir. 1989), "an action for infringement between joint owners will not lie because an individual cannot infringe his own copyright. The only duty joint owners have with respect to their joint work is to account for profits." Id. at 1318.

 Civil actions under the Copyright Act are subject to a three-year statute of limitations. 17 U.S.C. § 507(b). In Merchant v. Levy, 92 F.3d 51 (2d Cir. 1996), the Second Circuit held that "plaintiffs claiming to be co-authors are time-barred three years after accrual of their claim from seeking a declaration of copyright co-ownership rights and any remedies that would flow from such a declaration." Id. at 56. *fn1" The Merchant court reasoned that such a rule "promotes the principles of repose integral to a properly functioning copyright market." This rule is also consistent with the Supreme Court's recognition that "Congress' paramount goal in revising the 1976 [Copyright Act was] enhancing predictability and certainty of copyright ownership." Community for Creative Non-Violence v. Reid, 490 U.S. 730, 749, 104 L. Ed. 2d 811, 109 S. Ct. 2166 (1989).

 A cause of action accrues when a reasonably diligent plaintiff would have been put on inquiry as to the existence of a right. Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir. 1992); see also Merchant, 92 F.3d at 56. An express assertion of sole authorship or ownership will start the copyright statute of limitations running. See Zuill v. Shanahan, 80 F.3d 1366, 1370 (9th Cir. 1996).

 Based on the uncontested facts, Netzer's co-authorship claim accrued no later than the summer of 1984 when Netzer received a copy of Ms. Mystic No. 1, which bore a copyright notice reading: "MS. MYSTIC (including all prominent characters featured in this magazine and the distinctive likenesses thereof) is copyrighted 1982 by Neal Adams."

 Thus, the statute of limitations for the claim expired in the summer of 1987. Unless there is a basis for tolling the limitations period, Netzer's copyright claim is time barred.

 Netzer seeks to justify his delay in bringing suit on three distinct grounds. He claims that in telephone conversations with Adams in the summer of 1985 (and subsequently), he received assurances that the copyright notice in Ms. Mystic No. 1 was a mistake. He also relies on the fact that he was overseas from 1981 to 1990, and only learned of Adams' later exploitation of Ms. Mystic and claims of sole ownership when he returned to the United States in 1990. Finally, he contends that his fear that Adams could ruin his career justified his delay in bringing of suit until he could accumulate more evidence to support his claims.

 Netzer's contentions will be construed as an argument that the doctrines of equitable estoppel or equitable tolling should suspend the running of the limitations period. Under "extraordinary circumstances" these doctrines can excuse a claimant's failure to comply with the applicable statute of limitations. See Levy v. Aaron Faber, Inc., 148 F.R.D. 114, 119 (S.D.N.Y. 1993).

 On a motion for summary judgment, "the burden is on the plaintiff to present facts which, if true, justify equitably estopping a defendant from asserting the statute of limitations." Miller v. United States, 803 F. Supp. 1120, 1127 (E.D. Va. 1992).

 Equitable estoppel may toll a statute of limitations where the plaintiff knew of the existence of his cause of action, but the defendant's misconduct caused him to delay in bringing suit. Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995). Ordinarily the doctrine applies where, although the plaintiff is aware of his cause of action, his delay is excused because either the defendant misrepresented the length of the limitations period or "lulled the plaintiff into believing it was not necessary to commence the litigation." Cerbone v. ILGWU, 768 F.2d 45, 50 (2d Cir. 1985); see also Green v. Citibank, N.A., 1997 U.S. Dist. LEXIS 992, No. 95 Civ. 1251, 1997 WL 43619 at *5 (S.D.N.Y. Feb. 4, 1997). Equitable estoppel is applicable only in situations where demonstrated "egregious wrongdoing" by a defendant prevents a plaintiff from bringing suit on a claim of which the plaintiff is aware. See Miller, 803 F. Supp. at 1128.

 Under the equitable tolling doctrine, on the other hand, a statute of limitations does not run against a plaintiff who was justifiably ignorant of his cause of action. Dillman v. Combustion ...


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