deadline · 2020. 6. 24. · and dwight h. brubaker, defendants, and stan lee media, ... b. res...

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

DISNEY ENTERPRISES, INC., et al.,

Plaintiffs, Case No: 5:13-cv-05570 (JSL) VS.

ENTERTAINMENT THEATRE GROUP d/b/a AMERICAN MUSIC THEATRE; JAMES D. MARTIN; FREDERICK W. STEUDLER, JR.; and DWIGHT H. BRUBAKER,

Defendants, and

STAN LEE MEDIA, INC.,

Defendant / Intervenor.

ENTERTAINMENT THEATRE GROUP d/b/a AMERICAN MUSIC THEATRE,

Counterclaim-Plaintiff, and Case No: 5:13-cv-05570 (JSL)

STAN LEE MEDIA, INC.

Counterclaim-Plaintiff/Intervenor,

-against-

DISNEY ENTERPRISES, INC.; and MARVEL CHARACTERS, INC.,

Counterclaim-Defendants.

DEFENDANTS' OPPOSITION IN RESPONSE TO PLAINTIFFS' MOTION TO DISMISS AMENDED COUNTERCLAIMS AND INTERVENOR COMPLAINT AND

TO STRIKE AMENDED AFFIRMATIVE DEFENSES

Case 5:13-cv-05570-JLS Document 64 Filed 03/11/14 Page 1 of 30

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Table of Contents Page

I. INTRODUCTION 1

II. BACKGROUND 3

III. ARGUMENT 6

A. Legal Standard 6

B. Res Judicata Does Not Bar AMT's Counterclaims And Affirmative Defenses As The Causes Of Action At Issue In This Litigation Are Not The Same Causes Of Action At Issue In The Prior SLMI-Related Litigations. 7

1. The Present Litigation Does Not Involve The Same Cause Of Action As The Prior SLMI-Related Litigations. 8

2. AMT Is Not In Privity With SLMI Or The Abadin Plaintiffs And, Thus, AMT Cannot Be Bound By The Decisions Reached In The Prior SLMI-Related Litigations. 12

C. Collateral Estoppel Or Issue Preclusion Does Not Bar AMT's Counterclaims As Identical Issues Are Not Present And The Issue Of Ownership Has Never Been Actually Litigated 15

D. AMT's Counterclaims And Affirmative Defenses Are Not Time Barred As Such Claims Have Been Defensively Asserted To Defeat Plaintiffs' Claims. 19

E. Plaintiffs Lack Standing To Challenge SLMI' s License To AMT SLMI Has The Capacity To License The Spider-Man Copyrights To AMT; AMT Should Not Be Precluded From Challenging Plaintiffs' Alleged Ownership In The Copyrights 21

F. AMT Should Not Be Precluded From Challenging The Validity Of Disney's And/Or Marvel's Alleged Copyrights In Spider-Man 22

IV. CONCLUSION 24


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Table of Authorities Page(s)

Cases

Abadin et al. v. Marvel Entertainment, Inc. et al., 09-Civ-0715, 2010 U.S. Dist. LEXIS 32069 (S.D.N.Y. Mar. 31, 2010) passim

Alexander Binzel Corp. v. Nu-Tecsys Corp., No. 91 C. 2092, 1991 U.S. Dist. LEXIS 13538 (N.D. Ill. Sept. 30, 1991) 14

Allen et al. v. McCurry, 449 U.S. 90 (1980) 14

Anspach v. City of Phila., 380 Fed. Appx. 180 (3d Cir. 2010) 15

Apparel Bus. Sys., LLC v. Tom James Co., Civ. No. 06-1092, 2008 U.S. Dist. LEXIS 26313 (E.D. Pa. Mar. 31, 2008) 17, 23

Arco Polymers, Inc. v. Studiengesellschaft Kohle mbH, No. 78-Civ-2917, 555 F. Supp. 547 (E.D. Pa. 1982) 15

Ashcroft v. Iqbal, 556 U.S. 662 (2009) 7

Awanderlust Travel, Inc. v. Kochevar, 21 P.3d 876 (Colo. App. 2001) 21

Bell Atlantic Corp. v. Twombley, 550 U.S. 544 (2007) 7

Bieg v. Hovnanian Enters., Inc., 157 F. Supp. 2d 475 (E.D. Pa. 2001) 23

Emad Elkadrawy v. The Vanguard Group, Inc., 584 F.3d 169 (3d Cir 2009) 8

Estate of Hogarth v. Edgar Rice Burroughs, Inc., 342 F.3d 149 (2d Cir. 2003) 20

Humphreys v. Budget Rent A Car System Inc., No. 10-CV-1302, 2013 U.S. Dist. LEXIS 30377 (E.D. Pa. Mar. 4, 2013) 12

Luckenbach Steamship Co., Inc. v. United States, 312 F.2d 545 (2d Cir. 1963) 9, 11, 19

Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 2013) 22


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Nat '1 Railroad Passenger Corp. v. Pa. Public Utility Commission et al., 288 F.3d 519 (3d Cir. 2002) 17, 18

O'Leary v. Liberty Mutual Ins. Co., 923 F.2d 1062 (3d Cir. 1991) 15

O'Leary v. Liberty Mutual Ins. Co., 923 F.3d F.2d 1062, 1065 (3d Cir. 1991) 8

Picture Patents, LLC v. Aeropostale, Inc., 788 F. Supp. 2d 127 (S.D.N.Y. 2011) 10, 11

Picture Patents, LLC v. Terra Holdings, LLC, No. 07-Cvi-5465 (HBP), 2008 U.S. Dist. LEXIS 98030 (S.D.N.Y. Dec. 3, 2008) 11

Pritchett v. Pound, 473 F.3d 217 (5th Cir. 2006) 20

In re Prosser, No. 12-2864, 2013 U.S. App. LEXIS 15853 (3d Cir. Aug. 1, 2013) 16, 17

Roche v. Sparkle City Realty, Civ. No. 08-2518, 2009 U.S. Dist. LEXIS 51555 (E.D. Pa. June 15, 2009) 8

Rumford Chem. Works v. Hygienic Chem. Co., 148 F. 862 (3d Cir. 1906) 13

Semtek Int I Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001) 8

SEPTA v. AECOM USA, Inc., No. 10-CV-117, 2010 U.S. Dist. LEXIS 130313 (E.D. Pa. Dec. 9, 2010) 7

Smith v. Bayer Corp., 131 S.Ct. 2368 (2011) 13

Smith v. Cowden (In re Cowden), 337 B.R. 512 (W.D. Pa. Bank. 2006) 11

Souders v. Bank of Am., 1:CV-12-1074, 2012 U.S. Dist. LEXIS 186082 (M.D. Pa. Dec. 6, 2012) 21

Stan Lee Media Inc., et al. v. Stan Lee, et al., No. 2:07-cv-00225, 2012 U.S. Dist. LEXIS 134307 (C.D. Cal. Aug. 23, 2012) 8

Stan Lee Media, Inc. v. The Walt Disney Company, No. 12-cv-2663, 2013 U.S. Dist. LEXIS 129393 (D. Col. Sept. 5, 2013) 8


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Stan Lee v. Marvel Enterprises, Inc. et al., 765 F. Supp.2d 440 (S.D.N.Y. 2011) 8

Stone v. Hank Williams, Jr. et al., 970 F.2d 1043 (2d Cir. 1992) 10

Taggart v. Chase Bank USA, NA. et al., 375 Fed. Appx. 266 (3d Cir. 2010) 8

Taylor v. Sturgell, 553 U.S. 880 (2008) 12, 15

TruePosition, Inc. v. LM Ericsson Tel. Co., Civ. No. 11-4574, 2013 U.S. Dist. LEXIS 145898 (E.D. Pa Oct. 9, 2013) 7

United States v. Western Pacific Railroad Co. et al., 352 U.S. 59 (1956) 9, 20

Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77 (3d Cir. 2011) 6

William A. Graham Co. v. Haughey et al., 568 F.3d 425 (3d Cir. 2009) 10

Statutes

17 U.S.C. § 507(b) 20

Colo. Rev. Stat. § 7-114-105 (2013) 21

Other Authorities

AMT's Broadway: Now and Forever 20

Fed. R. Civ. P. 12(f) 7

Melville B. Nimmer, David Nimmer, Nimmer on Copyright (2013) 18, 23

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Defendant and Counterclaim-Plaintiff Entertainment Theatre Group d/b/a American

Music Theatre ("AMT") and Defendants James D. Martin, Frederick W. Steudler, Jr. and Dwight

H. Brubaker (collectively, along with AMT, the "AMT Defendants"), by and through their

undersigned attorneys, hereby submit this Opposition in Response to Plaintiffs and

Counterclaim-Defendants Disney Enterprises, Inc.'s ("Disney's") and Marvel Characters, Inc.'s

("Marvel's") Motion to Dismiss Amended Counterclaims and Intervenor Complaint and to

Strike Amended Affirmative Defenses ("Motion"). For the reasons discussed in more detail

below, AMT Defendants respectfully request that the Court DENY the Motion in its entirety.

I. INTRODUCTION

Plaintiffs are correct—this is a straightforward case. Motion at 1. AMT, a small theatre

company in Lancaster, Pennsylvania—acting on appropriate advice of counsel and pursuant to

valid licenses—put on a production of a highly original, transformative show called Broadway:

Now and Forever that included, among other things, various performances of songs appearing in

past and present Broadway musicals. Upon learning of AMT's production, Disney and Marvel

(and other Plaintiffs in this action) felt it necessary to flex their muscles and force AMT to stop

its small town production, asserting that the same infringed upon, inter alia, such parties' alleged

copyrights. When AMT, again on advice of counsel, continued to produce this show despite

Plaintiffs' baseless threats, Plaintiffs grew angry and, in September of 2013, filed suit against

AMT in this district alleging, inter alia, causes of action for copyright infringement, including

infringement of certain works relating to Spider-Man.'

Upon learning of this suit and the fact that Disney and Marvel had asserted copyrights in

Spider-Man against AMT, SLMI approached AMT and advised that SLMI was the actual owner

1 While Plaintiffs assert in their Motion that they own intellectual property from Spider-Man Turn Off the Dark, there is some question as to whether this is the case and discovery will illuminate this issue. It should be noted upfront, however, that Plaintiffs did not assert any copyrights in Spider-Man Turn Off the Dark against the AMT Defendants. See generally Complaint (D.E. 1).

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of any and all copyrights in Spider-Man pursuant to a 1998 Agreement entered into between its

predecessor and Stan Lee. Accordingly, SLMI, with an eye towards collecting assets owed to it

and disposing of its property, offered to grant to AMT, in exchange for a royalty, a nunc pro tunc

retroactive license 2 covering AMT's use of Spider-Man in Broadway: Now and Forever, as well

as certain other exclusive rights. AMT accepted the same.

With Plaintiffs' rights in Spider-Man now in question, AMT counterclaimed against

Plaintiffs for declaratory judgment, seeking a declaration that its license with SLMI was valid

and that Marvel and Disney lacked ownership of the copyrights in Spider-Man. AMT filed a

similar third party complaint against SLMI and SLMI responded with a third-party counterclaim.

Plaintiffs then moved to dismiss AMT's counterclaims and SLMI's third-party claims. In

response, SLMI withdrew its third party complaint and AMT filed, as of right, an Amended

Answer with additional counterclaims, including a declaratory judgment counterclaim seeking a

declaration that Plaintiffs' alleged copyrights in Spider-Man are invalid as a matter of law.

SLMI moved to intervene, which went unopposed. Plaintiffs then filed this Motion.

Plaintiffs' Motion is based on a fundamental misunderstanding of the law, namely, that

AMT's Counterclaims and affirmative defenses are barred by res judicata or collateral estoppel

because a district court in a prior litigation held that certain of SLMI's derivative shareholders

were barred, on the bases of statute of limitations, laches and estoppel, from asserting that SLMI

owns copyrights in certain Lee-created works when bringing a copyright infringement case

against various Marvel entities. However, the district court in this prior litigation never actually

determined this ownership issue. Nor did it determine whether, as asserted here, Marvel and/or

Disney hold valid copyrights in the Spider-Man works. It is black letter law that defensively

asserted claims such as those brought by AMT in the instant action involve different causes of

2 Retroactive licenses such as these are commonplace in the industry when rights are asserted by a party against another after a production has commenced.

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action than those at issue in this prior case and that such claims cannot be time barred. Thus, res

judicata and collateral estoppel are inapplicable here and Plaintiffs' arguments must fail.

But Plaintiffs' arguments as against AMT also fail for other reasons. First, AMT was-

and is—not in privity with SLMI for purposes of res judicata and collateral estoppel, for the

reasons discussed in more detail herein. Second, granting Plaintiffs' Motion as against AMT

would be contrary to law. Doing so would effectively preclude AMT from challenging Marvel's

and/or Disney's ownership rights in Spider-Man and, thus, would constructively grant Disney

and Marvel rights in these works. This would unlawfully shift the burden of proof regarding

ownership in these works to AMT and, thus, would go against well-established precedent that the

burden of proof in asserting ownership rests with plaintiffs.

For these, and the additional reasons set forth in more detail below, AMT Defendants

respectfully request that this Court DENY Plaintiffs' Motion in its entirety.

II. BACKGROUND

Contrary to Disney's and Marvel's skewed view of the facts set forth in the Motion, see,

e.g., Motion at 4-5, Stan Lee ("Lee") did not create his iconic comic book characters (including,

for example, Spider-Man, Iron Man, The Incredible Hulk, Thor, The X-Men, and The Avengers)

in his role as an employee at Marvel Comics. To the contrary, while working for Marvel Comics

between 1945 and the autumn of 1968 Lee created and developed such characters, including

Spider-Man, as an independent contractor, that is, in his spare time and outside the scope of his

employment. See, Decl. of Melanie A. Miller attached as Exhibit A, at Ex. 1 TT 33-43 ("Miller

Decl."). These Lee-created works were not "works for hire," Motion at 4, under the Copyright

Act and the copyrights therein vested in Lee, not Marvel. From the time Lee was hired as an

employee of Marvel Entertainment Group, Inc. (the predecessor to Marvel Entertainment, Inc.),

until his termination in August 1998, Marvel "paid Lee both a salary for Lee's exclusive services

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and extra compensation for Marvel's right to use, develop and exploit Lee's interest in the

characters he had previously conceived, created and developed." Id. at Ex. 1 ¶ 46.

After Lee's termination from Marvel, Stan Lee Entertainment Inc., the predecessor to

SLMI, was founded. On October 15, 1998, Lee assigned to Stan Lee Entertainment Inc. via a

written agreement (the "1998 Agreement") "all right, title and interest [Lee] may have or control,

now or in the future" in his prior-created comic book characters, including Spider-Man, as well

as other works. Id. at Ex. 1 I 49; Amended Answer (D.E. 55) at Ex. A. A month later, in

November 1998, Lee signed a written agreement with Marvel Enterprises, Inc., in which Lee

allegedly conditionally assigned certain rights in Spider-Man and other of his characters even

though Lee did not own such rights at that time. 3 Amended Answer (D.E. 55) at ¶ 10. On

November 28, 2006, the 1998 Agreement was recorded with the U.S. Copyright Office, whereas

the November 1998 Agreement has never been so recorded. Id. at TT 9, 11, Ex. C. Accordingly,

as a matter of law, SLMI, as successor-in-interest to Stan Lee Entertainment Inc., is the rightful

owner of the copyrights in Stan Lee's iconic comic book characters, including Spider-Man.

In 2009, certain derivative shareholders of SLMI filed sued against Marvel

Entertainment, Inc., Marvel Enterprises, Inc., Stan Lee and Arthur M. Lieberman in the Southern

District of New York, alleging, on behalf of SLMI, that, inter alia, these defendants infringed

upon SLMI's rights in certain works and characters created by Lee in light of, inter alia, the

1998 Agreement. See Miller Decl. at Ex. 1. The District Court for the Southern District of New

York ultimately dismissed this case on the basis that the plaintiffs lacked derivative standing to

sue under the Federal Rules of Civil Procedure. Abadin et al. v. Marvel Entertainment, Inc. et

al., 09-Civ-0715, 2010 U.S. Dist. LEXIS 32069, at *10-*11 (S.D.N.Y. Mar. 31, 2010). The

3 The existence of this assignment begs the question if, as Disney and Marvel contend, Lee's rights in Spider-Man and the other related works were "works for hire," why was such as copyright assignment necessary?

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District Court alsO dismissed the Abadin plaintiffs' copyright claims on the basis of being barred

by the statute of limitations and the doctrines of laches and estoppel. Id. at *18.

Additional cases were subsequently filed by SLMI affirmatively asserting causes of

action for, inter alia, copyright infringement against Marvel Entertainment Inc., The Walt

Disney Company and related entities. Motion at 5 (Abadin and these cases are collectively

referred to herein as the "Prior SLMI-Related Litigations").

Importantly, while certain of these cases have been dismissed on res judicata or collateral

estoppel grounds, no court has ever expressly decided the issue as to whether the 1998

Agreement vested in SLMI rights in and to the Spider-Man character and other Lee characters

and whether Marvel and/or Disney have valid copyrights in the same. Disney effectively

conceded as much when, in prior litigation against SLMI, it argued that "[i]t is not that [SLMI's]

'ownership of the copyright at issue in this action was litigated in Abadin' and other prior

litigations . . . ; rather, the issue that [SLMI] seeks to litigate . . . is whether it can timely assert

ownership rights to the Marvel characters that are the subject of the Amended Complaint arising

from the 1998 Agreement." Miller Decl. at Ex. 2, p. 7. Given that no court has expressly

decided these issues, AMT should not be precluded from asserting potential defenses and

defensive claims related thereto, particularly when Disney and Marvel have invited discussion on

such issues by asserting their alleged rights against AMT.

Despite the fact that Disney and Marvel lack ownership in the copyrights in Spider-Man

and other Lee characters, they have nonetheless continued to exploit the same and have

attempted to enforce their non-existent rights in such works against third parties. Accordingly,

on September 24, 2013, they (among others) filed suit against AMT alleging, inter alia, that

AMT, via its production of Broadway: Now and Forever, infringed upon their alleged copyrights

that incorporate the Spider-Man character. See generally Complaint (D.E. 1).

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Only after this Complaint was filed and served did AMT learn that SLMI was the proper

rightholder in the Spider-Man character and the Lee-created works. Accordingly, as is common

in the industry, AMT then entered into a nunc pro tunc license agreement with SLMI, wherein

SLMI granted to SLMI, among other things, exclusive rights in the Spider-Man character,

including use in connection with the production of Broadway: Now and Forever. See generally

Appendix to Motion (D.E. 63). Moreover, in light of AMT's knowledge that SLMI was the

proper rightholder in Spider-Man, AMT, when answering Plaintiffs' Complaint, asserted

defensive declaratory judgment counterclaims ("Counterclaims") and affirmative defenses

against Disney and Marvel. AMT in its First Amended Complaint amended these Counterclaims

and affirmative defenses to seek confirmation that SLMI is in fact the owner of the copyrights in

Spider-Man and a conclusion that Disney's and Marvel's alleged copyrights in Spider-Man are

invalid as a matter of law. See Amended Answer (D.E. 55) at 7 1-23. SLMI subsequently filed

a Motion to Intervene and a corresponding Intervenor Complaint, which motion was granted as

unopposed. See Motion to Intervene (D.E. 56) and Order (D.E. 59).

By affirmatively asserting their alleged copyrights in Spider-Man against AMT, Plaintiffs

have opened the door for AMT to challenge the validity of these rights and Plaintiffs' alleged

ownership in the same. Res judicata and collateral estoppel do not act to bar such defensive

assertions, particularly where, as here, the underlying decision upon which these theories would

rest was based upon a time-bar and not an adjudication of the actual ownership issue.

III. ARGUMENT

A. Legal Standard

"[A] motion to dismiss may be granted only if, accepting all well-pleaded allegations in

the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds

that plaintiff s claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77,

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84 (3d Cir. 2011); see also Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 570 (2007) (to

survive a motion to dismiss, a plaintiff need only allege "enough facts to state a claim to relief

that is plausible on its face"); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (a plaintiff need only

include sufficient factual content "that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged"). This standard applies with "equal force to

crossclaims, counterclaims and third party complaints." SEPTA v. AECOM USA, Inc., No. 10-

CV-117, 2010 U.S. Dist. LEXIS 130313, at *9 (E.D. Pa. Dec. 9, 2010).

Similarly, under Fed. R. Civ. P. 12(0, an affirmative defense may be stricken if it "rest[s]

on the same legal grounds as . . . [a] legally-insufficient Counterclaim[.]" TruePosition, Inc. v.

LM Ericsson Tel. Co., Civ. No. 11-4574, 2013 U.S. Dist. LEXIS 145898, at *30 (E.D. Pa Oct. 9,

2013). However, an affirmative defense will be deemed to be legally insufficient only if the

defense cannot succeed under 'any set of facts which may be inferred from the allegations of

the pleading," id. at *31 (quoting BJ Energy LLC v. PJM Interconnection, LLC, Nos. 08-3649,

09-2864, 2010 U.S. Dist. LEXIS 36969, at *6 (E.D. Pa. Apr. 13, 2010)). Applying these

standards here, it is plain that AMT's Counterclaims and affirmative defenses have been

sufficiently pleaded and are legally sufficient to as to survive dismissal.

B. Res Judicata Does Not Bar AMT's Counterclaims And Affirmative Defenses As The Causes Of Action At Issue In This Litigation Are Not The Same Causes Of Action At Issue In The Prior SLMI-Related Litigations.

Res Judicata does not act to bar AMT's Counterclaims or affirmative defenses as the

causes of action in this litigation and the Prior SLMI-Related Litigations are dissimilar.

Moreover, AMT's Counterclaims and affirmative defenses should not be barred as AIVIT and

SLMI are not in privity. Res judicata applies to bar relitigation of a claim when three

circumstances are present: "(1) a final judgment on the merits in a prior suit involving (2) the

same parties or their privies and (3) a subsequent suit based on the same cause of action."

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Taggart v. Chase Bank USA, NA. et al., 375 Fed. Appx. 266, 268 (3d Cir. 2010). Moreover, "a

judgment 'on the merits' is [no longer] necessarily a judgment entitled to claim-preclusive

effect." Semtek Int I Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503 (2001). For the reasons

discussed in more detail below, at least two of the factors required to prove res judicata are not

present in this case and, in any event, AMT's Counterclaims should not be barred on this basis.

1. The Present Litigation Does Not Involve The Same Cause Of Action As The Prior SLMI-Related Litigations.

This case does not involve the "same cause of action" as the Prior SLMI-Related

Litigations. "There is no bright-line test for determining when the causes of action in two suits

are identical for res judicata purposes." O'Leary v. Liberty Mutual Ins. Co., 923 F.3d F.2d 1062,

1065 (3d Cir. 1991). While many factors are applicable to this analysis, one important factor is

"the essential similarity of the underlying events giving rise to the various legal claims." Emad

Elkadrawy v. The Vanguard Group, Inc., 584 F.3d 169, 173 (3d Cir 2009).

Here, the underlying events giving rise to AMT's legal claims are different from those at

issue in the Prior SLMI-Related Litigations. The causes of action asserted in Abadin and each of

the subsequent Prior SLMI-Related Litigations were based on affirmative assertions of copyright

infringement and other affirmative causes of action in certain Lee-created works by, respectively,

the Abadin plaintiffs and SLMI. See generally Stan Lee Media, Inc. v. The Walt Disney

Company, No. 12-cv-2663, 2013 U.S. Dist. LEXIS 129393 (D. Col. Sept. 5, 2013); Stan Lee

Media Inc., et al. v. Stan Lee, et al., No. 2:07-cv-00225, 2012 U.S. Dist. LEXIS 134307 (C.D.

Cal. Aug. 23, 2012); Stan Lee v. Marvel Enterprises, Inc. et al., 765 F. Supp.2d 440 (S.D.N.Y.

2011). Here, however, AMT's Counterclaims are based on defensive assertions, similar to

claims for recoupment, see, e.g., Roche v. Sparkle City Realty, Civ. No. 08-2518, 2009 U.S. Dist.

LEXIS 51555, at *8 (E.D. Pa. June 15, 2009) (noting that recoupment may be asserted after the

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limitations period when used in defense to a debt collection action), which claims arose once

Disney and Marvel asserted against AMT their alleged ownership of the Spider-Man copyrights.

Under such circumstances, it cannot be said that this case involves the "same cause of

action" alleged in the Prior SLMI-Related Litigations, as doing so would effectively allow cases

decided on the bases of statutes of limitations, laches and/or estoppel to later bar the assertion of

applicable defenses and defensive claims based on issues that were never fully litigated or

decided, which is contrary to the basic policy behind such doctrines.

The purpose of such statutes [of limitations] is to keep stale litigation out of the courts. They are aimed at lawsuits, not at the consideration of particular issues in lawsuits. . . . To use the statute of limitations to cut off the consideration of a particular defense in the case is quite foreign to the policy of preventing the commencement of stale litigation. We think it would be incongruous to hold that once a lawsuit is properly before the court, decision must be made without consideration of all the issues in the case and without the benefit of all the applicable law. If this litigation is not stale, then no issue in it can be deemed stale.

United States v. Western Pacific Railroad Co. et al., 352 U.S. 59, 72 (1956) (emphasis added).

Similarly here, since Disney's and Marvel's litigation against AMT is not stale, AMT's

defensive claims are not stale.

Indeed, unlike with affirmative causes of action, such as those asserted in the Prior

SLMI-Related Litigations, "[1]imitations statutes do not apply to declaratory judgments as such.

Declaratory relief is a mere procedural device by which various types of substantive claims may

be vindicated. There are no statutes which provide that declaratory relief will be barred after a

certain period of time." Luckenbach Steamship Co., Inc. v. United States, 312 F.2d 545, 548 (2d

Cir. 1963). Accordingly, "[n]on-liability for which plaintiff seeks a declaration is not a 'cause of

action' within the meaning of the limitations section . . . [as it is the] negative of the claim or

cause of action for respect to which the declaration is sought" and can therefore be asserted so

long as the claim can be asserted. Id. at 549. Thus, affirmatively asserted claims of relief are


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not the same "causes of action" as defensively asserted counterclaims or affirmative defenses,

such as those at issue here.

Moreover, given that Disney and Marvel have affirmatively asserted their alleged rights

in the Spider-Man works against AMT, AMT should be able to freely assert defensive

declaratory judgment counterclaims these entities do not hold valid copyrights and that, instead,

SLMI is the valid owner of the Spider-Man copyrights. This is particularly so given the fact that

no court has ever actually decided whether Disney and/or Marvel's alleged copyrights in Spider-

Man are valid in light of the 1998 Agreement or whether SLMI is the rightful owner in such

rights. After all, the statute of limitations cannot bar a defensive claim for ownership of a right.

See Picture Patents, LLC v. Aeropostale, Inc., 788 F. Supp. 2d 127, 139, 141 (S.D.N.Y. 2011)

(even if IBM's claim to ownership would be barred by statute of limitations, the statute of

limitations "does not bar IBM from raising IBM's ownership of the Patents as a defense against

Pictures Patents' claims or in counterclaims for declaratory judgment," particularly where, as

here, defendants were "haled into court only at [Plaintiffsl assistance"). It would be

incongruous for this Court to apply res judicata to such defensive claims where the underlying

decision was based on a time bar argument.

Furthermore, prohibiting AMT from raising its defensive claims on the basis of res

judicata would effectively mean that Disney and/or Marvel have acquired ownership of the

Spider-Man copyrights via adverse possession, namely, by claiming such rights for a period of

time without challenge from SLMI. This is contrary to law. After all, "[o]ne's entitlement to a

copyright or a renewal is . . . determined by statute . . . and the statute nowhere suggests that one

loses" his or her right in the copyright merely by delaying in asserting that right. Stone v. Hank

Williams, Jr. et al., 970 F.2d 1043, 1051 (2d Cir. 1992). See William A. Graham Co. v. Haughey

et al., 568 F.3d 425, 436 (3d Cir. 2009) ("the legislative history makes clear that Congress

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intended the Copyright Act's statute of limitation to apply 'to the remedy of the person affected

thereby, and not to his substantive rights"); see also Picture Patents, LLC v. Terra Holdings,

LLC, No. 07-Cvi-5465 (HBP), 2008 U.S. Dist. LEXIS 98030, at *10 n.1 (S.D.N.Y. Dec. 3, 2008)

(suggesting that there is "no authority supporting the proposition that title" to a patent or

copyright "can be acquired through adverse possession").

In short, even if AMT would otherwise be precluded from affirmatively asserting its

rights in Spider-Man against Disney and Marvel in light of the Prior SLMI-Related Litigations,

AMT should not be prohibited from defensively asserting these rights or challenging Disney's

and Marvel's alleged rights via declaratory counterclaims and affirmative defenses 4 when it is

Marvel and Disney who have effectively placed their rights in the Spider-Man copyrights at issue

and "disturbed the equilibrium between the parties." Picture Patents, LLC, 788 F. Supp. 2d at

141. As the above-referenced case law makes plain, claims based upon affirmative assertions of

rights, such as those at issue in Abadin and the Prior SLMI-Related Litigations can be time-

barred and are, in essence, different causes of action than defensive claims based upon assertions

of ownership and invalidity, which claims can only be raised once rights are affirmatively

asserted against a party. These defensive claims cannot be time barred. As AMT's defensive

claims—particularly AMT's Second Counterclaim and affirmative defenses—are responsive to

Plaintiffs' claims and, therefore, could not have been asserted in the Prior SLMI-Related

Litigations, they are "necessarily dissimilar" from these earlier causes of action. Res judicata

will not bar a cause of action if "both could not have been brought in the prior proceeding in

question." Smith v. Cowden (In re Cowden), 337 B.R. 512, 529 (W.D. Pa. Bank. 2006).

Accordingly, Marvel and Disney's res judicata argument must fail on this basis alone.

4 This reasoning applies a fortiori to AMT's affirmative defenses, as they are plainly raised in response to Plaintiffs' claims and, therefore, are not a "cause of action." Luckenbach Steamship Co., Inc., 312 F.2d at 548.

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2. AMT Is Not In Privity With SLMI Or The Abadin Plaintiffs And, Thus, AMT Cannot Be Bound By The Decisions Reached In The Prior SLMI-Related Litigations.

Marvel's and Disney's res judicata arguments must also fail as against AMT as AMT is

not the same party as SLMI, nor is—or was—it in privity with SLMI or, for that matter, the

Abadin plaintiffs. Marvel and Disney concede that "AMT was not a party to the Dismissed

SLMI Cases." Motion at 13. Thus, the only question to be determined by this Court is whether

AMT was or is in privity with this entity or the Abadin plaintiffs.

"Privity 'is merely a word used to say that the relationship between one who is a party on

the record and another is close enough to include that other within the res judicata." Humphreys

v. Budget Rent A Car System Inc., No. 10-CV-1302, 2013 U.S. Dist. LEXIS 30377, at *17 (E.D.

Pa. Mar. 4, 2013). "A relationship is usually considered to be sufficiently close 'only when . . .

the non-party actually controls the litigation." Id at *18 (emphasis added). "Put another way,

privity will depend upon what obligation, if any, the representing party had to safeguard the

interests of the nonparty." Id (emphasis added).

There are only six narrow circumstances in which a court will find privity and preclude a

nonparty from litigating a matter, namely, (1) where a person agrees to be bound by a

determination of the issues in the first case; (2) where there are "pre-existing 'substantive legal

relationship[s]" between the person to be bound and a party to the judgment; (3) where a

nonparty was adequately represented by someone "with the same interests who [wa]s a party";

(4) if the nonparty "assumed control" over the prior litigation; (5) if a party is relitigating through

a proxy; and (6) if a special statutory scheme expressly precludes successive litigation by

nonlitigants. Taylor v. Sturgell, 553 U.S. 880, 893-95 (2008). Here, plainly exceptions (1), (4),

and (6) are not at issue, as AMT never agreed to be bound by the decisions reached in the Prior

SLMI-Related Litigations, AMT had no control over—let alone knowledge of—the Prior SLMI-

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Related Litigations prior to being approached by SLMI in the Fall of 2013, and there is no

special statutory scheme at issue. Accordingly, we need only address exceptions (2), (3) and (5).

It is plain that the second exception does not apply to AMT as there was not a "pre-

existing" legal relationship at the time AMT was sued by Marvel and Disney—AMT entered into

the license agreement with SLMI only after it was sued by the Disney Plaintiffs and with an eye

towards defending against Plaintiffs' claims. See generally Appendix to Motion (D.E. 63).

While this license applied retroactively, Marvel and Disney provide no authority that such a

retroactive license, entered into after a Defendant is sued suffices to show privity. Cf Rumford

Chem. Works v. Hygienic Chem. Co., 148 F. 862, 863-65 (3d Cir. 1906) ("The rule invoked is

only applicable to cases where by agreement a joint defense is made or a principal defends his

agent, or a licensor [defends] his licensee, or other like relations contractual or representative

exist.") (emphasis added). Moreover, there was plainly no pre-existing legal relationship

between AMT and the Abadin plaintiffs, and the Supreme Court has frowned upon finding

privity between non-parties in cases involving similar circumstances. See, e.g., Smith v. Bayer

Corp., 131 S.Ct. 2368, 2379-2382 (2011) (finding no privity between a class action plaintiff and

plaintiffs in a prior class action suit involving the same defendant and similar claims, where the

district court in the prior suit refused to certify the prior plaintiffs as a class and alternatively

dismissed prior plaintiffs' claims on the merits).

Similarly, the third exception does not apply under the circumstances, as AMT is not a

fiduciary of SLMI or the Abadin plaintiffs, nor does AMT have the same interests as these

entities. To the contrary, whereas AMT is interested in proving the invalidity of Marvel's and

Disney's alleged copyrights, SLMI has made no such claims. See, e.g., SLMI's Intervenor

Complaint (D.E. 56-2). Tellingly, Marvel and Disney do not even assert this privity exception in

their Motion. Motion at 12-13.

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Finally, the fifth exception is not applicable here because AMT is not a proxy to or agent

of SLMI or the Abadin plaintiffs. While having been alerted to these potential ownership issues

by SLMI, AMT is asserting them mainly for its own benefit and to avoid potential liability from

Marvel and Disney. Once AMT was sued by Marvel and Disney, it behooved AMT to obtain a

license in the Spider-Man copyrights from any available source. AMT obtained the license from

SLMI, but is raising separate counterclaims against Disney's and Marvel's alleged rights. Under

these circumstances, AMT cannot be viewed as a proxy for SLMI or, a fortiori, the Abadin

plaintiffs. See, e.g., Alexander Binzel Corp. v. Nu-Tecsys Corp., No. 91 C. 2092, 1991 U.S. Dist.

LEXIS 13538, at * (N.D. Ill. Sept. 30, 1991) (finding no privity for res judicata purposes

between trademark holder and trademark holder's "exclusive authorized United States distributor

of products bearing the trademarks and logos" where the parties had certain different interests).

Moreover, it is plain that AMT has never had the opportunity to challenge Disney and/or

Marvel's alleged ownership in the asserted copyrights. Nor were SLMI or the Abadin plaintiffs

looking out for AMT's interests when they adjudicated their claims against Marvel, Disney and

Lee. The fact remains that Disney called into question its ownership in these copyrights when it

asserted them against AMT and AMT should be able to raise every argument in its arsenal to

defend against Disney's claims of infringement. After all, "one general limitation the Court has

repeatedly recognized is that the concept of collateral estoppel cannot apply when the party

against whom the earlier decision is asserted did not have a 'full and fair opportunity' to litigate

that issue in the earlier case." Allen et al. v. McCurry, 449 U.S. 90, 95 (1980). AMT has had no

such opportunity.

Although AMT entered into a nunc pro tunc license and common interest agreement with

SLMI regarding the Spider-Man copyrights and this litigation, respectively, the existence of

these agreements should not be sufficient for the Court to find privity under these unique

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circumstances. While "[Arivity is an ambiguous term, a shorthand designation for those persons

who have a sufficiently close relationship with the record parties to be bound by the judgment,"

Arco Polymers, Inc. v. Studiengesellschaft Kohle mbH, No. 78-Civ-2917, 555 F. Supp. 547, 550

(E.D. Pa. 1982) (citations omitted), nonparty preclusion is only available in "limited

circumstances," and the courts have taken a "constrained approach to nonparty preclusion."

Taylor v. Sturgell et al., 553 U.S. 880, 898 (2008). Where, as here, there was not a preexisting

legal relationship prior to the commencement of suit and AMT never had the full and fair

opportunity to defend against Marvel and/or Disney's alleged ownership in the copyrights at

issue, privity should not be found. Thus, Marvel and Disney's res judicata arguments must fail

as against AMT and its Counterclaims and its affirmative defenses for this reason as well.

C. Collateral Estoppel Or Issue Preclusion Does Not Bar AMT's Counterclaims As Identical Issues Are Not Present And The Issue Of Ownership Has Never Been Actually Litigated

For similar reasons as discussed above in Section III.B, AMT's Counterclaims are not

barred by the doctrine of collateral estoppel. Collateral estoppel or issue preclusion will act to

bar the relitigation of an issue when "(1) the identical issue was previously adjudicated; (2) the

issue was actually litigated; (3) the previous determination was necessary to the decision; and (4)

the party being precluded from relitigating the issue was fully represented in the prior action."

Anspach v. City of Phila., 380 Fed. Appx. 180, 183 (3d Cir. 2010) (quoting Jean Alexander

Cosmetics, Inc. v. L 'Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir. 2006)). Here, these factors are

not satisfied and, thus, AMT's Counterclaims should not be barred by collateral estoppel.

First, it should be noted that the issues raised in AMT's Counterclaims and affirmative

defenses were never "actually litigated." "An issue is 'actually litigated' when it 'is properly

raised, by the pleadings or otherwise, and is submitted for determination, and is determined."

0 'Leary v. Liberty Mutual Ins. Co., 923 F.2d 1062, 1066 (3d Cir. 1991) (citations omitted)

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(emphasis added). No court has ever determined the issue of whether SLMI owns the copyrights

in Spider-Man as a result of the 1998 Agreement, a point which Disney effectively conceded.

See Miller Decl. at Ex. 2, p.7 (Disney stated,"[ilt is not that [SLMI's] 'ownership of the

copyright at issue in this action was litigated in Abadin' and other prior litigations . . . ; rather,

the issue that [SLMI] seeks to litigate . . . is whether it can timely assert ownership rights to the

Marvel characters that are the subject of the Amended Complaint arising from the 1998

Agreement."). Thus, this issue has never been "actually litigated." Moreover, to AMT's

knowledge, no court has ever determined whether Stan Lee's second assignment to Marvel

validly assigned any rights to this entity in light of the fact that Stan Lee did not own the alleged

copyrights that were assigned at that time. Therefore, the issue upon which AMT's Second

Counterclaim rests was also not ever actually litigated. The claims brought by AMT are thus not

barred by collateral estoppel and, similarly, AMT's affirmative defenses should not be stricken.

Second, for at least the same reasons as discussed above in Section III.B.1, the issues

raised in AMT's Counterclaims and affirmative defenses should not be considered to be

"identical issue[sl" as those raised in the Prior SLMI-Related Litigations. Moreover, at least

with respect to AMT's Second Counterclaim and affirmative defenses, it should be noted that the

"identical issue" was never previously adjudicated. The collateral estoppel analysis focuses "not

on whether the facts underlying the cases are the same, but instead on whether the same issue has

been conclusively determined in a prior decision." In re Prosser, No. 12-2864, 2013 U.S. App.

LEXIS 15853, at *6-*7 (3d Cir. Aug. 1, 2013). In In re Prosser, then, the Third Circuit

determined that two separate, distinct issues were asserted where the first action involved the

question whether Prosser retained ownership of the property he attempted to transfer to

Appellant and the second action involved the issue whether Appellant's ownership interests

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resulted from a fraudulent conveyance from Prosser. Id at *7• "Thus, although the same factual

scenario gave rise to the two actions, the issues decided in each were entirely distinct." Id

Same here with respect to at least AMT's Second Counterclaim and affirmative defenses.

At issue in the Prior SLMI-Related Litigations was the issue of whether SLMI had valid

ownership rights in copyrights in certain Lee-created works sufficient to support various

affirmative causes of action, such as copyright infringement. At issue in AMT's Second

Counterclaim and affirmative defenses, however, is the validity of Marvel's and/or Disney's

asserted copyrights given that Lee's 1998 assignment to Marvel effectively assigned no rights to

Marvel. This is a different issue under the doctrine set forth in In re Prosser. Accordingly, even

if AMT's first Counterclaim is barred by collateral estoppel, at least AMT's Second

Counterclaim and affirmative defenses should survive dismissal for this reason alone.

Third, for the reasons set forth above in more detail in Section III.B.2, AMT should not

be considered to have been "ffilly represented" by SLMI in the prior proceeding. Accordingly,

AMT's Counterclaims and affirmative defenses should not be barred by collateral estoppel for

this reason as well.

Finally, even if all of these factors are satisfied and issue preclusion would otherwise

apply to bar the relitigation of ownership, one or more of the equitable exceptions to collateral

estoppel are applicable to this case. See Nat'l Railroad Passenger Corp. v. Pa. Public Utility

Commission et al., 288 F.3d 519, 525 n.3 (3d Cir. 2002) (setting forth the five exceptions to the

general rule of issue preclusion set forth in Section 28 of the Restatement Second). First, the

burden of proving ownership in this proceeding has shifted from SLMI (or its alleged privies) to

the Disney Plaintiffs. See, e.g., Apparel Bus. Sys., LLC v. Tom James Co., Civ. No. 06- 1092,

2008 U.S. Dist. LEXIS 26313, at *42 (E.D. Pa. Mar. 31, 2008) (noting plaintiff "has the burden

of proving ownership"). Whereas the Abadin plaintiffs and/or SLMI were responsible for

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proving ownership at issue in the Prior SLMI-Related Litigations, as they were the entities

asserting infringement of their rights, here Disney and Marvel have that burden. Accordingly,

for this reason alone "relitigation of the issue [of ownership] . . . is not precluded." Nat'l

Railroad Passenger Corp., 288 F.3d at 525 n.3 (quoting Restatement Second).

Second, the ownership issue is one of law, see, e.g., Melville B. Nimmer, David Nimmer,

4 Nimmer on Copyright § 13.01[B] ("plaintiff's ownership constitutes a conclusion of law"), and

the "two actions involve claims that are substantially unrelated." Nat'l Railroad Passenger

Corp., 288 F.3d at 525 n.3 (quoting Restatement Second). Indeed, as discussed above in Section

III.B.1, this action involves different causes of action than those at issue in the Prior SLMI-

Related Litigations. Accordingly, the claims must also be substantially unrelated. This is

particularly true with respect to AMT's Second Counterclaim for invalidity, as the issue of the

validity of Marvel's and/or Disney's copyrights has never been litigated.

Third, "[t]here is a clear and convincing need for a new determination of the issue . . .

because of the potential adverse impact of the determination on the public interest or the interests

of the persons not themselves parties to the initial action." Id. If AMT is precluded from

arguing ownership in this proceeding, Disney and Marvel will be able to continue to assert their

non-existent rights against third parties and would have effectively acquired, via adverse

possession, rights in the Spider-Man works and other Lee-created works, to the detriment of such

third parties and the public interest. Moreover, if preclusion is found AMT will be effectively

unable to challenge Disney's and Marvel's ownership in the Spider-Man works, despite the fact

that it is Disney's and Marvel's burden to prove ownership, to its great detriment. Precluding

AMT from raising this argument may ultimately mean AMT is subject to hefty damages and

other relief to which Disney and Marvel are not otherwise entitled. Finding preclusion in this

case would be patently unjust and contrary to law. Therefore, this exception applies as well.

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As at least three of the five exceptions to the general rule of issue preclusion are satisfied

by the facts of this case, it goes without question that collateral estoppel should not apply under

the circumstances, particularly where any one such exception would suffice. Accordingly, AMT

should not be precluded from bringing its claims and affirmative defenses.

D. AMT's Counterclaims And Affirmative Defenses Are Not Time Barred As Such Claims Have Been Defensively Asserted To Defeat Plaintiffs' Claims.

AMT's Counterclaims and affirmative defenses are timely, as they have been asserted in

response to and to defeat Disney and Marvel's claims for infringement against AMT.

As discussed above in Section III.B.1, since Disney and Marvel commenced this

copyright infringement case over Spider-Man, Disney and Marvel should effectively be

precluded from using a time-bar argument to prevent the Court from adjudicating the merits of

the Spider-Man copyright ownership issue. After all, "fflor purposes of the statute of limitations

non-liability is inextricably linked with that cause of action. So long as the claim can be made,

its negative can be asserted." Luckenbach Steamship Co., Inc., 312 F.2d at 548. Accordingly,

since Disney and Marvel have placed at issue their ownership in the Spider-Man copyrights and

raised affirmative claims based on the same, AMT should be able to assert the inverse of such

claims, namely, that Disney and Marvel do not own such copyrights.

AMT's Counterclaims and affirmative defenses should not be time barred for yet another

reason. As Disney and Marvel note, affirmative claims under the Copyright Act accrue when a

"plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis

for the claim." Motion at 16-17 (quoting William A. Graham Co., 568 F.3d at 433). The injury

forming the basis of both of AMT's Counterclaims is, in essence, Disney and Marvel's assertion

of invalid copyrights and/or copyrights owned by SLMI against AMT. AMT, however, had no

knowledge that Disney's and/or Marvel's alleged copyrights in Spider-Man may be invalid and

of SLMI's ownership rights in the Spider-Man works until the Fall of 2013, when SLMI

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approached AMT regarding obtaining a license in the Spider-Man works. AMT, then, had no

basis upon which to assert its Counterclaims until this time. Even if, in the exercise of due

diligence, AMT would have learned of the Prior SLMI-Related Litigations and, correspondingly,

SLMI' s ownership rights in Spider-Man and the invalid nature of Disney and Marvel's

Copyrights when it first commenced production of Broadway: Now and Forever, it would not

have learned of such rights until April of 2012 at the earliest. AMT therefore asserted its

Counterclaims well within the three-year statute of limitations set forth in 17 U.S.C. § 507(b).

Moreover, according to widely accepted law, "a defendant who is not seeking any

affirmative relief and who asserts a defense only to defeat plaintiff's claim is not barred by the

Act's statute of limitations," as a "potential defendant is not required to seek at the earliest

opportunity a declaration that a defense to a claim not yet brought is valid." Pritchett v. Pound,

473 F.3d 217, 220 (5th Cir. 2006); see also Estate of Hogarth v. Edgar Rice Burroughs, Inc., 342

F.3d 149, 164 (2d Cir. 2003) ("[e]ven if circumstances had existed when Watson-Guptill filed

applications for registration in the 1970s that would have entitled ERB to seek a declaration of

non-liability against a claim by Burne Hogarth, ERB would not have been obliged to seek such

declaratory relief. Potential defendants are not required to seek at the earliest opportunity a

declaration that a defense to a claim not yet brought is valid."). Here, AMT raised its

Counterclaims solely in defense to Plaintiffs' claims that AMT's Broadway: Now and Forever

production infringed upon such entities' alleged copyrights. Accordingly, AMT's Counterclaims

should not be time barred.

Finally, even if AMT's Counterclaims are time barred, its affirmative defenses should

still be able to be asserted. See Estate of Hogarth, 342 F.3d at 164; Western Pacific R.R. Co.,

352 U.S. at 72 ("To use the statute of limitations to cut off the consideration of a particular

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defense in the case is quite foreign to the policy of preventing the commencement of stale

litigation.").

E. Plaintiffs Lack Standing To Challenge SLMI's License To AMT; SLMI Has The Capacity To License The Spider-Man Copyrights To AMT; AMT Should Not Be Precluded From Challenging Plaintiffs' Alleged Ownership In The Copyrights

Disney and Marvel claim that AMT's Counterclaims, together with its affirmative

defenses "[p]remised on AMT's purported license from SLMI" must fail as SLMI was incapable

of issuing a license under Colorado law. Motion at 19-20. However, Plaintiffs lack standing to

challenge this contract and, in any event, SLMI was capable of issuing this license.

It is generally accepted that a non-party to a contract lacks standing to challenge the

validity thereof. See, e.g., Souders v. Bank of Am., 1:CV-12-1074, 2012 U.S. Dist. LEXIS

186082, at *24-*29 (M.D. Pa. Dec. 6, 2012) (plaintiff lacked standing to challenge assignment

contract where she was neither a party to nor third-party beneficiary of such contract (citing

Shuster v. Pa. Turnpike Commonwealth, 149 A.2d 447, 452 (1953), for the proposition that a

third party to a contract lacks standing to argue a contract is invalid). Because Disney and

Marvel are not parties to the SLMI License Agreement, they lack standing to challenge the same.

In any event, the SLMI license is valid. As a dissolved corporation, SLMI was 5 able to,

inter alia, "dispos[e] of its properties," "collect[] its assets" and "do[] every other act necessary

to wind up and liquidate its affairs." Colo. Rev. Stat. § 7-114-105 (2013). Here, SLMI's license

is, in effect, a contract to collect SLMI's assets, including certain royalties, as well as an

agreement disposing, in part, of SLMI's rights in the Spider-Man copyrights by exclusively

licensing the same to AMT. Colorado law "allow[s a] plaintiff to enter into the contract for sale

of its corporate assets, to pursue collection of the promissory note, and otherwise to enforce the

parties' agreements." Awanderlust Travel, Inc. v. Kochevar, 21 P.3d 876, 878 (Colo. App.

5 It is unlikely that SLMI is still considered administratively dissolved, as it filed papers identifying a new, registered agent with the Colorado Secretary of State in March. Thus, Plaintiffs' arguments on this issue are moot

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2001). As an exclusive copyright license is but another form of disposing of one's assets, SLMI

had ample authority to enter into the license agreement at issue and the license is in effect.

In any event, AMT's Second Counterclaim and its first through sixth affirmative defenses

are not based on the license grant obtained from SLMI. See Amended Answer at 16-17, 23-24.

Rather, AMT's Second Counterclaim is for declaratory judgment that Disney / Marvel's

copyrights are invalid as a matter of law, id. at 24, and AMT's affirmative defenses are for, inter

alia, invalidity of Disney's and/or Marvel's copyrights. The only affirmative defense that

touches upon the license is AMT's seventh affirmative defense, but AMT also claims an

appropriate license from other entities, namely, ASCAP and BMI. Id. at 17. Thus, even if SLMI

was unable to grant the license at issue and its license was void ab initio, this fact should not

affect AMT's Second Counterclaim or its affirmative defenses challenging the validity of the

copyrights asserted against it.

F. AMT Should Not Be Precluded From Challenging The Validity Of Disney's And/Or Marvel's Alleged Copyrights In Spider-Man

There is a real issue whether Disney and/or Marvel effectively own the copyrights in

Spider-Man, and no court has ever adjudicated the same. While Disney and Marvel claim that

the "Second Circuit has recently affirmed that Marvel has held the copyrights to these characters

since Marvel commissioned them in the 1960s," Motion at 3-4, this is not so. The Second

Circuit in its opinion in Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 2013),

determined only that certain works created in part by Jack Kirby were presumed to be works

made for hire to Marvel. 726 F.3d at 125, 143. Moreover, this opinion expressly did not include

Spider-Man related works, as the case makes plain that Kirby did not work on such works. See

id at 126 (quoting Stan Lee as saying, "I wanted to use Jack for everything, but I couldn't

because he was just one guy." "So I said: All right, forget it, Jack. I will give [the Spider-Man

strip] to somebody else." (bracketed portion in original)).

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In addition, as noted above, none of the district courts that have opined on this matter in

the Prior SLMI-Related Litigations have expressly concluded that Disney and/or Marvel own the

copyrights in the Spider-Man character. This issue has never been decided. There is a strong

chance that these entities do not own these rights, as Lee's assignment to Marvel in 1998 was

effectively invalid given that Lee had previously assigned his rights in Spider-Man to SLMI.

Amended Answer at Counterclaim n 5-8, 28. As Disney and Marvel effectively asserted the Spider-Man works against AMT, it is their

burden to prove that they own valid copyrights in the same. Apparel Bus. Sys., LLC v. Tom

James Co., No. 06-CV-1092, 2008 U.S. Dist. LEXIS 26313, at *30 (E.D. Pa. Mar. 31, 2008). At

least one of the asserted copyrights was allegedly assigned to Marvel after being previously

registered to a third party. See attached Exhibit B. "[G]iven that nothing in the registration

certificate filed by [the] predecessor evidences [Marvel's] own right to claim through the original

copyright claimant," Marvel has the burden of proving its chain of title in this work. 3 Nimmer

on Copyright § 12.11[C]. By precluding AMT from challenging Plaintiffs' alleged ownership

rights in Spider-Man, the Court would be constructively granting Plaintiffs rights in these works

and shifting the burden of proof regarding ownership to AlVIT. This is contrary to law.

Finally, AMT notes that if Disney and/or Marvel were to assert their alleged copyrights

in Spider-Man against any other third party in the future, such third party would not be precluded

from arguing that Disney and Marvel lack copyright ownership in Spider-Man as a result of the

1998 transfer to SLMI. See, e.g., Bieg v. Hovnanian Enters., Inc., 157 F. Supp. 2d 475, 484-85

(E.D. Pa. 2001) (allowing third party infringer, Hovnanian, to raise the invalidity of a transfer in

copyright under Section 204(a) as a defense where the transferor and transferee are in

disagreement as to whether the transfer took place). To preclude AMT from asserting this

defense simply because it acquired a license from a transferee would be a waste of judicial

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economy under the circumstances and would be utterly inequitable, as it would effectively allow

Marvel and Disney to continue to attempt to exploit rights in works that they may not have.

Under the circumstances, AMT should be allowed to bring its invalidity counterclaim and

affirmative defenses even if the court ultimately finds that its ownership counterclaim and

license-based affirmative defense are precluded.

IV. CONCLUSION

For the foregoing reasons, AMT Defendants hereby respectfully request that this Court

DENY Disney's and Marvel's Motion in its entirety.

Respectfully submitted,

/s/ Melanie A. Miller Camille M. Miller Melanie A. Miller J. Trevor Cloak Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 (215) 665-2000 (215) 665-2273

Dated: March 11, 2014 Attorneys for Defendants

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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that a true and correct copy of the forgoing was

filed electronically through this Court's ECF System and is available for viewing and

downloading from this Court's ECF System. I further certify that an electronic copy of the

foregoing was served upon all counsel of record through this Court's ECF System at the e-mail

address listed in the Court's database as follows:

WILSON M. BROWN , III [email protected]

MICHAEL METZ-TOPODAS [email protected]

TONIA ANN PATTERSON [email protected]

JAMES W. QUINN [email protected]

RANDI W. SINGER [email protected], [email protected], [email protected] ,

[email protected], [email protected]

R. BRUCE RICH [email protected]

DAVID E. LANDAU [email protected]

Dated: March 11, 2014 Vs/ Melanie A. Miller Melanie A. Miller


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EXHIBIT A

Case 5:13-cv-05570-JLS Document 64-1 Filed 03/11/14 Page 1 of 63

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

DISNEY ENTERPRISES, INC., et al.,

Plaintiffs, Case No: 5:13-cv-05570 (JSL) VS.

ENTERTAINMENT THEATRE GROUP d/b/a AMERICAN MUSIC THEATRE; JAMES D. MARTIN; FREDERICK W. STEUDLER, JR.; and DWIGHT H. BRUBAKER,

Defendants, and

STAN LEE MEDIA, INC.,

Defendant / Intervenor.

ENTERTAINMENT THEATRE GROUP d/b/a AMERICAN MUSIC THEATRE,

Counterclaim-Plaintiff, and Case No: 5:13-cv-05570 (JSL)

STAN LEE MEDIA, INC.

Counterclaim-Plaintiff/Intervenor,

-against-

DISNEY ENTERPRISES, INC.; and MARVEL CHARACTERS, INC.,

Counterclaim-Defendants.

DECLARATION OF MELANIE A. MILLER IN SUPPORT OF DEFENDANTS' OPPOSITION IN RESPONSE TO PLAINTIFFS' MOTION TO DISMISS

AMENDED COUNTERCLAIMS AND INTERVENOR COMPLAINT AND TO STRIKE AMENDED AFFIRMATIVE DEFENSES

I, Melanie A. Miller, declare under penalty of perjury as follows:

1. I am a Member at Cozen O'Connor and I am admitted to practice in the

Commonwealth of Pennsylvania, including before this Court. Cozen O'Connor represents


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Defendants James D. Martin, Frederick W. Steudler, Jr. and Dwight H. Brubaker, as well as

Defendant / Counterclaim-Plaintiff Entertainment Theatre Group d/b/a American Music Theatre,

in connection with, inter alia, this litigation.

2. Attached hereto as Exhibit 1 is a true and correct copy of Verified Amended

Shareholders Derivative Complaint filed by plaintiffs Jose Abadin and Christopher Belland in

connection with Abadin et al. v. Marvel Entertainment Inc. et al., 09 Civ. 0715 (PAC) before the

United States District Court for the Southern District of New York, filed on April 29, 2009.

3. Attached hereto as Exhibit 2 is a true and correct copy of The Walt Disney

Company's Reply Memorandum of Law in Further Support of its Motion to Dismiss the

Amended Complaint filed by defendant The Walt Disney Company in connection with Stan Lee

Media, Inc. v. The Walt Disney Company, 1:12-cv-02663-WJM-KMT before the United States

District Court for the District of Colorado, filed February 25, 2013.

I declare under penalty of perjury that the foregoing facts are true and correct.

Melanie A. Miller

Signed this / 4'1 day of , 2014 in Philadelphia, PA.

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EXHIBIT 1


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::Case 1:09-cv-00715-PAC Document 12 Filed 04/29/09 Page 1 of 46

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

JOSE ABAD1N and CHRISTOPHER BELLAND, derivatively on behalf of STAN LEE MEDIA, INC., a Colorado Corporation,

Plaintiffs,

-against-

MARVEL ENTERTAINMENT, INC., a Delaware Corporation, MARVEL ENTERPRISES, INC., STAN LEE, and ARTHUR M. LIEBERMAN,

09 Civ. 0715 (PAC)

VERIFIED AMENDED SHAREHOLDERS DERIVATIVE COMPLAINT •

JURY TRIAL DEMANDED

Defendants.

Plaintiffs Jose Abadin and Christopher Belland ("Plaintiffs"), derivatively on

behalf of Stan Lee Media, Inc. ("SLM"), by its attorneys, Eaton & Van Winkle

LLP, for its Verified Amended Complaint (the "Amended Complaint") against

Defendants, hereby allege as follows:

JURISDICTION AND VENUE

1. Plaintiffs bring this action as a derivative action pursuant to

Rule 23.1 of the Federal Rules of Civil Procedure on behalf of SLM and all other

shareholders of SLM that are similarly situated.

2. SLM seeks a declaratory judgment, pursuant to 28 U.S.C. §§

2201 and 2202.

3. This Court has jurisdiction over the copyright infringement

claims pursuant to the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., the

Lanham Act claims pursuant to 15 U.S.C. § 1121, 28 U.S.C. § 1331 and 28


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Case 1:09-cv-00715-PAC Document 12 Filed 04/29/09 Page 2 of 46

U.S.C. § 1338(a), and all other claims by virtue of 28 U.S.C. § 1338(b) and

pendent jurisdiction.

4. Venue in this District is proper under 28 U.S.C. §§ 1401 and

1391(b) and (c) because a substantial part of the activities and events occurred

within this district and the defendants are conducting business, have principal

office locations and/or are residents within this district.

PARTIES

5. Plaintiff Christopher Belland is a resident of Florida and

Plaintiff Jose Abadin is a resident of California.

6. SLM is a corporation organized and existing under the laws

of the State of Colorado.

7. SLM is the successor in interest to Stan Lee Media, Inc., a

Delaware Corporation, which was the successor in interest to Stan Lee

Entertainment, Inc., a Delaware Corporation which was established on or about

October 13, 1998.

8. Defendant, Marvel Entertainment, Inc., is a successor entity

of and/or formerly known as Marvel Enterprises, Inc., and is a corporation

organized and existing under the laws of the State of Delaware, and at all times

material and relevant hereto has regularly and continually conducted business

and had a principal office located within the Southern District of New York.

9. Marvel Enterprises, Inc. changed its name to Marvel

Entertainment, Inc. in 2005 but continues to do business under both names, and

is hereinafter described as "Marvel."

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10. Defendant Stan Lee ("Lee") is a resident of the State of

California.

11. Lee regularly conducts business within the Southern District

of New York, and did so at the time the events in this Amended Complaint

occurred, and the claims against him arose out of such business.

12. Defendant Arthur M. Lieberman ("Lieberman") is a resident

of New York, and has a principal place of business in New York, New York,

located within the Southern District of New York.

FEDERAL RULE 23.1 PLEADING REQUIREMENTS

13. Plaintiff Jose Abadin has continuously been a shareholder of

SLM since on or about December 1999, which includes the time of the

transactions complained of in this Amended Complaint, to and including the date

hereof, and currently holds 29,386 shares of common stock of SLM for which he

paid more than $200,000.

14. Plaintiff Christopher Belland has continuously been a

shareholder of SLM since on or about November 17, 1999, which includes the

time of the transactions complained of in this Amended Complaint, to and

including the date hereof, and is currently the record holder of 330 shares of

common stock of SLM as custodian for his minor son Wesley Belland and is also

the holder, by assignment, of 4.7 million shares of common stock of SLM. 1

1 The assignments are from P.F.P Family Holdings, L.P. of 2,668,300 shares; Continental Entities, Inc. of 705,500 shares; Celebrity Enterprises, Inc. of 629,633 shares; Hollywood Holdings Corp. of 416,306 shares; Global Brand Holdings, Inc. of 82,500 shares; The Medici Group, LLC of 82,500 shares; Global Language Solutions, Inc. of 55,000 shares; World Network, Inc. of 42,350 shares; and Excelsior Productions, Inc. of 26,500 shares.

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15. This action is not a collusive one to confer jurisdiction that

the Court would otherwise lack.

16. A demand upon SLM's board of directors to obtain the

corporate action desired is impossible and would thereby be futile because, at

the time the within lawsuit was commenced, SLM had no duly constituted board

of directors.

17. Prior repeated efforts to have a board of directors for SLM

elected and seated so that SLM could, inter alia, resume business (such

business to include the bringing of the within claims against Lee and other

defendants) have been successfully thwarted by Lee, as established by the

following facts:

(a) A Colorado State Court proceeding was first

commenced by Plaintiff Christopher Belland in 2007 in the District

Court for the City and County of Denver (Belland v. SLM et al.,

Case No. 07 CV 7536) (the "Colorado State Court '07 Proceeding")

in order to hold a court-ordered shareholders' meeting so that SLM

could become reinstated under Colorado law, elect directors and

resume business;

(b) In the Colorado State Court '07 Proceeding, a

Special Master was court-appointed to conduct the shareholder's'

meeting in accordance with Colorado law;

(c) After the quorum number of SLM shareholders

was reached to conduct the shareholders' meeting and directors

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were elected, Lee made a successful motion in the District Court

which prevented the seating of the elected directors;

(d) A second Colorado State Court procepding was

commenced in 2008 (P.F.P. Family Holdings, L.P. v. SLM et al.,

Case No. 08 CV 8584) (the "Colorado State Court '08 Proceeding")

for the same purpose, namely to hold a shareholders' meeting so

that SLM could become reinstated, elect directors and resume

business, such business to include the bringing of the within claims

against Lee and other defendants;

(e) A notice of shareholders' meeting (and form of

proxy appointment) was sent by the same Special Master to a list of

record and beneficial shareholders of SLM prepared by the Special

Master,

(0

After the quorum number of SLM shareholders

was reached to conduct the shareholders' meeting, Lee, as the sole

and exclusive intervenor in the Colorado State Court '08

Proceeding, frustrated the attempt to reach a quorum by raising

various objections to the sufficiency of certain proxy appointments

issued by SLM shareholders in connection with the noticed

shareholders' meeting;

(g) On the basis of Lee's objections, the Special

Master disallowed certain proxies which resulted in a finding by the

Special Master that the necessary quorum of SLM shareholders for

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a shareholders' meeting had not been attained and/Or was not

present; and

(h) The Special Master's report, finding that a

quorum of SLM shareholders was not present, was adopted and

affirmed by Order of the Colorado State Court dated March 17,

2009.

18. No formal demand has been made on the shareholders of

SLM by Plaintiffs to commence this litigation, for such a demand would have

been futile because SLM shareholders cannot achieve a quorum in order to

authorize such a suit, by reason of the fact that:

(a) SLM shareholders have been unable to seat a

Board of Directors to authorize such actions notwithstanding two

annual meetings called by Plaintiffs acting on behalf of all

shareholders since 2007;

(b) After the Colorado Court supervised the election

of a Board and then seated a duly elected Board in 2007, which

Lee was unable to thwart, he made a collateral attack on the Board

before a new judge and managed to have that Board unseated

without a hearing; and

(c) When Plaintiffs obtained another court ordered

and supervised annual meeting for an election in December 2008,

Lee frustrated the 2008 meeting with technical objections to certain

proxies presented and thwarted the quorum by successfully

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contesting some of the votes present to deny the participating

shareholders a quorum.

19. No formal demand has been made on each shareholder of

SLM by Plaintiffs to participate in this litigation because, as found by the Special

Master in the Colorado State Court '07 Proceeding, the shareholders. have

already been apprised that "Mr. Belland is attempting to recover what he believes

to be assets of SLMI through various lawsuits against Mr. Lee and his affiliates.

If Mr. BeIland's slate [of directors] is not elected, the SLMI shareholders likely will

have nothing because no one else appears to be pursuing the lawsuits." Report

of Special Master Cathy S. Krendl, Esq., dated February 2, 2008, rendered in

Colorado State Court '07 Proceeding, at 64.

20. No formal demand has been made on each shareholder of

SLM by Plaintiffs to participate in this litigation because the shareholders have

already been apprised, in the notice of shareholders' meeting sent by the Special

Master in 2008 in connection with the Colorado State Court '08 Proceeding, that

Plaintiffs Jose Abadin and Christopher Belland have been and are attempting to

recover assets of SLM through lawsuits against Lee and his affiliates

necessitated by Lee's alleged improper actions and transfers.

21. Despite the fact that the shareholders have already been

specifically apprised, in the context of both the Colorado State Court '07

Proceeding and the Colorado State Court '08 Proceeding, that Plaintiffs have

been attempting to recover assets of SLM through various lawsuits against Mr.

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Lee and his affiliates, no shareholders other than Plaintiffs have volunteered or

elected to participate in the within lawsuit.

22. Upon information and belief, Lee will continue to litigate in

Colorado, New York, California and elsewhere to try to try to thwart the

shareholders from successfully seating a Board of Directors that will authorize

the pursuit of SLM's claims against him and Marvel.

23. Plaintiffs will fairly and adequately represent the best

interests of the shareholders" of SLM similarly situated and SLM in enforcing

herein the rights of SLM, having been the only active shareholders since SLM

was dismissed from Chapter 11 Debtor in Possession protection to protect all

shareholders through litigation in New York, California and Colorado.

THE NATURE OF THIS ACTION

24. This is an action brought by Plaintiffs, derivatively on behalf

of SLM, against all defendants regarding certain property of SLM, including (but

not limited to) assets, claims, copyright and trademark claims and rights, and

other intellectual property rights and interests, including a right, title and interest

to the use of the name and trademark of "Marvel" and the likeness, name and

image of Stan Lee, to obtain an accounting and award of damages for the

unlawful and unauthorized use of SLM's property, and to obtain a judgment for

damages as against Lee for breach of contract.

25. Upon information and belief, Marvel and Lee have for nearly

20 years been developing, producing, marketing and selling characters in various

media which were initially created by Lee, Lee's interest in which has been

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assigned and belongs to SLM, including all of his interest in the name "Marvel."

Most of Marvel's financial success derives from characters initially created by

Lee that are the subject of this lawsuit.

26. Upon information and belief, Marvel's net sales from its

exploitation of various world famous characters created by Lee, from 2003 to the

present alone, now exceed $2,000,000,000 and in the future will exceed a

multiple of that number. These sales include a share in the profits from monies

earned from "Marvel" movies ("X-Men," "Spider Man 1, 2 and 3", "The Incredible

Hulk," "Fantastic Four," "Iron Man" and "Daredevil"). The measure of SLM's

damages includes the value of all of Lee's interest in the exploitation of these

characters, as well as a share in the profits from additional assets..

27. Upon information and belief, Marvel, along with Lieberman,

knowing of an assignment from Lee to SLM dated October 15, 1998, and

knowing that by that assignment Lee transferred, among other things, all his

interest in the Marvel characters and his interest in the name and trademark

"Marvel" to SLM, decided to ignore that assignment.

28. Upon information and belief, Marvel and Lieberman

conspired to and have otherwise engaged in tortious interference with Lee's

assignment to SLM dated October 15, 1998 and aided and abetted Lee in

breaching his fiduciary duty of care and loyalty owed to SLM.

FACTS COMMON TO ALL CAUSES OF ACTION

29. Upon information and belief, from 1941 through

approximately November 9, 1942, Lee was employed by Timely Comics.

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30. Upon information and belief, from approximately November

9, 1942 until on or about September 29, 1945, Lee was on active duty in the

United States Army.

31. Upon information and belief, during the time that Lee was on

active duty with the United States Army, he wrote scripts on a freelance basis for

comic books for Timely Comics and was paid by Timely Comics on a per page

basis for said scripts.

32. Upon information and belief, from on or about November 9,

1945 through the autumn of 1968, Lee was employed by Timely Comics..

33. Upon information and belief, throughout the years of 1945

through the autumn of 1968, Timely Comics operated and distributed its comic

books under several names, including "Timely Comics", "Atlas Comics" and

.ultimately "Marvel Comics" (collectively referred to herein as

"Timely/Atlas/Marvel").

34. Upon information and belief, between 1945 and the autumn

of 1968, a span of approximately twenty-three (23) years, Lee did not have a

written contract of any kind with Timely/Atlas/Marvel.


of 1968, Lee was employed in the capacity as an "editor-in-chief" and "art

director," but was not employed as a writer of Timely/Atlas/Marvel.


of 1968, Lee's employment and compensation for his work as "editor-in-chief"

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and "art director" did not include any duties of conceiving of, creating or

developing new characters.

37. Upon information and belief, Lee, while employed by

Timely/Atlas/Marvel, engaged in freelance writing and creative work for Marvel

and others outside of work, for which he was paid separately.

38. Upon information and belief, Lee's freelance writing and

creative work during the course of his employment at Timely/Atlas/Marvel

included the conception, creation and development of new comic book

characters that were subsequently reduced to pages published in comic books

with the assistance of artists supervised by Lee.

39. Upon information and belief, all of Lee's conceptions,

creations and development of new characters were performed by him during his

spare time and were not within the scope .of his salaried positions.

40. Upon information and belief, Timely/Atlas/Marvel

compensated Lee with both a salary for his work in Timely/Atlas/Marvel's office

as Editor and Art Director, and with a separate income for his interest in each of

the characters he conceived, created and developed, which were subsequently

copyrighted and trademarked by Marvel.

41. Upon information and belief, Lee's characters were not

"works for hire" by Lee for any person or entity.

42. Upon information and belief, Lee's characters were not

commissioned works for any person or entity.

43. Upon information and belief, Lee's characters include:

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(1) Spider-Man; (2) The Fantastic Four; (3) Mr. Fantastic; (4) The Invisible Woman; (5) Human Torch, a/k/a Johnny Storm; (6) The Thing; (7) The Incredible Hulk; (8) X-Men; (9) Daredevil; (10) Silver Surfer; (11) Ant-Man, a/k/a Yellowjacket, Giant-Man, Goliath; (12) Iron Man; (13) Doctor Strange; (14) The Avengers; (15) Thor; (16) Doctor Doom; (17) Magneto; (18) Colonel Nicholas Joseph "Nick" Fury; (19) Galactus; (20) Green Goblin; (21) Doctor Octopus; (22) The Vulture; (23) Mysterio; (24) John Jonah Jameson, a/k/a J. Jonah Jameson, J.J., and

J.J.J; (25) The Lizard; (26) The Rhino; (27). The Shocker; (28) Mary Jane, a/k/a Mary Jane Watson-Parker; (29) Gwen Stacy; (30) The Sandman; (31) Electro; (32) Kraven the Hunter; (33) MACH-IV, a/k/a Beetle, MACH-1, 2 and 3; (34) The Chameleon; (35) Boomerang; (36) Blacklash a/k/a Whiplash; (37) Kingpin; (38) Baron Wolfgang von Strucker; (39) Mentallo; (40) Fixer; (41) Hawkeye; (42) Wonderman; (43) The Wasp; (44) Scarlet Witch; (45) Quicksilver;

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(46) Odin; (47) The Absorbing Man; (48) Mangog; (49) Ulik; (50) Fandral, a/k/a Fandral the Dashing; (51) Hogan, a/k/a Hogun the Grim; (52) Volstagg; (53) Balder the Brave; (54) Skurge, The Executioner; (5

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