Fenwick successfully represented Sega of America and Electronic Arts in an appeal from the dismissal of a copyright infringement case filed in the Central District of California by Kenneth Penders, an artist who contributed content to certain “Sonic the Hedgehog” comic books and claimed to own copyrights in that content.
In his complaint, Penders alleged that Sega and EA used some of the content in question in the video game “Sonic Chronicles: The Dark Brotherhood.” The parties stipulated to stay the action pending resolution of an earlier-filed litigation in the Southern District of New York over Penders’ alleged ownership of that content between Penders and Archie Comics, the publisher of the “Sonic the Hedgehog” comic books. Upon receipt of the stipulation, the court instead dismissed the case without prejudice, advising Penders he could re-file his lawsuit against Sega and EA following resolution of the New York litigation. Rather than await resolution, however, Penders immediately re-filed his case in the Central District, and Sega and EA moved to dismiss it on the basis of the “first to file” rule. The court granted the motion, again dismissing the case without prejudice. Penders appealed that second dismissal to the Ninth Circuit, arguing that dismissal rather than a stay was inappropriate because, among other things, the statute of limitations would significantly impact his damages. The Ninth Circuit rejected that argument on the basis that it had not been presented to the district court, and affirmed the dismissal in all respects.