BROOKLYN, N.Y. (CN) – Cracking down on the unauthorized sale of miniature Conan the Barbarian figurines, a federal judge hit a Spanish artist on Wednesday with a $21,000 copyright judgment.
Rejecting a recommendation by U.S. Magistrate Judge Roanne Mann that the Conan character was not sufficiently distinct to warrant copyright protection, Senior U.S. District Judge Frederic Block called it erroneous Wednesday to treat “characters as separate and distinct copyright subject matter, divorced from the works in which they are embodied.”
“By requiring plaintiffs to plead specific facts showing their entitlement to a separate and distinct copyright in their characters, the magistrate judge improperly heightened the pleading requirements,” Block wrote.
“Plaintiffs plausibly alleged that they owned a valid, registered copyright in the characters by virtue of their copyright in the underlying works,” he added.
Block found that Spanish artist Ricardo Jove Sanchez infringed these copyrights by hawking his miniature sculptures of Howard’s characters on Facebook and Kickstarter, a crowd-funding website.
Sanchez failed to appear in the case, but Conan Properties entered several of his online posts as evidence in the case.
In one exhibit, Sanchez pointed to the fact that Howard died more than 80 years ago and had no children or heirs, saying “it must be assumed that personality is a public domain (as HP Lovecraft, Edgar Allan Poe, Jules Verne or William Shakespeare for example) at least on my part it deserves great respect and that their work should be taken into consideration.”
Sanchez ranked Howard in another post as “the father of the sword and sorcery genre,” and the ruling notes that he priced his figurines between from $31 to $11,425.
Judge Block noted that Sanchez’s conduct suggests “a strong threat of continuing infringement.”
“After receiving a DMCA takedown notice, Sanchez filed a counter-notice insisting his sculptures were legal and continued to sell them under thinly veiled, generic names,” the ruling states, using an abbreviation for the Digital Millennium Copyright Act. “For example, he changed ‘Conan the Barbarian’ to ‘The Barbarian’ and ‘Dark Agnes’ to ‘Swordswoman.’ The magistrate judge speculated that he did so for the innocent purpose of avoiding trademark infringement. Even if that were so — and the court is skeptical — it also suggests Sanchez’s belief that he could freely copy plaintiffs’ characters so long as he avoided using their exact names. Such a belief increases the likelihood of ongoing infringement.”
An attorney for Sanchez has not responded to an email seeking comment.
Robert E. Howard was born and raised in Texas in 1906 and wrote dozens of comic books, graphic novels and assorted stories for pulp magazines that were published in the 1930s. He died in 1936. Though Conan the Barbarian was Howard’s first and most famous creation, other original characters that appeared in his works include Kull, Ironhand, Bran Mak Morn, Dark Agnes, Solomon Kane and El Borak.
Magistrate Mann had recommended in June that the court only find Sanchez liable for infringement related to the the characters El Borak, Solomon Kane and Kull. In his ruling this week, Block disagreed with Mann on the nuances of the copyright issue.
Judge Block emphasized, however, that the Second Circuit recognizes that “copyright protection for characters is a result of their embodiment in original works of authorship” like Howard’s stories.
“Because the characters are elements of the underlying literary and graphic works in which they appear, plaintiffs’ copyright registration in the underlying works satisfies the requirement that they plead ownership and registration of valid copyrights,” Block concluded.
Conan Properties and co-plaintiff Robert E Howard Properties Inc. were represented in the case by Loeb & Loeb attorney Wook Hwang.
“The characters created by Robert E. Howard, including Conan the Barbarian, Kull, Ironhand, Bran Mak Morn, Dark Agnes, Solomon Kane, and El Borak, are staples of fantasy fiction,” Hwang said in an email. “We’re gratified that Judge Block ruled in our clients’ favor and reaffirmed the continuing protection of these characters under U.S. copyright law.”
Editor’s Note: Some weeks after this story was published, Ricardo Jove Sanchez defended his innocence in a message to Courthouse News Service.
Sanchez said there was no way he could attend a trial in New York or find a lawyer to defend him, and that the $21,000 fine against him is “really abusive and excessive.” The Kickstarter raised around 3,000 euros, Sanchez said, noting that production costs ate up most of this amount, with just 20 percent serving as profit.