Laura Larson v. Warner Bros Entertainment, Inc, et al
Submitted (ECF) Second Brief on Cross-Appeal brief for review and filed Motion to file oversized brief. Submitted by Appellees DC Comics and Warner Bros. Entertainment, Inc. in 11-55863, Appellants DC Comics and Warner Bros. Entertainment, Inc. in 11-56034. Date of service: 03/23/2012.  [11-55863, 11-56034] (DP)
Appeal Nos. 11-55863, 11-56034
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAURA SIEGEL LARSON,
Plaintiff, Counterclaim-Defendant, Appellant, and Cross-Appellee,
WARNER BROS. ENTERTAINMENT INC. AND DC COMICS,
Defendants, Counterclaimants, Appellees, and Cross-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
THE HONORABLE OTIS D. WRIGHT II, JUDGE
CASE NO. CV-04-8400 ODW (RZX)
UNOPPOSED MOTION BY CROSS-APPELLANTS AND APPELLEES
WARNER BROS. ENTERTAINMENT INC. AND DC COMICS
TO EXCEED WORD LIMITATION;
DECLARATION OF MATTHEW T. KLINE IN SUPPORT THEREOF
JONATHAN D. HACKER
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
Telephone: (202) 383-5300
PATRICK T. PERKINS
PERKINS LAW OFFICE, P.C.
1711 Route 9D
Cold Spring, New York 10516
Telephone: (845) 265-2820
DANIEL M. PETROCELLI
MATTHEW T. KLINE
CASSANDRA L. SETO
O’MELVENY & MYERS LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, California 90067
Telephone: (310) 553-6700
Facsimile: (310) 246-6779
Attorneys for Warner Bros. Entertainment Inc. and DC Comics
Pursuant to Federal Rules of Appellate Procedure 27, 28.1, and 32 and this
Court’s Rules 27-1 and 32-2, cross-appellants and appellees Warner Bros.
Entertainment Inc. and DC Comics (“DC”) move to file a combined brief on crossappeal not exceeding 20,000 words. As shown in the accompanying declaration,
counsel was diligent in preparing as concise a brief as possible, but because of the
volume and complexity of the record, the combined appeals, and the number of
issues and sub-issues presented by the district court orders under review, there is
“substantial need” for the additional space requested. 9th Cir. R. 32-2.
DC recognizes that motions seeking additional space generally are “not
favored,” id., and are not appropriate in the ordinary case. This case is far from
ordinary. First, the stakes in the case are high, as the dispute is over ownership of
copyrights in the iconic character Superman. The copyrights have substantial
economic value, as signified in part by the settlement agreement involved in one of
the many questions raised on appeal—a settlement that would have afforded (and
still would afford) appellant and cross-appellee Laura Siegel Larson tens of
millions of dollars, before she repudiated it in search of even more.
Second, the issues decided by the district court and raised in the appeal and
cross-appeal are based on an extensive factual and procedural record developed
during seven years of litigation, as detailed in the attached Declaration. On review
are over 225 pages of district court orders concerning two cross-motions for
summary judgment, two cross-motions for reconsideration and/or clarification,
briefing on seven additional issues ordered by the district court following the order
on summary judgment, and a contested motion to certify certain claims as final
under Rule 54(b) of the Federal Rules of Civil Procedure. These voluminous
orders raise a significant number of issues, which cannot be addressed adequately
under the space limitations applicable in the usual case.
For these reasons, despite counsel’s diligent efforts to present the issues on
appeal concisely, the additional space is necessary to ensure that DC’s brief fairly
addresses the relevant factual and legal issues involved in this important case, and
is adequately helpful to the Court’s consideration of those issues.
For the reasons stated, DC’s motion should be granted. Larson has indicated
that she does not oppose DC’s request.
Dated: March 23, 2012
O’MELVENY & MYERS LLP
By: /s/ Daniel M. Petrocelli
Daniel M. Petrocelli
Attorneys for Warner Bros.
Entertainment Inc. and DC Comics
DECLARATION OF MATTHEW T. KLINE
I, Matthew T. Kline, submit this declaration in support of DC’s Unopposed
Motion To Exceed Word Limitation:
I am a partner in the law firm of O’Melveny & Myers LLP and one of
the authors of DC’s brief on cross-appeal.
This appeal involves an appeal by plaintiff Laura Siegel Larson
(Appeal No. 11-55863) and a cross-appeal by DC (Appeal No. 11-56034). Larson,
an heir of Superman co-creator Jerome Siegel, seeks to “recapture” copyrights in
certain early Superman works under the Copyright Act’s termination provisions.
One basic question raised by Larson’s claims is whether the works at issue were
“made for hire” under the 1909 Copyright Act, in which case they are not subject
to termination. In addition to contending that all the works at issue were made-forhire, DC asserted multiple affirmative defenses and counterclaims in response to
Larson’s claims below.
The district court held on summary judgment that almost all of the
works at issue were works-for-hire and thus not subject to termination, but that a
small number of works were not made-for-hire and thus were subject to
termination. Larson’s appeal challenges the court’s adverse work-for-hire rulings.
DC’s cross-appeal challenges the order as to those works held subject to
termination, and also challenges other rulings made by the court on dispositive,
threshold issues: (1) that a 2001 agreement settling all claims by Larson with
respect to the Superman property is unenforceable; and (2) that Larson’s claims
were not barred by the Copyright Act’s statute-of-limitations. In addition, DC
contends that the Court lacks jurisdiction as to Larson’s appeal of the work-for-hire
partial summary judgment ruling. DC previously moved to dismiss Larson’s
appeal on that basis, but the motion was denied by the Appellate Commissioner
without prejudice to re-raising the issue in merits briefing. Finally, DC challenges
one aspect of the district court’s ruling concerning the contents of certain
Larson’s appeal and DC’s cross-appeal have been scheduled in a four
brief cross-appeal sequence. On December 22, 2011, Larson filed a First Brief on
Cross-Appeal of nearly 14,000 words addressing only the work-for-hire issues
presented by her own appeal. In its Second Brief on Cross-Appeal, DC has not
only responded to the work-for-hire issues presented by Larson’s first brief, but has
addressed the numerous other issues presented by DC’s cross-appeal, as well as the
jurisdictional problem with Larson’s appeal.
Under Federal Rule of Appellate Procedure 28.1(e)(2)(B) and this
Court’s June 20, 2011, order (Docket No. 1-2), DC is entitled to file a brief not
exceeding 16,500 words. DC requests permission to file a single opening and
answering brief not exceeding 20,000 words. Larson does not oppose this request,
and there is good cause for granting it, as detailed below.
First, this case, which was filed in 2004, has a complex factual and
procedural history covering over seven years. The district court resolved two
cross-motions for summary judgment, two cross-motions for reconsideration
and/or clarification, briefing on seven additional issues requested by the district
court, and motion for certification under Rule 54(b) of the Federal Rules of Civil
Procedure. Both parties in the district court sought and received extensions of the
page limits for their briefs, resulting in the filing of hundreds of pages of briefing
in the district court on the issues addressed in these appeals. The district court’s
orders on these issues themselves exceed 225 pages.
Second, and relatedly, in order to give this Court an adequate
understanding of the issues here, DC’s brief must detail the factual background of
the creation of the Superman comic in the 1930s, DC’s employment of the artists
who created Superman, the history of litigation involving the Superman copyrights
in the 1940s, 1960s, and 1970s, the procedural history of Larson’s termination
notices, the extensive history of negotiations leading to the 2001 settlement
agreement, and Larson’s decision to repudiate that agreement and sue. Those facts
cannot be adequately portrayed in overly summary fashion.
Third, DC’s cross-appeal contends in part that the district court’s
rulings overlooked substantial evidence in DC’s favor, and/or misinterpreted
evidence unfavorably to DC, contrary to the summary judgment standard. The
only way DC can support those arguments fairly is to set forth the substantial
record evidence that was overlooked or misinterpreted by the court. Given the
number and complexity of relevant facts and narrative, such analysis necessarily
requires substantial length. Similarly, in several instances the district court cited
multiple grounds for its rulings, each of which must be addressed by DC.
Fourth, counsel has exercised diligence in attempting to address all
the foregoing factual and legal matters succinctly, but fairly and fully. Despite
those efforts, counsel has been unable to reduce the brief to under 16,500 words.
Counsel therefore submits that, to address the appeal and cross-appeal issues
adequately, DC has a “substantial need” to file a brief exceeding the usual 16,500word limit, but not to exceed 20,000 words.
DC has contacted Larson’s counsel, who advises that Larson does not
oppose this motion, as long as she is afforded a reciprocal extension in her final
brief, to which DC agreed (subject to the Court’s approval, of course).
I declare under penalty of perjury under the laws of the United States that
the foregoing is true and correct. Executed on March 23, 2012.
/s/ Matthew T. Kline
Matthew T. Kline
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