‘Invincible’ Profits Showdown Heading to Trial

A legal battle between comic creator Robert Kirkman and an artist who says he was tricked into abandoning his copyright to Invincible is headed to trial, with a federal judge narrowing the scope of the case but allowing key claims to move forward.

William Crabtree, a colorist for the first 50 issues who claims he co-created the series, won’t be able to seek a court order that he’s a joint author or get damages for fraud but could possibly invalidate the contract he claims he was swindled into signing, according to summary judgment order issued by U.S. District Judge Maame Ewusi-Mensah Frimpong on Nov. 22. He may also potentially be awarded damages if he convinces a jury that Kirkman breached an oral agreement to pay him 10 percent of any revenue generated from film or TV spinoffs of the work, which includes the Amazon Studios animated show.

Last year, Kirkman was sued for allegedly duping Crabtree into surrendering his ownership stake under the guise of making the title easier to sell to studios. The 2005 agreement stated that Kirkman was the “sole author” of Invincible and “owner of all rights of every kind and nature,” while characterizing Crabtree’s contributions as a “work-for-hire,” meaning that Kirkman was assigned any rights the colorist would’ve had to the series. According to the complaint, Crabtree was told that signing the document wouldn’t affect his rights and financial interest in the original deal, which granted him 20 percent of single sale proceeds and 10 percent of any revenue generated from film or TV adaptations.

Over the next 15 years, Kirkman continued to pay Crabtree for comic sales and in connection with licensures of the series by different studios. In one contentious discussion in 2012, Kirkman characterized a payment over MTV’s pursuit of a TV-based motion comic as a “bonus” rather than what Crabtree was contractually owed. “You signed a work for hire contract on Invincible,” the Walking Dead creator wrote in a 2012 email. “I’ve honored that contract.”

This exchange served as the basis for dismissal of Crabtree’s primary claim for declaratory relief that he’s a joint author of Invincible. Frimpong found it’s time-barred under the three-year statute of limitations for copyright actions.

Under copyright law, the clock to assert a claim for co-ownership starts “when plain and express repudiation” is communicated. According to the ruling, Kirkman contested Crabtree’s claim in 2012 that he has a copyright interest to Invincible, meaning that the latest he could bring a lawsuit was 2015.

“There is no doubt that Kirkman brought his belief in the existence of a ‘work for hire’ contract to Crabtree’s attention in 2012,” the order stated. “At no point in 2012 or later did Crabtree say anything that suggested he did not understand the implications of Kirkman’s statements.”

During this conversation, Crabtree said of the agreement, “This is the same work for hire contract tony [Moore] is suing you over at the momen[t], correct?” in a reference to Michael “Tony” Moore in a 2012 suit alleging that Kirkman tricked him out of his interest in The Walking Dead, which amicably settled on undisclosed terms in less than two months. Crabtree is represented by Devin McCrae, who was also Moore’s lawyer.

In arguing otherwise, Crabtree cited his deposition testimony, which he argued shows that Kirkman ratified their agreement instead of repudiating it. He pointed to statements from Kirkman that he “honored [their] deal,” which Crabtree said was true at the time because he received royalties on certain derivative projects.

“But this interpretation — that Kirkman was affirming that he would honor the deal as Crabtree understood it — is impossible to square with Kirkman’s comments on the MTV deal,” Frimpong wrote. “Kirkman explicitly stated that the MTV money was not a ‘share’ owed to Crabtree and rather simply a bonus.”

The judge also dismissed Crabtree’s claim that he was defrauded when Kirkman falsely told him that his rights and financial interest in the series would remain unchanged if he signed the “Certificate of Authorship.” Like the claim for declaratory relief, she similarly reasoned that it was brought past the three-year statute of limitations for relief on the grounds of fraud. She rejected arguments that the clock didn’t start until 2020, when Crabtree received the contract and purportedly learned he was defrauded, because of communications indicating that the colorist “learned in 2012 that Kirkman viewed the work for hire contract as a binding limitation on Crabtree’s ownership rights in the copyright.”

To the extent that Kirkman may have lulled Crabtree into feeling secure in his rights so he didn’t sue, those actions “squarely ended in 2012” when Crabtree was told that previous payments that might have resembled royalties on derivative uses were actually bonuses, according to the order.

As for the suit seeking a court order nullifying the 2005 contract, the court allowed the claim to head to a jury because it could be invalid for lack of payment. The judge reasoned that a jury should assess the scope of the agreement, with Crabtree arguing that it applies solely to his ownership rights in a motion picture derived from the series.

Crabtree’s breach of oral contract claim was also allowed to proceed, with Frimpong siding against Kirkman on arguments that it should be time-barred based on his repudiation in 2012 that Crabtree isn’t entitled to 10 percent of revenue generated from film or TV adaptations. The four-year statute of limitations started on the claim, the court found, when Kirkman in 2020 refused to pay Crabtree for Amazon licensing the comic.

“On previous derivative deals, the evidence shows that Kirkman paid Crabtree money in connection to the deal,” the order stated. “Although Kirkman later claimed that these were not royalty payments and instead ‘bonuses,’ these later assertions do not prove that Kirkman had previously breached the contract — if Kirkman paid the money owed under the contract but insisted that it was for some other reason, that would not necessarily constitute a breach of contract.”

A jury trial is set to start Feb. 20.

Allen Grodsky, a lawyer for Kirkman, said in a statement, “We are pleased that the Court granted summary judgment on the primary claims asserted by Crabtree — for copyright ownership and fraud.”

“We are also confident that we will prevail at trial on the remaining claim for breach of oral contract and will establish that Mr. Kirkman breached no oral agreement with Mr. Crabtree and owes him nothing,” the statement said.

Lawyers for Crabtree didn’t respond to requests for comment.

Crabtree’s suit is reminiscent of a complaint brought against Kirkman in 2012 by Moore, who claimed he was entitled to as much as half of the proceeds from the Walking Dead comic book franchise, which also included the hit AMC series. He accused Kirkman and his agents of tricking him into surrendering his interest in the comic and demanded a rescission of the copyright assignment. Under their original deal, Moore was allegedly entitled to 60 percent of “comic publishing net proceeds,” 20 percent of “motion picture net proceeds” and further financial interest in other projects. Kirkman countersued, arguing that he had overcompensated Moore for his work and was entitled to money back.