Famous Monsters founder loses in Phila. court

Vampires, werewolves and assorted movie monsters, as any fan of horror films will tell you, are nearly immortal.

Copyright protection, not so much.

That was the decision of a federal judge in Philadelphia last week, ruling that James Warren - the publisher who created Famous Monsters of Filmland - had effectively abandoned any claim to the title of the magazine that began the horror-fan magazine genre 51 years ago.

Warren's association with the magazine ended in 1983, wrote U.S. District Judge Michael M. Baylson, and since then, "Warren has taken virtually no action to retain his common-law ownership of the mark. Indeed, for almost 25 years, he has not published another issue of the magazine, and has not engaged in a substantial attempt to sell memorabilia or anything else with the Famous Monsters name."

J. David Spurlock, the North Jersey publisher Warren sued, praised the decision as a victory for "copyright protection and fair use" of copyrighted material."

Spurlock said lawsuits such as Warren's have a "severe chilling effect on creativity."

Warren, 79, a Philadelphia native who lives in Wyncote, said yesterday that he intended to appeal and referred questions to his attorney, veteran copyright lawyer Manny D. Pokotilow.

Pokotilow said he must wait until Baylson's ruling becomes final before deciding whether to appeal.

Warren filed the copyright infringement suit last year against Spurlock and his Vanguard Productions Inc.

In 2006, Spurlock, 49, an aficionado of illustrators whose Web site styles him "the prince of pop.art," co-authored Famous Monster Movie Art of Basil Gogos, an appreciation and biography of the illustrator-artist who created 51 distinctive cover portraits for Famous Monsters in the 1960s and '70s.

The book included numerous full-color reproductions of some of Gogos' most celebrated work. Some illustrations originally appeared as Famous Monsters covers and, according to Baylson's opinion, seven reproduce the actual cover of the magazine.

Warren's suit contended that Spurlock's use of Gogos' artwork and Famous Monsters covers violated his copyright and diluted the market for Warren's own possible use of the name and art.

It seems understandable that Warren retains strong proprietary feelings about the magazine he founded with the late Forrest J. Ackerman, a Los Angeles literary agent who accumulated one of the largest collections of horror film memorabilia.

Famous Monsters of Filmland published photos from classic horror films, and interviews and articles on special effects in an era before cable television, when silent and early sound films could only be seen in revival theaters or scratchy, butchered prints on commercial TV.

Spurlock's attorneys argued that Warren bought only "first publication" rights to Gogos' original illustrations and that the artist collaborated with Spurlock and co-author Kerry Gammill.

Moreover, Spurlock argued, the book qualified under the "fair-use doctrine" of copyright law that allows writers and artists to use or refer to a copyrighted work "in a reasonable manner."

Weighing a variety of factors, Baylson wrote that the fact that Spurlock's Gogos book is "inherently biographical renders it so fundamentally transformative in nature, coupled with the fact that Spurlock utilized such a quantitatively and qualitatively minor portion of the magazines, requires this court to conclude that Spurlock's use is fair use."