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A federal judge in Manhattan has sanctioned a lawyer and his client for pursuing in bad faith claims against the company that holds the rights to the work of Edgar Rice Burroughs, the creator of Tarzan. The estate of Burne Hogarth, a renowned illustrator of Tarzan stories, sued for a share of about $15 million in licensing fees paid to Edgar Rice Burroughs Inc. by the Walt Disney Co., which produced a 1999 animated feature based on the Tarzan stories. In a sharply worded 41-page decision, U.S. District Judge Denise Cote said the plaintiffs and their lawyers could not present any good-faith claim that the Disney movie’s depictions of Tarzan were similar to those previously created by Hogarth. “Apparently well aware of the limitations to their claims, the plaintiff’s litigation strategy was designed to coerce a settlement from [Burroughs] and to avoid a trial if at all possible,” wrote Cote in a November 2004 opinion. “Because of these tactics, the litigation was unnecessarily contentious and expensive and required extensive judicial supervision.” Hogarth, who died in 1996, drew Tarzan comic strips and illustrated two Tarzan books published by Burroughs in the 1970s. The books were not covered in Disney’s licensing agreements with Burroughs. In their suit, filed in December 2000, Hogarth’s heirs claimed they were entitled to relief because Burroughs had allowed Disney to use artwork contained in the books. They also claimed Hogarth was the author of the two books and that he had not produced them as “works for hire” owned by Burroughs. They said Burroughs had breached an agreement with Hogarth to share any revenue generated by artwork from the books. Although the case was dismissed at trial, the issue of Hogarth’s authorship rights in the two books was appealed to the Second Circuit U.S. Court of Appeals, which determined they were works for hire owned by Burroughs. In her decision, Cote said the plaintiffs were clearly motivated by the Disney money but had been unable to demonstrate that the work of Disney animators bore any similarity to that of Hogarth. “From the very first conference with the court, plaintiffs had difficulty articulating the basis for any claim of similarity,” wrote the judge. “The plaintiffs improperly delayed answering the defendant’s interrogatories on this issue for that very reason.” In their response to discovery, the plaintiffs also sought to withhold correspondence between Burroughs and Hogarth that undercut the plaintiffs’ contention that the two books were Hogarth’s idea, Cote found. The judge said that the plaintiff’s primary attorney, David Smallman, had located and reviewed the documents even before bringing the suit. Hogarth’s estate was represented throughout the case by Smallman, now a litigation partner at Piper Rudnick, and a changing cast of co-counsel. “Their intentional withholding of these documents when they were required to be produced in response to the document request is strong evidence of bad faith and a decision to suppress, if possible, the documentary record that would undermine their claims,” concluded Cote. The judge also took the plaintiffs and their counsel to task for seeking the disqualification of Burroughs’ counsel, Roger Zissu, a partner at New York City’s Fross Zelnick Lehrman & Zissu, on the ground that he and other lawyers at the firm might be called as witnesses. The plaintiffs also noted that Fross Zelnick had performed a small amount of work for Hogarth’s estate in 1998 and 1999. Cote dismissed that argument as “particularly frivolous” and pointed out that the plaintiffs had previously signed a conflict waiver regarding that representation. She noted that Zissu’s previous work for Burroughs had not concerned the books illustrated by Hogarth. Several law firms worked with Smallman on the case at various times, including the former Owen & Davis, now part of Fulbright & Jaworski; Wollmuth Maher & Deutsch; and Lankler Siffer & Wohl. But a source familiar with the case said Smallman played by far the largest role in the matter. Smallman’s firm, Steinhart & Falconer, was acquired by Piper Rudnick in January 2004. “We respectfully but firmly believe that the court’s conclusions were incorrect, and we will contest the matter on appeal,” said a Piper Rudnick spokeswoman. Edgar Rice Burroughs, who lived from 1875 to 1950, published his first Tarzan story in 1912. Over the next four decades, he wrote dozens of Tarzan pulp magazine stories and books. The character became the subject of a comic strip, radio and TV programs and several hit movies, including the 1999 Disney film. Anthony Lin is a reporter at the New York Law Journal.

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