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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. The estate was represented throughout by David Smallman, now a litigation partner at Piper Rudnick, and a changing cast of co-counsel. In a sharply worded 41-page decision, Southern 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 of 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,” Judge Cote wrote in Hogarth v. Burroughs, 00-9569. “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 1972 and 1976. 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 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. The case was dismissed at trial but issue of Hogarth’s authorship rights in the two books was appealed to the 2nd U.S. Circuit 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,” the judge wrote. “The plaintiffs improperly delayed answering the defendant’s interrogatories on this issue for that very reason.” In their response to discovery, Cote found, the plaintiffs also sought to withhold correspondence between Burroughs and Hogarth that undercut the plaintiffs’ contention that the two books were Hogarth’s idea. The judge said Smallman had located and reviewed the documents even before bringing the suit. “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,” the judge concluded. Cote also took plaintiffs and their counsel to task for seeking the disqualification of Burroughs’ counsel, Roger L. Zissu of 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. The judge called that argument “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. Cote held the plaintiffs and their counsel jointly and severally liable and ordered them to pay many of the attorney fees and costs expended by Burroughs in the case. A number of 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. A spokeswoman for Piper Rudnick said: “We respectfully but firmly believe that the court’s conclusions were incorrect, and we will contest the matter on appeal.” Zissu said he was reviewing the attorney fees and costs at issue and declined to comment further on the case. 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.

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