In 2011, the tort took center stage once again in Barclays Capital Inc. v. Theflyonthewall.com, as powerful investment banks sought to prevent an online financial news aggregator from appropriating its investment recommendations. Ultimately, the Second Circuit Court of Appeals ruled in favor of the financial aggregators, and called the continued viability of hot news misappropriation into question. In light of the Second Circuit’s recent decision, this article criticizes the Second Circuit for failing to recognize the qualitative differences between hot news misappropriation and copyright preemption. Specifically, hot news misappropriation rewards the diligent effort undertaken to collect the news with a limited right to publish news, at least while it remains valuable, while federal copyright laws reward originality by granting authors exclusive rights exercisable against anyone. Furthermore, in an effort to clearly delineate when hot news appropriation should survive copyright preemption, this article advocates for the use of a five-part extra element test.

The Introduction to this article charts the history of the comic art form and, in particular, its history in the United States. This section offers a summary of the first efforts to restrict the content of comics via investigations and Congressional hearings fueled by the dubious psychology and social science theories of Dr. Frederic Wertham. These theories offer an example of the kind of misguided fears that currently augment attacks on the comic art form today. Finally, the Introduction explains the origin of the CBLDF due to the prosecution of a comic storeowner.

The second section of the article provides a detailed discussion of Mavrides v. Franchise Tax Board. In Mavrides, comic creator Paul Mavrides, co-author of the notorious underground comic The Fabulous Furry Freak Brothers, successfully battled the California Franchise Tax Board over the taxation of comics. As a result, independent comic artists were free of undue tax burdens that otherwise would have limited their ability to continue to create comics with edgy political and social commentary.

The third section of the article focuses on the principal type of case the CBLDF has worked on for the past two decades—fighting the U.S. Justice Department and local state prosecutors’ efforts to censor the content of comics, usually by alleging that the content is obscene or indecent. In particular, the section focuses on the cases of Gordon Lee, a Georgia-based distributor prosecuted for allegedly distributing an obscene graphic novel to a minor, and Christopher Handley, an adult prosecuted under the PROTECT Act for the mere possession of allegedly obscene Manga comics.

The final section of the article argues that the current American jurisprudence imprisons creators, distributors, and collectors for the ideas they express in graphic formats. It argues that the Supreme Court was wrong when it decided that obscene materials are outside of the protection of the First Amendment. Unfortunately, this decision has had a tremendous impact on the rights of comic creators, distributors, and collectors. Furthermore, the rationale for criminalizing explicit sexual material, to protect children from the alleged harm exposure to these materials causes, is flawed. The absence of any definitive proof of that harm leads to the recommendation that at the very least, penalties for the creation, distribution, and ownership of comics and cartoons with sexual content must be de-criminalized.