Dan may have been officially excluded from all things 'Josie' and totally shut-out by Archie, but he was, by any means, nowhere near what he originally feared decades ago, "blackballed" thanks to the fact that many of his young fans are now working IN the industry. "At some point," Paul Dini says, "you've got to say, this guy did right by us for 45 years, it's time to do right by him." "All the old timers are avoiding me like the plague, but the new guys, the young kids, I'm their hero." DeCarlo said. "They don't like what they're seeing. They're angry. They figure they'll be involved in something like this in 20, 30 years from now." That support had sustained his freelance work and has taken up much of the slack left vacant by Archie. He ended up working with Bongo, (home of The Simpsons and Furutama titles and spin-offs), Claypool (Elvira Mistress Of The Dark), Shanda Fantasy Arts (various furry comics titles) (one of Dan's cover for Shanda, left) and DC Comics (Scooby Doo and Harley Quinn).
Even with the new work schedule, Dan slowed down and put himself into semi-retirement. I'm enjoying this. I used to work six days a week. I was a true workaholic." He spent his bonus free time with his wife and inspiration of 55 years, Josie; explored the new world of the internet with their granddaughters (whom he and Josie had raised since the death of both of their sons in the early 90's), followed his passion for golf, taking better care of his health (he was colon cancer survivor) and finally got to meet more his fans in person at various comic and furry conventions.
Josie continued her own way within the pages of Archie & Friends. Issue no. 53 of this title introduced a new regular Josie artist, penciler Holly Golightly. Her role would expand to writer with the next issue. Holly's comic resume included working for Jim Balent's Broadsword Comics and his flagship R-rated title, Tarot: Witch of the Black RoseWhile things might seem well and stable for DeCarlo, the fight against Archie was dragging on and began to take its toll. One of his new assignments was for a satirical romance comic book called Last Kiss, a title that took old romance comic pages from the 50's and 60's and gave them new intentionally funnier dialog.
The comic creator/writer, John Lusting, wrote an original piece with Dan in mind called I'm Marrying.....Who?!', it was a satirical jab at Archies love triangle clique, only this time, after disastrous chain of events, the leading male finally got his girl. DeCarlo was interested in working on it and had the idea of drawing it in a different style to avoid any conflict with his on-going Archie lawsuit. Unfortunately, Dan's lawyer though differently, taking account Lusting campy use of the word 'filthy' in a recent Kiss ad and how it might reflect on a jury should they finally go to court, and killed Dan's involvement. Another comic veteran, Ernie Colon, took over the art chore and the piece appeared in Last Kiss #3.
During this time, Archies lawyers served a motion for summery judgment, arguing that DeCarlo has no rights to characters of Sabrina The Teenage Witch and Cheryl Blossom. He countered that the only rights his gave to those characters he had sold to Archie were print rights that any other use on other media formats like internet, TV and whatnot were separate.
Finally, Dan and his lawyer made a move that they admitted was a 'long shot'. After their claim was dismissed by the Court Of Appeals for the Second Circuit, Whitney Seymour filed an appeal with the United State Supreme Court on two points: that the lower courts have misapplied the copyright law in a manner that contradicts ruling in other federal courts and that the matter is properly one for the state courts, in any case.
Their argument includes their position that this is not of copyrights but common law right of ownership. In the petition, Seymour wrote in part: "The overriding legal question in this case is whether the author/creator of fictional cartoon characters has any rights in those characters other than those expressed provided by the Copyright Act." Common law rights in the intangible qualities of fictional characters are not the same thing as common law copyrights in tangible written descriptions or graphic depictions. Seymour told Comic Buyer's Guide in issue #1485/Dec. 14, 2001, "We think the issue is a terribly important one of cartoonists. When a cartoonist creates a wholly new character in his or her mind and develops a personality and individual characteristics for that character before any final drawings are done; the original concept, as it were that concept has to be protected, so that the creator can continue to use her or her brainchild throughout his working career".
Whitney then referenced to a similar case referring to the fictional character Sam Spade in Warner Bros. Pictures vs. CBS Radio. In question was author Dashiell Hammett rights to use his lead character from his book, The Maltese Falcon, in a CBS radio series after the book had been adapted for film by Warner Bros. In this case, the Ninth Circuit found that characters are not protected by copyright, saying: "If Congress had intended that the sale of the right to publish a copyrighted story would foreclose the author's use of its characters in subsequent works for the lide of the copyright, it would seem Congress would have made specific provision therefore". The court went on to say that the copyrightibility of characters is limited to those instances in which the characters themselves & constitute the story being told.";
However, the Supreme Court request was rejected just as this CBG issue was hitting the streets and as both sides were getting ready for a possible trail scheduled for December 20th.
Then, as Dan was in a hospital for pneumonia, he got the sad new of the rejection. Just days later and 8 more before his 82nd birthday, Dan DeCarlo died of an apparent heart attack on December 19, 2001.
Reaction to Dan's passing was swift. In the pages of Comics Buyer's Guide (well as the internet), eulogies and tributes were spread out over many pages and issues.
Archie artist and writer Dan Parent traced his beginnings with Archies and with comics in general to his discovery of Dan's art as a young kid of 6 and how, many years later, it carried to being hired by the company in 1987. He remarked of his first meeting with Dan within his first days with the company: It's an amazing thing when you meet a childhood idol, and they also turn out to a wonderful human being, to boot. I've meet other professional artists that I admires, and let's just say that some of them needed to leave their egos at the door! Dan had none of that pretense. In fact, he seemed amazed that people loved his work and thought of him as a superior artist, not just an Archie artist. And what an artist he was."
"I owe my career to him. I know people always say these type of things when people pass on, but it's really true! I'm so thankful that I got to work with him, learn from him, and, most of all; be friends with him."
Another Archie writer, Kathleen Webb, also traces her creative roots to Dan, though finding the name of that 'Good Artist' was tricky until she found a copy of Millie the Model. Soon afterwards, she wrote to Dan and afterwards he helped her launch her writing career. "And through it all"; she continued, "even though it all, she [Webb] never forgot just what just what Dan meant to her, how much his work had been so much an important part of her life. Through it all, even though he told her to always refer to herself professionally as a friend, not a fan of Dan DeCarlo, deep down inside she always remained a fan of Dan DeCarlo."
She, too ended her eulogy by affirming that she owes a lot to Dan. “God bless his memory. And God bless his widow, Josette.
Mark Evanier remarked that in spite of the "thousands and thousands" pages of art Dan had produced during his 50 year career, his work remained consistent…and on a higher level than most. As was true with Kirby and a few other 'greats' of our field, the achievement of the man was not in quality of quantity but quantity of quality. But look a little closer,"; he later adds, "Look at how alive and expressive the people are. Look how cute the girls are and how funny the boys are, and how absolutely spot-on human is every reaction, every pose and every expression. That's the heart Dan DeCarlo put into every page and that's what I'll miss. That....and Dan.";
John Lustig offered his condolences with a twinge of anger and admitted that Dan's death had left him "emotionally fragmented." John wondered out loud that Archie can still "do the right thing by offering Josie ;at least a tiny slice of the financial juggernaut generated by Dan's comics creation. However, that seems unlikely, but it would certainly help alleviate the anger that I (and, I suspect) many other creators and fans are feeling over this case."
Lustig had touched upon an undercurrent of resentment that a lot of professionals, fans and Dan's surviving family members were feeling behind Dan's passing. The timing of the lawsuits, the rejection of Dan's appeals and his death left a small bitter taste with many against the management of Archie and how they treated him.