Gaiman v. McFarlane 2010: Opening Statements

Part Three [This is part of my running report on the 2010 hearing in the Neil Gaiman v. Todd McFarlane case. To see coverage from the beginning, click here.] Ed Treleven had posted May 25 a colorful account of the background of the case. Intriguingly, judging from her comments during the June 14 hearing, Judge Crabb had apparently not seen color exhibits before the hearing. Nor were the visual displays (screens at witness chair, lawyer tables, and judge's chair - fed from views from a horizontal platform not adjusted to show a vertical comic-book page) sharp enough to permit viewers to read some of the exhibits under discussion.

The opening statement by Arntsen's associate Jeff Simmons suggested three identifying factors to determine whether a character in comic books is derivative of or infringing on another character. "If it's a derivative character, it would be an infringing character, if somebody else, somebody who was not authorized to use it, used that character." He said courts typically use the character's backstory and, in the case of comics characters, that character's powers and the character's costume. He added a reference to Judge Posner's 2004 decision in McFarlane's appeal to the 2002 decision: "Judge Posner particularly said with regard to the Medieval Spawn character, you look at the way the character speaks. Judge Posner said, if he talks medieval and he looks medieval, then he infringes Medieval Spawn." Simmons said the judge should look for the same basic traits in the characters under discussion.

Grimsley opened by saying, "We believe the topic ... [is] more appropriate for jury trial." Crabb said she'd already ruled on that matter. He discussed what he called the difference between an idea and the expression of that idea, saying that, regarding the question of the idea of warrior angels, "Ideas cannot be the subject of copyright." He said that it had been agreed that McFarlane and Gaiman had co-created Medieval Spawn (a derivative of Spawn, already created by McFarlane) but that the copyright was limited to the additional elements. "There are elements in the design of Angela that are designed from the Spawn character. There are other elements of Angela, the female warrior, that are somewhat just generic to the comic industry, and in this respect you could go all the way back to Wonder Woman to see many of those elements." He argued that, if, say, similarities between angels Tiffany and Domina and Gaiman co-creation Angela mean the first two are derivative of the third, "essentially what Mr. Gaiman would be successful in arguing is that he has a copyright on the idea of the female warrior angel. And if Dark Ages Spawn is found sufficient to be derivative of Medieval Spawn and Mr. Gaiman is going to say the creative work that Mr. Holguin did was nothing more than copying his work, essentially Mr. Gaiman is saying, 'I have a copyright on the idea of a Hellspawn from medieval times.' The law is clear that those ideas cannot be the subject of the copyright, only the actual expression of those ideas."

Then, Gaiman took the stand.

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