Gaiman v. McFarlane 2010: It Is Ordered ...

Saturday, July 31, 2010

[This is part of my running report on the 2010 hearing on the Neil Gaiman v. Todd McFarlane case. To see coverage from the beginning, click here. For additional historical perspective, check out The Comics Chronicles' look back on Spawn #9 and the sales impact the "guest-author" issues had on the series.]

Part Twenty-Five Senior U.S. District Judge for the 7th Circuit Court for the Western District of Wisconsin Barbara B. Crabb announced her decision on July 29: "IT IS ORDERED that plaintiff Neil Gaiman's motion for an order to compel discovery relating to the money earned from derivative characters Dark Ages (McFarlane) Spawn, Domina and Tiffany is GRANTED. Defendants Todd McFarlane, Todd McFarlane Productions, Inc. and TMP International, Inc. are to produce the requested information promptly and in no event later than September 1, 2010."

The decision came in Case #02-CV-48-BBC, Neil Gaiman, Marvels & Miracles LLC vs. Todd McFarlane, Todd McFarlane Productions, TMP International and Image Comics. It had been determined that Neil Gaiman had been co-creator with Todd McFarlane of Spawn #9 and, with that issue, the characters of Count Cogliostro, Medieval Spawn, and warrior angel Angela. The current suit involved the ownership of characters that had appeared over the years in McFarlane's "Spawn" titles, specifically "Dark Ages Spawn" and warrior angels "Tiffany" and "Domina."

In her opinion, Crabb wrote, "The parties agree that they are co-owners of Angela and Medieval Spawn. Defendants do not contest plaintiff's right to an accounting and division of profits for the posters, trading cards, clothing, statuettes, animated series on HBO, video games, etc. that feature those characters. The dispute is limited to information about the profits earned from Dark Ages Spawn, Tiffany and Domina, which defendant has refused to provide to plaintiff. Defendants contend that these characters are not subject to plaintiff's copyright because they were based solely on plaintiff's ideas and not on any physical expression of those ideas. I conclude that the newer characters are derivative and that plaintiff is entitled to his share of the profits realized by these characters and to the immediate production of all documents and other information material to the calculation of the profits."

Her opinion noted some of the details of the storylines. For example, "The Dark Ages (McFarlane) Spawn is [like Medieval (Gaiman) Spawn] a twelfth century knight, referred to as The Black Knight, killed in a holy crusade far from his homeland and returned to Earth as Hellspawn. (In the first issue in which he is introduced, he is described as having been born in 901, tr. exh. 26, inside front cover; in future issues and in advertising for the comics and his action figure, he is described as having been born in the twelfth century.)"

She summarized the appearance of the angel characters: "Tiffany and Domina are visually similar to Angela and share her same basic traits. All three are warrior angels with voluptuous physiques, long hair and mask-like eye makeup. all three wear battle uniforms consisting of thong bikinis, garters, wide weapon belts, elbow-length gloves and ill-fitting armor bras." She compared the two Spawns of the middle ages: "Defendant argues that when the court disregards the elements of Medieval (Gaiman) Spawn that are derived from the original Spawn and the stock elements that accompany a person of aristocratic lineage in the middle ages, such as traveling on horseback, wearing armor and carrying a weapon, every other aspect of Dark Ages (McFarlane) Spawn is new and different from Medieval (Gaiman) Spawn. It is true that Dark Ages (McFarlane) Spawn and Medieval (Gaiman) Spawn differ slightly in their backgrounds, but these are elements of their characters that make them individually copyrightable, not ones that prevent Dark Ages (McFarlane) Spawn from being found derivative. It is more significant that Dark Ages Spawn has the distinctive look of Medieval (Gaiman) Spawn that would cause any reader, casual or constant, to see a substantial similarity between them." She went on to discuss the basic concept of the series, then wrote, "Much as defendant tries to distinguish the two knight Hellspawn, he never explains why, of all the universe of possible Hellspawn incarnations, he introduced two knights from the same century. Not only does this break the Hellspawn 'rule' that Malebolgia never returns a Hellspawns [sic] to Earth more than once every 400 years (or possibly every 100 years, as suggested in Spawn, No. 9, exh. #1, at 4), it suggests that what defendant really wanted to do was exploit the possibilities of the knight introduced in issue no. 9. (This possibility is supported by the odd timing of defendant's letter to plaintiff on February 14, 1999, just before publication of the first issue of Spawn: The Dark Ages, to the effect that defendant was rescinding their previous agreements and retaining all rights to Medieval (Gaiman) Spawn.)"

She then elaborated with concepts of her own, not expressed during the June 14 testimony: "If defendant really wanted to differentiate the new Hellspawn, why not make him a Portugese explorer in the 16th century; an officer of the royal Navy in the 18th century, an idealistic recruit of Simon Bolivar in the 19th century, a companion of Odysseus on his voyages, a Roman gladiator, a younger brother of Emperor Nakamikado in the early 18th century, a Spanish conquistador, an aristocrat in the Qing dynasty, an American Indian warrior or a member of the court of Queen Elizabeth I? It seems far more than coincidence that Dark Ages (McFarlane) Spawn is a knight from the same century as Medieval (Gaiman) Spawn."

Spawn the Dark Ages Number 1 Cover A (Devils Knight)She wrote that it was irrelevant whether Spawn: The Dark Ages writer Brian Holguin had tried to base his Dark Ages (McFarlane) Spawn on Medieval (Gaiman) Spawn. "... what is relevant is that he had access to Medieval (Gaiman) Spawn before he created his version of the middle ages knight." She cited earlier court decisions including the 1977 case decision "holding that George Harrison had access to tune he used for 'He's So Fine'; therefore, even if copying was subconscious, it amounted to infringement." "The small differences in the two knights do not undermine a finding of derivation ... It is not, as defendent claims, a simple borrowing of an idea but a borrowing of the expression of ideas of the copyright owners. It would be considered infringing if it had been developed by anyone not working for defendent." She said the same applied to the other angels. "Certainly they are similar enough to be infringing if they had been produced and sold by someone other than the copyright owners. The totality of their attributes and traits, that is, their visual appearance, their costumes, their manner of speaking, their activities and their common origin (Heaven's angelic phalanx), mark them as derivative of Angela."



Gaiman’s Son July 31, 2010 at 3:48 PM  

Wow just wow. Totally wrong on all counts. She did know McFarlane was the artist right? Because in her ruling she keeps saying the other angels are visually similar to Angela. Gaiman didn't create her look he testified the look McFarlane created for her was not what he had envisioned.
She rules that Dark Ages Spawn is Medieval Spawn because of a none existing rule. She states 100 years in her judgment but in issue # 9 Gaiman said 2 had come 50 years apart. Dark Ages Spawn is derivative of Spawn not Medieval Spawn.

Gaiman’s Son July 31, 2010 at 3:51 PM  

Also she claims that if someone else made Dark Ages Spawn then they could sue. I disagree with this too if a different comic would of came out with Tiffany or Domina without the Spawn symbol eye makeup or lance McFarlane created then no they would not of been able to sue. As no one can lay claim to a copyright on the idea of warrior angels. If so I guess Gaiman should sue Top Cow too. I bet he'd claim that's more of the look he had envisioned for Angela too. And of course they would win if a book was called Dark Ages Spawn, but if it was just a demon knight they'd have no case. Even if the character had sold he's soul to the devil that's not something you can copyright ether. Ghost Rider's story is very close to Spawn's but Marvel can't sue McFarlane because that's not something you can copyright.

Again all the looks and characters are derivative of Spawn # 1 not Spawn #9. Angela and Medieval Spawn's look are derivative of Spawn's look. Therefore Dark Ages Spawn, Tiffany , Domina are all derivative of Spawn's look too.

Could McFarlane sue Gaiman if he wrote a story of other superheroes in Medieval times? Could McFarlane sue Gaiman if he wrote a different story with Warrior Angels? What about one with Heaven VS Hell? The Devil VS God? The fact is Gaiman could legally write a story close too Spawn and not get sued.

If a Warrior angel appeared in Haunt could Gaiman sue? No he couldn't.

Gaiman’s Son July 31, 2010 at 3:59 PM  
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KJ,  July 31, 2010 at 4:15 PM  


you're obviously not an impartial veiwer of this case. That's ok. But my reading of the facts agrees with the judge.

Gaiman’s Son July 31, 2010 at 4:58 PM  

What facts though?
There was no 400 or 100 year rule.
Characters in comics can make statements that are wrong just like in real life. The case quoted issue # 32 and that Curse of the Spawn happens 400 years in the future. The judge quoted 100 years from issue #9 but in #9 it says 2 came 50 years apart. She also states that in Dark Ages # 1 it says the year was 901 but because of an advertisement stating 12th century it doesn't matter. Well that would still be a 100 years earlier as it would in 1100-1199 not 1200-1299. There have been a ton of Spawns that have lived closer the 50 years too. There was a Gunslinger Spawn in the late 1800's a WWII Spawn. The Al Simmons Spawn and the current Spawn who came the moment Al died. No gap in time.

The judge seem to make her case on the look of the characters not the characters themselves. Just like Gaiman said in the case he could write about all the knights of the round table and make them all unique to one another, because it's who's inside the armor that matters. So too can McFarlane and company could write two different stories about Spawns that lived between the years 900-1500 and make them different and unique. That's the whole piont of the Spawn curse it's who's inside the Spawn suit that makes them all unique.

Someone please tell me what McFarlane would have to do to make angels in his comic about Heaven VS Hell not look like his style?

Maybe that's why he had the whole world come to an end in the comic. I mean I guess legally Todd had to make Armageddon happen and destroy Heaven and Hell and start over. The Heaven and angels Gaiman wrote about have all been wiped out. So the angel that appeared recently I guess is safe from future lawsuits.

Jared - Blog into Mystery July 31, 2010 at 11:07 PM  

Thanks for all these posts - as a comics fan and a law school graduate it's quite the melding of worlds. I have to say I agree with the judge's ruling - not that what I think matters much. It seems like the battle between these guys has been going on forever, and these characters certainly aren't as cut and dried as Medieval Spawn and Angela were in the old suit.

The problem for Todd is that Neil is the co-creator of part of that Universe, and any of the fruit from that co-branch is part Neil's. That applies to similar angels and similar Spawns. Just the way it is, as much as I might sympathize with some of lambtoons' arguments. It has to gall Todd to no end.

Once again, thanks for these posts.

Anonymous,  August 1, 2010 at 12:33 PM  


Reading through this stuff, Gaiman comes across as rather disingenius and somewhat selfserving, answering questions like a politician with sophistry and evasion and digression, and the lawyer just isn't clever enough to call him out on it even though he does give it a good try on a couple of occasions.

While I agree that the angels are quite obviously derivative of Angela, I think from the testimony that DA.Spawn was derivative of the original Spawn and not M.Spawn.

Anonymous,  August 1, 2010 at 12:33 PM  


Reading through this stuff, Gaiman comes across as rather disingenius and somewhat selfserving, answering questions like a politician with sophistry and evasion and digression, and the lawyer just isn't clever enough to call him out on it even though he does give it a good try on a couple of occasions.

While I agree that the angels are quite obviously derivative of Angela, I think from the testimony that DA.Spawn was derivative of the original Spawn and not M.Spawn.

Gorillamydreamz August 1, 2010 at 3:39 PM  

Ever been in court? Answers to questions must be exacting and precise in meaning because every question a lawyer asks is designed to push for certain answers. This is not a dig at lawyers. It is their job to get you say or admit what they need you to say or admit. And these lawyers seemed to be quite capable and good at working toward the best interests of their clients.

I have had some courtroom training for the time I spent as a private detective. security officer. And I was instructed to be absolutely aware of the laws as pertaining to my job and extremely clear in court so that my words could not be twisted.

There were a number of instances where Gaiman's supposedly "disingenuous" responses were in fact answers that attempted to clarify his position on the obviously unspoken questions beneath the query.

Gaiman is not saying he created all of Medieval Spawn. He is saying that as the CO-creator of the characters in question, he is entitled to a portion of the monies earned form derivative characters. No t all all of the money.

I think all the witness testimony was top drawer - well-spoken and clear. The judgement simply didn't go Todd's way.

Gaiman never claimed Medieval Spawn was not derivative of Spawn. He simply stated he came up with these new characters based on and in the service of the Spawn universe and had certain rights in that regard. The previous court battle enshrined that status in law. Therefore, it no longer matters whether Medieval Spawn is derivative or not. Gaiman has specific lawful rights to share of monies earned from their use.

Anonymous,  August 2, 2010 at 5:46 AM  

"Reading through this stuff, Gaiman comes across as rather disingenius and somewhat selfserving"
It's worth keeping in mind that Gaiman has repeatedly stated that all money he receives for these characters will go to a comics charity (once lawyers are paid). So it's hardly self-serving.

Anonymous,  August 2, 2010 at 7:52 AM  

^ Except that financial compensation usually isn't the ascribed motive when we say someone is being "self-serving". Usually the word refers to someone's ego, self-esteem, or reputation.

For instance, it could actually be argued that Gaiman is being "self-serving" by frequently stating how any awarded money will go to charity. That doesn't make it any less of a kind gesture, just that he wants it well-understood.

demoncat,  August 2, 2010 at 10:54 AM  

suprised the judge ruled the way she did when dark age spawn is surely another version of spawn not medevil spawn with a new name. as for it being over. doubt ful for Todd is likely to appeal or work out a settlement with Neil to buy his rights in Angela and co.this case is not over yet.

Rick O.,  August 2, 2010 at 10:55 AM  

Thanks for posting all this, well done! Can't believe there is so much legal discussion here about SPAWN ON A HORSE, it's nuts.

Scott August 2, 2010 at 11:09 AM  

Todd's supporters make it sound like Gaiman wants to shut Spawn and future iterations of it down... Gaiman just wants the money that he rightly earned when he created those characters. McFarlane shouldn't be so cheap :D Then he wouldn't be in this mess.

Unknown August 2, 2010 at 12:07 PM  

i'm impartial and i agreed with the judges ruling until i actually read the testimony. if todd created the visual style of the characters and they are only derivative on thier appearance? i dont see the case.. but if its been established that neil did indeed create the concept of the lineage the spawns, and warrior angels on his own then i guess i can see it, in that context

Anonymous,  August 2, 2010 at 12:26 PM  

What I really loved about the description is that the Judge has a much more impressive set of Spawn-based comics (Samurai Spawn and Latin Revolution Spawn) than McFarlane. Did he really need to set another Spawn comics in the Middle Ages?

I think that's the main problem with the Spawn titles now, that it has just kept going back to the same concepts that owe to other authors involved in the first "guest written" Spawn comics.

He could have avoided it, but he insists in trying to do the same thing over and over again. He has a lot of toys that could star in pretty awesome comics, why didn't he try something like that?

And, just to twist the knife a little bit: Dark Ages Spawn is a ripoff of a famous Frazetta painting. His state could sue for that.

Anonymous,  August 2, 2010 at 2:48 PM  

The judge mentioned a letter from McFarlane to Gaiman in which McFarlance said he was "rescinding their previous agreements and retaining all rights to Medieval (Gaiman) Spawn.)"
If McFarlane wrote that letter, he probably knew his Spawn could be found derivative of Gaiman's.

Gaiman’s Son August 2, 2010 at 4:04 PM  

Image and I believe McFarlane too publish the real comic based on that painting Frazetta did DEATH DEALER giving him full credit and it had a bio on the painter in the back. But yes Viking Spawn does look inspired by Death Dealer.

Viking Spawn is not Dark Ages Spawn but McFarlane did release the Viking Spawn and Samurai Spawn toys under the Dark Ages Spawn line so I guess the judge is giving 50% of those characters to Gaiman too. That is the biggest problem with this case. Clearly Medieval Spawn looks closer in looks too Spawn then Medieval Spawn does to Dark Ages Spawn. But with each case McFarlane can not say the other Spawns are derived from the original Spawn. So now Gaiman can go on to sue for other Spawn throughout the ages and any other angels in the Spawn comics. Minus maybe the last one that appeared after the Armageddon story line where Heaven, Hell and Earth were all destroyed. Thus no 330,000 angels Gaiman "created" by giving them a number.

The Judge said they should of done these Spawn or that. They fact is they did do a lot of different Spawns. And this one and Medieval where set anywhere from 200-300 years apart. A typo on an advertisement doesn't change that.

Anonymous,  August 2, 2010 at 11:27 PM  

It is far more likely that the error was made in saying that Dark Ages Spawn was born in 901 and that the advertisement AND LATER ISSUES of the comic were the correct date placing it in the 12th century.

I have not read Spawn, but the character is described here as having been killed during a crusade. The crusades started are generally recognized as starting around 1095 and it would have been hard for the character to go on campaign when he was 194 years old. Secondly, it states that it was said in later issues of Dark Ages Spawn that he was born in the 12th century, not in 901.

If this is not the case, then McFarlane's lawyers did a really poor job making this difference known.

KB Barker August 3, 2010 at 7:01 AM  

"...why not make him a Portugese explorer in the 16th century; an officer of the royal Navy in the 18th century, an idealistic recruit of Simon Bolivar in the 19th century, a companion of Odysseus on his voyages, a Roman gladiator, a younger brother of Emperor Nakamikado in the early 18th century, a Spanish conquistador, an aristocrat in the Qing dynasty, an American Indian warrior or a member of the court of Queen Elizabeth I?"

Wouldn't it be awesome if McFarlane actually developed all of these characters in partnership with co-creator Judge Barbara B. Crabb?

jeremy August 3, 2010 at 12:05 PM  

"Wouldn't it be awesome if McFarlane actually developed all of these characters in partnership with co-creator Judge Barbara B. Crabb?"

Yeah, that would be awesome, but it's probably not too smart to try to rip off a judge!

Anonymous,  August 3, 2010 at 12:35 PM  

"I guess the judge is giving 50% of those characters to Gaiman too."

Umm, no.

"So now Gaiman can go on to sue for other Spawn throughout the ages and any other angels in the Spawn comics."

Again, no.

Go back and read the whole series of columns again. It's pretty obvious that the whole court case is about two SPECIFIC characters that Gaiman is recognized as the co-creator of. The case is dealing with derivatives of those characters, not with the entire history of Spawn. Gaiman has no basis to sue for ownership of Viking Spawn or Astronaut Spawn or Disco Spawn.

You can read more about it at your local library. CBS Cares.

Anonymous,  August 3, 2010 at 4:49 PM  

"if todd created the visual style of the characters and they are only derivative on thier appearance?"

It's was previously established that Todd & Neil are co-creators of Medieval Spawn, which means they both own the visual look and background story of the character. Just because Todd drew the character does not mean he owns the look and Neil owns the words. They both co-own the entirety of the character.

Gaiman’s Son August 3, 2010 at 9:40 PM  

um yes

You should read it all more carefully.

My point is he has now been given the rights to characters he had appositely no involvement in making. First he was given the co-rights to Medieval Spawn not being derivative of Spawn. When anyone with a working eye can see they are basically the same thing. He even called him just Spawn. Open up a Dark Ages Spawn comic and there is a vest differences in the design and look. To say that Medieval Spawn is not derivative but somehow Dark Ages is doesn't make since. Somehow he got the law to work both ways for him.
Gaiman said he could create 100's of different story's of knights of the round table and give them all different personalizes. That's my point with these characters you can't look at Sir John and say he's Lord Covenant. And funny enough Gaiman couldn't in the case ether when they showed he the figure.
A dead demon Spawn can go one living for 100's or 1000's of years like Cogliostro did.
And again the 12th century is 1100-1199 not 1250 like Giaman said he would place Medieval Spawn.
But again there never was a 100 or 400 year rule. And Gaiman wrote a Spawn had come 50 years apart before. A fact the Judge wrongly left out in her judgment.
Why I say he can go on to other Spawns is Viking Spawn and Samaria Spawn both lived during the Dark Ages and had figures made under the Dark Ages line. This is another wrong statement the Judge made in her ruling that they have not done other Spawn's living in different countries or different times. And Medieval Spawn did not live in England. And clearly Gaiman was BSing with the if a character of mine talks in English then he has to be from England. Just like with Gaiman co-owning Medieval Spawn and going on to say Dark Ages was derivative of Medieval Spawn and not the original Spawn. Now that he co-owns Dark Ages Spawn he could very well open a case stating he is due royalties for the derivative Viking Spawn of his co-owned character Dark Ages Spawn. Who looks way more like Dark Ages Spawn then Dark Ages Spawn looked like Medieval Spawn.

Anonymous,  August 3, 2010 at 11:20 PM  

Firstly, lambtoons, the case at hand has absolutely nothing at all to do with Medieval Spawn being a derivative of Spawn. When Medieval Spawn was created, McFarlane agreed that Gaiman was the co-creator of Medieval Spawn and other characters. He later tried to rescind that agreement (a breach of contract) but the courts in a 2002 case upheld Gaiman's rights as co-creator of Medieval Spawn.

So, it matters not one penny how much a derivative of Spawn, Medieval Spawn is because McFarlane granted Gaimen co-creator status when he hired Gaimen.

With that fact established, Gaiman has a right to a share of whatever profits and royalties are due him as co-creator. Again, that is the right McFarlane granted him.

The case at hand, deals primarily with whether or not Dark Ages Spawn is a derivative of Medieval Spawn (plus the assorted angels). To hammer home the point, it doesn't matter if Medieval Spawn is derivative of Spawn, because Gaiman is the recognized co-creator of Medieval Spawn. It only matters if Dark Ages Spawn is derivative of Medieval Spawn.

Derivative does not mean it has the same exact design, look and origin. As the judge said in her summary, "It is true that Dark Ages (McFarlane) Spawn and Medieval (Gaiman) Spawn differ slightly in their backgrounds, but these are elements of their characters that make them individually copyrightable, not ones that prevent Dark Ages (McFarlane) Spawn from being found derivative. It is more significant that Dark Ages Spawn has the distinctive look of Medieval (Gaiman) Spawn that would cause any reader, casual or constant, to see a substantial similarity between them."

Show the average person a picture of two characters in armor and they would see the similarities between them. Show them a picture of knight and a viking and there is no substantial similarity, thus Gaiman has NO BASIS to sue for ownership of Viking Spawn or any spawn created at any point in time.

Again, the case is not about whether or not the characters are exactly the same, it is not about whether Spawns reproduce 400 years, 100 years, 50 years or even 2 minutes apart and it is not about your love of Todd McFarlane. It is about whether a Spawn in knight's armor is similar to another Spawn in knight's armor.

You can read more about it at your local library. CBS Cares.

Anonymous,  August 3, 2010 at 11:47 PM  

lambtoons, first of all it was never ruled that Medieval Spawn was not derivative of Spawn. It was ruled that Gaiman was a co-creator of Medieval Spawn. Spawn is presumably owned solely by McFarlane. While the derivative character of Medieval Spawn is co-owned by McFarlane and Gaiman.

That Dark Ages Spawn and Medieval Spawn have differences is irrelevant. It is the general idea of a Spawn as a knight in the middle ages that is relevant. You can change the art and use a different back story, but it's plainly the same idea. Same goes for Tiffany and Domina.

The point of covering derivative works in copyright is so someone can't take your work and modify it without compensating you. The standard here isn't "was Gaiman involved in the creation of these characters?" but "are these characters similar enough to characters that Gaiman co-created that he should be compensated for them?" The judge thought the that this was the case.

And rightly so. These characters were clearly created in order to use characters and ideas that Gaiman had co-developed without having to compensate Gaiman.

Gaiman’s Son August 4, 2010 at 7:50 AM  

They clearly do not look close enough to me at all. But I guess the judge felt only an award wining writer as Gaiman introduced himself in the case can create 100's of different knights and have all be different and unique to each other. Or can take the same idea they did with Spawn and do it with Marvel Characters. Of course he can but McFarlane should be allowed to freely write and draw in his style angels and demons in his comic book that was always about Heaven VS Hell with Spawn in the middle.

katetheflake121 August 4, 2010 at 11:14 AM  

Gaiman has been playing this as gentlemanly as possible. He didn't force Mcfarlane and Image to pay him his royalities when the company was bankrupt; they came to an agreement he would wait until Todd was back on his feet. Gaiman even tried to trade his Spawn copyrights with Mcfarlane for the rights to Miracleman (Mcfarlane refused); we all know that Todd Mcfarlane isn't exactly lacking in the ego department. He felt that his characters were different from Gaiman's despite the fact that both Dark Ages Spawn and Medieval Spawn were 12th century knights in armor. Granted, Mcfarlane drew both of them but he didn't come up with the idea for either, being as Gaiman wrote Medieval Spawn and Brian Holguin wrote Dark Ages Spawn. this trial was ill-fated from the start: Todd just needs to shut up and pay up.

Anonymous,  August 4, 2010 at 11:49 AM  

lambtoons, your refusal to understand the merits of the case is quite amusing.

Gaiman’s Son August 4, 2010 at 4:57 PM  
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Gaiman’s Son August 4, 2010 at 5:04 PM  

It's amusing that the judge thought a fiction character stating something in a comic book makes it law abiding. It's amusing for whatever reason she chose to not quote Gaiman's line in issue # 9 right. She said there was a 400 or 100 year rule as it said in # 9. Well he wrote two had came 50 years apart. Not 100 not 400. It's amusing that McFarlane is not aloud to draw angels in his style. A style that Gaiman testified was not how he had envisioned the character to look. He seems to pride himself in that none of his books depicted woman looking like that. It's amusing how Gaiman denied anything the lawyer asked him. I like how he claims that woman in comics aren't shown like that normally. It's amusing that people seem to think (including Gaiman and the judge) that the year 1250 is the 12th century and not the 13th. lol
It's amusing that people actually think that McFarlane can do whatever Spawn he wants but not a Spawn in armor between the years 900-1600 lol It's amusing that Gaiman won on the merits of the characters looking visual similar to one another. If the judge or anyone was shown two drawings McFarlane did of two different woman they will always find similarities with the two. For example compare McFarlane's version of Angela with his version of Spider-man's Mary Jane. They look way more similar in appear then Angela does to Tiffany or Domina. It's amusing how many people think McFarlane would never of shown an angel in his comic book about Heaven VS Hell with Spawn stuck in the middle. It's amusing that Gaiman won the case without even knowing what Dark Ages Spawn looked like. It's amusing that the judge said McFarlane should of made an American Indian warrior Spawn and he already did.

Anonymous,  August 6, 2010 at 7:45 AM  
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Maggie Thompson August 6, 2010 at 8:57 AM  

Apologies to the latest comment poster, but I've said it before: Please, NO personal insults here. The participants in the hearing were civil, and my goal here is similar civility. My option is to delete posts or leave them posted, rather than having an ability to edit posts, so I had to opt to delete your post. I'd welcome your reposting the point you were making.

Maggie Thompson August 6, 2010 at 9:01 AM  

Ah, I've just figured out how to post that comment minus the concerning remark. "Anonymous" posted:

It is what it is, a rule is a rule, there could be more court rulings on several characters being sued for copyright issues... but the creators are dead... and might not of had things established back then, but today they do.. and because of that McFarlane did break his own agreement.... and should have to pay. RJG...ES

Gaiman’s Son August 6, 2010 at 11:49 AM  
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Gaiman’s Son August 6, 2010 at 12:11 PM  
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Unknown August 6, 2010 at 3:05 PM  

Since Gaimen is co-creator, he gets half of whatever the character brings in Lambtoon, that's why the co is there before creator, this wasn't piece work for hire. It does not matter what Neil was given for his work on a "funnybook" as you call it, as in the rest of the world if you co-create something you get half of whatever that creation makes, till the copyright runs out, have a friend who is a singer, she still gets checks 20 years after the songs were produced, are you saying their should be a set dollar amount put on a co-creator's rights, and that from then on only the creator should profit from the work of two? Also if you know "funnybooks" history then you would know of the argument the Jack Kirby had over early Marvel characters in his fight for ownership, and that was he was not only the artist creating a character from Stan Lee's description, but was an integral part of fleshing the characters out. With Neil, you see the opposite happening, and if you read any of Neal's work, both in Comics and out, then you would know how creative the man is.

Tony Isabella August 7, 2010 at 8:11 AM  

One of the saddest tings about online comics fandom is that whenever a creator or a creator's heirs get or attempt to get what the law says they are entitled to or the publisher agreed to give them, there will always be those fans and even the odd wrong-headed professional who castigate the creator or the creator's heirs. "Castigate" being the mildest term I think Maggie will let me use here.

We've seen it with the Siegel heirs, we've seen it with the Kirby heirs, we've seen it with Marv Wolfman and Blade, I've seen it with me and Black Lightning and I haven't even sued DC yet, and we see it here with Neil Gaiman and publisher Todd McFarlane.

I applaud Gaiman's continuing victories, just as I applaud our mutual friend Harlan Ellison's unbroken string of victories in such matters, and I sigh heavily that neither Dave Sim or the poster who won't use his real name can understand the righteousness of Gaiman's actions...and that so many fans would rather root for publishers than for the creators who actually create the comics they love.

Maggie Thompson August 7, 2010 at 9:50 AM  

Addressing a couple of points made in the last few days:

(1) "I believe that's the main reason Gaiman won that case because with McFarlane paying him for royalties the jury took it to mean Gaiman was entitled to future royalties too." I attended the entirety of the 2002 trial, and I assure you that that was not why Gaiman won that case. The jury was given a list of questions to answer basically in favor of Neil or in favor of Todd; in each case, the finding was in favor of Neil. I do not recall the matter of existing royalty payments being involved in any of those questions.

(2) "You know any other place on God’s green earth from 1938 on that would pay you $100,000—or even half that—to write a funnybook?" I don't have personal knowledge of Neil's comics pay rate (though to give a lecture, his rate is $40,000), but I think it's a safe guess that his usual payment has turned out to be at least $100,000 per issue, not to mention whatever his income has been from licensed statues, shirts, etc. This includes income from such "work for hire" projects as Sandman.

Gaiman’s Son August 7, 2010 at 4:02 PM  

First Lambtoons is my name here didn't think I was hiding my name lol. I would assume that would be all the people posting as Anonymous lol

Secondly I was quoting Dave Sim's as I said he's the one who was paid to write issue # 10 which is all about creators write. I think everyone here should read it. He just like Gaiman was paid to write one of the four quest writer issues. He's the one who calls them funnybooks not me. I don't like the term ether. Anyway he was talking with other creators has they were trying to put together a creators bill of rights template and they kept bring up issue # 9 because the original case is just the type of thing they want to prevent from happening in the future.

I also agree fully with his statement that Gaiman getting paid $100,000 for writing Issue # 9 was mind-bogglingly generous. I do not believe he would of been paid that much to write a single issue of say a new DC title back then. I wish I too can someday not view $100,000 as a lot of money.

Out of the four guest writer issues I enjoyed Dave's issue the most as it was all about creators rights. And is something I believe in strongly about. My opinion may differ to others here but my statements are being made for creators rights. And in this case I feel the court is flat out wrong.

I'm not rooting for a publisher. I'm stating my opinions that side with the creator of Spawn and the Spawn universe. I'm disagreeing with the guest writer that was paid a lot to write a single issue. Yes I know that they did not have a written for hirer contract. From other comments Dave Sim's made he didn't ether. Heck he said he didn't even know how much or when he would get paid. I know they only had a verbal contract for McFarlane to treat Gaiman “better than the big guys” did, I believe he did treat him better.

The case ruled it was no work for hire because there was no written agreement between Gaiman and McFarlane, and Gaiman was not an employee of McFarlane. Also because McFarlane did not pay Gaiman a monthly stipend, health and other fringe benefits during the time Gaiman worked on the project, and didn't exercises overall though not necessarily daily supervision.

I'd like to point out McFarlane did not make any of the four guest writers his employees. Alan Moore showed us what Hell looked like in the Spawn Universe but you don't see him suing McFarlane every time a demon is shown in McFarlane's book about Heaven and Hell with Spawn stuck in the middle.

Ok so the jury was not shown letters that stated Gaiman as Co-owner of the 3 characters? Because from what I've read that seemed to be the only thing to give the first case any merit.

Gaiman’s Son August 7, 2010 at 4:26 PM  

The site that has Dave Sim's letters and others is
The ones that talk about issue # 9 are

A letter from Erik Larsen to Dave Sim
A letter from Dave Sim 7
A letter from Dave Sim 8
A letter from Erik Larsen 2
A letter from Dave Sim 9
A letter from Dave Sim 10

Dave Sims,"I’m certainly comfortable saying that $100,000 is high enough a price to pay for a comic-book script and that it should settle all questions of ownership. I quite agree with you that $100,000 is a bad buy if you get Brother Power the Geek and a steal if you get Superman, which is why I made sure not to put anything into my script that might potentially turn out to be an extremely lucrative property. I tried to give Todd the best possible script that I could—as I say pioneering the idea of a comic-book story that also functioned as a political cartoon, while not putting anything into it that could be commercially exploited all over the place. I think maybe that’s a primary difference between a work-made-for-hire writer like Neil Gaiman and myself. I don’t second-guess these things after it’s too late to do anything about it which I think is what Neil did. I just finished three months of negotiations with DC over a three-page Fables story that came to nothing, but I didn’t start work on it—and wouldn’t start work on it—until I had a contract that I could live with that I could sign in good conscience. Since that wasn’t on offer with the Spawn 10 job, I just made sure that there wasn’t a commercial property at stake that I would regret losing control over. To use Stu West’s own frames of reference, I would maintain that as intellectual properties go Angela was a lot closer to Brother Power the Geek than to Superman and that, consequently, relative to the commercial viability of Spawn it/himself in 1993, I think Neil was adequately compensated—in fact more than adequately compensated—for every possible commercial permutation of Angela that Todd used."

Maggie Thompson August 7, 2010 at 5:46 PM  

Regarding anonymity of comments: I always favor actual names being signed. I can't Tweet as "MaggieThompson," because someone else is using that name, so the closest I can come is "ThompsonMaggie." But that's the closest I come to not using my actual name. "Tony Isabella" is "Tony Isabella." And I'd love it if others were consistently as forthcoming.

Gaiman’s Son August 7, 2010 at 6:48 PM  
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Maggie Thompson August 7, 2010 at 7:10 PM  

Thanks, Michael! Much appreciated! Yes, I see this website has "Choose an identity" and then a "Google Account" choice. It'd be nice if the options were clearer.

Steve Chaput August 7, 2010 at 7:18 PM  

It's obvious that lambtoons did or does work for Image or McFarlane, so it is easy to see where his sympathy lies. However, I think he is purposely reading the decision to put a spin on it that makes the judge seem unfair. The worst are the snarky comments he makes about Gaiman, who simply wants what he is entitled to according to the original agreement with Todd.

I don't have a personal stake in the matter nor do I know either Todd or Neil (save for some brief conversations at cons over the years). Still it does seem only fair that Todd live up to his word.

Gaiman’s Son August 7, 2010 at 9:03 PM  
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Gaiman’s Son August 7, 2010 at 9:08 PM  

And how can anyone really take Gaiman's testimony seriously. That he would never make a Mobster Italian or a Judge wear a black robe or that in comics woman are usually shown wearing much more then Angela does.

The judge ruled the Medieval Spawn was from England simply because Gaiman testified if Medieval Spawn was from a different country he would of made the character speak a different language just to make kiddies look up the words. BS

And the funny thing is any other person or company could have done these characters minus the Spawn name and Spawn logo eye make up and not have been sued. Or if McFarlane himself tried to sue would of lost.

Google demon knight or warrior angel and see how many different characters your shown. There not copyrightable ideas. The judge is flat out wrong. Ironically only McFarlane is some how able to be sued by Gaiman for Spawn characters having Spawn characteristics.

Take Caretaker Ghostrider and Gunslinger Spawn their both very similar. Demon bounty hunters who sell their souls to the "devil" to be bought back to life in the old west. The both ride a horse and have great power given to the by the "devil". But in the end you can't copyright the idea.

But I think with everything having been destroyed in the Armageddon storyline McFarlane can do whatever he wants now. They clearly made the last angel look visually different to the past angels because of Gaiman's actions. Even though ironically a basic looking angel is all Gaiman probably had in mind to begin with. Given his testimony that Angela is not what he had envisioned and he never writes woman depicted like that. I would assume Gaiman's idea would of been totally un-copyrightable looking just like a medieval period painting of an angel fully clothed. But because McFarlane made the angels in his universe look unique to others by Angela having Spawn characteristics somehow Gaiman wrongly owns part of that look that was established before issue # 9.

Anonymous,  August 7, 2010 at 9:20 PM  

I do believe that not one but BOTH decissions were wrong.

And I'm tired of people sayung that it's ok that NG won because he is awesome.. His or TMc Awesomeness (or lack of) were NOT in trial.

Yes... face it. All that Greatness of NG was NOT relevant.. or should not be relevant.

I do believe that Medieval Spawn is in a higly % the same character as Al Simmons. Story and visual. So, I can't understand how a jury or a judge can say that has enough differences to be considered as ORIGINAL.

And then.. seen Dark Ages Spawn and using the same vision.. Judge that DA is DEREIVATED, when he is clearly not the same character, is not sharing the same visuals, or history..

The judge said something about DA been created in another universe (DC, Marvel, etc.) should be rightfully hunted by plagiarism.. and yes, of course. DA is a SPAWN with ALL related stuff from a Spawn.. been created in another universe it is plagiarism.. NOT in the same universe.

And, for what I been reding.. this second trial was because NG asked for rights over DA.. sayung it was related or derivated of HIS MS.

Thats a LIE.

Anglea, again, from what I've been reading, started in an idea of NG, then TMc do his stuff for the cover and.. NG sa¡id that what TMc did was NOT exactly what HE want o think.. but then he continue using TMc's visual for the story..

If you remember, Spawn #9 has not just Angela in full costume AND "kick @$$ attitude", but also some visulas of Medieval Spawn..

Spawn was, since the beginning.. a Soldier of Hell's army.. I dunno, but.. usually.. Hell's arny fights against.. HEAVEN's army.. so.. its not like NG has come out with an amazing and shocking idea.

Jon August 8, 2010 at 5:09 AM  

Thanks for the coverage Maggie, very interesting :)

I collected Spawn from #12 right through to #120, and I must say that when Dark Ages came out, I bought it expecting it to be Medieval Spawn. Same time period, very similar look. If I, as someone who would (at the time) buy anything with a Spawn logo slapped on it, was confused then I can't fault the judge for making the connection either.

Back when Tiffany first appeared, everyone knew she was basically a replacement for Angela. There's no question in my mind she's derrived from Angela. I'm just amazed the judge had the common sense to see it too ;)

Anonymous,  August 8, 2010 at 9:12 AM  

@ Jon

Mm.. I also read Spawn a little before than you and way after you leave.. And I never think MS was the same as DA..

Then again, OK.. And, when you read DA you still think that is the same character as MS?

Even when is clearly a different name and history, a differente epoch, different visuals and for the love of God. a different mood.

Gaiman’s Son August 8, 2010 at 2:30 PM  
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Gaiman’s Son August 8, 2010 at 4:49 PM  

The only artwork for Dark Ages Spawn that looked remotely like Medieval Spawn was McFarlane's variant cover to #1 which only showed an extreme close up of the face. Though even looking at a Spawn fan can clearly see the differences. An that's who the book was being sold too. All other artwork for the title looks vastly different there wasn't a mere "small changes" to the Medieval design as the judge put it. There was a compete reworking of the design.

Again the notion that there can't be another Spawn in armor between 900-1600 but any other Spawn is ok is absurd. All Spawn's have a suit that is alive and can transform on it's own or by the Spawn's power. Al Simmons Spawn could transform his suit to have the appearances of a knights armor if he or it wanted. It's not really armor its the same living hell creature attached to their skin. They can morph or evolve to fit with any environment or danger.

All Spawn's and Spawn costumes can only be derivative of the original Spawn. Just as any of the 100's of Superman's can only be derivative of the original Superman.

Yes some people might not be able to tell the differences between one Spawn or the other. And could very well confuse any of them no matter the differences. My mom sometimes confuses Superman and Spider-man. A lot of people can't tell one superhero from the other when clearly there are numerous not small differences.

No one who collected the series and read it was given the wrong impression that they were selling Medieval Spawn repackaged. They already told Medieval Spawn's story without Gaiman. As he testified he only contributed the death of the character.

Now they just wanted to tell an even earlier Spawn's tale. Again even if you like to believe a characters origins do not come from the 1st issue but later issues like the judge. The 12th century = 1100-1199. Medieval Spawn lived in the 13th century = 1200-1299 as Gaiman testified he'd place him roughly around 1250. Though 800 years before 1993 would of = 1293 closer to the 14th century then even the 13th. So clearly they both did not live in the 12th century as the judge wrongly ruled.

Jon August 9, 2010 at 5:04 AM  

@Hellspawn: The main thing I remember when reading it was being confused, as visually it looked like Medieval Spawn to me but certain things seemed to contradict what we knew about him. Which in fairness you could say points to it being a different character, but could also have been somewhat of a reboot. Beyond that well, it was too long ago and I didn't particularly like the series at the time, so I can't remember specifics.

@Lambtoons: I can't post pictures here, so I've done a blog post:
(appologies to Maggie for linking off her blog, but I need pictures to show where I'm coming from)

Gaiman’s Son August 9, 2010 at 9:37 AM  

Everything that looks remotely similar between Medieval Spawn and Dark Ages Spawn is standard on every Spawn. Spikes, skulls, the "M". Oddly enough Dark Ages Spawn's mask is totally different though it doesn't really have the Spawn symbol it's more of a skull with a bat-wing like shape on the side. Though I'd like to point out the Spawn symbol which is on ever other Spawn and angle character has been copyrighted since Spawn # 1 not # 9 lol.

To me his mask is closer in looks to Impaler Spawn then any other Spawn

Also note Dark Ages Spawn doesn't even have full body armor on him. Something that was heavily pushed by Gaiman's lawyers was that he was a Spawn in armor. Dark Ages Spawn has the same amount of armor as the original Spawn has from #32 on. His chest, stomach, upper arms are all bear just like the original Spawn.

Would it be fair if Gaiman own a % of Spawn from 32 on because his costume evolved to have more armor? They said it evolved fast due to him going to heaven and then battling Redeemer. Thinkfully they waited until issue 32 to do it and not in the Angela mini-series or Gaiman would now probably own 50 % of the original Spawn too.

Again is doesn't really matter because the suit can take any shape and it's still the same creature. No matter if like on Dark Ages Spawn and Spawn it's depicted as skin tight or as with Medieval Spawn, Samurai Spawn, or Impaler Spawn as having the appearance of full body armor.

The spikes on Dark Ages Spawn are way bigger and look more like the teeth of some hell creature then actually spikes even. If I remember correctly I believe Alan Moore came up with the idea that the spikes were k-7's teeth.

The boot on Medieval Spawn shown in the Spawn Bible looks more like the boot on Spawn from 32 on then anything shown on Dark Ages Spawn.

All the pictures that look remotely similar are from beginning of the Dark Ages series. It makes sense that all Spawn suits would start out having basic elements in common with the original Spawn then evolve over the course of the book to look totally different and unique.

Here's a page that shows the covers

Here's a detailed figure based on cover # 1

Again all elements that look remotely similar are elements of the original Spawn.

Anonymous,  August 9, 2010 at 2:26 PM  

For all those posting comments on one side or the other of this argument, or making judgments regarding the character of either participant in this case, please take this into account; nobody has sued Neil Gaiman! Neil gives credit to the original creators of any characters he uses or was inspired by (both VERY well known and completely UNKNOWN), and he always has. Neil continues to give credit to the co-creators of the characters he uses more than 20 years after the fact. Let all that soak in a bit while considering how you feel about the case and those involved in it.

Gaiman’s Son August 9, 2010 at 3:04 PM  
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Anonymous,  August 10, 2010 at 12:19 AM  

@ Jon:

To be fair.. Yes, thos images you post look very similar.

Then again, some of thos visuals are already Spawn's originals:

Spiked boots, M chest symbol, the helmet is just a derivation os Spawns's mask.

Anonymous,  August 23, 2010 at 1:35 PM  
This comment has been removed by a blog administrator.
Maggie Thompson August 23, 2010 at 1:58 PM  

Sorry, Anonymous, but I've deleted the post because (1) it has nothing to do with this thread, (2) involves private family matters that are of no public concern, and (3) is not the whole story in any case. I'm sure it can be posted elsewhere on the Internet but it doesn't belong here.

asadULTRAwalker September 29, 2010 at 4:53 AM  

not a spawn fan and not much of a gaiman fan either. to me, the core of the case is: did mcfarlane derive these characters intentionally? not: are they the same characters or do they look the same? more like: when writing the new characters (or hiring someone else to) did mcfarlane consider the earlier characters? of course, he did. he said to himself "man, that medieval spawn was cool and sold a lot of issues and has a cool hook with which i can make lots of toys." "man, that whole angela and the 330,000 other angels was a cool concept and i'm going to show some of the other angels cuz kids like semi-nude warrior women." i'm an artist (not comics) and i can tell you: get a lawyer. get a contract.

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