Gaiman v. McFarlane 2010: Brian Holguin on the Stand

Wednesday, July 7, 2010

[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.]

Part Eighteen Todd McFarlane attorney Alex Grimley asked defense witness Spawn: The Dark Ages writer Brian Holguin whether he'd read Spawn #9. Holguin replied, "Long ago - and I reread it recently." "There's a courtly style of speech. Did you try to emulate that style of speech?" [Medieval Spawn's dialogue in that issue is reproduced in Part Twelve.] Holguin answered, "No, not at all." Asked about Spawn Bible (August 1996), Holguin said, "I wasn't aware it existed." There was a discussion about whether the Dark Ages Spawn Holguin had written had fought and died in the Crusades or died in Ireland, and Holguin said about the character he had written, "He felt that [what he'd done] was his duty to his church and to his God." [As noted in Part Seventeen, Holguin provided comments on my transcribed notes.] Holguin wrote June 27, "I think they were asking me specifically about the 'Medieval Spawn' entry in the Spawn Bible. They were holding up the issue opened to that page. Again, I knew the Spawn Bible existed and had seen it at Todd's office but don't remember ever referencing it at all. I would usually just ask Todd if I needed character background. I hadn't seen the 'Medieval Spawn' entry until the day before the hearing, when I saw it in the lawyer's office. The history of the character (I believe written by Tom Orzechowski) is completely different from the Dark Ages character."

Grimsley asked whether there was a backstory for the character Holguin had written. Holguin said, "It doesn't surprise me that Mr. Gaiman said he had a backstory in mind. There's [no backstory] to take. The character shows up and is immediately killed." Holguin wrote June 27, "Yeah, this is the thing that puzzles me. I take Neil at his word that he had a backstory in mind, but where was it ever published or printed that I could have had access to it? It's certainly not in Spawn #9. If there are points of similarity, to my mind it must be coincidence. I don't see how I could have known what the history of Neil's character was, if it was never published or shared with the public."

Holguin wrote an introduction to the series in Spawn: The Dark Ages #1. It included the passage, "This is a Spawn book. It is a new chapter in the canon of one of the most successful entertainment franchises of the last decade. There are legions of fans out there with very strong feelings about the Spawn mythos and what exactly it should and should not be, and they are not shy (or subtle) about expressing themselves. I'm not going to pretend that's not a little intimidating." When Grimsley asked why Holguin had referred in it to the framework - "A flawed but ultimately good man finds himself at the mercy of a devil, who bargains with him for his soul. The mortal agrees to become a Hellspawn, a nascent soldier in the army of Hell, in exchange for a chance to return to earth and to perhaps, just maybe, earn his salvation and free himself from the devil's grip." - Holguin answered, "To let readers know, if they're Spawn fans, that it's part of the same world. I also wanted to state the theme of the Spawn universe." He was asked about his passage, "Oh well. A little pressure is good for the soul. Because, in the end, this is a book that must (and I believe does) stand on its own. It must not only honor the Spawn tradition; it must add to it." Holguin answered, "I wrote [the series] to stand on its own, and the whole tradition is they're all meant to be self-contained." He said he had discussed with McFarlane an aspect addressed by artist Liam McCormack-Sharp in his introduction in that issue: "I have tried to get a genuine feel for the period and have kept well clear of fairy tale settings, while infusing the piece with, I hope, some sort of contemporary sensibility." Holguin said, "This was meant to be dark and gritty and Gothic, a rough, tough comic book."

Concluding his testimony with Grimsley, Holguin said he was "quite a fan" of Gaiman's work. He concluded, "If Todd had asked me to take Medieval Spawn and spin it off, I'd have been happy to do it, and that's not what we did."



Ian A,  July 8, 2010 at 4:49 AM  

Thankyou so much for this. It is interesting, informative and most important of all, unbiased. I can see both sides of the coin here but I'm thinking all the while Neil is being very calculating. It doesn't seem to me that the issue at hand is really the point. There is something else going on. I'm sure there is a whole underlying reason for this. Marvelman keeps popping into my head...

Keep up the good work Maggie...

Maggie Thompson July 8, 2010 at 7:47 AM  

Thanks! The Marvelman/Miracleman ship sailed some time ago. Marvel's "Marvelman Family's Finest" #1 (of 6) ships today, and "Marvelman Classic" Vol. 1, while delayed in release, is now scheduled to ship from Marvel on Aug. 24.

Gaiman’s Son July 8, 2010 at 2:18 PM  

Firstly thanks for covering this so much.

I never fully agreed with the verdict that Gaiman was co-owner of Count Cogliostro and Medieval Spawn characters. As his contributions to those two characters were so limited. Also I believe he was paid as a work for hire just like the other 3 writers McFarlane hired for issues 8-11. I believe McFarlane lost the case only because he had been more then generous to Gaiman for giving him royalties for figures based on the likeness McFarlaned draw and created. And to Gaiman's own testimony were not what he had envisioned.

I agree that he does have a right to own Angela 50% though. As he wrote almost her whole appearance. But the current case I totally disagree with him.

It seems he's basing his case on the similarities on the artwork of the characters and not on the story characteristics of the characters. McFarlane is the creator of the Spawn Universe and its look of all characters and elements are derived from issue # 1 not #9.

In issue #4 Malebolgia makes it clear that they are building up an army to fight God and his army. I do not think Gaiman created anything creatively unique in the idea that God's army would be made up of warrior Angel's.

I would like to hear what Alan Moore thinks as he was basically hired to work out Hell for McFarlane as Gaiman was for Heaven. Besides issue # 8 he worked on 3 other 3 issue mini-series continuing to develop the history of the Spawn costume, Hell, and Violator and his brothers. He also help write issue # 37. It'd be interesting to see if Todd gave him royalties for figures based on the Violators brothers. Or for The Freak which McFarlane created but Moore provided the dialog for.

I mean you don't see Alan Moore suing Todd ever time Hell or a demon is mentioned in the comic. And I find it just as unjustified for Gaiman to lay claim to credit every time Heaven or an Angel is mentioned in the comic.

Gaiman’s Son July 8, 2010 at 2:21 PM  

Gaiman really invested so little into the character of Medieval Spawn that he still believes the character lived in the 12th century. When the canon went on to say his character lived in the 15th century not the 12th.

So apparently Gaiman didn't bother to read any of his characters back-story that Garth Ennis (Punisher, Preacher) helped develop in the mini-series.

Gaiman quoted over and over that in issue #32 which McFarlane wrote a character states that a Spawn is chosen every 400 years. Of Course that character was wrong. No one seemed to quote the line Gailman wrote himself in issue # 9 were he says,

"Hellspawn takes much energy and time on the part of the Malebolgia; thus far it has not created more than one in 50 years, and usually not more than one a century."

So obviously these two Spawn could both be from around the same area and not be the same. Although the stories are really 300 years apart.

Gaiman is also wrong about the crowd of Spawns around Malebolgia true most are just solders but some are Generals from past generations. They are just in Hell because they we're slayed or their powers ran out. McFarlane should of took more time drawing that page to better illustrate the point that their all from different times.

In issue #119 there is a similar page better illustrating this on the page it shows a Gunslinger Spawn amongst other Spawn's from different times and even dimensions. His story was told in issues # 174 and 175.

There's also been a WWI area Spawn told in issue #179 so the 400 years rule was never a real rule.

Again Gaiman himself said 50 years. Why did no one site this?

If these characters are derivative of Gaiman’s characters, then Gaiman’s characters are also derivative of McFarlane’s original Spawn character. So Gaiman is now reversing his earlier position and should lose all rights to the characters.

Gaiman’s Son July 8, 2010 at 2:26 PM  

I like how he claims he could create different personalities for Knights in armor but doesn't feel McFarlane and company could.

"Returning to the question of whether there were any stock characteristics of a knight in armor, Gaiman answered, "No, because you'd have - It depends who's in the armor, what they're doing. ... I mean, I could sit here and come up with a dozen different kinds of knight-in-armor characteristics. ... You know, even in the Arthurian legends, there are hundreds of knights at the round table and they're all very different. You can't point to Gawain and say he's like Galahad or Lancelot going mad. They're very different people. You have an impulse for good for most of them, but, then, you have knights in armor who were evil or bad or whose motives are mixed up and conflicted."

He said it himself it depends who's in the armor and it was not the same character that appeared in issue # 9,14,15 and the mini-series. It was a new story as it stated in the beginning of the first issue of The Dark Ages series.

Gaiman is only confused due to his lack of involvement in the continued development of the Medieval Spawn character. He also stated he did not create and did not recognized the Dark Ages Spawn Lord Covenant when they showed him the figure.

The Dark Ages Spawn series was much more dark in look and tone then what was show in issue # 9. They are clearly two different Spawns.

The warrior angel's look different then Angela too. Besides Gaiman did not create the look to begin with as he stated Todd draw the cover before he wrote the issue. Then he through in the elements from the cover like the dagger and the shield.

Gaiman testimony was just ridiculous denying that in stories there are stock characters like Italian mobsters or a Judge wearing a black robe. Because he know it would come back to the fact that he contributed such little creatively unique ideas in issue #9 like a drunk old bum or a knight in armor or warrior angels fighting demons.

I does not deserve half of the Spawn Universe which is what he seems to be laying claim too.

"If you're writing comics, what you always want to do is leave the ground more fertile than when you were there. You want to leave more stuff for people who are going to be writing ongoing series to play with, which is why it was fun for me giving Todd, for example, the idea that there had been lots of Spawns. It was something that left him with more than had been before."

Seems to me he gave Todd nothing but wanted to sell Todd the idea at a very high price.

McFarlane's paid Gaiman $170,000 for writing a little over 4 comic books I think that's enough money for the amount Gaiman contributed.

I mean how do you decide how much to give to someone who hasn't invested any more of his time, effort, ideas, or money into any of the many projects McFarlane took on? Clearly he does not deserve half of the profits from everything in which the three characters appear in. As his involvement was just writing 4 comics and 3 pages.

If Gaiman wins will he continue to sue McFarlane for all the other incarnations of Spawn as he claims he gave McFarlane the idea?

McFarlane devoted his time and money into developing the characters. He paid other writers to continue to develop the characters. He hasn't used the 3 characters since he lost the case. All Gaiman did was take away from were the Spawn universe can go he hindered it by being a part of it.

McFarlane if he had not already though of the idea's Gaiman put in issue # 9 would of done so in time.

He would of went on to tell the stories of other Spawns. He would of gave Spawn a mentor. And most obviously we would of seen the other sides army at some point. And it would of had angels.

Sorry for ranting so much. But I do feel strongly that Gaiman hindered the direction the book was aloud to go in after his lawsuit. Now it looks like its being treated even more.

Maggie Thompson July 8, 2010 at 5:00 PM  

It's important to note that Gaiman's contribution was not done as work for hire and that the 2002 jury trial conclusion and the judges' decision upon appeal concluded that Gaiman and McFarlane co-own what had been created in SPAWN #9 and ANGELA #1-3.

Gaiman’s Son July 8, 2010 at 8:11 PM  
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Gaiman’s Son July 8, 2010 at 9:35 PM  

Here's what Greg Capullo artist on the Angela mini-series had to say about the current case, "It's such B.S.

Um... Guess who created Angela's final look AND designed from scratch Kuan Yin & Anahita.
Maybe I should be going after Gaiman for a slice of HIS pie. ***** *****."

Here's what Dave Sim's who was hired to write Spawn # 10 said about the old case,"

In my own view, I’m not demonizing Neil, I’m disagreeing with him. I think the question is one of "What exactly was Neil asked to bring to the table?" in agreeing to do a Spawn guest-writing gig and, as far as I know, none of that was covered in the deposition stage of their trial or, if it was, the depositions weren’t quoted in CBG (the only place I saw it reported). What, specifically, did Todd offer to Neil over the phone and what, specifically, did Neil agree to? Yes, there’s no question that a lot of Todd’s motivation was to engage the services of comics’ two most highly respected writers (Alan and Neil) and two of comics’ most highly respected writer-artists (Frank and myself) (mm. Make that one of comics’ most highly respected writer-artists and one misogynistic, self-publishing crackpot). In the context of the time, a major criticism leveled at Image from the beginning was that the writing was atrocious which might have had more to do with Youngblood being the first book released than anything else—I don’t think Rob Liefeld would dispute that writing was never his strongest suit. Getting guest writers to contribute to Spawn was a good political response from someone I consider a good gut-level politician in the comic-book field. You break the "atrocious writing" reputation by confronting it head-on. You get Alan and Neil and Dave and Frank to change the nature of the assessment…
(and, as Todd rather gleefully told me over the phone, you do it by turning it into a "pissing contest"—who can piss the farthest. And I think that was possibly part of what appealed to Neil who had already followed Alan Moore on Miracleman: presumably both for the creative challenge of measuring up to Alan’s work and reputation—can you think of anyone else who would willingly follow Alan Moore on a title?—and for the genuine affection and regard that he holds for Alan (which is unquestionable). I certainly wanted to write a good story that wouldn’t look out of place alongside Alan’s and Neil’s and Frank’s and personally I’m not offended by the term "pissing contest" although I assume that Neil would be. It’s just a very Todd-like way of expressing the natural competitiveness between creative people.)

…by using them to beat the perception over the head for four consecutive months which effectively worked. Image continued to be criticized—particularly for their pathological lateness—but the blanket criticism that the books were universally badly written pretty much dried up in the aftermath of the four guest shots and Image books came to be assessed on their individual merits rather than dismissed by blanket condemnation...

Gaiman’s Son July 8, 2010 at 9:37 PM  

More of what Dave Sim's said about the old case,"For me, I thought it was fun in the sense that I had never before participated in framing a super-hero mythos, a key element in the comic-book field in which I had been participating for nearly two decades. It was in the spirit of fun that I was the one who phoned Alan and asked him what he was writing in issue 8 so I could tie my story into his. When he told me about the Levels of Hell, I told him to mention Level Seven as an unknown kind of thing—spooky, spooky—which he "affably" agreed to do without even asking what I was up to. I had Neil send me his script and thumbnails (which I had forgotten but ran across putting together the Cerebus Archive) so that I could do as reasonable a segue from his story into my political cartoon as possible and, so far as I remember I sent my script to Frank so that he could incorporate something from what I had done into his own issue (a reference in the first couple of pages to Spawn having a terrible dream including "an aardvark who smoked", as I recall).

So, I think there’s a problem with trying to establish this as an "All Business" transaction with Todd as the cigar-smoking exploitive CEO of Spawn, Inc. and the four of us as high-priced guns-for-hire who didn’t know Todd from Adam and who were universally and warily holding him at arm’s length. To me—and the impression that I had from Alan and from Neil and from Frank when I tried to do a minimal amount of coordination—this was a lark, a bit of fun. I’m not sure if I even knew that I was getting paid when I talked to the other three and there was certainly none of the usual sharing of business confidences that tend to mark these situations when it’s just you and another artist on the phone talking behind the publisher’s back. I phoned Todd at one point and asked for some inside stuff on Spawn that I could mention in the first two pages. It was interesting to me that I only had to read, at the time, five comic books and I had the entirety of Spawn’s "back-story" to work with. To do the same thing today, I’d have to read over 150 comic books which to me is the difference between "fun" and "excruciating".

If it was a pure money transaction and once the dollar amount was established, Neil went for it then I would think that that might change the complexion of the creator’s rights issues involved. If Todd offered Neil $100,000 to write a comic book, and Neil agreed and didn’t ask "What about ancillary rights?" then presumably Todd is on solid ground, he bought Neil’s comic book story and everything that went with it when he named the dollar amount and Neil said, "Sold."

I think it’s reasonable to think that $100,000 is fair compensation for writing a funnybook and any character you might have thrown into the pot. In fact I think it’s excessively, mind-bogglingly generous."

Gaiman’s Son July 8, 2010 at 9:42 PM  

More of what Dave Sim's said about the old case,"If I were in Neil’s situation and I had created a character in Spawn that Todd went on to use in the film and the animated cartoon and as an action figure, I would hope that what I would say is "Okay, instead of getting paid $100,000 for writing a funnybook, I got—let’s say—$65,000 for writing a funnybook, $10,000 for the character being in the film, $10,000 for it being an animated cartoon and $15,000 for the action figure." You can move the amounts around from category to category whichever way you want, I think they still come out to excessively, mind-bogglingly generous. 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 also think that whether you chalk it up as a failure of the American judicial system a bad faith negotiation on Todd’s part excessive greed on Neil’s part or any combination or permutation of all three, I think we can at least agree that the way that Spawn 9 happened and what happened with it is "no way to run a railroad". And with all due respect, I think that a template contract would be the way to avoid future disasters like Spawn 9 from taking place."

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.

It seems to me that getting paid $5,000 a page by Todd for writing a script and ceding all rights to him—my only previous experience with work-made-for-hire—is infinitely preferable to getting $500 a page from DC for a pencilled and inked page where there is a written contract but no basis for negotiations. If anyone out there wants to pay me to write an issue of their comic book for $5,000 a page, please feel free to contact me through this website. I can assure you that I will happily surrender all rights and implications of that story to you in perpetuity."

Gaiman’s Son July 8, 2010 at 9:43 PM  

More of what Dave Sim's said about the old case,"Even though a court of law said Neil had a case, I don’t think it serves the comic-book field’s best interests to see that as a precedent—or, perhaps, more accurately—that it proves that those things need to be established by the publishing creator. "I don’t go in for that. If you want to take back Medieval Spawn, go ahead, but I don’t see variations as innovations and I can’t concede ownership of something that’s just a modification of my own intellectual property". I think it was a very badly-reasoned verdict in the Neil vs. Todd trial that would make very bad case law—all you have to do is reverse it to see that: what if Neil had created Medieval Spawn and sold it to Vertigo? Would anyone in their right mind think he was entitled to do so?"

I also like to hear what Alan Moore and Frank Miller thank about it all.

Anonymous,  July 9, 2010 at 10:09 AM  

lambtoons, et al...

You seem to be forgetting that Neil Gaiman isn't fighting for this again - McFarlane chose to bring it to court again, now that he could afford to. And Gaiman is donating all of the proceeds/profits to Comic charities, he's not financially benefitting from this. But there's no question that McFarlane has generated a significant amount of income, not necc from the comics, but definitely from the merchandise.

Further, the whole point of Image from day one was supposedly to treat writers and artists who created characters with more respect and financial appreciation than Marvel & DC had done in the past.

Gaiman’s Son July 9, 2010 at 12:19 PM  

Yes you should read Spawn # 10 that Dav Sim wrote it's about creator rights. Again Neil Gaiman was not the creator of the Spawn universe Todd McFarlane was.

Of course Gaiman can "donate" whatever profits he's already been fairly paid. I guessing McFarlane must of gotten a letter from Gaiman to warrant taking it to court. Of course he wasn't going to pay Gaiman for characters Gaiman had no part in creating. And if he did pay him anything the court would of taken that as "proof" he was giving Gaiman co-ownership of the Spawn universe.

Gaiman said there we're 333,000 angels in the spawn universe. So he feels he's entitled to a cut of ever future angel that is made and developed and given a story and look without his help. No, that is just not fair. Like I said before that would be equivalent to Alan Moore demanding McFarlane pay him for every time a demon is shown in the book. Or Frank Miller wanting a cut for the iconic shoelace stitching look Spawn sported from issues 24-50 due to his run in with Bat-man.

As Gaiman stated in his own testimony the purpose of a writer on a book (and in this case a guest writer) "If you're writing comics, what you always want to do is leave the ground more fertile than when you were there. You want to leave more stuff for people who are going to be writing ongoing series to play with."

McFarlane's Spawn was always going to be about "Good" VS "Bad", "Heaven" VS "Hell", "God" Vs "The Devil", Armageddon with Spawn suck in the middle as just another of the devils little pawns. Gaiman did not write anything creativity unique in his story of an angel fighting a demon. Gaiman’s paid working work on the book only hindered the direction the book is now aloud to go in.

As Gaiman stated in his own testimony these current angels are not angels from the Angela mini-series. So he had no part in their creation. And again the look of them was not what he had envisioned. He wrote in the elements that Angela wore after seeing McFarlane's cover to #9. So any similarities are of McFarlane's own creation not Gaiman's.

All the merchandise is based off the look not the stories (that besides Angel Gaiman didn't even write). As Gaiman stated in his own testimony Angela's look and the look of the of the other angel's where not what he had envisioned them to look like.

He also did not even recognize the Dark Ages Spawn Lord Covenant figure because it's not the Spawn he mentioned in issue # 9. Although I bet he would be hard pressed to even know what "his" Spawn even look like ether as he developed nothing but how the character dies.

Anyway the whole point is these are not the same characters Gaiman wrote in the 4 issues he was paid to write.

Any similarities in the look are derivative of McFarlane's original Spawn not the look McFarlane himself give Angela and Medieval Spawn as they were obviously derivative of Spawn.

I don’t see variations as innovations and I too would never concede ownership of something that’s just a modification of my own intellectual property.

Anonymous,  July 9, 2010 at 1:54 PM  

Yes, I read and collected Spawn from issue 1 through 125 or so before I lost interest in the character, so I am familiar with the story. My point was, perhaps there should be an effort to care about the appearance of falling into the Marvel/DC trap. Of course, YOU still think Neil Gaiman did it "work for hire," which NO ONE in the court case is arguing about.

I am happy that we know what you would do with your characters, but you're NOT Todd McFarlane, and he DID agree that Gaiman was co-creator on Angela and "Medieval" Spawn.

"Gaiman said there we're 333,000 angels in the spawn universe. So he feels he's entitled to a cut of ever future angel that is made and developed and given a story and look without his help."

Where do you see that in the testimony?

I'm curious why you are so angry and hostile towards Neil Gaiman. You are far more aggressive towards him than Todd has been or vice-versa. What do you have invested in this?

"Gaiman’s paid working work on the book only hindered the direction the book is now aloud to go in."

It doesn't appear so - McFarlane seems to have no problem going wherever he likes, whether it's "allowed" or not. And I don't see why he would be restricted, except maybe with the whole Tony Twist thing, if that was part of the court ruling.

And you still ignored my actual point, which was Gaiman didn't initiate this legal action, McFarlane did.

Maggie Thompson July 9, 2010 at 2:05 PM  

Hey, hey, folks, I think we can chit-chat about the case without nastiness. I was there, and I admired every single person in that courtroom for their civility and pleasantness to each other. As I will comment eventually, the contending lawyers were helpful, Todd provided suggestions to Neil's attorney on a possible way to make the electronic equipment function better, and so on. Some of the remarks have begun to skirt the edges of politeness here. I think commentators can suggest viewpoints without attacking other commentators. And, if they can't, I guess I'll have to start deleting comments - which I do NOT want to do.

Gaiman’s Son July 9, 2010 at 2:42 PM  
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