Gaiman v. McFarlane 2010: 2002 for the Record

Saturday, August 7, 2010

[This is a footnote to my running report on the 2010 hearing on the Neil Gaiman v. Todd McFarlane  case. To see coverage from the beginning, click here.]

Some questions have been raised as to the 2002 jury decision regarding ownership and copyright of Spawn #9 and Angela #1-3. I covered the trial and reported the outcome in Comics Buyer's Guide #1511 (November 1, 2002). (I took this photo October 3, following the trial. It was the first time since the promotional events for Spawn #9 that writer and artist had appeared together to sign a copy. Andy Carter, age 12, asked the co-creators to sign a copy of the issue, which they did.) During the trial, Judge Shabaz had given the seven-woman jury a list of 18 questions to decide. Since some were to be skipped, if certain others were answered in a specific way, the total questions decided October 3 came to 15. (The verdict on each question had to be unanimous.) Results were as follows:

1. Does plaintiff Neil Gaiman have a copyright interest in the following?
Medieval Spawn: Yes
Cogliostro: Yes
Spawn #26: Yes

2. Would a reasonable person in plaintiff Gaiman's position have discovered prior to January 24, 1999, that the McFarlane defendants were claiming to be sole owners of copyright interests in the following?
Medieval Spawn: No
Cogliostro: No
Angela: No
Angela #1, #2, and #3: No

3. Did the plaintiff and the McFarlane defendants enter into a contract in 1992?

4. Did the McFarlane defendants breach the 1992 contract?

5. Did the plaintiff and the McFarlane defendants enter into a contract in 1997?

6. Did the McFarlane defendants breach the 1997 contract?

12. Was defendants' failure to identify plaintiff Gaiman as a co-author of Spawn #26, Spawn Volume 6, or Pathway to Judgement a false description or representation of the origin of the work?

13. Does plaintiff Gaiman believe that defendants' failure to identify him as a co-author of Spawn #26, Spawn Volume 6, or Pathway to Judgement is likely to damage him?

14. Did plaintiff Gaiman consent in writing to the use of his name and biographical information on Angela's Hunt?

15. Did plaintiff Gaiman make misrepresentations or omissioins of material fact to defendant concerning his DC Comics contract during the negotiations of the 1997 contract?


Gaiman’s Son August 7, 2010 at 5:15 PM  

Opening up Spawn 26 I see Gaiman is not given the credit he is due for writing the four pages. Do you know which pages are his?

Question 14 makes it seem like he didn't want his name shown in the Angela TBB though. So for this he didn't want credit?

How can Gaiman legally wait until 1997 to make a written contract with McFarlane that deals with issues he wrote in 1993 and 1994? It just seems like he waited until years later to try and go back and then say he should of gotten paid more. I certainly can't go back to my old jobs and demand I get paid at the rate I'm making now.

What year was his DC contract from?

Was it shown in court?

Wouldn't one assume reading the inside cover that always states that the contents are copyright Todd McFarlane Productions. As declaring they are the sole ownership of the characters?

Maggie Thompson August 7, 2010 at 5:38 PM  

The pages in #26 were the pages setting up the Angela mini-series. The questions regarding his biography in the Angela collection involved the use of his name and biography to promote the book without permission (since by that point communications between the parties had broken down and the question of ownership was becoming contentious). Since the initial arrangement had been that Neil and Todd would co-own what had been created, the concern was that what had been agreed upon had not been fulfilled - which is what the jury decided. If you truly co-own something, then records must be kept and proceeds split accordingly.

Indeed, what Neil was being paid by DC at the time of his writing for Todd was part of the evidence in the 2002 trial, and a statement from Paul Levitz involving what DC paid its creators was included.

The statement of copyright in the published material was part of what was involved in the litigation - and (see the Q&A) found by the jury to be incorrect, in that it did not include Neil as co-owner.

Gaiman’s Son August 7, 2010 at 7:12 PM  

Ok I guess it was pages 14-17 when Spawn is taken away to talk to Gabrielle and the page after where he talks to Cog.

Yeah my point was about question #2. Would a reasonable person in plaintiff Gaiman's position have discovered prior to January 24, 1999, that the McFarlane defendants were claiming to be sole owners of copyright interests in the following?
Medieval Spawn: No
Cogliostro: No
Angela: No
Angela #1, #2, and #3: No
All Gaiman would have to have done was look at the first page from the first printing of Spawn # 9 and Angel # 1 they stated it was copyright Todd McFarlane Productions. There by they didn't give off the notion that they had a co-ownership and Gaiman should of said something then and not in 1999.

So what did DC pay him when he no longer was writing Sandman and someone else continued to write the book and develop the characters in the book?

bob August 7, 2010 at 7:46 PM  

McFarlane's lawyer made all those arguments about copyright notices. Not everything seems to be available online, but you can read the closing arguments from both sides that summarize the major issues.

I don't know if it'll convince you, but it convinced a jury (which saw a lot of evidence and was instructed on the details of the applicable laws), and it was upheld on appeal, so it's settled law now.

One important point seems to be that until early 1999, McFarlane generally acted as if Gaiman was the co-creator of the characters, sometimes paying royalties, entering into negotiations to acquire Gaiman's share of the rights (meaningless if his position was that Gaiman had no rights to acquire). So the first statement Gaiman got that McFarlane didn't recognize those rights was a letter in 1999.

Roblex,  August 10, 2010 at 9:20 AM  

I was not 100% sure of Gaimans position until the point was made that if some other unrelated & unconnected comic had published stories featuring the Dark Ages Spawn and Warrior Angels etc. McFarlane would have sued them for copying Medieval Spawn and Angela and would have won.

Ejly August 10, 2010 at 4:04 PM  

Thanks for posting the summaries. Interesting case.

Gaiman’s Son August 11, 2010 at 10:38 AM  

The funny thing is any other person or company could have done these characters minus the Spawn name and Spawn logo eye make up which have all be copyrighted since Spawn # 1 not Spawn # 9. And would 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. 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.

Anonymous,  August 20, 2010 at 11:39 AM  

You're right, if someone made those same characters without the Spawn symbols, then they couldn't have been sued successfully. But that isn't really what's being talked about here. You can't take the offending material out and then say that you are now innocent. It would be like getting caught with your hand in the cookie jar, but then when you take it out, you expect to not be in trouble. Those symbols are what make the characters the characters, and if you take them away, then they aren't the same characters anymore.

I admit I don't know a lot about law, but by my understanding, Gaiman owns the Medieval Spawn character, as well as the Angela character 50%. Which means that when they are used, then he gets some credit, or whatever.

If someone had put Dark Ages Spawn, or either of the two other warrior angels in their own comic, then McFarlane would have sued them, and would have won, because they are obviously similar to Medieval Spawn and Angela, which he co-owns. This means that they are derivative, because by the definition, if it wouldn't be allowed in an unrelated person's comic, then it's derivative.

Really, it seems pretty cut and dry to me. The characters would not be allowed in a third party's comic because of their similarities, so they are derivative. Because they are derivative characters of ones that Gaiman co-owns, then he has a valid claim to some of the profits.

Anonymous,  August 20, 2010 at 11:42 AM  

Also, as an addition to my above post, from what I've seen, McFarlane was the one who took it to court, not Gaiman. Sorry to link to an outside source, but on Neil Gaiman's blog, he talks about it, and seems to say that he wasn't the one who sued.

I don't know if this has been linked here yet, if it has, sorry to go over the same ground.

Goshzilla August 24, 2010 at 1:24 AM  

Thanks for the stellar reporting, and the civility you've maintained here in the comments section, Ms. Thompson! It was interesting and educational to read. Legal proceedings such as these always seem to leave me with something of a yucky taste in my mouth, but I have to say I was impressed by Mr. Gaiman's intelligent and slightly snarky responses to some of Mr. McFarlane's lawyer's questions.

Not that it's entirely germane to the discussion at hand, but I disagree with Mr. Gaiman's assertion that a majority of Super-Heroines aren't "scantily" clad. As much as it saddens me, I think that Mr. McFarlane had the right of it when he indicated that the preponderance of male creators and the infered demographic of comic marketing in general tends to leave a majority of female characters with sartorial displays that run more towards the "showgirl" rather than the "Shogun" in terms of practicality and protection.

That was a horrible sentence, sorry. But, I still think it's true.

Mr. Gaiman, however, as he indicated, does tend to largely subvert this trend in his own work, so I award muchos bonus points for him there.

Anyway, I think it's cool that Mr. Gaiman will be giving away the resulting payments to comic-themed charities, provided the money becomes available. I do admit to feeling some sympathy for Mr. McFarlane, as I get the feeling he honestly felt in the right in these matters, but ultimately, I can see the validity of the judge's decision. It feels something of a shame to me that these two worthies couldn't arrive at a consensus outside of the courtroom, but I do think that an interesting precedent has been set for future shared creator's rights.

Thanks again!

P.S. Somewhere around the 8th installment of this particular drama, Monty Python's "Spam" sketch entered my mind, unbidden, but with the Vikings singing "Spawn" instead.

George Noriega,  March 7, 2011 at 2:42 AM  


Your previous posts and points are all well-taken but they seem to lack a fundamental understanding of what happened between Gaiman and McFarlane. The matter at hand was the verbal contract entered into between Neil and Todd. There can be no doubt that this was NOT a work for hire agreement, since in legal letters back and forth between the parties Todd and Neil both accepted that they were "co-creators" of Angela, Cogliostro and Medieval Spawn.

McFarlane (or at least his lawyers) in one of his letters seemed to hedge their bets by trying to nail down what "royalties" meant, by bringing up the fact that Gaiman, under his DC contract(s), received "royalties" even though he didn't have an ownership interest in the characters.

I can totally see the point they were going for, but then immediately Todd (or again, his lawyers) basically torpedo that argument by agreeing to pay Neil royalties on statuettes and ancillary products, which he would not be able to receive UNLESS he had a copyright interest in the characters.

Todd's problem was that he later tried to backpedal and say that (1) the statute of limitations had expired such that Neil couldn't claim copyright violation, or alternatively (2) that this was a work-for-hire agreement and that Neil had no ownership interest in the characters. Which was an odd tactic and more than a little hypocritical coming from the man who publicly split from Marvel Comics and set up his own company specifically so that any creator who worked at Image would own the rights to his creation and wouldn't have to work under the dreaded work-for-hire agreement.

McFarlane lost on both of those issues because (1) the court ruled that NO reasonable person would have thought he (Todd) was claiming sole ownership through the copyright notice listed on the book(s), meaning that when Gaiman brought suit he was still within the statue of limitations, and (2) Todd basically screwed himself when he tried to swap the "Miracleman" rights for the rights to the three Spawn characters, because now he was admitting (a) that Gaiman DID own a copyright in the characters, and (b) entered into a contract with Gaiman where Todd agreed to transfer rights THAT HE DIDN'T FULLY OWN.

Now, whether or not Todd was aware of that or not, the bottom line was that, when he breached that contract, he THEN claimed that Neil had contributed only IDEAS about the characters (in particular Coglisotro and Medieval Spawn) and that he (Todd) was responsible for creating the characters themselves, and since ideas are not copyrightable, then Neil was in essence on a work-for-hire contract.

Not surprisingly, Todd lost that case and then on appeal the decision was upheld. So the bottom line is that Todd breached TWO contracts, the 1992 verbal contract and the 1997 "rights swap" contract, so he (correctly) lost his case. It doesn't get much simpler than that.

George Noriega,  March 7, 2011 at 2:45 AM  

Now the best part is how the, and I can only describe them as, "Todd McFarlane apologists" are upset that Gaiman gets royalties from the three derivative characters. Gaiman wanted an accounting for those monies, and Todd himself asked the court for a trial on that issue (whether or not the Tiffany, Domina and Dark Ages Spawn characters were derivative from the Medieval Spawn and Angela characters).

Instead, the judge had an evidentiary hearing and determined that Neil and Todd could successfully bring a copyright suit against a non-Image related company if they had published the characters of Tiffany, Domina and Dark Ages Spawn as Todd had published them.

In other words, they were derivative of the original Medieval Spawn and Angela characters that Todd and Neil had created, such that Neil was entitled to 50% of the royalties off those three characters.

What people just can't seem to comprehend is that Neil not having anything to do creatively with the latter three characters is irrelevant; the issue is whether the three characters are derivative of the characters that he DID create and that he has a copyright interest in, and if so, then he is entitled, BY LAW, to royalties from those three derivative characters. So the whole issue of whether Neil wrote 400 years and Todd later wrote 50 years or 100 years is absolutely irrelevant. Whether you think Neil didn't contribute enough to Cogliostro or Medieval Spawn is irrelevant. Whether Dave Sim or Erik Larsen feel that the verdict is unfair is irrelevant. Whether you think Neil Gaiman is a scumbag or Todd got what he deserves is irrelevant.

Gaiman is hindering NOTHING; Todd can continue to use whatever characters he wants. There is no injunction or ruling barring Todd from using Cogliostro, Angela, Tiffany, Domina, Medieval Spawn or Dark Ages Spawn. And Todd is not prevented from creating any other angels or Spawns; however, if he DOES use the previous six characters, he is required, BY LAW, to pay Gaiman a 50% royalty. And if he creates any new angels or Spawns that are determined to be derivative of the original three, then he must also, BY LAW, pay Neil 50% royalties on those characters as well.

It's a pretty cut-and-dried case and the fact that people are coming down on one side or the other has more to do with individual biases more than the legality of the ruling, because from a legal standpoint the jury and both the district court and the appellate court were 100% correct on the legal issues.

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