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

[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."


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."

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Gaiman v. McFarlane 2010: McFarlane on Spawn Basics

[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.]

Part Twenty [Apologies to diehards who have been patiently hanging in there, as I dole out installment after installment. At the end of the hearing day June 14, when I asked defense witnesses Brian Holguin (left) and Todd McFarlane (right) to pose for photos, Todd suggested they stand by the parking meters across the street from the Robert W. Kastenmeier United States Courthouse - symbolizing the wait for the time until the decision would be announced. (Note: They struck a different pose for each of three shots. This is the "serious" one.) I fear the wait for me to wrap up this coverage could exceed that time. Here's hoping I can finish this report before Senior U.S. District Judge Barbara B. Crabb announces her decision. Or maybe I shouldn't hope that; I know all involved are in a state of suspense until matters are resolved.]

McFarlane took the stand. Asked by his attorney Alex Grimsley to describe Spawn, he said, "It's a love story." The central character dies but is offered a chance to return to see the woman he loves, and McFarlane noted that Simmons' wife is named Wanda, as is his own wife. "The main concept is that Al Simmons literally trades everything to come back one last time, and he's signed on the dotted line. But the world he comes back to is topsy-turvy, his great love is now remarried, there's a child, and now he finds he's got these fantastic powers - but he's stripped of his skin, so he's unrecognizable: all power but no identity. That's the beginning of his journey."

Asked to describe the role of the Hellspawns of which Simmons becomes one, McFarlane said, "From Biblical times, there's a build-up for Armageddon. So you need soldiers - grunts - in their armies. You also need generals. The Spawns on Earth are in training." Asked to compare the Al Simmons Spawn to Medieval Spawn, McFarlane said, "The shield has the Spawn logo that appeared on the first hundred-plus issues, and that indicates Spawn. There's the mark on his mask." Discussing the logo, McFarlane said he'd wanted one "like the old-fashioned comic-book symbols." He compared it the "S" in the diamond on Superman's chest and Batman's bat symbol. "The Spawn logo is my own 'S.'" Grimsley said, "Regarding Spawn #9: Neil wrote the script. Did he ever reference the name 'Medieval Spawn'?" "No, his name is Spawn." There was a "Medieval Spawn" action figure; McFarlane said, "At this time, the toy company wasn't in existence."

Asked what characteristics of the original Spawn he'd used when he'd drawn Medieval Spawn, McFarlane replied, "I used almost every single one."

* "the mask with the white mark" (to contrast with a black mark for villains)

* green eyes

* red cloak

* spikes on arms and legs, "though not exactly the same amount"

* an "M" on the chest

* a skull on the belly

* chains

* a clawed hand
* "gnarly skin" from having the flesh ripped off
"Essentially, I took the original costume and gave it a different veneer." Asked to explain an illustration from Spawn #8, he said, "It's the costume coming alive again. It can morph because it's alive in and of itself." He continued, "All Spawns came from the original, pre-existing Spawn. The Spawn in Spawn: The Dark Ages was similar to the original Spawn. [For example] all Spawns have green eyes: In Sunday school, they say we're created in the likeness of The Master. Spawn's Master is Malebolgia, so he has green eyes."

Al Simmons in life was African-American. McFarlane said, "African-American super-heroes don't get their fair shake. In Simmons, we get rid of the one thing we do when we prejudge: strip it away. He's a hero, regardless of what color the skin is. He's not human; he's not made of flesh and blood; he doesn't actually have eyes. He says, 'I'm made out of something ... else!'" Regarding the spikes and skulls? "They are just cool stuff. Spikes are a big part of the character."

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Gaiman v. McFarlane 2010: Writing "Marvel Method"

[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.]

Part Nineteen Neil Gaiman attorney Allen Arntsen asked defense witness Spawn: The Dark Ages writer Brian Holguin whether he was familiar with the entire body of Spawn comics. "I'm not familiar with the entire body of work. Todd was saying to forget about it." Holguin described the process of creating comic books for the Spawn-connected series he'd worked on: He and McFarlane had worked "Marvel method." In that process, the creators discuss what will happen in the story in general, dealing with whatever specifics they feel are important; then, the artist lays out and draws the story, and the writer then provides the dialogue and other text. (In the "full-script" method, in contrast, the writer - like a screenplay writer - provides virtually all the text before the artist illustrates it.) As noted in Part Seventeen, Holguin's first published Spawn work had been for Spawn #72 (May 1998): the story "Bloodless." The credits on the issue showed the story as by McFarlane and Holguin, the pencilled art as by Greg Capullo, and inking on the art as by Danny Miki, McFarlane, and Chance Wolf. "Todd and Greg worked out the story." Holguin dialogued it later. "After six issues, I took over both plot and script." Asked whether he was aware of the character Violator, who had appeared in Spawn #14-15, Holguin replied, "I'm aware now, not then. There were 70 issues; I'd read 25 or 30. I worked on the animated show, and the movie came out about then." He said he wanted to get away from the existing cyborg-assassin character Overt-Kill (aka Overkill). Arntsen asked, "Who made the decision to set Spawn: The Dark Ages in the 12th century?" "That would be me," Holguin said, "because of the Crusades."

Asked to discuss the relationship between Lord Iain Covenant and Baron Rivalen (the two identified as such in Spawn: The Dark Ages #2), Holguin said, "I haven't seen the books for a decade. I don't recall the relationship: whatever it says in the comic." The same went for Covenant's wife, Eloise, also in #2. Arntsen referred to Dark Age's Spawn's dialogue on the first page of #8: "You say this angel ... this seraphic huntress as you call her ... She is out to slay me? Very well then, I say. Yes. I am glad of it. I am ready for the dark embrace of the grave. This is no life for a man." Discussing the approach to writing that dialogue: It could have been in Middle English. Holguin said, "But I don't think you'd sell many copies." The judge laughed. "I don't, either."

[As noted in Part Seventeen, Holguin provided comments on my transcribed notes.] Holguin commented on June 27, "Ha! I didn't realize the judge laughed. It's weird: Both teams of lawyers seemed to really be invested in the notion of whether the characters 'spoke Medieval,' which just seems ludicrous to me. Both Neil and I testified that there's no such thing as 'speaking Medieval.' And even if you decided that Covenant speaks in a faux medieval dialect, then so does literally every other character in the series. Does that mean they're all interchangeable? It's so strange how the things you think are important as a creator and the things lawyers or judges think are important are so far apart."

Regarding the language, Holguin said, "It's a little poetic. It's a little flowery. But it's a dramatic moment. The dramatic monologue is bread and butter in the comic industry."

McFarlane attorney Alex Grimsley then asked about heroic speech, and Holguin said, "It's not necessarily realistic."

One witness remained to be examined: Todd McFarlane.

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Gaiman v. McFarlane 2010: Brian Holguin on the Stand

[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."

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Gaiman v. McFarlane 2010: Dost Speak Medieval?

[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 Fifteen Todd McFarlane attorney Alex Grimsley asked Neil Gaiman, "What period in time is Medieval Spawn from?" "800 years ago ... 12th century ... Obviously, somewhere between 1100 and 1200, maybe 1250, if you wanted to push it." ... "And there was nothing in issue #9 that told us what country this character lived in?" "I assumed it was England, but I don't think we ever locked that down, that part." "So there was nothing saying whether he was English, French, German, whatever." "He does speak English." "But it's an English comic book, correct?" "Yeah, but I'm the kind of person who actually, if it was in France, might well have written in French just to make kids go and look up French words in dictionaries. I did that recently with some Latin stuff in a comic." "OK, so if a Medieval Spawn spoke French, would that be different than the character you created?" "Actually, a Medieval Spawn, thinking about it, probably would have been speaking French. ... Because Saxon would have been - I'm sorry." "OK, but your character spoke in English." "His dialogue was written in English." "So, if his dialogue was written in French, would that be a different character than the one you created?" "I've seen issues of Spawn #9 translated into French and Japanese and Spanish, and it's the same character."

"If there was ... a Spawn from medieval times who spoke in rap, would that be different than the character you created?" "One would assume he was under some kind of horrible spell." "Is that a 'yes'?" "That was - I think it's a silly question, with all due respect." Grimsley referred to Spawn: The Dark Ages #1 (March 1999) and the first appearance of the Spawn shown in that series. "He simply says, 'What am I?' right? ... Is that line particularly medieval ... speech?" "No ... That's a simple English declarative sentence. It would have been the same going back all the way. That's nice." "OK," said Grimsley, "so a modern person would not say, 'What am I?'" "The ... King James Bible, which was written a long time ago, is filled with beautiful simple English declarative sentences that we would say now and that they said then. ... It's a glorious little sentence." "And in your mind, that's speaking medieval?" "In my mind, that's a good, clear English declarative sentence." "And is that speaking medieval?" Gaiman replied, "There is no such thing as speaking medieval. Medieval is a time period. It goes approximately 1,000 years, maybe 1,500 years, but definitely 1,000 years. It's not a language." Grimsley asked, "The way that you view the way Medieval Spawn spoke is really in just short declarative sentences, there's nothing else distinctive about his speech?"

Gaiman said, "No, I had him talking to a young lady in fair knightly terms." [All of Medieval Spawn's speeches appear in this post.] "That's something that - a character, you assume, has learned a little knighthood and he's talking to a young lady and he's using his fancy words. ... There's a difference between demotic speech and the fancy stuff and the stuff that you'd use, if you were being knightly. If you're being courtly, I assume that, if you're talking to your king, you don't talk the same way that you talk to your dog." Referring to Spawn #9, Gaiman discussed the character's speech. "The last thing that Spawn says here is, 'I don't understand.' It's a nice simple English declarative sentence. It's not harsh. It's not clever. 'I no longer have a name.' And so on and so forth. It's absolutely how you would, as a knight, speak to a maiden. It's not necessarily how you'd speak to the person killing you, which is why the language changes a little bit."

Asked whether Dark Ages Spawn speaks the same way Medieval Spawn does, Gaiman answered, "Looking through the comics, I thought Brian [Holguin] was doing a fairly creditable job of trying to give the feeling that this was happening in the old days." "Your contention is that Brian Holguin, sitting here, the writer on Dark Ages, didn't create a new character?" "Yes. ... I assume it's the same character. It's Spawn in the 12th century as a knight in armor."

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Gaiman v. McFarlane 2010: The New Spawn Case

Part Two [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.] Judge Crabb is a Senior U.S. District Judge for the 7th Circuit Court for the Western District of Wisconsin. The 2002 case had been a jury trial presided over by Senior Judge John C. Shabaz, who has since retired. It had 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 case had been appealed in 2004 and its decision upheld February 24, 2004, by Circuit Judges Richard A. Posner, Michael S. Kanne, and Ilana Diamond Rovner. Gaiman's lead attorney this time, as in 2002, was Allen Arntsen. McFarlane's lead attorney was J. Alex Grimsley. And 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." Gaiman (on the left) was the only witness for the plaintiff (Gaiman); writer Brian Holguin and McFarlane (left and right on the right) were the two witnesses for the defendent (McFarlane).

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Gaiman v. McFarlane 2010: It Begins

Part One [This is the first part of my running report on the 2010 hearing in the Neil Gaiman v. Todd McFarlane case. 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.]

In May, my buddy Jon Manzo had alerted me to the fact that there was going to be some sort of hearing in Madison, Wisconsin, on June 14, 2010, regarding legal matters concerning Todd McFarlane and Neil Gaiman. I noted that in passing and eventually decided that I wanted to stay up to date in such matters, since I'd covered the October 2002 case Neil Gaiman v. Todd McFarlane in Comics Buyer's Guide #1510 and #1511.

My deep understanding of legal matters led me to think that the current case would probably consist of about an hour's worth of lawyers making motions, after which everyone would scatter. Indeed, when I entered the Robert W. Kastenmeier United States Courthouse, among the first people I encountered was Ken Levin, whom I think I'd first met in the 2002 case. Also among folks in the lobby was the aforementioned Jon. So lawyers were, indeed, on hand - and then I stepped into the elevator and there was Todd. Entering Courtroom 260, it was almost deja vu: Neil was with his lawyers at the plaintiff's table.

It was Case #02-CV-48-BBC, Neil Gaiman, Marvels & Miracles LLC vs. Todd McFarlane, Todd McFarlane Productions, TMP International and Image Comics. And I began to take notes. (How many notes I took may be indicated by just how long it's taken me to write this, which is only the beginning of what should be several posts.)

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