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: Post-Hearing Briefs in Brief

[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-Three Following the June 14 evidentiary hearing, attorneys for Neil Gaiman and Todd McFarlane filed post-hearing briefs running more than a dozen pages each in support of their respective positions. In the words of the McFarlane attorneys, "The issue this Court is being asked to decide is whether Neil Gaiman is entitled to a share of profits attributable to characters known as Dark Ages Spawn, Tiffany and Domina. ... In the accounting process, there is no dispute that Mr. Gaiman is entitled to a share of profits from the comics in which the characters Medieval Spawn or Angela appeared or from derivative uses of those characters, such as action figures created of those characters. Mr. Gaiman now argues that he is entitled to a share of profits from other characters ... Mr. Gaiman's theory is that these other characters - Dark Ages Spawn, Tiffany and Domina - are derivative of the co-owned characters." In the words of the Gaiman attorneys, "The visual and literary similarities between the characters are far too striking to be brushed off as coincidences or merely similar 'ideas.' Under the law, a character is derivative if it would be an infringement when used by an unauthorized party. ... There can be no question that if anyone else had created comics using Tiffany, Domina, or Dark Ages Spawn, the McFarlane Defendants would have sued them for infringement of their copyrights in the Angela and Medieval Spawn characters, and won."

Each group of attorneys detailed the arguments for their side, citing testimony given during the June 14 hearing. Tomorrow, presumably before Judge Crabb announces her decision, I'll cite the lessons I have learned from all this. Then, we'll wait for the decision.

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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: A Traveling Minstrel Spawn?

Part Eleven [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.] Todd McFarlane attorney Alex Grimsley showed Neil Gaiman the final page of Spawn #8, written by Alan Moore. "See there at the feet of the devil creature? Can you make out what is gathered at his feet?" Gaiman answered, "Lots of Spawn costumes, probably with people in them." "So a mass of other Hellspawn?" "No, not necessarily," Gaiman said, "These are creatures in Hell. You get one Hellspawn ... every 400 years. These were lots and lots of neural parasites wearing people ... or, at least, that was the way that Alan and I talked it through at the time. ... They're not Spawn. Every 400 years, one of these guys gets tested to be officer material, and the army: Those are the grunts in the army. It's the difference between a general and the troops." Grimsley asked, "So the idea that there was an army of individuals in Hell wearing the neural parasitic suit (or having a neural parasitic suit wear them, if you will) preexisted issue #9?" There ensued a discussion of the timing of comic-book creation in a series, in which Gaiman commented that publication in sequence doesn't necessarily mean creation in sequence. "It's not like Alan writes this issue and then Todd draws it and then I write issue #9 and then Todd draws it."

Grimsley turned to the matter of influences in writing stories. "Sometimes your stories might bear similarities to another story?" "It happens over and over," Gaiman said, "They say there are three different stories you can tell." Grimsley specified Gaiman's fantasy novel American Gods (published in 2001). "You've been asked in the past ... if American Gods was inspired by Eight Days of Luke by Diana Wynne Jones." Eight Days of Luke had been published in 1975. Gaiman responded, "Yes. The answer was no. ... What I actually said was that I came up with a way of telling the story which was going to be naming days of the week after the gods that they are named after and, when I came up with that, I realized that Diana had done something ... similar in Eight Days of Luke. But the plot of American Gods and the plot of Eight Days of Luke bear no relationship to each other, nor do the characters." Grimsley asked whether characters created out of whole cloth could bear "superficial similarities to characters someone else creates." Gaiman replied, "That's always true."

Grimsley posed an example: "If you were to create a caveman character ... you might give him a club as a weapon, right?" Gaiman said, "It's a strange hypothetical. I've never written a caveman that I can think of and I don't think I'd give him a club because it's kind of stupid. I'd probably give him a stone ax, because that's what they used." Grimsely continued, "If someone else used a stone ax for a caveman doesn't mean they derived it from your caveman, right?" Gaiman said, "I would assume not." Grimsley moved on to Medieval Spawn, "You created ... the idea of a knight-in-armor Spawn, right?" Gaiman said, "No. I created the character." Gaiman agreed with Grimsley's identifying Spawn as an "action series," and Grimsley asked, "So Medieval Spawn was going to be a fighting character probably, right?" "I guess." "Not a traveling minstrel, right?"

Gaiman responded, "It could have been a traveling minstrel. That would have been fun to write, too." He added that he'd only had eight pages and didn't think Todd would have wanted to do a minstrel toy, "but we could have gone there." He elaborated, "When you're starting any kind of writing process, you have an infinite number of ways to go. I could not pretend, 17 years later at this point, to reconstruct my thought processes on how I decided it was going to be a knight in armor and why it would have been 800 years ago. ... In a comic called 1602 which I did for Marvel Comics [#1, November 2003 - #8, June 2004] ... I reinvented all of the Marvel characters and set them in the early 17th century, in 1602, and created Daredevil. Marvel's big fighting super-hero was actually a minstrel in it, and I invented him as a blind traveling minstrel. If you're a good writer, you crate characters that live on, that exist, and you don't say, 'Ah, because this is fighting, you can only be this one thing.' That's nonsense."

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Gaiman v. McFarlane 2010: Medieval and Dark Ages Spawns

Part Nine [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.] Asked for his understanding of how often Hellspawn were to appear on Earth, Neil Gaiman responded, "Initially, when I first talked to Todd, he said every hundred years or so. And then, by the time I came to do the Angela mini-series, it had been sort of formalized as every 400 years ... I mean it was part of the Spawn mythos that it was 400 years. You got a Spawn every 400 years." Why? "Because it kept them special." Arntsen asked whether more than one Spawn would be active at a time. Gaiman said, "We sort of played with the idea. I suggested it to him - but I don't know if he ever used it - that the Cogliostro character I created was a very, very old Spawn who had never quite let his powers run out and had been around ... for thousands of years. But, no, you don't get two Spawns at the same time; you get one and then you get another one 400 years later. I believe there's a futuristic Spawn comic - or there used to be - set 400 years from now, for example."

Arntsen read from Spawn #32: "They occur but once each four hundred years, and their infrequence are relegated to fable and legend." Gaiman agreed, "You ... get one every 400 years." Arntsen read from a screen shot from the Spawn website: "Spawn: The Dark Ages introduces Lord Covenant, a 12th century knight killed in a holy crusade far from his homeland, who returns to Earth as a Hellspawn. As a plague of violence and turmoil cover the English countryside, the Dark Knight must choose whether to align himself with the innocent inhabitants of the once-thriving kingdom or with the malevolent forces of evil and corruption." He asked how that character related to the character Gaiman had created in Spawn #9. "I would have assumed it was the same character." "And why is that?" "Because it's the one 1,200 years ago who's the knight in armor fighting the English countryside in medieval times. It's not like there were two of them."

Asked to compare the character shown on the cover of Spawn: The Dark Ages #1 (March 1999) to the character he'd created for Spawn #9, Gaiman said, "It looks like the same kind of thing. It's a knight in armory Spawn, Spawn costume, big armory bits." He went on to confirm that in the 1999 issue, the character wore a cloak and rode a horse. Discussing differences in a view of the "Dark Ages" character in Spawn: The Dark Ages #2, he said, "You've got longer hair right now and a different kind of mask with sort of faintly dragonish kind of shape, rather than just a knight-in-armor shape." Would that be consistent with the Spawn #9 character? "Sure. I mean we get to see the character I created in Spawn #9 in the five minutes before he gets killed. I assume he's worn different things. He could well have had a haircut." Other variations on the Medieval Spawn" and the "Dark Ages" Spawn were shown, including one in which "Dark Ages Spawn" received an ax. "I would expect him to use all sorts of medieval weapons. That's the fun of having a character in that period: You get axes, you get maces, you get whatever kind of weapons could have been used at that time. In Angela #3, I have Angela fighting her way through Hell with a stolen ax. ... It's the kind of thing you do: You give them weapons."

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