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: 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: 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: Stock Characteristics

 [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 Thirteen Todd McFarlane's attorney Alex Grimsley said, "You admitted that Medieval Spawn is derived from the character Spawn?" Neil Gaiman responded, "I don't admit it. I avow it. It's a derivative character. ... That's the point." Grimsley spoke of Medieval Spawn toys and comic-book images as having spikes, an "M" on the chest, green eyes, and the Spawn logo on the shield. He asked Gaiman whether there were aspects of Medieval Spawn that Gaiman had drawn on from other works. "Things that I drew on to create the Medieval Spawn would include Barbara Tuchman's book A Distant Mirror; many visits as an English child to museums, to Hever Castle [Anne Boleyn's childhood home, parts dating from 1270, others dating to the 1500s], which, although it's actually very, very late medieval, early Renaissance, has lots of great armor and things like that; going to the Tower of London; reading Thomas Malory [author of Le Morte d'Arthur]; and so on and so forth." "You have a general understanding of what a knight in armor should be and what he should do, correct, from your background in life?" "From reasonably extensive reading, and, yes, being a human being on this planet." "For instance, a knight in armor will typically ride a horse because that was the means of transportation 800 years ago, right?" "The horse and also the cart were definitely means of transportation 800 years ago." "Right. The cart being pulled by a horse or donkey or oxen or some other beast?" "Goat." "I mean so some of that is just based on the time period?" "Sure. He's not in a car."

Grimsley tried to introduce a connection between Gaiman's Timothy Hunter character in Books of Magic (December 1990-March 1991) and J.K. Rowling's Harry Potter character (1997-2007), but objections on grounds of relevance were sustained. Grimsley continued, "In creating characters there are certain stock characteristics that you might apply to the endeavor, depending on the nature of the character. ... Let's take a knight in armor. You might have armor, right?" Gaiman replied, "If he's a knight in armor, he would definitely have armor. If he didn't have armor, he would be a knight not in armor." Grimsley asked, "If you were creating a mobster, he might have an Italian or Sicilian accent?" "Probably not. ... I don't think I've ever created any Sicilian or Italian mobsters. I've written a lot of criminals." Grimsley said, "I'm trying to take a hypothetical. Let's say you were creating a character as a judge. They might wear a black robe." Gaiman responded, "Well, if they were in an American courtroom, of course, they wear a black robe. But that's not a stock character. That's part of what they wear." Grimsley said, "Well, I know judges who wear other colors, but you might -" Gaiman said, "I don't. I only remember Judge Shabaz. [See my postings from June 27.] They are very different. I can't see that I could create a stock judge from Judge Shabaz and Judge Crabb." Judge Crabb responded, "Thank you. Appreciate my individuality."

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."

Grimsley went on to focus on details of the life of Medieval Spawn, bringing up story elements that had not been part of Gaiman's original script for Spawn #9. "I always hoped," Gaiman said, "that they'd come up with something good after I left, that Todd would go in and make up a good backstory for him. ... I mean, if you're writing a comic, you create characters. You don't always create their entire life story. Bruce Wayne as Batman wasn't all there in Detective Comics #27. It comes in a bit at a time, but it's still the Batman created [in Detective #27]."

Grimsley asked whether Gaiman had written Medieval Spawn's dialogue. "Oh, yes." "So you wrote the way he speaks." "Yes." "And he speaks in a fairly stilted, maybe old-fashioned manner?" "He speaks in a sort of slightly old-fashioned manner, yes." [For a look at all of Medieval Spawn's dialogue, see my posting of Part Twelve from July 3.] "His speech is consistent in that manner through all of his appearances [in that comic]?" "Yes. He doesn't suddenly start talking like a Todd or something." "Or you." "Or me."

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Gaiman v. McFarlane 2010: Medieval Spawn's Backstory

Part Twelve [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.] Discussing the backstory of Medieval Spawn, Neil Gaiman said, "There isn't a lot of opportunity on those eight pages [in which the character appeared in Spawn #9] for conversation. In my backstory in my head, I think he'd been probably around fighting for ... five or 10 years, but nobody had actually turned around at that point and said, 'This is actually what's going on. You are going to be in Hell's army, blah, blah, blah, blah, blah.' but he had ... still been going around doing a certain amount of good wherever he could and being noble, even though he was a Spawn. I seem to remember some line about how when Spawns were young they could still ... fight for good, and ... in the case of young and fighting for good, I take it that Spawn is still fighting for good 18 years after the comic started. So the print gives you 18 years at least."

Looking at Spawn #9, it may be instructive to look at the total dialogue of Medieval Spawn talking to Angela, written by Gaiman. The speeches were as follows: "Good day, sweet maiden. You are hurt." "Where is this ogre?" "You would not wish to see my face, sweet maiden. Your sister, you say ...? I also had a sister, beautiful and wise, whom I swore I would see married before I died." "I ... went away, for many years. When I returned, my sister was indeed married ... not to the man I would have chosen, alas. If we knew the future, well, what then?" "I no longer have a name." "I also am most strong and fearsome. You shall wait here." "Very well." "No wizard, fair one. Once I was a man ... a bad man ... Now ... I know not what I am. This cave ... How much further must we go?" "What magic is this?" "What ... What manner of creature are you?" and "I don't understand ..." That's the printed material under discussion at this point in the hearing.

Gaiman said, "He's just met her. She's going, 'Ah, I'm a damsel in distress. Something bad is happening there. What are you?' And he said, 'Well, I was a bad man; now, I could be anything.'"

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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: Spawn Bible and Spawn #8

Part Ten [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.] After a 15-minute recess, the hearing continued with Todd McFarlane's attorney Alex Grimsley beginning his cross-examination of Neil Gaiman. Grimsley referred to Spawn Bible (August 1996), whose credits were that the art was pencilled by Greg Capullo and inked by Danny Miki and Kevin Conrad and the entries were written by McFarlane, Beau Smith, Tom Orzechowski, and Andrew Grossberg. He asked Gaiman whether the page devoted to Angela summarized her "drives and personality." Gaiman responded, "The text is an adequate and fairly literate description by somebody else of the plot of Angela - of Spawn #9, and of Angelas #1 to #3. I don't know that I would agree with everything. I didn't write this." Asked whether there were parts with which he disagreed, Gaiman said, "The line 'Angela comes from Elysium, the first level of the Seven Heavens, closest to God' is not, for example, anything that I - You know, I just created Elysium. If Todd wants seven levels, he can add another six. That's fine." Asked whether he claimed co-creation of the idea of seven levels, Gaiman answered, "No. Alan Moore came up with the idea that there was seven levels of Hell in Spawn #8, and ... that was Alan's idea, and I imagine that is a reflection of the same thing done in angel terms." [In Spawn #8, a demon says his home is "the eighth sphere, some call it the Malebolge."] In any case, Gaiman agreed that the Spawn Bible description - though, "I would probably quibble with words all the way through it, but that's because I didn't write it" - was "a perfectly adequate description by somebody of the character in Spawn #9 and Angelas #1 to #3."


The questioning turned to "Medieval Spawn." "Medieval Spawn is another character you co-created?" "Yeah. I call him 'Olden Days Spawn,' I think, in this script, but Todd started calling him 'Medieval Spawn.'" "In the script, you actually think you named him something?" "He was Spawn. He was the Spawn of 800 years ago." Again, Grimsley referred to Spawn Bible, asking whether the "Medieval Spawn" entry was a fair description of the character Gaiman co-created. "It's an invented backstory, I guess," Gaiman said. "It could be - I didn't make any of that up, so that's not my - ... The story that I made up is the stuff right at the end and the stuff about the sister, which doesn't seem to be in there." The portion of description that he said was what he had created was, "... he was destroyed by Angela, without ever fully comprehending what he was." Gaiman said his creation had included providing thumbnails and drawings of the characters but he hadn't drawn any of the published images of the characters. "I described [Angela] in the script, but my co-creator had already had already given her a look." Regarding the Spawn of the Middle Ages, he said his script, "would have said ... it would be a medieval version of the Spawn costume or an armored version of the Spawn costume. I would have included the big Spawn shield, because that was on the cover."

The questioning turned to the issue that preceded Gaiman's: Spawn #8, drawn by McFarlane and written by Alan Moore. And, I discover with some shock, a fact I'd forgotten. It's "Dedicated To: Don & Maggie Thompson." My goodness! I remember now that we'd been touched and delighted at the time. But ... pause for a moment to grin. Then back to the hearing. Sorry for this self-indulgent interlude. Ahem. The story is titled "In Heaven (Everything Is Fine)." Gaiman said, "It's actually set in Hell. That's an ironic title." Grimsley noted the reference to an evolving neural parasite. Gaiman said, "Todd had asked Alan, and he mentioned to me, that he kept drawing the Spawn costume differently because he couldn't ever remember how many chains and spikes there were to be. So he was now getting letters from kids saying that the costume kept changing and could we come up with a rationale for why the costume was changing. So Alan came up with the idea, and I think we were talking about it, that ... the costume was a neural parasite and the costume was alive and it would keep the Spawn costume evolved and changed and responded and it wasn't actually a frozen thing."

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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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Gaiman v. McFarlane 2010: 333,000 Warrior Angels

Part Seven [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. When last I posted, I was in the midst of Neil's discussion of the creation of Medieval Spawn and the angel huntress Angela. I do hope that any reader who has begun with this installment will stop reading here and click on the link above in order to work his or her way chronologically to this point. I understand that Everyone these days knows how to read blogs in reverse order, but ...]

Later, Gaiman wrote three pages of Spawn #26 (December 1994) and a three-issue mini-series titled Angela (#1 December 1994; #2 January 1995; #3 February 1995) about the angel. "I did Angela ... because my son was 12 and he discovered the Spawn toys and things and wanted me to do something that he'd like, because most of the stuff I wrote was for adults in comics." Asked whether he'd expanded on Angela's world in the mini-series, he responded, "Sure ... part of the fun of it was creating this sort of huge backstory. ... you discover that she's 100,000 years old ... and there's an angelic host: There's 333,000 of these beautiful warrior angels and they're arresting her. She's in trouble right at the beginning. Part of the fun for me was creating ideas. 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. So with this, I created a heavenly city called Elysium. I created 333,000 warrior angels who all look like exotic dancers and named a few of them. And they all looked different. They all have certain very specific similarities: the masky thing around the eyes, for example, the fact that they are part of this order of kick-ass lady warrior angels." Asked if any of the angels were Domina or Tiffany, Gaiman said they weren't. His angels had such names as Surielle, Kuan Yin, Anahita, Saranyu, and Gabrielle. "I basically just took names of angels or gods or goddesses specifically from different cultures and gave them to the ladies. So, in the same way that Angela was fundamentally a joke name, it was also a very serious name. It's 'angel.' It's a name with 'angel' in it."

He summarized the mini-series. "She gets arrested for being a traitor, for having hunted Spawn without a license, even though she said she did have a license. ... The angels go and get Spawn to come and be a witness at her trial. She realizes she is being set up. She and Spawn escape from Heaven to Hell and have an awful lot of shouting, fighting, hitting, and running around. And then ... she essentially gets a confession out of Gabrielle, the lady who set her up, and Gabrielle gets arrested. Angela is given a pardon or exonerated but decides that she doesn't want to be working for Heaven any more, she wants to go freelance ... not actually directly taking orders from anybody else. She was just going to be out there on her own: kick-ass angel for hire."

Arntsen asked Gaiman to discuss whether he'd been involved in writing comic-book series that were produced over a long period of time. He responded, "The most famous one would be Sandman, which was a comic that I wrote that ran 75 issues. It's now collected in 10 volumes of paperbacks." The series appeared dated from January 1989 to March 1996. "In it, I created a lot of characters and I also used some DC Comics characters, and there were also some characters who were deemed derivative by DC Comics. When they worked up my royalty on them, some merchandising or some spinoffs happened." Asked if characters evolve over the course of a series, he replied, "Oh, sure. ... Characters change and character costumes change. ... The Batman of now does not wear the costume of the Batman of 1939, ditto Superman, ditto Wonder Woman. ... Morpheus, my character in Sandman: He dresses in lots of different ways, always chiefly wearing black and having ... longish coats or cloaks. But always - It's obvious the same character, it's obviously the same person, but you get different artists and they draw things differently. You decide to try things a different way."

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Gaiman v. McFarlane 2010: Neil Gaiman Begins His Testimony

Part Five [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.] Arntsen asked Gaiman to introduce himself, and he responded, "I'm a writer." He cited his comics, adult novels, and children's books and commented that he'd won Eisner, Hugo, Nebula, and Newbery Awards [and has, since his testimony, won the Carnegie Medal] and noted that the Coraline film (nominated for an Oscar) had been based on his novel.

How had he gone about creating for McFarlane? "Todd had ... asked me to write an issue of Spawn. ... He wanted celebrity writers. ... Todd ... had told me that I could write anything that I wanted. He said that I had complete carte blanche. If I wanted to do 23 page of Spawn reading a newspaper, I could." At that point, he said, McFarlane was working on #4 or #5 of Spawn, writing him as a warrior of Hell. "If you're a warrior of Hell," Gaiman said, "then you've got to be fighting something. So fighting Heaven seemed to make sense. And I thought, if you're warriors, you can't have nice angels, because you have to have somebody to fight - so, therefore, they have to be warrior angels. And thought, Why not make it a female character?

"So I called Todd and said, 'OK, this is the idea: female character, angel, talked him through it a little bit, and also asked Todd, 'Could there have been previous Spawns, because you haven't actually seen any previous Spawns at that time?' And he said he didn't see why not, as long as there weren't a lot of them. You couldn't have one every few years; they had to come along every hundred years or so. Because I thought, well, the best way to introduce a character who is going to fight Spawn is to actually show her killing a previous one of his predecessors, which establishes that she's the kind of person who does that kind of thing: kills Spawns."

The solicitation had to be ready before #9 shipped, so McFarlane drew a cover to accompany the solicitation. [It appeared in Diamond Comic Distributors' Previews catalog with the cover date of March 1993.] Gaiman explained the concept of the comics industry's solicitation process and then remarked on what McFarlane had drawn to accompany the solicitation: "I had to give Todd a little precis of what it would be, and he drew that cover - which wasn't exactly what I had in mind for the character. ... I thought when we were talking angels, we were probably talking something with more clothes. But I thought, Great, that's what we're given and that's kind of fun and, so, took the elements that Todd had created in there, the spear that he'd drawn. I thought, great, I'll play with that. So that ... was the first image." [The image appeared in the full-page ad, above, as well as in the solicitation itself.] "I'd come up with the idea of a character, she was going to be called Angela, and I did a little precis and a description for Todd of what was going to happen. He drew that image. I then took that image and made that the character that I was writing when I wrote the comic."

"Did you write the entire Spawn #9?"

"Yes."

"Were you aware of other characters like [this]?"

"There definitely hadn't been an army - as far as I know, anyway - ... an army of female kick-ass warrior angels, lady angels, who were also - who were hunters and merciless and not terribly nice. Because I thought, If Spawn & Co. are fighting these guys, then the other side needed to be almost as bad."

He commented that he was "making her a hunter ... somebody who just hunts these things and she has their heads on her wall."

As to "Medieval Spawn": "The idea was that there would have been a Spawn who was a knight in armor, and I had him essentially show up. I didn't have that many pages; it was one issue, so I came up with the idea of a Spawn who was a knight in armor. He shows up on his finely caparisoned horse. He has a shield, a sword, and a version of the Spawn costume that's essentially armor or something closer to what a knight in armor might wear or what a medieval knight would have worn. He shows up. ... I created a little backstory for him: the idea that he had been tricked by a devil; that his sister who he loved had - he returned from the dead to find that she had married his greatest enemy, somebody he hated, but he was still trying to be noble and knightly."

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