Gaiman v. McFarlane 2010: 2002 for the Record

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

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

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

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

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

4. Did the McFarlane defendants breach the 1992 contract?
Yes

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

6. Did the McFarlane defendants breach the 1997 contract?
Yes

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

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

14. Did plaintiff Gaiman consent in writing to the use of his name and biographical information on Angela's Hunt?
No

15. Did plaintiff Gaiman make misrepresentations or omissioins of material fact to defendant concerning his DC Comics contract during the negotiations of the 1997 contract?
No

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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: 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: 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: Opening Statements

Part Three [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.] Ed Treleven had posted May 25 a colorful account of the background of the case. Intriguingly, judging from her comments during the June 14 hearing, Judge Crabb had apparently not seen color exhibits before the hearing. Nor were the visual displays (screens at witness chair, lawyer tables, and judge's chair - fed from views from a horizontal platform not adjusted to show a vertical comic-book page) sharp enough to permit viewers to read some of the exhibits under discussion.

The opening statement by Arntsen's associate Jeff Simmons suggested three identifying factors to determine whether a character in comic books is derivative of or infringing on another character. "If it's a derivative character, it would be an infringing character, if somebody else, somebody who was not authorized to use it, used that character." He said courts typically use the character's backstory and, in the case of comics characters, that character's powers and the character's costume. He added a reference to Judge Posner's 2004 decision in McFarlane's appeal to the 2002 decision: "Judge Posner particularly said with regard to the Medieval Spawn character, you look at the way the character speaks. Judge Posner said, if he talks medieval and he looks medieval, then he infringes Medieval Spawn." Simmons said the judge should look for the same basic traits in the characters under discussion.

Grimsley opened by saying, "We believe the topic ... [is] more appropriate for jury trial." Crabb said she'd already ruled on that matter. He discussed what he called the difference between an idea and the expression of that idea, saying that, regarding the question of the idea of warrior angels, "Ideas cannot be the subject of copyright." He said that it had been agreed that McFarlane and Gaiman had co-created Medieval Spawn (a derivative of Spawn, already created by McFarlane) but that the copyright was limited to the additional elements. "There are elements in the design of Angela that are designed from the Spawn character. There are other elements of Angela, the female warrior, that are somewhat just generic to the comic industry, and in this respect you could go all the way back to Wonder Woman to see many of those elements." He argued that, if, say, similarities between angels Tiffany and Domina and Gaiman co-creation Angela mean the first two are derivative of the third, "essentially what Mr. Gaiman would be successful in arguing is that he has a copyright on the idea of the female warrior angel. And if Dark Ages Spawn is found sufficient to be derivative of Medieval Spawn and Mr. Gaiman is going to say the creative work that Mr. Holguin did was nothing more than copying his work, essentially Mr. Gaiman is saying, 'I have a copyright on the idea of a Hellspawn from medieval times.' The law is clear that those ideas cannot be the subject of the copyright, only the actual expression of those ideas."

Then, Gaiman took the stand.

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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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