Neil Gaiman And Todd McFarlane Fight Over Whose Derivative Character Is Owned By Whom
from the angels-in-thong-bikinis-in-the-courtroom dept
ChurchHatesTucker sends in the Associated Press report about the ongoing legal fight between writers/comic artists Todd McFarlane and Neil Gaiman, over who owns what rights to what characters. The CityPages blog actually has a version of the story with a lot more details. Frankly, the whole thing seems a little silly. McFarlane created Spawn, and later brought on guest writers. Gaiman did issue #9. Here's where it gets tricky. McFarlane (and two others) had left Marvel to start their own comic company, Image Comics, which published Spawn. Having been upset about how Marvel set up deals as "work-for-hire" (such that Marvel kept the copyright on any works done by artists/writers), Image was designed to be more creator-friendly, allowing them to retain their own copyrights.All that sounds good, right? Except... what happens when you're talking about multiple artists all dipping into the same world? That's what caused the mess we're in now. Gaiman's Spawn introduced some new characters, which he claimed the copyright over. But, of course, those characters come out of the Spawn world, and thus, you could make the case, are clearly derivative of McFarlane's own characters. Potentially in an attempt to get around having to pay Gaiman royalties (this is the part that's very much in dispute) a later issue of Spawn introduced some new characters, which have some similarities to Gaiman's characters. And thus, the royalty fight is on. It sounds like there's some personal issues between Gaiman and McFarlane underlining all of this as well.
Honestly, the whole thing seems a bit silly, really. Though, it's a situation created by today's ridiculous level of copyright protection. Work-for-hire deals certainly have their own trouble, but when you give out separate copyrights to lots of different people involved in a project, you also end up with a bit of a thicket, which appears to be the problem McFarlane faced. In the end, though, Gaiman created a derivative work for the Spawn world and should be happy that others built on his works to do more.
In fact, to make the case against Gaiman, I'd like to quote one Neil Gaiman a couple years ago, talking about a similar lawsuit involving derivative works based on Harry Potter:
My main reaction is, having read as much as I can about it, given the copyright grey zone it seems to exist in, is a "Well, if it was me, I'd probably be flattered".... I can't imagine myself trying to stop any of the unauthorised books that have come out about me or about things I've created over the years, and where possible I've tried to help, and even when I haven't liked them I've shrugged and let it go.... My heart is on the side of the people doing the unauthorised books, probably because the first two books I did were unauthorised, and one of them, Ghastly Beyond Belief, would have been incredibly vulnerable had anyone wanted to sue Kim Newman and me on the grounds that what we did, in a book of quotations that people might not have wanted to find themselves in, went beyond Fair Use.Seems like perhaps Neil Gaiman involved in this lawsuit should talk to that Neil Gaiman.
Though, as CHT notes in his submission (quoting from the AP report), at least this trial gave us: "Images of the characters in dispute, including the angels in thong bikinis, were projected in Crabb's courtroom throughout the daylong hearing." So maybe it's not all bad.
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Filed Under: copyright, derivative works, neil gaiman, spawn, todd mcfarlane, works for hire
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Yes!
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Re: Yes!
Suck what, slutty angels in thong bikinis? Okay.
But seriously, you win this round CHT. This round being the "What can I submit that would be geekier than technology patents or music law? Oh yeah! Comic books" Round.
Sponsored by Doritos. Doritos: orange encrusted fingertips, that'll get you a girl.
And Mountain Dew. Do the Dew, and gain a few.
And Mothers Against Drunk Driving. Your kids can't die in alcohol related accidents if they're reading picture books in their mom's basement while masturbating furiously to pictures of Rogue tonguing Gambit.
/playful competitiveness ;)
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Re: Re: Yes!
Unless the girl is from The Netherlands, and supports their national team at a FIFA event... then orange = goooooooooooooooooooooooooooooooooooal!
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Yeah, that's why I can look down my nose at Comic Book Guy.
"Do you understand the legal ramifications of your proposed mashup?"
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Re:
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Maybe not Hypocrites ...
Gaiman seems less hypocritical of the two; in the quoted part, he's referring to third-parties doing unauthorized adaptations; whereas in this, he presumably had a contract worked out with McFarlane, who was his employer; not some third-party homage-maker. So I can see how he could easily justify the difference.
McFarlane, I'm less sympathetic to. The spirit of his break with Marvel was that creators keep their creations; but when push comes to paycheck, he keeps to the letter of his convictions but not to that spirit... assuming of course that he did create alternate characters solely to avoid having to pay Gaiman for the idea as he promised he would.
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Re: Maybe not Hypocrites ...
So, work for hire.
Next!
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Re: Re: Maybe not Hypocrites ...
Right?
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Re: Re: Re: Maybe not Hypocrites ...
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Re: Maybe not Hypocrites ...
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Re: Re: Maybe not Hypocrites ...
Gaiman wrote the Medieval Spawn character, but McFarlane did the illustrations. Neil claims it is a joint ownership.
The bigger stretch is his claim that any vaguely similar character is derivative of his creation, even though the existence of previous hellspawn was established early in the series.
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Re: Maybe not Hypocrites ...
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Best. Quote. Ever.
>>>But as Gaiman pointed out in today's hearing, the Dark Ages doppleganger doesn't even make sense within the confines of McFarlane's own mythology, which states there can be only one Spawn every 400 years--meaning Medieval Spawn was it for the Middle Ages.
I have no comment on this case either way. But I would have _loved_ to be in court when Gaiman said this!
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Re: Best. Quote. Ever.
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Well
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Re: Well
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Tough to let it slide...
This isn't a case of an unknown fan creating an unauthorized reference work adding value to the original work. This is one where an established guy re-created an existing character clearly to try to side-step the issue of Gaiman's copyright, all the while blocking the negotiation about the trade of the partial copyright of the Miracleman character, so that Neil Gaiman can work on it. I'm sure that if McFarlane weren't being intransigent about the Miracleman copyright, Gaiman would let him go on his merry business with Medieval/Dark Ages Spawn.
Copyright law may make things silly, but if there is anyone at fault and making undue fuss about copyrights, it's McFarlane (who has already sued people for infringing his copyrights before). Neil Gaiman's reaction is just well justified defense with the weapons of the fight.
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Re: Tough to let it slide...
Second off,
"Personally, I would not take sides against Neil Gaiman so quickly with the insinuation of hypocrisy fuelled by greed. He has already stated he would donate any proceeds to charity if he wins."
Dick move of rich guys. "I will burden you with legal fees, and if I win I will write a check to a charity which will make my beat-down on you seem like a nobel endeavor."
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Re: Re: Tough to let it slide...
McFarlane abuses copyright (and lies) to block Gaiman from working on Miracleman and after trying to deny Gaiman's co-ownership of Medieval Spawn & co. rights and failing, proceeds to try to sidestep them by making a rip-off copy of them.
Seriously, if anyone is to be lambasted for exploiting the mess that are copyright laws it needs to be McFarlane. Gaiman really is just playing on the defensive, as any reasonable person should.
Read http://www.oafe.net/articulation/0409.php for some of the background of this mess, as well as http://journal.neilgaiman.com/2004/02/last-legal-post-for-long-time.asp
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Re: Re: Re: Tough to let it slide...
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Re: Re: Tough to let it slide...
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Re: Re: Re: Tough to let it slide...
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Let me tell ya about Bill..
Batman
Joker
Robin (namely his past)
The Riddler
The Green Lantern
Why do we not hear about him? Well, his "good friend" negotiated a contract with National Comics. One that would ensure that Bob Kane and his family would make money from National Comics (now known as DC comics).
The last name of Bill? Finger.
Yes, colloquially that's where we get the expression "gave him the finger." Bill got screwed out of royalties because of money and copyright.
Point is, McFarlane should pay up and stop giving Gaiman the finger.
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Re: Let me tell ya about Bill..
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*shakes head*
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It's just about paying what you said you'd pay.
If you agree that you split the royalties 50/50 as equal co-creators, then don't get paid what was greed, you should have the right to some kind of legal recourse.
If the other party change the copyright notice when the work is reprinted and claim that the three year statute of limitations had expired when you don't spot the change in the reprints within three years, you can probably accuse the other party of unfair dealing.
I think it's fair to say that one of the three characters at stake was very derivative of 'Spawnworld'. However the other two could easily be guests from another comic. But frankly that's all secondary to simple creator's rights to get paid what you agree you were gonna pay him.
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He co-created & only claims 50% of the rights.
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Miracleman
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didn't the supreme court already rule that gaimen owned tifaany, angela and mid evil spawn and that gaimen traded the rights to the "miracleman property that todd bought" which was revealed to be an expired logo copyright and some film with eclipse comics on it?
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Another factor
That's in the actual article, but I think nobody is mentioning it because it's on the second page.
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Re: Another factor
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Jeeze...
FYI, "Mark Twain Highway" was changed to "Mark McGwire Highway", and it's still that way today. Write brilliant books, so what. But cheat well at baseball... YEAH!
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Re: Jeeze...
Now I doubt if Image is in the top three comics sellers. The only Image book in the top 100 monthly comics sales for May 2010 was the Walking Dead at 84 which is pretty good for an indy. Dark Horse and Dynamite both have two in the top 100. Plus some of the Manga publishers are showing up all over the book list.
http://www.comichron.com/monthlycomicssales/2010/2010-05.html
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it is why much of what comes up on techdirt is laughable, because it is uninvolved third parties trying to tell people how to do business, and why they shouldnt worry about losing millions of dollars. the discussion would be entirely different if they had something worth millions to lose.
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Re:
Where today he failed is in doing his homework to realize about the background of this, which makes it clear that this is not about the money for Gaiman, but about his desire to prevent McFarlane to succeed with his continued jackassery.
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"the discussion would be entirely different if they had something worth millions to lose or had a very significant personal principal to stand for."
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Gaiman
The copyright suit was brought about because McFarlane didn't want to pay Gaiman royalties (a breach of contract), so created "copycat" characters instead. It's a very different situation than the Harry Potter one.
Despite this, I think Gaiman is probably going to lose this round. The characters are different enough to not be "derivative works," at least in my opinion.
Incidentally, if you think this dust-up is a rat's nest, read about the King Rat of copyright disputes that is Marvelman.
Even more incidentally, Gaiman is engaged to Amanda Palmer. Is this relevant? Probably not.
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Gaiman's Take
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http://journal.neilgaiman.com/2010/06/despatches-from-alternate-universe.html
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This is really about contracts
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So, let me see if I have this straight...
Gaiman was brought in 9 issues later, slaps some armor on the aforementioned character and called him "Medieval" Spawn. To round out the story, he throws in an "angel" from the Playboy mansion.
After McFarlane and Gaiman have a falling out, McFarlane slaps different armor on the original character and calls him "Dark Ages" Spawn.
Do I have this right?
No judgments...I honestly don't know enough about the case to choose sides. I just find it amazing that, not only has the Spawn character made enough money to raise such a fuss about, but simply slapping on armor and an adjective or two could possibly be worth enough money to bother with all of these court battles. Obviously that's the case, but it's still hard to fathom.
Now the angel from Hugh Hefner's dreams...I could see that character earning some serious cash. Fanboys can't get enough of that.
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Hmm...
But wait, that would be the right thing to do....
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Neil Gaiman is a Scientologist and is underwriting Scientology. The Scientologists list Neil Gaiman him in the Cornerstone Newsletter along with Mary Gaiman, as contributing $35,000.00 in 2009. Being listed in the Cornerstone Newsletter means you are in good-standing with the cult.
In 2010, Mary Gaiman was awarded the "Gold Humanitarian Award" for her contribution of $500,000.00 to Scientology. This is significant because Mary Gaiman continues to be Neil Gaiman’s business partner in The Blank Corporation, which is now Neil Gaiman's Scientology front and how he pays the cult.
Gaiman is also the "Vitamin Heir" of Scientology. The Gaiman family owns G&G Vitamins which reaps 6 million a year from selling The Purification Rundown Vitamins.
Gaiman's two sisters, Claire Edwards and Lizzie Calciole are not just high-ranking Scientologists, they are the head of RECRUITING and the head of Wealden House, the Scientology stronghold in East Grinstead. These two cannot associate with Neil unless he is in good standing.
Amanda Palmer would not be allowed anywhere near this royal family of Scientology unless she was also a Scientologist.
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This is why IP is stupid
Just another government granted monopoly, 16th century Mercantilist crap.
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It's kind of hard to feel sorry for Gaiman...
The issue of copyright infringement is a tough one here. I've read all manners of articles related to this case, have seen almost all details related to it, and after doing so I've come to the following conclusions.
Medieval Spawn is not Gaiman's because IT IS a loose variation of Spawn himself. It's like saying that an Elseworld's Superman, or even Superboy, is a completely different entity from Superman himself. "Beyond a reasonable doubt" does not apply 100% here.
Angela and Cogliostro however are Gaiman's, because those are obviously completely different entities existing within Spawn's world. Those are wholly different creations created by Gaiman for "Spawn".
Just my two cents.
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