Neil Gaiman And Todd McFarlane Fight Over Whose Derivative Character Is Owned By Whom

from the angels-in-thong-bikinis-in-the-courtroom dept

Wed, Jun 16th 2010 10:59am — Mike Masnick

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

55 Comments

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ChurchHatesTucker (profile), 16 Jun 2010 @ 11:05am

Yes!
Suck it, Dark Helmet!
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Dark Helmet (profile), 16 Jun 2010 @ 11:20am

Re: Yes!
"Suck it, Dark Helmet!"

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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ChurchHatesTucker (profile), 16 Jun 2010 @ 11:23am

"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."

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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Dark Helmet (profile), 16 Jun 2010 @ 11:26am

Re:
Haha, well played...
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Dale Sheldon-Hess, 16 Jun 2010 @ 11:28am

Maybe not Hypocrites ...
...or maybe they are.

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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Robert Levine, 16 Jun 2010 @ 11:28am

Best. Quote. Ever.
From City Pages:

>>>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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Felix Pleșoianu, 16 Jun 2010 @ 11:30am

Now you see why it's a good idea to use legal tools such as Creative Commons instead of tacit agreements? A simple CC-BY-SA license on the original material would have made the matter moot. Or -- if they wanted to limit derivative works to a restricted circle of authors -- a contract saying that by creating works set in that universe they give each other the right to reuse their respective contributions.
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ChurchHatesTucker (profile), 16 Jun 2010 @ 11:31am

Re: Maybe not Hypocrites ...
"... he presumably had a contract worked out with McFarlane, who was his employer; ..."

So, work for hire.

Next!
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Smithereens, 16 Jun 2010 @ 11:33am

The quote from Neil Gaiman in this piece is about a reference work that used quotes from Harry Potter. The issue of character ownership is different and unrelated.
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yourrealname (profile), 16 Jun 2010 @ 11:33am

Well
The funny thing is, Todd McFarlane created spawn as basically a rip off of Spider-Man and Ghost Rider. McFarlane became famous in the world of comics for drawing Spider-Man, and dark, demonic characters like Ghost Rider, the Punisher, etc... were all the rage in the early 90s when Image formed. If you look at Spawn's costume, his mask looks almost exactly like Spider-Mans, and instead of having webs always flying around him (a trademark of McFarlane drawn Spider-Man) he had chains flying all around in the same manner. It should be noted that Image comics is the 3rd largest comics publisher, behind Marvel and DC. Also of note, Todd McFarlane is the guy who paid a million dollars for that Mark McGwire homerun baseball, maybe he needs to money to recoup on that bad investment.
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Headbhang (profile), 16 Jun 2010 @ 11:39am

Tough to let it slide...
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.

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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Sean T Henry (profile), 16 Jun 2010 @ 11:40am

Re: Maybe not Hypocrites ...
Did Gaiman create the character in a whole or did he create the character and someone else created the likeness? If he did not create the character %100 then he should not own it %100 or even the likeness.
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Malak (profile), 16 Jun 2010 @ 11:45am

It's just about paying what you said you'd pay.
The reason that it's not silly is because its about a content creator being ripped off, not about fair use or derivative work.

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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Malak (profile), 16 Jun 2010 @ 11:50am

re: Sean T Henry

He co-created & only claims 50% of the rights.
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ChurchHatesTucker (profile), 16 Jun 2010 @ 11:50am

Re: Tough to let it slide...
First off, I love Neil and wish no ill on him.

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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Gemmy, 16 Jun 2010 @ 11:51am

Miracleman
I just came in to say what Headbhang already said. If it wasn't for the bad blood between the two for the way McFarlane dealt with Marvelman/Miracleman copyright, I doubt that Gaiman would make such a stink over this. McFarlane obviously tried to sidestep the copyright on the Gaiman-created characters - it was blatant to my eyes - which just makes him a total tool. I'm glad someone is fighting him with his own weapons.
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sam, 16 Jun 2010 @ 12:03pm

wait a freaking minute...
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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Dale Sheldon-Hess, 16 Jun 2010 @ 12:17pm

Re: Re: Maybe not Hypocrites ...
Yeah but, presumably, Gaiman's contract with McFarlane included a clause saying Gaiman would retain the rights to his own work, since that was half the point of him founding Image. In other words, it was work done for hire, but under a contract saying the work he was hired to do would not be considered "work for hire".

Right?
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Anonymous Coward, 16 Jun 2010 @ 1:01pm

Another factor
Well, I think that part of the reason why Gaiman is pursuing this is due to a previous claim by McFarlane that he owned the rights to (another comic) Miracleman through McFarlane's purchase of Eclipse comics. The problem being, that Gaiman had been given part of the rights to Miracleman before that purchase, but McFarlane wouldn't honor that partial ownership.

That's in the actual article, but I think nobody is mentioning it because it's on the second page.
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Mike42 (profile), 16 Jun 2010 @ 1:17pm

Jeeze...
Maybe if McFarlane hadn't blown a million on Mark McGwire's home-run baseball, he'd have enough money to pay his artist's royalties.

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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Stuart, 16 Jun 2010 @ 1:23pm

Re: Another factor
Articles have a second page?
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Jay (profile), 16 Jun 2010 @ 2:11pm

Let me tell ya about Bill..
Bill was an artist. Bill was a decent loner type who thought up new ideas and helped to create characters for National comics. National comics is still around today and the characters he helped create, were the ones that we would be surprised to hear about. Who are these characters? If your eyes haven't already scrolled down, prepare to be amazed:

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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Anonymous Coward, 16 Jun 2010 @ 2:42pm

"Seems like perhaps Neil Gaiman involved in this lawsuit should talk to that Neil Gaiman" - actually, what it seems like is that something that is abstract and has none of your own money on the table changes when someone has their hands solidly in your pockets.

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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Headbhang (profile), 16 Jun 2010 @ 2:49pm

Re: Re: Tough to let it slide...
Dick move, perhaps, but clearly not fuelled by greed. And in any case, I disagree.

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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Headbhang (profile), 16 Jun 2010 @ 2:58pm

Re:
Yep, the novelty now is that McFarlane came up with the twist of re-inventing Medieval Spawn as "Dark Ages Spawn" in order to sidestep Gaiman's share of the copyright, and Gaiman decided he would not allow any of that crap. I'm not sure if it still holds, but at least until some time ago, McFarlane STILL owed him a share of the revenue.
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Headbhang (profile), 16 Jun 2010 @ 3:04pm

Re:
Mike is right that current copyright law makes all this mess possible.

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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Greg G, 16 Jun 2010 @ 3:17pm

Re: Re: Yes!
Sponsored by Doritos. Doritos: orange encrusted fingertips, that'll get you a girl.

Unless the girl is from The Netherlands, and supports their national team at a FIFA event... then orange = goooooooooooooooooooooooooooooooooooal!
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Anonymous Coward, 16 Jun 2010 @ 3:21pm

Re: Re:
so let me add to my quote:

"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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ChurchHatesTucker (profile), 16 Jun 2010 @ 3:55pm

Re: Re: Maybe not Hypocrites ...
"Did Gaiman create the character in a whole or did he create the character and someone else created the likeness?"

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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Anonymous Coward, 16 Jun 2010 @ 4:35pm

Re: Maybe not Hypocrites ...
Wait, we're talking about derivative works of derivative works, at this point....
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Anonymous Coward, 16 Jun 2010 @ 4:40pm

Re: Let me tell ya about Bill..
That expression is far, far older than that, but thanks for playing. (re: 'flick you' and 'giving the finger' are from a war between the English and the French where the English bowman defeated a superior French force after the French started chopping off the bow fingers of any Englishmen they caught.)
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Karl (profile), 16 Jun 2010 @ 4:59pm

Gaiman
A couple points:

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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ChurchHatesTucker (profile), 16 Jun 2010 @ 5:41pm

Re: Re: Re: Tough to let it slide...
Doesn't much matter to me if it's fueled by greed, vengeance, malice or whathaveyou. I just think Neil is wrong in this one, just as Todd is wrong in the Miracle Man case.
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DanC (profile), 16 Jun 2010 @ 6:01pm

Re: Re: Re: Maybe not Hypocrites ...
I know a little bit of the history behind the agreement between Gaiman and McFarlane. It was essentially a handshake agreement, which is why the issues of copyright ownership, royalties, and the like have been in the courts for so long.
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Legioss199, 16 Jun 2010 @ 6:12pm

Gaiman's Take
link
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Dan Guy, 16 Jun 2010 @ 6:22pm

Neil posted tonight and cleared up some of the confusion, evident here and elsewhere:

http://journal.neilgaiman.com/2010/06/despatches-from-alternate-universe.html
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Burgos, 16 Jun 2010 @ 6:36pm

McFarlane's an ass. Period.
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Anonymous Coward, 16 Jun 2010 @ 6:48pm

Re:
so wait, is this another story that mike punted into the weeds by being fast on the draw and slow on facts? i guess this really does prove he isnt a journalist. i wonder how he will save journalism if he cant even check facts for his own blog.
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Anonymous Coward, 16 Jun 2010 @ 7:30pm

Re: Re:
You don't understand how the internet works, do you?
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Legioss199, 16 Jun 2010 @ 7:41pm

Re: Re:
Mike posted this four hours before Gaimans post. He was relating relevant events to his readers in a timely manner.
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Malak (profile), 17 Jun 2010 @ 1:40am

Cheers for posting that blog post Dan.
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John Duncan Yoyo (profile), 17 Jun 2010 @ 4:44am

Re: Jeeze...
That million for a baseball was chump change to MacFarlane when he was a hot property in the eighties and nineties. Spawn was being sharecropped the last time I noticed.

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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Almost Anonymous (profile), 17 Jun 2010 @ 7:22am

Re: Re: Tough to let it slide...
According to Neil's post on his own blog (link shown way further down if you're threaded), he didn't initiate the legal battle on this one, Todd did. That sheds a whole different light on things.
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SomeGuy (profile), 17 Jun 2010 @ 8:10am

Re: Best. Quote. Ever.
"You're Honor, that HAS to be my character, because the rules of the Spawn universe require it to be so."
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ChurchHatesTucker (profile), 17 Jun 2010 @ 9:06am

Re: Re: Re: Tough to let it slide...
Technically correct (the best kind of correct!) but Todd went back to court because Neil was claiming ownership of characters he didn't actually create.
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jsf (profile), 17 Jun 2010 @ 9:31am

This is really about contracts
The real issue that started all of this between McFarlane and Gaiman was a dispute over what was said in a verbal agreement. Copyright law is just the tool that Neil used to get what he felt Todd owed him. They latter came to an agreement, several actually, that Todd mostly ignored. The whole thing has been bouncing around the courts for over a decade now.
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Anonymous Coward, 17 Jun 2010 @ 10:15am

Re: Well
When you take two or more concepts and combine them, that's called called "creativity", not "a rip off".
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Anonymously Brave, 17 Jun 2010 @ 11:14am

So, let me see if I have this straight...
McFarlane created a character for a comic book, Spawn. Gaiman didn't help with the creation of that character.

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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Overtkill (profile), 17 Jun 2010 @ 11:31am

Hmm...
Perhaps he should simply be the cool boss that founded this better company, and float his boys a few million for their work. :)

But wait, that would be the right thing to do....
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DataShade (profile), 18 Jun 2010 @ 6:07am

Re: Re: Re:
I hope to god you meant "principle."
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KFC, 18 Jun 2010 @ 10:53am

I'm sure if SPAWN were a legitimately creative property, Gaiman would have no issue with the use of the characters. But I'm also sure as well that comic industry professionals know very well what McFarlane's philosophy is regarding money and the primary intent of his work, and it's a principled matter which boils down to: if you're going to be soulless about how you get your dollars, I will too.
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Jay (profile), 21 Jun 2010 @ 10:27pm

*shakes head*
It's supposed to be part of the joke because of his name. -_-;
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clamwatcher, 4 Jul 2010 @ 10:57am

Gaiman claims he would give his winnings to charity... the charity is Scientology!

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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R.J. Moore II, 28 Sep 2010 @ 6:40pm

This is why IP is stupid
Intellectual property is a crazy idea in the first place. Maybe the heirs of the first guy to use the word 'horse' should start suing anyone who repeats it. Maybe the inventor of the wheel's family should get a copyright and royalties from anyone who uses a wheel in their design.
Just another government granted monopoly, 16th century Mercantilist crap.
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william, 11 Oct 2010 @ 11:30pm

It's kind of hard to feel sorry for Gaiman...
...after reading that he was paid $100,000 for that one issue that he wrote. Him, Moore, and 2 other writers each wrote one issue of Spawn starting with issue #8, and they were each paid $100,000 for their issues. Can you imagine that? What is probably a days work, 22 easy pages to write, and he got paid $100,000, in mid-nineties dollars too. Wow.

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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