Monday, August 29, 2011

Neil Gaiman vs Todd McFarlane: Round I

Before the recent Jack Kirby/Marvel court case, the highest profile creator lawsuit, outside of the Superman case, would have to be Neil Gaiman vs Todd McFarlane.  The case started in January 2002 and, incredibly, has still yet to reach a final resolution.  Everyone knows the details behind the case, but for those who might not be fully up to speed, in 1992, McFarlane approached a number of famous writers to scribe one-off issues of Spawn.  Alan Moore, Neil Gaiman, Dave Sim and Frank Miller were those writers, and all delivered the goods.  Gaiman created three new characters for his story, notably the angel Angela and Medieval Spawn.  The third character, Count Nicholas Cogliostro, wasn’t as much of a hit as the other two.  Buoyed by the instant popularity of Angela, and also the commercial possibilities of working with Gaiman, McFarlane employed Gaiman to write a three issue mini-series for Angela, and also tapped him to write future issues of Spawn.

In 2001 Gaiman was incensed that McFarlane had gone back on a deal that would have seen him, Gaiman, co-own the Angela and Medieval Spawn character, along with a number of associated characters, and was also angry that McFarlane had not paid promised royalties on books, toys and profits of the Spawn HBO cartoon.  To rectify this Gaiman filed suit and after a four day trial a jury found in favour of Gaiman, charging McFarlane with breach of two separate contracts (McFarlane had argued that, as nothing had been put down on paper, no contracts could be breached) and awarding Gaiman with copyright interests in the characters Medieval Spawn and Cogliostro and interest in Spawn #26.  This was added to his copyright interests in the character Angela, along with the Angela mini-series and issue #9 of Spawn.  McFarlane was also found to have breached further agreements by publishing the trade Angela’s Hunt (containing an unauthorised biography of Gaiman) and was instructed to cease publishing and distributing that book.  On the fiscal front, Gaiman was awarded $45,000 plus costs, and attorney’s fees in the amount of $33,639.40, and McFarlane was instructed to provide accurate accounting for all books and toys sold and to pay Gaiman his percentage.  The irony was that McFarlane had always been a very vocal defender of creators rights, yet had dropped the ball when it came to him claiming ownership of another creators work.

It was a crushing defeat for McFarlane and it came on top of the Tony Twist case, in which the real life Tony Twist sued McFarlane in 1997, and won a figure of around $24,500,000, only to have that decision reversed by a trial court.  The case was referred to yet another trial in 2004.  In the middle of all of this fighting McFarlane, who was also being pursued by his insurance company for costs associated with the case (the insurance company were refusing to pay) so it came as no surprise that McFarlane would file for bankruptcy in December, 2004.  As part of filing for Chapter 11, the court states that, “Immediately upon the bankruptcy filing, a broad “stay” automatically goes into effect that prohibits parties from taking or continuing most actions to collect money or property from the Debtor, including the commencement or continuation of any judicial proceedings in any other court.’  This meant that a stay was in effect as of December 2004, meaning that nobody was able to get any money owed from Todd McFarlane or TMP.

McFarlane went back to his comic books and toys, and had an active hand in the creation of three characters named Dark Ages Spawn, Tiffany and Domina.  Dark Ages Spawn was created by writer Brian Holguin and McFarlane and bore a strong resemblance to Gaiman’s Medieval Spawn.  As the court found, “The Medieval (Gaiman) Spawn speaks as late twentieth century people expect a medieval character to speak and wears a knight’s costume. Gaiman conceived of him as Sir John of York, a freelance knight born in England in 1146. The Dark Ages (McFarlane) Spawn is also 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.

“Both Medieval (Gaiman) Spawn and Dark Ages (McFarlane) Spawn committed bad deeds in the past for which they want to make amends, both have sisters whom they loved who married men who were or became the Hellspawn’s enemies; both made a deal with the devil to let them return to Earth; and both use their powers to help the defenseless. The two characters are visually similar: both wear metal helmets and face masks with rivets; both ride horses and carry oversized swords and battle shields; both have armor shoulder pads with spikes. Both have aspects of the first Al Simmons Spawn: a “neural parasite cloak,” a particularly shaped face mask, green eyes and a red “M” on the chest.”

The similarities didn’t end there.  In regards to Tiffany and Domina, the court found that, “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, elbowlength gloves and ill-fitting armor bras. Angela and Domina each wear a long cloth draped between their legs and a winged headdress. Tiffany and Angela are shown in the Spawn Bible as having sharp wings.   All three of these female characters are warrior angels who fight in the war between Heaven and Hell. When plaintiff conceived of Angela, he saw her as part of an army of 300,000 “female, kick-ass warrior angels, who are hunters, merciless and not very nice.”  Tiffany and Domina are part of this same heavenly army. Like Angela, Tiffany is described in the Spawn Bible as having failed to kill only one of the persons she intended to kill: Al Simmons, the original Spawn.

“All three warrior angels wear masks designed to be the opposite of the Spawn mask; all have hollow eyes. Angela’s wings are on her headpiece; Tiffany’s are on her back; and Domina’s are on her shoulders.”  The similarities between the characters was not lost on Gaiman, and when McFarlane came out of bankruptcy, Gaiman filed a motion for an order to compel discovery relating to the money earned from derivative characters Dark Ages (McFarlane) Spawn, Domina and Tiffany.  McFarlane decided to fight this motion, claiming that, “Mr. Gaiman is improperly attempting, through a post-judgment accounting procedure, to expand the judgment in this action to grant him an ownership interest in three additional copyrights despite having never asserted any such claim in the lawsuit. In particular, the three characters at issue in his motion were never raised in any fashion whatsoever—or even mentioned—in his pleadings or at trial in this case. Now, after judgment, Mr. Gaiman seeks improperly to supplement the record with hand-selected images that are misleading in their appearance. Due process requires that any adjudication of these new claims concerning additional characters be one in which the evidence can be tested, authenticated and explained to a trier of fact. A quasi-administrative, post-judgment accounting procedure is not the proper time or place, and this Court should reject Mr. Gaiman’s effort to obtain by way of motion what he has never sought by way of trial.”

The end result saw Gaiman and McFarlane facing off in June 2010, yet again, in a court of law.  This time it was a one day discovery, with testimony being heard from Gaiman, Holguin and McFarlane, with all sides arguing for their respective characters.  McFarlane’s argument was that he could, as he saw fit, adjust the ‘laws’ of the Spawn Universe – after telling people that there could be only one Spawn every 400 years, and no two Spawns could exist at the same time, he relented and allowed Dark Ages Spawn to exist at the same time as Medieval Spawn.  He insisted that Tiffany and Domina bore no resemblance to Angela, and that any similarity was mere coincidence.  Gaiman was attacked about similarities between his own character in Books Of Magic and Harry Potter, and other works and accused Gaiman of wanting to claim more characters as his own.  Gaiman’s side fought back, claiming that the three characters were derivative works, a claim that McFarlane’s side both disputed and agreed with, claiming that Medieval Spawn was derivative of McFarlane’s original Spawn.  Holguin claimed, under oath, that he had not based Dark Ages Spawn on Medieval Spawn, but that was irrelevant because all Gaiman’s lawyers had to do was prove that Holguin had access to Spawn #9 and had read it at some point in time – a very similar stance that saw George Harrison successfully sued for plagiarism over My Sweet Lord (in that the court stated that while it didn’t believe that Harrison sat down to consciously steal the Chiffon’s She’s So Fine, they were essentially the same song, and “…under the law, infringement of copyright, and is no less so even though subconsciously accomplished.”).

In the end it mattered not.  The court once more found in favour of Gaiman and ordered McFarlane to provide accounting for those three characters as well.

It should have ended there, but it hasn’t.  Despite the order being delivered in July 2010, McFarlane, to date has yet to fully account to Neil Gaiman.  Each month since July 2010 a status report has been filed with the same details that both sides are working towards a settlement, and only the dates are changed.  At the beginning of August the court once again intervened, with the result being that, during a tele-conference, “…counsel for the parties reported that settlement is imminent.”  Hopefully such a settlement can happen before the next cut-off date, which is scheduled for early October.  If not then this case could easily go past the ten year mark, with still no sign of ending.


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