It was a court case for the
ages – Neil Gaiman versus Todd McFarlane.
It started in January 2002 and was finally resolved in February
2012. In a crushing victory, Gaiman
realised a million dollar plus payout along with co-ownership of Spawn issues 9
and 26 and the three issue Angela mini-series and the content of those
publications, but it was no easy path to that point, nor is the battle between
the two fully finished. Along the way
there were two court cases, the first lasted four days in 2002 and saw Gaiman
score his first victory, giving him copyright interests and damages, the second
lasted a day in 2010 and saw the court ratify Gaiman’s position. No matter how anyone looked at it, Gaiman was
the winner and the whole mess is best summed up on Padriag O'Mealoid‘s blog.
In mid-2002 as the court
case was starting to heat up, the principals were duly deposed by the
respective lawyers. These depositions
have remained largely unseen by the general public as the bulk of them were
sealed at the time and remain sealed, however, over the next two days I’ll be
presenting the full, two day, deposition of the main man himself – Todd
McFarlane.
McFarlane’s deposition both
answers and poses many questions as to the conduct of all parties
concerned. If you believe McFarlane he
was trying, all along, to resolve the situation between himself and Gaiman only
to be stymied by Gaiman himself. The
deposition is full of broken promises, deals gone wrong, contracts not honoured
and offers one of the more interesting insights into both the case and
McFarlane himself. If you thought that
McFarlane was a tad unusual before then, once you read this, you’ll come away
almost convinced that, much like Jim Shooter, there is a truth – HIS truth and
nothing else matters.
So sit back, relax, settle
in and thrill over the first day of the Deposition of Todd McFarlane – it’s
like nothing you’ve ever seen before, and, remember, part two will be posted at
the same time tomorrow – and it’s also a doozy!
The plaintiffs were
represented by their attorneys, Foley & Lardner, by Allen A. Arntsen, Esq.
and Jeffrey A. Simmons, Esq.
The defendants Todd
McFarlane were represented by their attorneys, Blackwell, Sanders, Peper,
Martin, L.L.P., by Michael A. Kahn, Esq.
The defendant Image Comics
was represented by its attorneys, Brobeck, Phleger & Harrison, LLP, by
Matthew C. Lapple, Esq.
Also present was Kenneth F.
Levin, Esq., Mr. Neil Gaiman.
TODD D.M. McFARLANE, called as a witness
herein, having been first duly sworn, was examined and testified as follows:
EXAMINATION BY MR. ARNTSEN
Q: Please state your name.
A: Todd -- full name?
Q: Yes.
A: Todd Dean Mark McFarlane.
Q: What's your home address?
A: ___ -- _____________, Phoenix, Arizona
85044.
Q: Mr. McFarlane, it's my
understanding that in addition to having your deposition today on an individual
basis, you're also being presented as the designated witness on a number of the
30(b)(6) topics involving the corporate defendants. Is that correct?
A: Correct.
Q: And I guess what I would
suggest is if Attorney Kahn wants to just read into the record -
MR. KAHN: I'll go ahead. For the
record, earlier this week or late last week I sent Jeff Simmons a letter going
through the ten topics that were listed in the 30(b)(6) deposition notice
designating Todd McFarlane for certain of those topics and designating Julaine
Claybaugh on certain other accounting topics concerning documents she had been
gathering in response to the document request. Todd has previously been
designated under the 30(b)(6) notice for topics 1, 5, 7 and 10 from that
deposition notice.
For the purpose of this
deposition, Allen, I mentioned to you earlier Julaine Claybaugh was not with
Todd McFarlane Productions back in 1997 when there were a great deal of
accounting type and royalty type documents reviewed and compiled in July of 1997
before certain materials were sent to Mr. Gaiman in August of 1997 and Todd
McFarlane had at least an opportunity to review all those materials back then,
and to the extent that any of the other topics that are included in the
30(b)(6) designations which deal with copies being sold and moneys being made
on various products related to the comic books at issue, then Todd McFarlane
Productions will also designate Todd McFarlane himself to testify on those
topics.
MR. ARNTSEN:
So, if
I understand the subject areas that Mr. McFarlane is the witness for, he is the
witness for topics 1, 5, 7 and 10 and as to the remaining topics he is the
witness up to a certain date?
MR. KAHN: Yes. He's a witness at
least through 1998.
MR. ARNTSEN:
Okay.
MR. KAHN: And since 1998 Julaine
Claybaugh has been going through the company records to try to find more recent
information on sales of Angela comics, on sales of Angela action figures and
other items that would be included within those topics and she would have more
knowledge about what those documents say than Todd would.
MR. ARNTSEN:
So, do
we have a separation date between the two witnesses or what are you saying in
that regard?
MR. KAHN: I'm saying why don't we let
Todd try to talk about everything.
MR. ARNTSEN:
Okay.
MR. KAHN: But he may not know actual
numbers on sales numbers from '99 to the present because those documents have
been gathered by Julaine, but I wanted you to be able to ask him those areas as
well.
MR. ARNTSEN:
So
I'll be proceeding as if Mr. McFarlane is the designated witness on all the
30(b)(6) topics recognizing there's more recent information since 1998?
MR. KAHN: Of a quantitative nature.
MR. ARNTSEN:
Concerning
numbers, he may not have the information and Julaine Claybaugh might. Off the
record.
(Discussion off the
record.)
BY MR. ARNTSEN:
Mr.
McFarlane, why don't you summarize your educational background from high school
graduation up?
A: I attended Spokane Falls
Community College starting in, I
think, the beginning of 1980, spent about a year and a half there and then
transferred over to Eastern
Washington University
and stayed there until graduation in 1984. About May of '84.
Q: What was your degree in?
A: It was just a B.A.
Q: Major?
A: Well, in the field of art.
Q: Okay.
A: Graphic design.
Q: Did you graduate from high
school in 1980?
A: No, in '79.
Q: Take me up through your
employment history from college graduation on. Just bring it through
chronologically.
A: From the beginning of
college?
Q: College graduation.
A: Oh, college graduation.
Q: Or if there was some
significant employment prior to college graduation you can bring that up, but I
don't care to know about waiting tables.
A: Graduation about May of
'84, started working for Marvel Comics, sort of a subdivision called Epic
Comics.
And then in '85 moved over
to DC Comics. Worked at DC comic books as a free-lancer for about three years
and then -- 'til about '88; went back to Marvel comic books and stayed there as
a free-lancer until August of 1991 and then have been self-employed with --
starting in the end of '91, beginning of '92, Todd McFarlane Productions, that
I'm the company where I employ myself and became a part shareholder of Image
comic books in 1992, and then the toy company I think was like around Christmas
'94 maybe. Maybe it might have been -- it might have been Christmas '93.
Q: When you say "the toy
company," is that TMP Worldwide?
A: Well, I'll refer to it as
TMP International.
Q: Okay.
A: Now, can I make a
clarification?
Q: Yes.
A: I have done stuff in Hollywood. Should I tack
that on here, too?
Q: Yes, why don't you.
A: I was exec producer on an
HBO animated series from '97 through '99; was exec producer on a full length
feature for New Line Cinema '96, '97; directed, co-directed a couple of music
videos probably in 1999 and 2000, and worked on a film that just got released
here, 2001, on doing animation, produced animation and then a couple of small
sort of screen plays, scripts in between that.
Q: Any other general areas?
A: No, not really.
Q: The film you just finished
in 2001, what's that called?
A: Dangerous Lives of the
Altar Boys.
Q: And you did animation and
were a producer?
A: Well, there's no sort of
good guild rules for animators, but I was credited as a producer of the
animation sequences in that film.
Q: And executive producer for
HBO, was that the Spawn series?
A: Correct.
Q: And the executive producer
for New Line, that was the Spawn movie?
A: Right.
Q: Backing up now, let me
cover one other topic. There are various
corporate entities with your names or initials on them.
A: Uh-huh.
Q: Can you tell me what they
are and what they do?
A: Todd McFarlane Productions
is essentially a publishing company that does some free-lance art work, designs
stuff and owns a lot of the trademarks, copyrights of a lot of the characters
we design.
TMP International is a toy
company that produces for the most part action figures that we distribute
world-wide.
And TMP Asia is a smaller
subdivision which helps with our international FOB business with our
international distributors.
Q: With toys?
A: With toys, right.
And McFarlane Design Group
is where we do a lot of the research and development for a lot of the toy
designs.
And McFarlane Toys-Canada
is again a smaller entity that helps facilitate the sales and distribution of
toys up in Canada.
Q: Any others?
A: TME, which is Todd
McFarlane Entertainment, is an office in southern California that deals with entertainment.
Usually with the Hollywood business.
Q: And are you the sole owner
of all these entities, recognizing that one of your entities may own other
entities, both getting it back to people?
A: I think TME is the only one
that I'm not a hundred percent.
Q: Okay. Who else is an owner
of that?
A: Terry Fitzgerald.
Q: Okay. And how about
McFarlane Worldwide, Inc.?
A: You know, I don't know. I
don't know what that does.
Q: Seriously?
A: Right.
Q: Okay. But you own it?
A: Yes. All that's on that
list I own.
Q: Okay.
A: A lot of accounting reasons
for it.
Q: Okay. And you're also an
owner of Image Comics?
A: One of the shareholders,
right.
Q: And you're the President?
A: Right.
Q: Are you an officer of any
other companies?
A: No. I'm a share owner --
I'm a shareholder of another.
Q: Are you a shareholder of
other companies - I'm putting aside
public companies, that kind of thing -- are you a shareholder of any other
closely held companies?
A: I own a minority stake in
an NHL franchise, Edmonton Oilers.
Q: Anything else?
A: No.
Q: Were you one of the
founders of Image?
A: Yes.
Q: And when was that?
A: That would have been late
-- about December of '91.
Q: And who are the current
Image shareholders?
A: Marc Silvestri, Jim
Valentino, Eric Larson and myself.
Q: And do you receive a salary
from any of your entities?
A: From Todd McFarlane -- from
TME International I receive a salary from and from Todd McFarlane Productions.
And then -- and then anything I do as either an individual or through TME,
through Hollywood,
but those are not steady paychecks.
Q: Those are on kind of a
project basis?
A: Right. Project by project.
Q: And we can designate this
part confidential.
(The following excerpt was
designated "Confidential.")
BY MR. ARNTSEN:
When
you started work at Marvel in 1984 what did you do?
A: I was the penciler on a
back-up series for a comic entitled Steve Engelhart's Coyote.
Q: Were you paid a salary?
A: Well, a page rate. You get
paid a page rate, X amount of dollars per page.
Q: And what's a penciler do?
A: He does the drawings with
the pencils.
Q: Okay. And he's paid
piece-work, so much a page?
A: Yes.
Q: And so as you -- I guess I
might as well try to get an understanding of how this business works. What is given to you and what do you produce
to put on presumably to the next step in the process?
A: In that specific case they
would have given me what they call a plot outline, which is essentially two or
four pages that just give a general overview of what they want you to draw, and
then depending upon the number of pages I have allocated I have to get all that
information visually onto the art boards. So, and then from there I would hand
it in and it would sort of go through the process.
Q: What is the process? What's
the process in the creation of a comic book?
A: There's variations in it,
you know, so – but again it sort of goes something like this. That, you know,
ideas are come up with and then you hire a writer. The writer takes that idea
and then either writes a script or an outline that I was just talking about.
From there the writer's job
then is given to the penciler and the penciler again has to take all that
information and put it into the allocated number of pages. A traditional comic book is generally right
now 22 pages, so that's sort of the bulk of what you will see out on the
stands.
Once the pencils are done,
it will go back.
There's usually an editor
on the books. The editor makes sure that nothing is sort of getting off the
track. They will send it out to an inker. An inker will then, just like his
name sounds, he will take an ink pen and turn the pencils into a black and
white sort of finished Image.
Again it will go back to
the editor. He'll hand it over off to a letterer. A letterer will then take a
script that sometimes while the book's being inked, the writer is getting
copies of the pencil pages and is now writing a script.
So, at some point the
script comes in from the writer, the ink pages come in from the inker and now
they've got to get balloons placed on it, you know, where the words are in
those circles with tails on them. They give that to the letterer. He does
balloon placements, puts it on top of the black and white art work, and then
the last guy in the run is the colorist who will then take all of it and will
color it, handing it back before it then gets shipped off to the printer to go
through that process of converting it into tens if not hundreds of thousands of
books.
Q: Okay. And you started out
as a penciler?
A: Yes.
Q: And you worked at Marvel
initially from '84 to '85, correct?
A: Yes.
Q: Was that always as a
penciler?
A: Yes.
Q: And were you always paid on
a sort of page rate, as you discussed?
A: Yes.
Q: And in 1985 you went over
to DC Comics, correct?
A: Yes.
Q: Why?
A: The book that I had been
working on at Marvel, although I was only doing a backup, the book got canceled
so essentially I had no -- I had no work. So you, you know, you just jump from
job to job. And so I went back to somebody I'd met and sent and corresponded
with earlier and I was able to pick up another job.
Q: And what was that?
A: Well, initially it was a
couple of what we call fill in issues, which are sort of temp jobs to get you
through from month to month, but it became – it turned into a permanent job,
which was the penciler on a book entitled Infinity, Incorporated.
Q: And when you say a book,
that's -
A: A comic book.
Q: A comic book series?
A: A comic book series,
correct.
Q: And so these Infinity comic
books, they had come out on a regular basis?
A: Yes. They were a monthly
publication at that time.
Q: And so that becomes a
regular job for you?
A: Yes.
Q: And were you the sole
penciler or did you work with other pencilers on it?
A: It depended on each issue
depending upon their deadlines and how fast or slow I was at any given time.
Q: And how long did you work
as a penciler for that Infinity comic book?
A: About three years.
Q: And again you were paid on
a page rate?
A: Yes.
Q: Were you -- is that a work
for hire?
A: I believe so.
Q: Did you sign any kind of
agreements in connection with that with DC?
A: Yes. On the Infinity one I
had a contract.
Q: And is that a contract that
says that this is how much you'll be paid and this is what you'll do and what
rights to your -- who has what rights to your work-product?
A: And things like sometimes
they include sort of if you do ten issues in a row on time they will give you a
couple extra bucks or sometimes they will include medical or something like
that, so it's spelled out what to expect from them, yes.
Q: And how much in this kind
of job, how much freedom or artistic leeway do you have?
A: I would say a great deal
actually.
As a guy who has to put the
visual, you know, you have to -- sometimes you have to condense a writer's
ideas and sometimes you have to expand it depending upon, you know, again
you've got this allotment and at times, you know, you'd get stories. You'd just
go, "This is bigger than 22 pages," you know. Other times it was
shorter than 22 pages. You had to stretch it.
So, depending on any given
month, you just -- and the way you lay out the page is completely -- it's
completely up to the artist's sort of interpretation of how they sort of want
to pace all of it. So I'd say yes, I'd say we had a lot of freedom.
Q: In connection with this
job, did you consider yourself a creator?
A: Well, a penciler of comic
books, yes. That's sort of how I called myself and introduced myself, "I
do pencil comic books."
Q: And you did that at DC --
you had essentially the same job at DC from '85 to '88?
A: Yes.
Q: And then you went back to
Marvel?
A: Right.
Q: Why?
A: Everybody is sort of
looking out for their career and I'd been on the book for three years and I was
looking.
It was a team. It may seem
silly, but it was a team book which meant it had a lot of characters in it and
it can get very arduous drawing a lot of different people. So I was looking to
see if I could grab a job that was sort of more focused on a headline character
than doing twenty guys in a book.
Q: Did Marvel offer you that
job?
A: I think I did a couple fill
ins for them just to sort of show them I can meet a deadline and then I ended
up picking -- they gave me the Incredible Hulk to pencil.
Q: And was that a monthly
comic book again?
A: Yes.
Q: You were the penciler for
Incredible Hulk?
A: Yes.
Q: For what period of time?
A: Probably '88, '89 era.
Q: Was your contractual
arrangement with Marvel for Incredible Hulk different in any way from your contractual
arrangement with DC?
A: I don't know if I ever had
a contract. Once I went back to Marvel I was just -- it was just piecemeal at
that point, so I don't recall if I had a contract with them or not.
Q: You were paid per page?
A: Per page, right.
Q: And it was a work for hire
arrangement again?
A: Yes.
Q: So you understood you
didn't retain any intellectual property rights in the work you had done, is
that correct?
A: Right. I think they
actually printed it on the back of checks just in case you didn't understand.
Q: How long were you working
as the penciler for Incredible Hulk?
A: About eighteen months,
something like that.
Q: Then what did you do?
A: Did a little bit of Batman
back over at DC for a couple months and then moved on to do the penciling on a
comic called Amazing Spiderman.
Q: So, how did you come about
switching? Why did you switch from Hulk to Batman and then from Batman to
Spiderman?
A: When I was doing the Hulk I
was -- I was building speed and so I was then capable of doing more than one
book a month, and so I'd picked up the odd job, but then the opportunity when I
left DC, I told a couple of people I'll come back and do some Batman and the
opportunity came up to do some Batman. I did that, but it was only temporary, three
months.
And once that job ended,
then I go, well, I -- I'm down to one book. I can actually do two books. And so
I went looking for another job and I ended up getting the Amazing Spiderman.
Q: During this period of time
-- and again this reflects my lack of knowledge of the comic book industry --
is your career advancing? In other words, are you building a reputation in any
sense of the word?
Can you command higher
rates of pay, that type of thing, or is it still sort of a commodity?
A: No, there's a little bit of
that in there.
Again at times it's not
different than a normal business in that they have twenty year vets there and
they don't want you to sort of exceed sort of the senior, you know, artist. And
so, you know, you'd ask. They always used to say, "I can't pay you more
than that guy, you know, twenty years."
And, "Okay. I understand that."
But they are very good and
the raise they gave you a lot of times is to character. It doesn't cost them
any money. They shift you from a character you don't like to a character you
do. Because you leave the office: "Well, I'm doing Superman. Cool."
But you didn't get a raise, right? So you go.
But they try to figure out who your favorite characters are so they can
actually have an answer for it, but sometimes they would bump you up, but it
was maybe five or ten dollars a page at a time or something.
Q: And that was the progress
of your career up that we've covered so far?
A: Right.
Q: And you started working on
Spiderman in what, '89?
A: Yes, I think so. Then again let's just be clear here. It's
called Amazing Spiderman.
Q: Okay.
A: Because we are going to get
later to a book called Spiderman, so I don't want to mix our metaphors here.
Amazing Spiderman.
Q: Amazing Spiderman.
A: At the beginning, right.
Q: And how is Amazing
Spiderman different from Spiderman?
A: They -- on some of the more
popular characters, given that a book can only come out once a month, they go,
"Hey, there's more than one week in a month," and so they figure out
how to do sort of another version of it. And so they had three, you know,
Superman and Batman, Spiderman, X-Men, all the popular guys usually have more
than one title going at any one time.
Q: Okay. So you initially were
doing the pencilling for Amazing Spiderman and anything else at that time?
A: I did a quick couple months
on a mini series for DC called -- I think it was called Invasion. I think that
might have been the title. So I did that.
Q: You indicated that with
your initial work for DC you were operating under a written contract, correct?
A: Right.
Q: And as best you can recall,
when you worked for Marvel you were not operating under a written contract,
correct?
A: Right. I don't recall one.
Q: And was that true
throughout the period with regard to when you were working for DC and when you
were working for Marvel; did you typically work under written contracts with DC
and not under written contracts with Marvel?
A: No. I think one time I went
back and I did the stuff like the Batman fill-ins, if you will, and the
Invasion. I don't think there was any contracts for that.
Q: Was that also true all the
way through your Marvel employment, no contracts?
A: I think so. I don't think
we ever had a formal contract.
Q: So when you then -- take me
through from when you started working on Amazing Spiderman 'til you left
Marvel?
A: Amazing Spiderman probably
started in '88, '89. I worked on that one for two and a half years, in that
area.
And then by this time I'd
progressed into -it was the only book I was doing at that time and I had -- I
decided instead of doing two books what I'd rather do is do the penciling and
the inking on the same book instead of handing it over to somebody else. So I
was the penciler and inker on Spiderman as well as doing the covers.
And so just because I was
always sort of a curious little kid, you know, I kept getting somebody else's
stories and I wanted to write my own stories.
And so knowing that
something had to give, I walked away from Amazing Spiderman and said, you know,
I want to try and find a job that I can write and I don't want to -- I don't
want to write somebody else's stuff. And so I'll just quit and I'll go see if
somebody will give me a job as a novice writer, if you will, but a skilled
artist at this point and move from there.
Given at that time
Spiderman, Amazing Spiderman, was doing pretty good and I helped boost the
sales on the book, they didn't want me to really leave Spiderman. So I don't know what the origin of it was,
but they had Spiderman books and somebody figured out there's four weeks, so
they went, "Well, what if we let you stay on Spiderman? We'll let you
write it and we'll create a new Spiderman book for you." I mean, it was
better, better than I'd ever thought. I thought I was falling into that part
because it would be a big title and I was sort of a novice writer, but, of
course, I enthusiastically said yes. And so I then became the writer, penciler,
inker of a new title that was just called Spiderman, so there were no
adjectives in front of it.
Q: So this was a monthly comic
and you were doing everything on it other than the -- well, up to the
lettering?
A: Right. Although there's
more one or two issues I actually did letter and one that I colored, so I
dabbled in all of it at some point.
Q: All right.
A: But there was just those
three jobs were the main jobs I did, writing, penciling and inking.
Q: Was this still on a work
for hire basis?
A: Right.
Q: And did you retain any of
the intellectual property rights to any of the Spider -- any of these Spiderman
books that you did?
A: No.
Q: Were you still paid on a
page rate?
A: Right.
Q: But presumably your pay is
going up as you're doing additional jobs with it?
A: Well, you get some extra
money on the royalties depending on sales, so again that's where they could
keep your page rates going down and, well, if you go on a big selling book you
get some extra money.
Q: Is that true if you're a
penciler?
A: Right.
Q: It's true at every one of
the stages then?
A: I can't say that for sure.
I don't know if that's true. I don't know.
Q: And were these royalty
agreements, was there a standard rate, a standard formula or program in place?
A: Yes, I think so.
Q: So again for a book that
you were doing, would you get -- there would be some royalty arrangement for
the stories you were the writer on, correct?
A: Right.
Q: And then there would be a
royalty arrangement for the books that you were a writer and penciler on,
correct?
A: If it met their formula,
right.
Q: And can you just describe
for me what the formula was, how it worked?
A: You know, I think -- I
think it was if you sold more than around 140,000 copies then you were in line
to get something.
Q: Did you create any
characters in connection with this work?
A: With the Spiderman work?
Q: Yes.
A: Yes.
Q: And did any -- did you get
any rights in connection with the characters you created?
A: No.
Q: So, all -- I mean, in
connection with your work, you understood it was all work for hire, correct?
A: Correct.
Q: And your employer was
keeping all of the -- all of the sort of residual rights to your work, correct?
A: Correct.
Q: So, during what period of
time -
A: Excuse me for a minute.
Q: During what period of time
were you the writer for Spiderman?
A: Probably '90 and '91.
Q: Were you doing anything
else during that time period?
A: I don't think so.
Q: So, what did you do from
there?
A: After Spiderman?
Q: Yes.
A: I stopped working on the
book. We had our first child, my wife and I, and I wanted to take a break. We
never had a kid before so I wanted to sort of enjoy that time. That would have
been in August, 1991.
And I'd been having off and
on conversations with sort of other free-lancers and friends about sort of
saying, "Why don't we -- why don't we start our own company. What are we
working for the companies for?” So, sort
of dancing to their tunes to some extent. Why don't go we go and try to band
together."
And so by the end of 1991
we had gathered seven of us and three of us announced to Marvel that we were in
unison leaving Marvel comic books to sort of start a commune of artists and
writers together and that started -- that began that we ended up calling it
Image Comics and that began in 1992, the beginning of '92.
Q: Who were the other founders
of Image Comics?
A: Back then the other six
would have been Marc Silvestri, Eric Larson, Jim Valentino, Rob Liefeld, Jim
Lee and Whilce Portacio.
Q: Image was founded at the
start of '92?
A: I'd say probably December,
December of '91.
Q: What did you do in
connection with your work with Image initially?
A: Well, Image was put
together to sort of create a logo. You know, we had sort of a brand name. We as
artists were not necessarily skilled in the details of business at this time
and so we ended up running into some people that had a smaller company called
Malibu Comics and they offered to publish the books for us to help us on our
way; let us sort of as much as possible concentrate on doing the art, if you
will, and the books and the writing and not worry about sort of the other
things that are inherent with publishing a comic book.
So each one of us went to
our little hovels, started our own companies, created our own characters and
then fed those ideas in the forms of comic books into this commune and then
those were published by Malibu Comics starting in 1992.
Q: So when was the first comic
you did published by Malibu Comics?
A: June, 1992, I believe.
Q: And what comic was that?
A: Spawn Issue 1.
Q: Were you the -- what was
your involvement in Spawn Issue 1?
A: I was the writer, penciler,
inker, creator, editor. You know, most of the dirty work. I did the dirty work
other than the lettering and coloring at that point.
Q: So you did everything but
the lettering and coloring for the final copy that was sent in to Malibu to publish?
A: Right. For the most part,
right.
Q: And the first Spawn Issue 1
came out in June, 1992?
A: Yes.
Q: Then did it come out at a
certain frequency?
A: We attempted to be monthly.
I can't quite say that we were accurate every month, no.
Q: Does Spawn still come out
on a regular basis?
A: Yes.
Q: And are you still -- do you
still write and draw for Spawn?
A: No. I help in the plotting
and the editorial work.
Q: In 1992 were you involved
in any other comics other than Spawn?
A: No.
Q: Did you enter into any kind
of contractual arrangement with Image with regard to Spawn?
A: I don't know if there were
formal contracts at that time or not.
Q: Did you enter --
A: Because again there was
sort of a shell company, so there wasn't really sort of a company. It was a
commune.
Q: Did you generate any
contracts with Malibu
in connection with Spawn?
A: I don't know. I remember
having conversations with them individually because they understood that there
was no Image. It was only the individuals. So I think they had to negotiate
individually.
MR. KAHN: Let me clarify it for you.
When Allen asks you about contracts, he's not asking you for some legal
definition. It can be an agreement either written or oral. That's what he's
doing.
THE WITNESS:
Oh.
MR. KAHN: So if there were any
agreements with Image, any agreements with Malibu, you can tell him whether or not it
was written. Correct me if I'm wrong. When he says "contracts" it
doesn't mean only a written contract.
MR. ARNTSEN:
I
apologize.
MR. KAHN: That's all right. It just
became clear from his answer when he said "I can't think of any written
contracts."
THE WITNESS:
So
with the shell company or commune of Image we agreed to take all of our ideas
that we sort of created separately and put them into the middle and then from
there we sort of shopped that around and had them published by Malibu. And again I think Malibu may have dealt with
us individually. I don't recall.
BY MR. ARNTSEN:
And
you don't, if I understand correctly, you don't recall any written contracts,
correct?
A: Right.
Q: Do you recall what the
general structure or terms of the contracts were between you and Malibu?
A: I think it was -- I think
they ended up getting -- it would -- they would help us with the production of
it, you know, so again with accounting, solicitation, collecting the bills. And
then at the end of that I think they would get 10 percent of whatever they
collected from each individual title I think is how it worked. Now, it may have been a flat fee plus 10
percent. I don't recall. But they got a percentage of sales.
Q: And the way it worked out
is that you - essentially what you and your colleagues at Image would get,
you'd pay Malibu something and pay various people things and then what's left is
what you got?
A: No. It actually worked the
opposite because Malibu
was the publisher and dealt directly with the printers and the distributors.
They would collect all the
moneys, deduct their fee out of that, whatever we had agreed to at that time,
and then whatever was left over then -- they may have paid the printers again
and some of the shipping, some of the inherent costs, and then whatever was
sort of left over then -- then they'd send out the check. And I don't recall whether they sent it to the
individuals or to the clearinghouse of Image.
Q: How did it work with -- who
retained the intellectual property rights to the work you did on Spawn?
A: All the books were
controlled by the individual creators.
Q: What did you do with regard
to -- when you started out with this, what did you do with regard to like
copyright notices?
A: I think -- I think -- I
mean we put notices at the bottom of the first page or Malibu helped us with
that and I think later on somewhere along the line I think we did some filings
on the trademarks.
Q: How did you come up with
the language of the copyright notices that you used?
A: You know, probably just
from looking at other comic books, use our best knowledge and talking to Malibu.
Q: Do you recall putting much
thought into that?
A: Just enough to make sure
that everybody thought that it seemed official, yes.
Q: Now, in 1992 you had -- you
arranged with some guest writers to do some Spawn issues, correct?
A: Yes.
Q: How did that come about?
A: Spawn had been out for
maybe about a year at this point or close to it and Image Comics was founded by
a bunch of artists and the knock against us was that, you know, we didn't know
how to write. We could only draw.
And so again it would be --
I thought it would be sort of an interesting idea to bring some writers on to
-- on to the book to sort of see what their take would be on some of the ideas
for it.
Q: Was that your idea?
A: Right.
Q: So how did you go about
implementing that idea?
A: I came with a mental list
of guys that sort of would fit the bill, that would sort of -- sort of would be
interesting names to put on it and then started making phone calls.
Q: And who did you come up
with as guest writers?
A: Alan Moore, Neil Gaiman,
Dave Simm and Frank Miller.
Q: How did you come up with
Neil Gaiman?
A: I think Neil was given a
lot of critical acclaim at that point. Sandman was his book I believe that he
was writing that was, you know, winning awards and, you know, he was -- and
again I think Neil had done little, if any, sort of superhero comic book work
and so I thought again it would be an interesting choice.
Q: When did you first meet
Neil?
A: Oh, I don't know. I don't
know.
Q: As far back as you can
recall, recognizing we're talking about stuff that happened ten years ago.
A: Yes. It probably was at a
comic book convention, you know. So, before all -- all of him doing work. Again
all of us are a small community. You sort of butt into everybody. So my guess
is we had an introduction somewhere.
Q: And if I understand
correctly, prior to Neil doing work for you on the Spawn series you believe you
had met him and run into him on some occasions but you don't -- there's no
specific recollection, is that right?
A: Right. I don't recall
specifically.
Q: You were acquainted with
him?
A: His work, yes. His work.
Q: Okay. How did you -- how
did you decide you were going to compensate and allocate creative rights
between with regard to these guest writers you were looking to have help with
Spawn?
A: I don't think that was sort
of the topic of conversation at the beginning. It was -- my first intent was to
find the writers and sort of go, "Hey, here's some -- there's an
opportunity here. Would you guys be interested in it?" And then -- and
then sort of tell them it's a Spawn book and have some fun with it.
Later on in some of the
conversations I told them that they would get $100,000 for doing it and in a
sense it was pretty much the same conversation for everybody. I wanted them to
be equal, so did all of them, so they could pass notes back and forth. And so
we started from there.
Q: Okay. Tell me as best you
can recall your conversations with Neil Gaiman in connection with his work for
Spawn 9?
MR. KAHN: Just a second so I can
clarify.
Allen, do you want the first
conversations regarding his agreement to do it or do you want the conversations
all the way through the creation of publishing Spawn 9?
MR. ARNTSEN:
I
guess the agreement. What would work best is if we -- and unless I tell you
otherwise, somewhat my question is going to work them through chronologically.
MR. KAHN: Okay.
BY MR. ARNTSEN:
As
best we can. I'm trying to kind of get your recollection out in a logical way
without having the questions be too either parsed on the one hand or vague on
the other.
A: I would have somehow
contacted Neil talking about him coming and potentially writing an issue, him
eventually saying yes, talking about some of the creative stuff that I was
doing already in the book, talked a little bit about the money, talked a little
bit about some of other guys that were already coming on. And then from there
the follow-up conversations for the most part would have been sort of creative
talk about what we were going to sort of do or not do and how Spawn continuity
was doing up to this point and things of that matter.
Q: What did you talk about
with regard to financial terms?
A: I think at the beginning it
was -- it was just $100,000 and a payment for all works in consideration for
him coming on board and doing that and that we'd pay him in advance before he
got started and then a lump sum would come later.
Q: What did you do -- what
were your conversations with regard to how the process would work?
A: I believe I asked Neil how
he normally works. Neil from my experience writes different than what I was
used to. I would get a plot outline.
Neil is one of the writers that likes to write the script before the art
instead of after the fact.
So I'd done a couple jobs
like that and so I went, "Oh, okay," you know. I think Al Moore had
done it the same way. And so I go,
"However you like to write, you know, sort of write it down and then we'll
just sort of move forward from there. We got to get a cover out. We've got to
do a cover. So just come up with some ideas and I'll get a cover because you
have got to do solicitations and then we can sort of get going."
Q: Do you recall where Neil
was living when you were having these discussions with him?
A: My understanding is that he
was in Minnesota
some place.
Q: Did you ever meet in person
with Neil in connection with, you know, putting together this agreement to have
him write for Spawn prior to him actually starting the job?
A: I don't think so. It might
have just been all over the phone, you know. I can't say for certain.
Q: What types of -- did you
exercise any control with regard to Neil's script?
A: I told him to go and write
it and unless something was sort of completely off the radar map after our
discussions on what direction I was heading in, what the book was and what the
characters were about, that, you know, hand it in and if it looks good then we
will bless it and get it out to print.
Q: Did you tell him a
schedule, this is the schedule you want for him?
A: I probably -- I probably
gave all of them some parameters of the schedule, right.
Q: And then you were just
looking to receive a script?
A: Right.
Q: And along with any
conversation, interim conversations along the way for discussions, correct?
A: Right.
Q: And Neil was never an
employee of you or any of your companies, correct?
A: Right.
Q: Did you ever sign any, or
enter into any kind of work for hire agreement with Neil?
A: No.
Q: Did you have any
discussions with Neil with regard to who would hold what intellectual property
rights to the work he was doing?
A: I don't think we got overly
specific with it. They were coming on to
my book, writing for me, so I think it was a basis of understanding from
everybody.
Q: Well, do you recall any --
any discussions in connection with that?
A: Nothing specific. We were
artists. I don't think that we had sat there and talked about copyrights at
that moment.
Q: Okay. So, if I understand,
as best you can recall there weren't discussions with copyrights or trademarks
in connection with this, correct?
A: No. At that moment.
Q: Did you talk at all before
Neil wrote the script of any characters he might introduce or anything like
that?
A: Yes. When we were having
our creative conversations his issue was Issue 9. Issue 8 was written by Alan
Moore. Again Neil was the most curious of the four as to sort of, you know,
continuity in the book and how it all sort of worked where the other guys were
more about doing stand-alone stuff. So Issue 8 Alan Moore delved in the
concepts of hell after some of my discussions and so it sort of was an easy one
for him to go, "Hey, Alan's doing hell. How about I do heaven given that
Spawn's character's from the pit of hell?"
Q: So that was Neil's
suggestion to you?
A: Oh, well, I can't say where
it came from. In the midst of a conversation you know, again he was asking
questions, "What is Spawn? Where are you headed with Spawn? What's in it?
What sin do you sort of want me to put in there or not put in there?" And
so we sort of these had conversations about what would make an interesting issue.
Q: These were all over the
phone as best you can recall?
A: I believe so.
Q: when did you first recall
hearing about the Angela character?
A: We probably came to an
understanding we were going to deal with heaven so we needed an angel character
of some sort. I don't know if she had a name, but I had to get a cover out
because the covers precede everything.
So, once we said we're
going to do heaven and heaven has angels, I went and did a cover and from there
then at that point Neil probably gave her the name at that point. I don't know
if she had a name or if she was just a generic angel at that point.
Q: Had Neil provided to you
any thumbnail sketches of angels prior to your doing the cover?
A: No.
Q: Did Neil provide drafts of
his script to you or did you just essentially get a final product that you then
plugged into your comic book process?
A: I mean, he gave me a draft
that I don't know if I made any or little changes on it and then started
drawing away at that time at it because again I was the artist on it, so credit
seemed pretty fine, and I started doing the art work.
Q: So, do you recall making
any changes in the words of the script?
A: No.
Q: There was a character in
Spawn Issue 9 that, for want of a better word, and I'm not trying to put any
conclusion on this, but that was Spawn in the Middle Ages. Do you know what I'm
referring to?
A: Yes, yes, right.
Q: And we'll call him Medieval
Spawn.
A: Yes.
Q: And for the purposes of
these questions I understand there are some issues, et cetera, et cetera. How did that character come about?
A: Probably through the
conversations Neil and I had had throwing ideas back and forth and then him
inquiring about what directions I wanted to go to, what the back story was of
Spawn, what I had done, what I was planning on doing and from all of that comes
a story.
Q: Prior to this Medieval
Spawn character had you had any Spawns in other times other than the present?
A: I don't think visually. I
may have mentioned it in some of the writing I had done.
Q: Do you recall?
A: Pardon me?
Q: Do you have any specific
recollection -
A: No.
Q: -- in that regard?
A: I'll have to go reread my
books.
Q: But as you sit here today
you have no recollection, correct?
A: Right.
Q: Backing up a minute to the Angela
character, one of the early things you did was drew a cover with a picture of
an angel on it, correct?
A: Yes.
Q: Do you recall any further
discussions with regard to that character and features, qualities, that kind of
thing prior to your getting the script from Neil?
A: Again, we knew she was
going to battle Spawn or there was going to be somebody battling Spawn. There's
always a good guy and a bad guy. And so she was essentially going to be the bad
guy. And so, you know, she couldn't be a wimp, you know. None of the bad guys
are soft looking. So we needed to make her a warrior, yes.
Q: Do you have any
recollection of any specific conversations in that regard?
A: No.
Q: There's another character
in Spawn Issue 9 called Count Cogliostro. Do you know which character I'm
referring to?
A: Right.
Q: Do you have any
recollection as to the genesis of that character?
A: Again in our conversations
and again Neil's curiosity about where I was going and what I wanted to do, he
wanted to know if there's anything he wanted me or I wanted him to add that I
was going to do to sort of get the stories going.
I told him that I had sort
of this antihero, that I also wanted this sort of anti-Moses character here and
so this all sane sort of guy, and so we talked in parameters about this Moses
character and then I was going to eventually bring in this guy. So if you want
to plug him in here, so here's sort of parameters of what he is and if you can
find a spot for him, put him in.
Q: And what were those
parameters that you gave to Neil?
A: Again using Moses as -- the
biblical Moses as sort of the back drop, sort of the anti version of that guy,
a guy who sort of knows more than anybody else and, you know, has more insight
than anybody else and may have sort of the divine knowledge of what's going on,
although in this case he's actually from the pit of hell which is why the
anti-Moses. But again just in those - in those sort of terms.
Q: who came up with the name
for Cogliostro?
A: I believe it was Neil.
Q: Is the same true with
Angela?
A: Yes, probably.
Q: Did you have any
discussions at this time, and I'm talking about the time prior to the
publication of Spawn Issue 9, as to who had the rights between Neil and you
with regard to these characters he was creating?
A: I think the -- the only
conversations was Neil began to ask questions like, "What happens if this
book gets reprinted or a trade paperback?" He started asking sort of
follow-up questions.
Q: And what did you say?
A: "Oh, how do you want
me to handle it?"
Q: And what did he say?
A: "Well, you know, I've
got a pretty good contract at DC. I'm doing pretty good. I don't want to be any
worse off for the wear here. And so, you know, you can just keep it, you know,
and get close to my DC contract. That would be good."
Q: And what did you say?
A: "Okay."
Q: And have we now made it
through the end of the conversation?
A: That's the gist of it.
Q: What else do you recall of
it?
A: Most of it.
Q: That's all you can recall
of that?
A: Yes.
MR. ARNTSEN:
Let's
take a little break.
(Whereupon, a short recess
was then had from 2:50 p.m. until 3:06 p.m.)
BY MR. ARNTSEN:
Did
Neil provide some -- what I guess are called thumbnail sketches to you for
Spawn 9?
A: With the script, yes.
Q: So he sent those to you
when he sent the script to you?
A: Right.
Q: Is that a typical part of
the process?
A: No.
Q: Were there any discussions
beforehand, before him providing these to you of him providing the thumbnail
sketches?
A: Just, you know, again Neil
had a way of working and I didn't want to disrupt that so, you know,
"However you work, I'll adjust around it."
Q: Did you use the thumbnail
sketches at all?
A: I looked at them for some
of the pacing that he wanted, so -- but again not -- so it would be bad against
writers, but they are they are not artists, but -- so you have to make
adjustments where you see fit, so -
Q: Backing up a minute on this
comic book process and what -- the final piece of original art work that
becomes the copy for the publication, what does that look like? How big is it?
What does it look like?
A: Generally it's -- the image
is 10 inches by 15 inches and it's black and white because the inker has now
come on and made it. The color is done at the printer or now on computer, so the
color rarely is there. It's black and white imagery of what you would see in a
comic book at a larger size.
Q: So it's a page?
A: Yes, a page. Each page,
each page would be 10 by 15.
Q: Okay. Then what use is made
of those pages once the comic book comes out?
Do they have some value as
original art work like you see these Disney things and stuff like that?
A: Yes. Traditionally the way
that it works and the way it's been explained to me is that we don't own, for
instance, when I was working on Spiderman, I don't own Spiderman but I own the
paper that it's on, the image that it's on. So, although you can't now separate
the image from the paper, what they do is historically they give you the
original art work back and you can do with it as you want as long as you're not
doing reproductions of it.
And so again historically
most artists would take them to conventions, sell them, give them away, give
them to family members, whatever they want to do. Hang them up, whatever they
choose.
Q: And is that what you did
with your Spawn art work also?
A: No.
Q: What did you do with that?
A: Kept it.
Q: You still have all of it?
A: Yes.
Q: What about your Spiderman
art work?
A: No. I -- I sold some of
those pages, the good ones.
Q: In your initial discussions
with the four guest writers who were doing, I believe it's Spawn 8 through 11,
did you tell them up front it's $100,000?
A: Uh-huh.
Q: You have to use words.
A: Oh, I'm sorry. Yes.
Q: You were testifying earlier
concerning your conversation with Neil concerning his DC agreement. Do you
recall that?
A: Right.
Q: Did you do anything to look
into what his DC agreement was?
A: Once he mentioned that he
wanted the same rights and privileges of it, then I go, "Well, you're
going to have to tell me what those are, you know. So, better yet, you know, if
you want to give me a copy, cool." So, but he just -- just handed over
some of the terms whenever that was a specific item we happened to be talking
about.
Q: Did you refer back to the
contract that you had with DC?
A: Not at the beginning.
Q: At some point in time?
A: Yes.
MR. ARNTSEN:
Mike,
did you produce those?
MR. KAHN: No, I don't -- I don't
remember seeing them, but let me ask you, can you put your hands on that
contract?
THE WITNESS:
I can
look for it. Again we're going back to '85, so it's probably in a weird spot if
I still have it.
MR. KAHN: Well, if you can find it --
if we can find it we will produce it, and if you stumble on it tonight we'll
give it to you tomorrow.
THE WITNESS:
All
right.
BY MR. ARNTSEN:
Okay.
Did you ever do anything -- back in this 1992 period did you do anything else
to try to determine, okay, what are the terms of the DC agreement that Neil is
talking about?
A: No. For the most part Neil,
Neil fed me most of the information.
Q: Did in fact the
compensation that each of the guest writers for Spawn 8 through 11 receive, was
it $100,000 apiece?
A: I believe so.
Q: Any other compensation?
A: I know there were
additional payments, not - I'm trying to think. For those issues? No.
Q: How about for reprints of
those issues?
A: There were -- there were
additional payments made after the publication of it to Neil, but again I don't
know specifically what each one of those was for.
Q: How about the other
artists, the other authors? For instance, I note there was -- the issues were
reprinted in trade paperbacks, correct?
A: Right.
Q: And were the writers paid
something for that?
A: I don't think so, or I
don't know.
Q: Your answer is you don't
know?
A: I don't know.
Q: Did you have any
discussions in this 1992 period with any of these guest writers about -- about
the copyrights for the work?
A: Not specifically in those
terms, no.
Q: And when you're saying
"not specifically in those terms," do you ever recall the word
"copyright" being mentioned?
A: No.
Q: The same with trademark?
A: Well, I owned the trademark
for Spawn, so everybody sort of knew it was my book. They knew they were coming
to my book, so they knew who owned that.
Q: With regard to the Spawn
trademark?
A: Right.
Q: Have there been other guest
authors for Spawn since these Spawn 8 through 11 guest authors?
A: There have been other
people write the books.
Q: Was this on a work for hire
basis?
A: I don't know how we broke
down everybody.
Q: These four guest authors
weren't on a work for hire basis, correct?
A: I can't say that. It wasn't
in writing and we all sort of understood what the task was in front of us.
Q: What do you mean by that?
A: I created a book, Spawn. I
wanted them to come on to my book and do some writing for my book, so although
-- although we weren't lawyers, we didn't get into it, I think it was a general
understanding as to what everybody was getting into.
Q: Was the phrase "work
for hire" mentioned?
A: I don't recall.
Q: Did any of the other three
guest authors for Spawn 8 through 11 create any new characters?
A: Yes.
Q: And who created what?
A: I don't know. I don't know
if they actually gave them names or every -- it's impossible to write something
and not create something new, so I'd have to look at those issues before I
could give you that answer.
Q: Did any of the other guest
authors create any characters of whom action figures were made?
A: No.
Q: Following the -- was Spawn
Issue 9 successful?
A: I'd say yes.
Q: What was it's -- I mean,
putting it in the spectrum of the, you know, of the Spawn comics, how did --
was it more successful than most, less successful, within the middle, that kind
of thing?
A: I believe that when Spawn 1
came out it was issue number 1 and it continued to be issue number 1. So in the
confines that issue 9 was I believe still issue number 1, then it was -- it was
equal to task, if you will, so -- and I think 8, 9, 10 and 11 were all issue number
1. Spawn was the number 1 selling book.
Q: So you're saying each
succeeding issue outsold the preceding one?
A: No, no. I'm saying we have
charts in our industry and regardless of sales, because that's all relevant,
that they say who is the biggest seller.
So, to be sort of overly
simplistic, you could sell a million and be in first. You could also sell three
and if everybody else only sold two you'd still only be number 1. So, taking
out sales sort of within the confines of it, sales I believe was non-stop 1 for
almost twenty issues in a row.
Q: So you're saying that, if I
understand correctly, as best you can recall Spawns 1 through 20 were each the
biggest selling comic book for their month of issue, is that correct?
A: Or for a regular book or
pretty damn close, right.
Q: Okay. And how did -- was
Spawn Issue Number 9 -- within the context of the first twenty Spawn issues
where did it come out? In other words, were they all approximately equally
successful, did it outsell the ones before and after? I'm just trying to get a
context.
A: Probably it would be mid
range if you average the first twenty because by Issue 20 the market's starting
to soften a bit so you're still behind the charts and not be selling near what
you were selling at the beginning.
Q: What was the biggest
selling Spawn issue?
A: Spawn Number 1.
Q: Did you have any
discussions then following the issuance of Spawn Number 9 of Neil doing some
other work following up on the work he'd done for Spawn 9?
A: I think shortly after Issue
9 came out we sort of both seemed to be happy with what had gone down and Neil
wanted to do some more work, so we sort of talked about some other project and
the obvious one was for him to do a mini series, which isn't a regular book,
with Angela in it.
Q: And what's a mini series?
A: A mini series is not unlike
what you see on TV. That it's not part of regular programming or -- and so
again Spawn is a monthly comic book and so is Superman and Batman and those
kinds of books, but every now and then companies will add or creators or
publishers will add sort of stand-alone stories, but they don't mean it to be
an ongoing book. They just have a story to tell.
Sometimes it's one issue
sometimes it's ten and in between that, but it's not meant to be something that
will last much longer than a short period of time.
Q: So you had discussions
about Neil doing something like this with regard to Angela?
A: Yes. We talked about doing
more work together, uh-huh.
Q: Tell me how that came
about, what you recall about that?
A: Like I said, I think it was
-- Issue 9 came out. We were both happy with sort of the results and so again,
you know, he wanted to do some more work. I was happy with what he had done and
he said, "Let me do some more Angela.”
"Okay. Do you want to write a mini series? "That's good."
Q: What did you talk about
with regard to the contractual provisions of that?
A: Again I think it fell into
the same sort of discussions we'd had; again get it within my DC contract. And
I don't even know if we got that specific. We were just happy that we had a
success of one book. You know, "let's go and do some more books
together."
Q: So, did you talk about
money at all for it?
A: I think we discussed again
being able to give him a bit of an advance before he started writing the issues
and then -- and then there may have been some parameters of, you know, a
minimum amount that he, you know, that he could sort of count on that he
wouldn't get any less than something so that he knew at the end of the day he'd
have X amount of dollars in his pocket.
Q: Did you talk about
percentages at all?
A: I don't recall. We may
have.
Q: And was the process for the
writing of the Angela mini series the same as the process for Spawn 9?
A: I don't think so.
Q: How was it different?
A: My recollection is that
Neil did a full script on Issue 9 and when the Angela mini series started I
wasn't the artist on that book. A fellow by the name of Greg Capullo was. And I told Neil -- I was working with Greg at
that time. I told Neil how I worked with Greg, which was to give him an outline
and let him do the art work and come back.
So I think somewhere along
in the process of the Angela mini series one or more of those issues got
converted into that style of somehow getting the information to Greg and then letting
Greg do the art work and then writing it later. So I don't know if all three
were done that way or it was mix and match, but I think there was a conversion
there.
Q: Did you ever apply for a
copyright on the Spawn Issue 9 script?
MR. KAHN: Do you mean the script and
nothing else?
MR. ARNTSEN:
I mean
the script.
THE WITNESS:
The
script as a separate thing?
BY MR. ARNTSEN:
Yes.
A: I don't think so.
Q: Did you ever have any
discussions with Neil concerning intellectual property rights or respective
creative rights with regard to the Angela mini series?
A: Only -- only as they
related to his DC contract.
Q: And have you fully told us
your recollection of that?
A: Uh-huh.
Q: You have to use words.
MR. KAHN: You have to answer with
words.
THE WITNESS:
Yes.
BY MR. ARNTSEN:
When
did you first come up with selling Angela toys?
A: Is the question when did we
first sell the Angela toy?
Q: Yes.
A: Maybe -- maybe early '94,
'95, `93. I'm not -- early to mid '90s.
Q: Did you have any
discussions with Neil as to whether he was entitled to a share of the royalties
for the Angela toys?
A: Nothing I recall
specifically.
Q: Anything you recall
generally?
A: Just again, you know,
"I thought I get paid money when I do stuff like this for DC.” "Okay. So just how much is that? Send it
over."
Q: Did you have any
discussions with Neil concerning whether he was entitled to any payment for the
reprints of Spawn Issue 9?
A: Again I don't know if we
talked about it specifically.
Q: Was Neil paid?
A: I don't know.
Q: And the Angela mini series
was reprinted into a trade paperback, correct?
A: Right.
Q: Did you have any
discussions with Neil as to if he'd be paid anything for that?
A: Again just as it related to
how he was used to getting paid on those kinds of books.
Q: From DC?
A: Right.
Q: And you were in agreement
with that?
A: Well, again I go,
"Well, what is it? Give me -- let me see the contract. Let me see it or
give me the information." And so he'd give me some numbers sometimes.
Q: Did you do anything else to
again verify the information?
A: Well, I kept prodding Neil,
kept asking questions to Neil, kept trying to sort of get the information. I all the time asked if I could actually see
this elusive contract and then much later, you know, made some phone calls to
sort of verify some of the information.
Q: Are you talking about in
1997?
A: I'm talking from 1993
onward.
Q: With regard to phone calls
you made to verify the information?
A: To the initial statement of
"I need this to sort of match my DC contract." From there the race
began.
Q: What? The what?
A: The race began from there.
Q: Okay. And what did you do?
Tell me about the race?
A: Again from the very
beginning, okay, "I don't want to -- I don't want to be any worse off than
the DC contract. I need to match that contract.” "Okay. What is it? What am I matching?
What am I matching?"
And then every now and then
he'd sort of go, "Well, here's some numbers, some payments if you happen
to do a T shirt or you happen to do a toy or if you happen to do a reprint or
something." And then I'd get that information, okay, ask some follow-up
questions about it.
I think there were some
initial payments made upon some of that information. And then -- and then as
the process went on I started sort of seeing inconsistencies and so I asked
sort of more questions and as questions sort of were asked there those
inconsistencies became a bit of a problem.
Q: What inconsistencies?
A: A number of
inconsistencies. The inconsistencies of the numbers or the calculations and how
he got there and what it was all relevant to and what the definitions were;
everything that comes from a normal contract.
Q: Can you give me some
examples?
A: Payments for, say,
paperbacks; payments for a toy; payments for characters whether they are in
their own books or not. I mean, it's sort of a wide spectrum.
Q: What inconsistency do you
recall with regard to payments for a trade paperback?
A: I don't know specifically
right now. I'm sure you're going to show me documents. We can point them out if
you'd like later on.
Q: But do you have any? It
sounds to me like you're referring to inconsistencies in conversations and I'm
trying to see what you recall from conversations.
A: Right. Well, in
conversations Neil giving a number saying that he would get X amount of money
for -- for a DC job and then later on as I'd get through it didn't sound right
to me now given that I had worked at DC.
So I'd go, "Well, just sort of be clear here. Angela, there's two
of us created that character, so does that number get divided in two?” "Oh, yes. Oh, yes. My mistake. Yes,
you're right, that number does get divided. Oops."
Q: When was that conversation?
A: Those conversations
unfortunately were pretty much ongoing from about late '93 on.
Q: The conversation with
regard to Angela being divided in two?
A: No. Those conversations in
general.
Q: Okay. But what I'm trying
to do is focus on --
A: I don't remember the
specific conversation that I'm speaking about.
Q: Do you remember any
specific conversations in this regard?
A: Just asking him again what
are the numbers, is there any chance we are ever going to see these contracts?
You know, taking him for his word, making the payments, seeing this
inconsistency later, asking some questions. And then just sort of going, I've
got a bit of a moving target here. It's tough for me to sort of nail what it is
I'm supposed to be matching when it seems to be moving. It's elusive to me.
Q: And again in what specific
context did these come up?
A: Conversations over the
phone for the most part.
Q: Okay. But with regard to
what types of rights? For instance, did
you have such conversations concerning trade paperbacks?
A: Right, the paperbacks.
Q: All right. And what did
Neil say he got paid from DC, say, with regard to the Angela paperback?
A: I don't recall the number.
I would have asked him, "How do you get paid," and then he would
either have given it to me verbally or sent something to me.
Q: Okay. And did something
come to you that caused you to question the veracity of that information?
A: For Angela? Not really.
Q: Okay. Not for Angela. For
what?
A: For Medieval Spawn and Cog.
Q: All right. Tell me about
the conversations with Medieval Spawn that caused you to question the veracity
of what Neil told you?
A: Medieval Spawn is what I
would define as a derivative character of something that pre-existed. So, there
was a Spawn. There's a mytho -- there was sort of a history there and then you
do a slight variation on the ongoing theme that pre-existed.
According to Neil, no
matter how slight that is that he is entitled to an accounting price, if you
will, to derivative characters. It didn't seem right to me, but again I was
taking Neil at his word at that time.
Q: And so I guess what I'd
like is as best you can recall the conversation you are referring to concerning
Neil's position with regard to what he was entitled to for Medieval Spawn?
A: It was more that he was
entitled to any ownership -
Q: Okay.
A: -- of any of it. It was
awkward that he would have any stake. And I'm saying accounting ownership, not
to actual accounting ownership in DC comic books for doing a derivative of an
existing character. He assured me that
that was indeed correct and then supplied numbers to me either written or
verbally and again subsequent payments were made based upon that information.
Q: Okay. What did he -- what
did he tell you? What numbers did he
supply?
A: I don't recall the specific
numbers. I was -- I was more transfixed
on that there would be any numbers attached to a derivative character.
Q: So it was your view that --
it was your thought that he wasn't entitled to anything for Medieval Spawn, is
that correct?
A: Well, I was surprised that
his answer was, "With my DC contract, yes, indeed." That's true again
that I had told him I'd match the contract. I -- I go, "Okay." You
know, I don't have to like it, but okay.
Q: All right. Based on your
experience with DC Comics, had you had any insights as to how DC treated rights
to derivative characters?
A: Infinity, Incorporated, the
book I did, was essentially made up of the sons and daughters of existing
superheros, and so some of those used the same names and costume designs and
things like that and I was -- I was never entitled to anything.
Q: Of course. But that was on
a work for hire basis, correct?
A: Correct.
Q: You never told Neil that in
your view his work in connection with, you know, writing for Image was on a
work for hire basis, correct?
A: Only in -- only in the
confines of his DC contract.
Q: What do you mean by that?
A: That he goes, "Match
my DC contract." So I assumed all these years DC is a work for hire
contract, so given that that's what he continued to point at, then we can all
sort of assume that all those rights are sort of transferred now into this new
job.
Q: And did you have any
specific discussions with Neil in that regard?
A: Again only in, you know,
"I want you to match the terms of the DC contract."
Q: With regard to the other
three guest writers in Spawn 8 through 11, did you ever have any conversations
with them concerning whether their work for you was on a work for hire basis?
A: Not specifically.
Q: Generally?
A: Not -- I don't recall.
Q: Okay. Do you recall
anything in that regard?
A: No.
Q: Did you have any discussions
in connection with the Cogliostro character as to how Neil -- what Neil's
rights would be under his DC contract?
A: Cogliostro? Neil would
supply me with numbers, but he -- and Cogliostro was always a bit of a bone of
contention.
Q: Why was that?
A: Because Neil thought we
co-created it and I was more of the mind that I -- I gave it to him, given that
he -- he was very sensitive when he was going to write the script as to what I
wanted in it, what I would like to see in it, if there was anything I wanted to
add, if I had any characters coming through or anything.
We just, you know -- so I
told him about this Moses character I was going to bring in there. He said,
"Oh, I'll help you bring it in there." So I didn't consider that to
be the same creative process that's something like Angela.
Q: But did you view that Neil
had been part of the creative process for Cogliostro?
A: Well, maybe, maybe in a
slight -- maybe in a slight way because I ignored what he actually wrote
thereafter and essentially reinvented the guy afterwards, so -
Q: How did you reinvent the
guy?
A: I thought he was a little
too corny, a little blase faire, a little sort of cooky. He's a little bit of a
drunk bum who knew something, where Cog, the anti-Moses, is a father figure,
should be sort of a like a Harvard graduate. He shouldn't be a buffoon to some
extent. He should actually be a guy who's actually like a professor that can
actually correct you at any given time and sort of use big words and sort of
give, be like an overseer of all the stories.
And so what this character
was that I wanted never matched my expectations and so I sort of ignored it and
moved on and just went in my direction.
Q: And what was -- was that
direction sort of making him smarter it sounds like what you're saying?
A: Changing his costume,
changing when he when he doesn't appear, his mannerisms, the way he talks, the
way he speaks, what his agenda is. You know, where he comes from, his whole
back history, you know, how he relates to Spawn, how he relates to heaven and
the earth and the curse and everything else; I added all that.
Q: So that wasn't a change so
much as an addition, correct?
A: No. That was a change.
Q: Okay. Describe how it was a
change, how it was different from what Neil wrote?
A: Well, again let's be clear
that Neil wrote after having conversations with me as to how this character
would speak and what he was about, so let's just get that on the record.
Q: But what I'm talking about,
Spawn Issue 9 introduces a character named Cogliostro, correct?
A: Right.
Q: And it's in the script for
Spawn Issue 9 which Neil wrote, correct?
A: Correct.
Q: And then I believe you
indicated that, and there was a -- you used the character Cogliostro in
subsequent works relating to Spawn, correct?
A: Correct.
Q: And I understood what you
were saying earlier that the character that you subsequently used you changed
significantly from the Cogliostro character that appears in Spawn Issue 9, is
that correct?
A: Right.
Q: Okay. What were the
changes?
A: His mannerisms, his body
appearance, his physical appearance, whether he would carry animals with him or
not, what he spoke of, why he spoke of it.
Q: And I guess -- I apologize
for interrupting, but I guess what I'd like is specifics. What mannerisms did
he have and how did you change them, for instance?
A: Instead of -- instead of
being a sort of a bum whose concern was getting a 6-pack of Ripple wine, his
concern was to be the father image, to actually bring knowledge to people, not
to necessarily worry about his own personal drunkard at that stage and to bring
insight specifically to the characters around him and more specifically to
Spawn and guide him along the path through the 120 issues I've done so far.
Q: Did Cogliostro bring
insight to Spawn in Spawn Issue 9?
A: Not -- not any in the way
that I wanted, no.
Q: Okay. And what was
different about the way you wanted him to do it than it was done in Spawn Issue
9?
A: Again just that he seemed
like a high school graduate instead of a Harvard graduate. So make your
inferences from what that means.
Q: Okay. You wanted him
smarter?
A: Right.
Q: What other changes did you
make? And again I'm looking at specifics rather than generalities.
A: I wanted him to be more --
again Moses, Moses coming down the hill with the tablets. It should be revered
when you see him. It shouldn't be a drunk, if you will, looking for the next
bottle of whiskey, which is sort of what he was in Issue Number 9. So I was
looking for grandeur and I didn't feel like I got grandeur.
Q: Okay. So you made him
grander, correct?
A: Correct.
Q: Okay. What other changes
did you make?
A: Grandeur is a big word, so
that qualifies a lot. So I'll leave it at that.
Q: Why don't you describe the
ways you made him grander then?
MR. KAHN: Let me just at least for
the record object. I think it's been asked and answered –
THE WITNESS:
Yes, I
thought so.
MR. KAHN: -- if you look at his
transcript in the last ten minutes, Todd's efforts that he made to change the
character.
MR. ARNTSEN:
That's
what I'm trying to find out. I don't think we are going over the same ground. I
think we are getting some detail, turning general statements into specific
statements.
MR. KAHN: Maybe so. And the record
will speak for itself. I just want to save the record.
BY MR. ARNTSEN:
How
did you go about making him grander?
A: Well, I think -- I think --
I think the first change was just a spelling mistake, you know.
We give scripts to writers
or to letterers and sometimes they work late and they don't pay attention and I
don't know. I think -- I think Neil might have had Cagliostro and it got
changed to Cogliostro.
And again it was sort of a
tongue twister sort of name. At some point you get stuck with what the letterer
gives you and that was the new name, right, and then later on as we sort of
changed him. We had given him a history. We had to give him sort of a full
name. Cogliostro is just like Madonna. There's no sort of name there. So we had
to give him a sort of a full identity and I think later on we gave him sort of
a full blown name that went with it instead of just Cog, Cogliostro.
Q: Well, wasn't his initial
name called Nicholas Cogliostro?
A: I don't know what his first
name was.
Q: What first name did you
give him?
A: I don't know.
Q: You just recall giving him
a first name?
A: Right.
Q: So what discussions did you
have with Neil with regard to payment for Cogliostro in the context of Neil's
DC contract?
A: Just trying to figure out
where Cog would fall in all of this given that he didn't seem to be Angela. So,
you know, it was tough for me to sort of use those same numbers as -- as sort
of the value of that character, if you will.
Q: So what you were
disagreeing with is the amount of compensation Neil was entitled to for
subsequent uses of Cogliostro?
A: Well, the definition of who
created that character more specifically.
Q: So, was it your position
that Neil wasn't entitled to any additional compensation?
A: Well, not really. Again I
thought – I thought that again using that he said he had numbers that were put
in there no matter what you sort of create, that he was there in Issue Number 9
and although I changed sort of whatever, it would be a smaller number because
it wasn't the same process we went through with Angela.
Q: Did you and Neil ever agree
on that number?
A: No.
Q: Did you ever make payments
to Neil for your uses of the Cogliostro character?
A: I don't know specifically.
Q: Did you ever make payments
to Neil for your uses of the Medieval Spawn character?
A: I believe there were some
payments made for that.
Q: Was Medieval Spawn in any
subsequent Spawn issues after Issue 9?
A: Yes, I believe so.
Q: Do you recall approximately
how many?
A: Maybe two to four or
something.
Q: Who came up with the
Medieval Spawn name?
A: I did.
Q: And was Medieval Spawn
shown or was he made into action figures?
A: Right.
Q: Fairly successful action
figures?
A: It's a relative term, so -
Q: Can you answer?
A: Well, define
"successful."
Q: Within the context of the
various characters you made into action figures, how did Medieval Spawn come
out?
A: He did pretty good again as
a Spawn. Generally in toys the people
like the main characters, so they like Spawn.
Q: Cogliostro had a fairly
significant role in the TV series, correct?
A: Right.
Q: Was Cogliostro in the
movie?
A: Yes.
Q: Was Medieval Spawn in the
movie?
A: No.
Q: Was Angela in the movie?
A: Not as a -- not as it
reflected in what she was in the comic book, so I would say no.
Q: Was there a character named
Angela in the movie?
A: Not I.D.
Q: I mean, I was just trying
to understand how your answer is different from saying, "No, Angela was
not in the movie." What was in the
movie that might have been sort of like Angela?
A: We put a -- we put a
redhead, a redhead in the background at a party as sort of a bit of an in-joke,
if you will.
Q: Okay. That was it?
A: Right.
Q: Now, at some point in time
did you talk with anyone at DC concerning the terms of Neil's DC contract?
A: Not -- not specific to
Neil's contract per se.
Q: Okay. At some point in time
did you talk with anyone at DC about how DC Comics handled derivative
characters?
A: Right.
Q: Who did you talk to when?
A: A lady by the name of Terri
Cunningham, and that would have probably been maybe, I'm guessing, maybe in '96
some time.
Q: Was it a phone call?
A: Yes.
Q: Did you call her or did she
call you?
A: No, I called her.
Q: Tell me about the
conversation?
A: Just I wanted, you know, I
knew she wasn't able to speak about anybody's contract specifically, so I
wouldn't put her in that position. So I wanted to just sort of talk in
generalities, you know. "Do you
give moneys for derivative characters that are preexisting? And if you do, how
does any of that work?"
And she explained to me
that DC doesn't do that. They don't. If you do Medieval Superman you are
entitled to nothing. So, if you do Medieval Batman you are entitled to nothing.
Q: Were those her words with
regard to Medieval Superman, Medieval Batman?
A: No. I go, "Let me give
you an example. If I did Aqua -- if I did Aqua Batman would I get anything? If
I did Caveman Superman, if I did a derivative with any sort of name, you know,
Cowboy Billy Superman, would I get -- would I get anything?"
And she was like, "No,
no. We own Superman, so -- we own Batman."
Q: Did she explain any
circumstances in which DC would pay creative payments for derivative
characters?
A: If you're going into -- she
didn't go into it in any detail, no.
Q: But I guess what I'm saying
is was it just a flat out "if it's a derivative of one of our characters
we don't pay anything" or was there some nuance?
A: I think she mentioned later
that if there was an extensive reworking, if somebody took a name of something
and reworked it, and at that point I believe potentially Neil's Sandman
actually became an example - she didn't know I was phoning on behalf of Neil -
that there was a character from the '40s called Sandman that had that name and
then the character that Neil wrote had that name but nobody would look at those
two and look at their history and what they were about and the background,
nobody would make a confusion of them other than they both sort of had the same
name. And so in that case, although it was the same name of a character, as
long as there was an extensive reworking of something and it appeared to be a
new character, then -- then that was a -- they had a few examples of that
within the confines of their stables.
Q: And was this all within the
same conversation?
A: Right.
Q: And did you specifically
ask anyone at DC about any provisions in Neil's agreements with DC with regard
to derivative characters?
A: No. Because again I knew
that people weren't supposed to talk about other people's contracts and I
wouldn't put them into that position.
Q: With regard to DC's
treatment of derivative characters generally, did you speak with anyone else at
DC other than Terri Cunningham?
A: No. Terri was the person
who did most of the contracts, so it eventually fell on her desk to finalize
most of the contracts.
Q: And did you have more than
one conversation with Terri Cunningham on this subject?
A: Of derivative characters?
Q: Correct.
A: No. That was -- that was
the gist of that.
Q: So, if I understand the
substance of what she told you, it's that DC would not pay for derivative
characters unless there was an extensive reworking of the character, is that
correct?
A: Right.
Q: Now, at some point in time
some contention arose between you and Neil concerning what Neil was being paid
for the work he had done on the Spawn and Angela comics, correct?
A: Yes. We -- we -- we didn't
see eye to eye on some issues, right.
Q: Okay. When did that first
come up?
A: I don't know. Maybe --
maybe '94 or something.
Q: In what context, do you
recall?
A: I think it was -- I think
it was -- it was either in -- in the context of a toy maybe or a foreign
reprint possibly.
Q: Did you ever have any
conversations with Neil concerning, you know, creative credit for what Neil had
done or was going to do?
A: Only -- only in regards to
his contract and in some of the conversation we had going back and forth over
those years.
Q: Okay. Tell me what
discussions you had with him in that regard again with the idea of creative
credit and creator's rights generally in giving credit to creators and that
sort of subject?
A: Again it was not
necessarily for creative rights at -- "This is what I get at DC." So
again if you create something and somebody maybe appears subsequently in their
name thing, they sometimes put a vanity credit some place there to sort of
acknowledge somebody's time on something.
Q: Did you ever talk to Neil
about this in any context other than Neil's DC contract?
A: Yes. We probably had
ongoing conversation about it.
Q: Okay. What types of
conversations, again putting aside -
A: I don't recall the
specifics. I know that - that my mind tells me that those were part of the
conversations, but I don't -- I don't recall specifically.
Q: Was one of the things Image
was holding itself out as is as a business that respected creators rights
perhaps more than the more established comic book companies?
A: Right.
Q: And did you have those
kinds of discussions with Neil?
A: Just clarify. Who are you
asking the question to? Are you asking it to Todd McFarlane the head of a toy
company, the head of publishing, part owner of Image comic books or the
individual? So will you ask your question and ask me which one of those people
you just asked the question to?
Q: They are all sitting in
front of me, so -
A: But they each have a
different agenda during their day, a different task to accomplish during the
day. I'm sure you do as a father and a lawyer.
Q: Well, I guess what I do
with regard to this, any conversations you had with Neil in this regard, if you
could answer the question as such and say, "Well, this was in my capacity
as."
A: Okay.
Q: Such as, I think that makes
a lot more sense -
A: Okay.
Q: -- rather than go through
and ask -
A: Okay.
Q: -- the same question six
different times.
MR. KAHN: Good idea.
THE WITNESS:
That's
fine.
BY MR. ARNTSEN:
Are
you comfortable proceeding that way?
A: Yes.
Q: And so feel free to put a
preamble in. You have to be clear; "This was in my capacity as
blank."
A: Okay. That's fair.
Q: Okay. So what discussions
did you have with Neil with regard to this creator's rights issue putting aside
the, you know, "the same as my DC Comics" issue?
A: As the head of Todd
McFarlane Productions who's the one requesting Neil to do art work, that again,
you know, asking him to come on board, help me write a comic book and if, you
know, you have any special requests that go along with that then bring them to
the forefront and if I'm capable of delivering those then and we come to an
agreement, then we'll get there.
Q: Do you recall any special
requests that he made in response to that offer?
A: Not at the beginning.
Q: Okay. How about later on?
A: Later he was concerned
talking to me as the head of Todd McFarlane Productions about how some of the
royalty would break down and, you know, how certain things would be credited
would be one way or another.
Q: And what was your response?
A: "Well, what would you
like, Neil?"
Q: Okay. And did he tell you
what he'd like?
A: Okay.
Q: And what was your response?
A: "Well, okay. We can
sort all this out, come to some agreement with all of this and we can move
forward and I'll be happy."
Q: Okay. And were you able to
sort it out and come to agreement on it?
A: I'm going to guess because
Neil is suing me today that the answer is probably no.
Q: Okay. What areas weren't
you able to come to agreement on?
A: You know, I'd say right now
him and I probably aren't satisfied on too many of them, so we probably have a
disagreement on most of it today.
Q: And I guess really what I'm
looking for are the specific subjects of disagreement that you tried to work
through this in your capacity as head of Todd McFarlane Productions and weren't
able to.
And I'm not limiting it.
I'm just following up on your answer that you gave as the head of Todd
McFarlane Productions. If a different hat is appropriate, put it on and tell me
you're putting it on.
A: Right. Can I -- can I
simplify this even more?
Q: Yes.
A: Can we assume that if I
don't say anything it is as the head of Todd McFarlane Productions because 99.9
if not 100 percent of this is as Todd McFarlane Productions.
Q: Okay.
A: So, unless I stipulate
something different, if I talk about myself I'm talking about myself as the
person running Todd McFarlane Productions.
Q: Okay. Because that was the
position you were in in the overwhelming majority of your interactions with
Neil Gaiman?
A: Correct.
Q: Okay. That's fine.
A: Okay. So, excuse me. So
could you repeat the question?
MR. KAHN: The question had to do with
the areas of disagreement between -- specific areas that you tried to reach
agreement on but couldn't.
BY MR. ARNTSEN:
Right.
Right.
A: Royalties and I think some
credit lines.
Q: Any other general areas?
A: Well, I think including
this case here somebody's talking about copyrights now.
Q: First talking about credit
lines, what disagreements do you recall arising between you and Neil with
regard to credit lines?
A: Well, I wouldn't say it was
a disagreement.
It was just again, you
know, "If anything goes out that I had done, can you make sure that my
name is -- is affixed to it some place, you know. I'd hate to see something and
not have my name somewhere on it, so make sure that you acknowledge my
existence on this stuff."
Q: And did you dispute that?
A: Not really.
Q: Okay. So to the extent that
didn't happen, was it an oversight?
A: Yes. Probably.
Q: Do you recall any
situations where you did not put or associate Neil's name with something he'd
created and did so deliberately?
A: Well, the credit is
determined by sort of the extent of the use of the character.
Q: Right.
A: So again you can have a
hundred characters in a book, you know, and sort of consider all those to be
equal. So, again it was the -- the credits due were dependent upon the work
that a person had done or the extent of a credit, a character being used in a
book, and again there's varying sort of definitions as to how you get to each
one of those.
Q: Well, for instance, Neil
wrote a scene for Spawn 26, correct?
A: Right.
Q: Did you give him credit for
that?
A: No.
Q: Why not?
A: He asked me not to.
Q: He explicitly asked you not
to?
A: Yes.
Q: And was that in a phone
call?
A: No. I think that was
actually in person.
Q: Do you recall where this
meeting was?
A: If it was -- if it was in
person it would have been at one of the Oakland
comic conventions and if not, it would have been over the phone.
Q: And as best you -- what can
you recall as best you can of this conversation in which he asked you not to
give him attribution for Spawn 26?
A: We were talking at that
point about the Angela mini series. Again both of us were satisfied with the
work and the end result of the publication of Issue 9. And so Neil requested to
do more work. I took that as a sign that he was satisfied, asking me to do more
work.
And so we talked about
another project. The one that he suggested, which was obvious, was to do an
Angela mini series. So he began work on the Angela mini series with Greg
Capullo, the artist. In my capacity as a
writer in the confines of my comic book, I -- I have a tendency to reference
prior issues or foreshadow things that are coming. The trick in comic books is
you put an asterisk in a word balloon, and if you've read comic books then you
know that if it goes like sort of a footnote you go to it and it says, you
know, "See last issue." See the upcoming issue, see ten issues ago. I
mean, there's always a footnote there.
I had explained to Neil
that we were going to try to do something to sort of, you know, get some of the
readers from Spawn to sort of pay attention to the Angela mini series. And so I
go, "You know, sort of write a lob, if you will, an asterisk, if you will,
into the mini series."
Neil requested since she
was doing a thing, "Well, could I write that?” "No." And I was like, "Well,
that's okay. It's my book I can write it. Don't worry about it."
And he said, "No, no,
no. I feel part of this mini series and, you know, can I write it and you can
use it if you want, and if you like it, don't worry about it. Just let me sort
of do it. You don't have to pay me. You don't have to give me any credit. I
don't have to do anything. I just sort of have an attachment here to
Angela." And I said, "Okay.
Cool. You want to do a couple of pages for me?" And he wrote a couple of
pages and we put them in there and again sort of living up to his request. And he sort of didn't want to interfere with
my continuity by making it look like he was putting his thumbprint on it.
And those pages at the end
of it or somewhere within it have an asterisk that say look for the upcoming
Angela mini series that was either out on the stands just at that time or just
coming out or they were pretty close. So you were able to give it a little bit
of a bump, if you will.
Q: Did you have any creative
involvement in the Angela mini series?
A: Not in the traditional
sense I would with Spawn.
Q: In what sense did you have
creative involvement with the Angela mini series?
A: Just having conversations
with Neil to see what he wanted to do, looking over the scripts, looking at the
pencils, looking at the inks. I mean, I'd become essentially the editor at this
point and just looking at all the steps of the book and sort of going through
the plan, if you will.
Q: Turning back to the Spawn
26 again, did Neil expressly ask that you not give to him credit for that?
A: He says, "You don't
have to give me credit."
Q: Okay. As best you can
recall, those were his words?
A: Right.
Q: Did any issue come up with
regard to credit lines in connection with the Medieval Spawn or Cogliostro
characters between you and Neil?
A: Not that I recall.
Q: Okay.
A: Maybe -- maybe in a toy
comic book one time.
Q: What do you recall in that
regard?
A: That if he wanted me to put
a "created by" or something. I don't recall if I did or didn't. But
the first toy came with a comic book.
Q: Excuse me?
A: The first toy of -- that I
put out came with comic books.
Q: Okay.
A: So there was a comic book,
Medieval Spawn. So I don't recall if we
put any by-line in there or not.
Q: And do you recall that Neil
asked for credit with that?
A: Right. Saying that again
you'd get this with DC, derivative characters and creative stuff. So I said,
"Okay. I'll put it in there, yes."
Q: And so you did?
A: I don't know. So we'd have
to look at that comic book.
Q: Okay. And what was the
comic book?
A: It was -- there was -- you
get the action figure and then instead of it just being cardboard you rip and
throw away in the garbage, we inserted a comic book in there.
Q: Okay. And what was this
comic book called?
A: I think it was just called
Spawn.
Q: Okay.
A: I don't know. I think
that's what the cover said.
Q: Do you ever recall any
disputes arising between you and Neil associated with credit lines with regard
to Cogliostro?
A: Not that I recall.
Q: What dispute arose between
you and Neil with regard to copyrights prior to the filing of this lawsuit?
A: None.
Q: Okay. So we covered the
disputes that arose between you and Neil other than those that relate to
royalties?
A: What was the question?
Q: Have we covered the
disputes, that arose between you and Neil other than disputes that relate to
royalties? And what I mean by that, we
have discussed disputes that have related to royalties, but I just want to make
sure that we have fully covered any other kind of disputes and now we'll focus
on the royalty disputes.
A: No, I think it was mostly
the focus of our disagreements, unfortunately.
Q: What disagreements did you
have? And again what I'd like you to do is just sort of run through them
chronologically and don't repeat what you've testified to already, but disputes
you had with regard to royalties with Neil.
A: I -- I think that it was --
they were just sort of ongoing conversations of, you know, "If you're
going to do this, then how would I get paid?" And we were always trying to
figure out how to make those payments. And
again I'd go, "How do you want to be paid?" And then he would give me
those terms, you know, based on the DC information. And in some instances we
applied them and sometimes, you know, again there was inconsistencies or
disagreement that we couldn't come to. So, sometimes we did it, sometimes we
didn't.
Q: And what would happen when
you didn't?
A: I'd usually get a phone
call from Neil.
Q: If you didn't agree with
his view, would you pay him something or would you pay him nothing?
A: I think every -- every
instance sort of had it's own unique moment depending on where we were in the
relationship at that given time.
Q: What I'd like to do is just
kind of work through chronologically the disputes that arose over royalties as
best you can. What was the first problem that arose?
A: When did it occur you say?
MR. KAHN: What was the first problem?
MR. ARNTSEN:
Yes.
Q: I think you testified
earlier you thought that disputes first started coming up around '94 sometime
and I'm just trying to get a chronology of them.
A: It may have been -- and I
wouldn't -- in this case I wouldn't use the word "dispute." It would
just be the conversation coming up about, "Hey, there's now a toy and so
do I get paid? Am I going to get any money from that toy?"
Q: Is that the Angela toy?
A: No. This was the Medieval
Spawn toy.
Q: Okay. And how was that
resolved?
A: I asked him how he'd get
paid from a derivative character with toy merchandising and he must have given
me a formula because I know some payment was made early on.
Q: Do you recall whether you
paid him according to the formula he gave you or -
A: Yes.
Q: -- or on some other basis?
A: No. I think it was on the
formula he gave me.
Q: Okay. That was on the
Medieval Spawn II?
A: Right.
Q: Okay. What was to the best
you recall the next dispute that arose?
A: I wouldn't use
"dispute," you know. Inquiry.
Q: Inquiry.
A: That's a better word. Maybe -- maybe the Angela figure came out
maybe in the next series.
Q: Okay. And how was that
resolved?
A: Pretty much the same way.
You know, "How would you get paid for a new character and what's the
formula?" And then I think there may have been the payment based on that
conversation and those formulas.
Q: So, as best you can recall,
did you pay him based on the formula he gave to you or on some other basis?
A: No, I think on the ones he
gave to me.
Q: Okay. And that was for the
first Angela toy?
A: Yes.
Q: Okay. Were there more than
one Angela toy?
A: There was a 13 inch Angela
figure later on. Maybe a year later or
something.
Q: Okay. Did you pay Neil for
that on the same formula?
A: I don't know the specifics
of that, but I believe a payment was made for -- for a 13 inch toy on it.
Q: And on the same formula
that Neil gave to you?
A: I don't know. So it would
depend on when we paid it, so --
Q: Was there a Cosmic Angela
figure?
A: Right.
Q: Is that what you're
referring to?
A: No.
Q: Or is that a third one?
A: No. The 13 inch Angela.
Q: Okay?
A: That was just sort of a
bigger version of the first one.
Q: Were there other Angela
toys?
A: No. Those were the only
two.
Q: No Cosmic Angela?
A: Oh, that would be a
derivative of Angela, wouldn't it?
Q: Yes. And did you pay Neil
anything for that?
A: No. Because -- because -- I
don't know if that's true. I would have to say I don't know.
Q: You don't know if you paid
Neil anything for that?
A: No.
MR. KAHN: Let me at least note we
produced and Neil has it an actual royalty sheet in '97 that shows calculations
based on something for all of these different items.
MR. ARNTSEN:
Uh-huh.
MR. KAHN: And if you want to -- if he
doesn't remember, you can show him that.
MR. ARNTSEN:
No.
Oh, no. I understand that.
Q: Were there any other
derivative Angela toys?
A: I don't think so.
Q: Okay. There's a Red Angela
or -
A: Red Angela. There was a Red
Angela, right, right.
Q: Did you pay Neil for that,
do you know?
A: I don't know.
Q: Okay. Were there any
Cogliostro toys?
A: One.
Q: Did you pay Neil for that?
A: I don't know.
Q: Do you recall -- do you
recall Neil making an inquiry about that?
A: Yes.
Q: What do you recall in that
regard?
A: "How -- how am I going
to get paid on this?"
Okay. Remember, we have
sort of a slight variation on like where Cog stands in all this. And so Cog
might have -- might have been one of those formulas that may or may not have
made sense to both of us collectively, so I don't know if we paid on Cog one
way or the other.
Q: So you may have asked -- he
may have and asked and you said, "Well, we disagree on this" and that
was where it was left?
A: Yes. I don't recall.
Q: Okay. Have we covered as
best we can your conversation, your discussions about it?
A: We are going
chronologically now, right?
MR. KAHN: He's referring just to this
Cogliostro toy.
THE WITNESS:
Oh, I
see. He may have brought it up in
subsequent conversations.
BY MR. ARNTSEN:
Okay.
Do you have any specific recollection of that?
A: No.
Q: Okay. What was -- so now
what we have - have we covered the inquiries relating to toys or are there some
more?
A: No. I think that's -- I
think that covers most of it.
Q: We sort of started
chronologically and then we sort of went to subject matter.
Now, going back to
chronologically, what other inquiries or disputes arose?
A: Specific to what now?
Q: To -- with regard to
royalty payments for Neil. I think we've been talking about toys so far.
A: So another category outside
of toys?
Q: Yes. Any other disputes in
any other categories?
A: Well, inquiries. Disputes,
I don't know if we are at a full fledged dispute at this point.
Q: Inquiries.
A: We got to dispute
eventually.
Q: Yes.
A: I think that through the
confines of licensing some of the Spawn products there were trading cards or
odds and ends, things that were -- that were not comic books that every now and
then he needed to ask about or he'd see or we'd talk about or something.
Q: And how were those
resolved?
A: I don't know. Like I said,
sometimes there was payments and sometimes there weren't, so, you know,
somebody would have to show me paperwork and then I'll be able to tell you how
they were solved. I don't know how every conversation was solved or not solved.
Q: Okay.
A: Some were and some weren't.
Q: Okay. Did any issues occur
-- inquiries with regard to royalty payments for reprints?
A: Yes, I believe so.
Q: Okay. What do you recall in
that regard?
A: Well, again the
conversations are becoming a little repetitive at this point. It's just insert
blank into, you know. "Oh, Todd, you know, how is it going to work for
this product?" And so insert whatever product you want, toy, comic books,
trade paperbacks, insert whatever you want.
"And so how do you think it should be solved," you know. Well,
again, you know, most of the time we are talking about the DC contracts.
"Well, how does it work? Give me the numbers." And we were trying to
work from those numbers.
Just again as time went by
those numbers at times either began to move or given that we were starting to
get into not specific conversations but again we were starting to get into sort
of bigger generality of our not seeing eye to eye that we were starting to head
towards not worrying about solving individual problems. Let's just see if some
day we can actually solve the big enchilada as a whole. And so I don't know if
those inquiries were tied to a specific need or an overall need.
Q: So at some point in time
did you sort of refocus your efforts from solving -- from dealing with specific
inquiries to saying, "Look, can we reach a global resolution of these
issues so that we can stop squabbling over them?"
A: Yes, I think so.
Q: Okay. How did that come
about?
A: How did that come about?
Q: Yes.
A: I'm getting tired of Neil
phoning all the time really, so it's like, you know, and there's only one way
to keep him quiet; just sort of come to some resolution of what it is he keeps
phoning about.
Q: Okay. So how did you go
about trying to accomplish that?
A: You know, I think initially
Neil and I may have had some conversations together. Given that over time that
didn't really solve the dispute, then Larry Marder got brought into it sort of.
I think we were hoping if we put somebody between the two of us it would be
beneficial to somebody to come in there looking at the two boys and sort of
going, "There's a way we can sort of figure this out."
So Larry became involved.
Later on even with Larry in there, he wasn't able to sort of crack that nut and
so it went back to sort of Neil and I sort of going at it again, if you will,
and trying to sort of come to some resolution.
Q: How did it -- who got Larry
involved, you or Neil?
A: I don't know. I probably --
I'd probably say I may have suggested it possibly, yes.
Q: Okay. And what generally
was the framework of the deal you were trying to work out?
A: With Neil at that time?
Q: Yes.
A: Oh, that actually was the
question of the day, what was it we were actually all talking about because we
couldn't seem to get a handle on it.
So Larry's task was to sort
of go, "What is it that you think is the problem here, Neil? What are your
concerns? What are your concerns, Todd? Is there some place that we can find
common ground?" And then eventually sort of plow our way through it. So I
think that was sort of the bigger task as to what are we even talking about
here.
Q: And what were your
concerns?
A: What were my concerns?
Wanting more than anything else to have Spawn lock, stock and barrel. Have my
baby back whole. Not have a sliver of it existing some place that I somehow
can't control.
Q: All right. Any other
concerns?
A: Having again control over
Cogliostro, who I felt was a character that I for all intents and purposes fed
to Neil. And then Angela, I sort of
understood Angela. I understood Angela. I don't think Angela in theory was much
of a -- of a conflict really other than accounting, but the theory I don't
think was ever a problem.
Q: And what was the theory?
A: That within the confines of
doing work on a comic book that if somebody creates a new character that is
used subsequently that there's certain entitlements to accounting rights. Not
intellectual rights but accounting rights based on the usage, dependent upon
what company you're working for or not working for. So I tried to use some of
that. So I've been involved in that at Marvel and DC.
Q: Who in your view had the
intellectual rights to Angela?
A: I did.
Q: And based on what?
A: Based on Neil saying,
"Could you match my DC contract?" which maybe was a bad assumption. I
guess we'll find out later. I'm betting that there's no contract out there in
which they give the trademarks or copyrights to the individual free-lancers,
and given that he wanted me to match the contract, I bet you paragraph one
says, "This is a work for hire contract."
(Whereupon, a short recess
was then had at 4:26 p.m. until 4:30 p.m.)
BY MR. ARNTSEN:
So we
are talking about the process where you and Neil are trying to work out a sort
of global resolution, correct?
A: Correct. All right.
Q: And initially Larry Marder
is involved in that in trying to mediate a deal, correct?
A: I wouldn't use
"initially," but he comes into the process.
Q: He comes into the process.
And your primary -- your first concern was getting complete control over
Medieval Spawn, correct?
A: Right.
Q: And you also wanted control
over Cogliostro, correct?
A: Right.
Q: And in your view kind of,
if I understand correctly, you didn't view any real conceptual disagreement
between you and Neil with regard to rights to Angela, is that correct?
A: Right generally.
Q: I mean, you have to work
out the specific accounting issues?
A: Right. The devil is in the
details.
Q: Right. But in general terms
you thought that that was probably -
A: Yes.
Q: Okay. And then it was just
an issue of accounting issues: One, past payments and, two, basis for future
payments, correct?
A: Right.
Q: Any other issues?
A: In regards to?
Q: This global resolution with
Neil.
A: I think it was inclusive. I
mean, again he wanted it to be inclusive. We both actually, I believe, wanted
it to be inclusive. We didn't want to leave any piece on the table so that it
would start this.
So I -- I believe that the
conversation, those global conversations were trying to not exclude actually
anything that -- that when we got to that resolution we would both be one hundred
percent satisfied with how we got there or at least equally dissatisfied, if
you will.
Q: Right. And so at least
again initially there were sort of the three topics where the three characters
that were in Spawn 9, Medieval Spawn, Cogliostro, Angela and sort of
intellectual and accounting issues relating to those characters, correct?
A: I don't know the
intellectual was ever a big hot topic. It was -- it was mostly accounting. It
was mostly accounting issues.
Q: Well, for instance, with
Medieval Spawn and Cogliostro you wanted the intellectual issues sort of
wrapped up in your favor, correct?
A: Right.
Q: Now -
MR. KAHN: Counsel, just so we are
clear when we read this transcript, even at trial, when you say the
intellectual issues mean intellectual property issues?
MR. ARNTSEN:
Yes.
MR. KAHN: Or are you talking about
something else?
MR. ARNTSEN:
No.
Intellectual property issues. I used his phrase.
MR. KAHN: Right.
BY MR. ARNTSEN:
Now,
at some point in time a character called Miracleman came into the mix, correct?
A: Correct.
Q: And, as best I can recall,
you sort of offered up Miracleman as something to Neil in connection with a
global resolution, is that correct?
A: Yes.
Q: Okay. Tell me about
Miracleman and how you acquired rights to Miracleman?
A: There's a company called
Eclipse comics that published a lot of comic books. They must have -- must have
had some financial difficulties because at some point they went into bankruptcy
and -- and within the confines of it going into bankruptcy some of the books
and the properties that they had in the past were part of what the assets were
that you would potentially be bidding on in that bankruptcy hearing or auction
or -- I don't even know what it officially was called. And within the confines
of that then in talking about Terry Fitzgerald, you know, I went, "Hey,
Eclipse is up. You know, there's some cool characters in there. You know, we
should sort of stick our nose in and see -- see what sort of comes out of
it."
I think they held a telephone
auction. A handful of people were on it. I don't believe they ID'd anybody. And
just to make sure they didn't, I think I even had Terry doing the bidding for
me so they didn't think big Daddy Warbucks is here.
And so there was a sort of
a quick, fairly quick auction and I ended up winning the auction and all the --
all of the provisions that came with it through the bankruptcy trustee that was
presiding over it.
Q: And what did you get in
that auction?
A: Physically it was like some
reprints of comic books or inventory of comic books. I think there was some
trading cards. There may have been a little bit of film. Just sort of
knicknacks. I think they were just sort of clearing out Eclipse's warehouse and
whatever had dust on it that sort of went, the whole kit and kaboodle at that
point.
Q: And how about other than
physical things?
A: Then the intellectual
properties that went with it, the trademarks and properties that went with the
auction that they said there were trademarks and copyrights to some of the
characters that went with it. So those
were sort of more interesting to me than back issues of books that nobody cared
about.
Q: And what rights did you
acquire from the Eclipse bankruptcy? And I'm talking about intellectual
property rights to the Miracleman character.
A: The -- the paperwork I
think said trademark and copyright.
Q: And so was it a full
complete copyright or was it a joint ownership or what were you getting?
A: I think the paperwork
didn't break it down at that point.
Q: So, did you know whether
anyone else had trademark or copyright rights to Miracleman?
A: No.
Q: Okay. You just got what
Eclipse had?
A: Right.
Q: Okay. And when did you get
these rights?
A: I don't know. '95, '96. Some -- some place in the
mid '90s.
Q: Did you ever do anything
with them?
A: Some of them. You know, not
a lot but some of them. Some of them I
-- I did -- I think I did a book called Total Eclipse and put some of the
characters -- revamped some of the characters and put them in there, did some
art work -- art work, gave some back history to it.
Q: How about the Miracleman
character?
A: I don't think he was in
that book, so --
Q: Did you do anything with
regard to the Miracleman character after you acquired the rights out of the
Eclipse bankruptcy?
A: Not initially, no.
Q: And what caused you to
believe that Neil Gaiman might be interested in Miracleman rights?
A: I was aware that again the
Miracleman comic book that was published by Eclipse had a number of issues and
a couple of those issues were done by Neil. And so he had done some of it.
I may have read some place
where he may have said that the company went belly up before he was able to
finish his story or something. So, you know, somewhere along the line I had
heard sort of Neil mention the character before.
Q: Okay. So what were your
thoughts with regard to putting Miracleman into the mix in your attempt to
resolve your issues with Neil?
A: Well, again I was -- I was
hoping that there may be a wild card in the deck called Miracleman that may or
may not have some value, and so if we sort of hit some snag where we couldn't
resolve some of the issues that maybe there is a sort of a more non-traditional
way to resolve it by going -- let's do a -- let's do a character swap or a hostage
swapping, if you will, you know, of some of the characters. And so Miracleman
potentially became -- became that.
Q: Have you finished your
answer? I'm sorry. I thought it was a "became the."
MR. KAHN: When he stops talking he's
finished.
BY MR. ARNTSEN:
So,
first with regard to sort of character issues, non-percentage, non-money
issues, did you -were you and Neil able to work out a general agreement with
regard to characters?
A: No.
Q: Okay. What was your
position?
A: My -- my position was that
-- and I think it was -- early on I think it was, I'm hoping, close to Neil's,
which was to resolve all the global matters.
And so I know that as we -- as we got pretty close, I think we came
fairly close, that we sort of laid all the cards out and said, okay, here's a
value here, here's a value here. You know, my -- my intent was to get Spawn
back. I want Spawn. I mean, this is -- at this point I have got a movie coming
out. I have got a TV show and somehow I don't own this guy lock, stock and
barrel. I've got to get my baby back.
So I'm trying to -- I'm
trying to sort of go, "Well, okay. I know you got sort of derivative
rights to contracts. So how do I get it back?" And, you know, I'm in no --
I didn't know whether we were going to be able to resolve it monetarily, so
maybe it's like - maybe he -- there's a piece of a baby out there that he might
like and we could -- we could come to some agreement and I think that was
overall the intent that we were hoping for is to lay all the cards out and see
if there's some way to mix and match it.
Q: Was Medieval Spawn in the
movie?
A: No.
Q: Was he in the TV show?
A: In the TV? Maybe for a
brief moment in one episode.
Q: Okay. So, what was -- what
was the sticking point that kept the deal from getting resolved?
A: From my perspective it was
-- it was – it was Medieval Spawn.
Q: But was Neil willing to
essentially convey any rights he would have to Medieval Spawn to you as part of
the deal?
A: Yes, I think so. We had
those conversations, right.
Q: Okay. So what kept the deal
from getting closed?
A: Well, I'm going to tell you
because now we're going to get to the heart of the matter here.
Q: All right.
A: That -- that in my
follow-up conversation with Terri Cunningham she told me that what Neil was
dangling over me essentially -- now she didn't use those terms. Let's talk
about a derivative character. That was what was being dangled over my head,
which was a derivative character of something that I had created - that
essentially using the DC contract that he kept pointing to, that essentially he
never had those rights. So the thing that was of the most value that he kept
holding against me essentially from my perspective, from my perspective I never
had. And so everything up to that point was based on trying to get it back, my
baby back. And I felt -- I found out that I had my baby all along. And so those
were the moments where if Neil was ever upset, I was equally upset.
Q: And does this -- is this
that phone conference with Terri Cunningham that you testified to earlier?
A: Right.
Q: That was the only -- that's
the only communication you had in this regard?
A: Right.
Q: Okay. And so you had this
conversation with Terri Cunningham and did that change your -- what you were
willing to do as part of the deal?
A: It changed. It changed. I
don't know if it overly changed the deal. I may have made some modification,
but it -- it -- it changed my willingness that -- that -- but again at this
point in spite of my -- my better judgment I just wanted this to be over as
much as Neil Gaiman wanted this to be over.
Q: All right. And so what kept
it from being over?
A: Because Neil in trying to
settle it gave me some more numbers that when I had another follow-up
conversation with Terri she told me that those numbers were not correct either.
So now we're in a spot where I don't know where the beginning of truth is on
what it is or even -- we are essentially almost back to square one of going
"what are we talking about now" because we can't seem to get a handle
or at least from my perspective I can't get a handle on what it is that we're
even trying to -- to resolve because -- because now we're going, "Well,
who has what?" So that sort of, unfortunately, leads us to today.
Q: What was the second
conversation with Terri Cunningham?
A: It may have been on how you
spend money on people in movies or television shows or on how they divide those
moneys up.
Q: No. I mean, I guess you
indicated there was a second conversation that really caused the deal to fall
apart, correct?
A: Uh-huh.
Q: You have to use words.
A: Oh, yes.
Q: Okay. And it arose out of
Neil giving you some numbers, correct?
A: Right.
Q: And what numbers did he
give you with regard to what?
A: I don't recall the specific
numbers. I just felt that whatever it was again was inconsistent with
information I was getting.
Q: And what did the numbers
relate to?
A: I think it may have been --
I think it may have been film, Hollywood stuff maybe.
Q: Film, Hollywood stuff?
A: Uh-huh.
Q: You have to use words.
A: Yes.
Q: With regard to what
characters?
A: I don't recall
specifically.
Q: Well, it would have been
either Angela, Cogliostro or Medieval Spawn?
A: Right. One of those three.
Or it might have been actually just a general breakdown of that category.
Q: Film, Hollywood stuff?
A: Right.
Q: And so Neil gave you some
numbers in that regard, correct?
A: Correct.
Q: And was that in terms of
royalty percentages?
A: Yes. I think most -- most
of the numbers that -- that Neil and I passed back and forth to each other were
representatives.
Q: And again this was after
you had this conversation with Terri Cunningham with regard to DC's treatment
of derivative works, right?
A: Right.
Q: And so if Neil provided
some numbers relating to Hollywood stuff and
you -- and did he tell you that this was his deal with DC?
A: Yes. I don't remember the
specifics. Alls -- alls I remember was
that at the end of the conversation going, "another inconsistency,"
and I was -- that was my emotional break at that point.
Q: And so Neil gave you these
numbers and you decided to verify them with Terri Cunningham, correct?
A: Right, right.
Q: So you called Terri
Cunningham?
A: Right.
Q: Okay. And tell me as best
you can that conversation?
A: I don't remember the
specifics other than I -- I got the same answer which is, "No, it wouldn't
work that way, Todd."
Q: Okay. What did you tell
her?
A: Probably asking her
generalities of whatever it was was the last numbers that were put in front of
me.
Q: Okay. And again I'm just
surprised because if this is what caused this whole thing to blow up -
A: This is the proverbial
straw on the camel's back. So this is why that conversation isn't as nearly
important as to the ongoing burden leading up to this. So that clarifies it
hopefully.
Q: Well, it does, but again
I'm just puzzled that if this is the straw that broke the camel's back I'm just
surprised you can't remember it better.
A: Right.
Q: Have you told me everything
you can recall about this second conversation with Terri Cunningham?
A: Right.
Q: And when was this kind of
in a time sequence in relation to your first conversation with her? Shortly
thereafter, months?
A: Yes. I don't recall.
Q: It could have been the next
day; it could have been a year later?
A: There's -- there's space in
between and I don't know -- I don't know the difference between the two.
Q: Okay. So you had this
conversation with Terri Cunningham and then what happened next with regard to
this dispute?
A: From -- from my point of
view, then everything up to that point was -- was rescinded and null and void.
I just -- I'm -- I'm done. I'm done. I'm done. He's got money. I have been
giving him money at this point based on things that may or may not be true.
He's been feeding me potentially things that are not completely truthful.
I'm heading into my movie
just coming out. The TV show's on. I can't enjoy the moment that I should be
enjoying at this point. And he potentially has taken as a swap a part of this,
Miracleman. And so I get suckered. I got suckered here and I just went,
"No, no. It's not going to happen."
Q: So did you communicate that
to Neil in any way?
A: No.
Q: Did you tell your people to
not make any more payments to Neil?
A: Right.
Q: Do you recall about when
this was?
A: It would have been probably
in the fourth quarter of '97, late '97, somewhere in there.
Q: What happened next?
A: You know, I don't think
much. I may have gotten on the phone and went, "You know what, grab
Miracleman back because he just -- he just took something that wasn't -- that
wasn't a fair swap." And after that probably between Neil and I dead
silence.
Later on I think after he
wasn't getting payments he was going, "What's happening? What's happening?
Where's my payment?" I think I sent him out a letter sort of stating that
there was no deal, so -
Q: When was the last time you
talked to Neil Gaiman?
A: I can't recall.
Q: At some point in time you
applied for a trademark for Miracleman, right?
A: Right.
Q: And what was your basis for
believing that you were the owner of that trademark at the time of that
application?
A: From the assets that I
acquired at the bankruptcy.
Q: And what about those assets
caused you to believe that you had rights to the Miracleman trademark?
A: I believe there's a
document from the court or the trustee or -- that said that it was included as
part of that.
MR. KAHN: Just so the record's clear,
Allen, I think when they first applied, if you're speaking of the 1997
application, it was an intent to use which is a form of a trademark
registration application.
MR. ARNTSEN:
Just
-- and I think what I'm just going to do is a little bit of clean up here today
and then we'll start tomorrow morning with the documents and we'll move through
that.
Q: Did you talk to anybody
other than your lawyer to get ready for this deposition?
A: I don't think so.
Q: Okay. Did you look at any
documents to prepare for it?
A: Outside of with my lawyer
you mean?
Q: Well, I want to know what
documents you looked at.
MR. KAHN: Well, I'm trying to avoid -
trying to get you an answer without invading
work-product privilege.
And I'll go this far. I'll
say that I gave Todd for him to look through a chronological sampling of
communications between him and Neil and the stuff Larry attempted to mediate.
BY MR. ARNTSEN:
Did
you look through anything else other than this chronological sampling that
Attorney Kahn just referenced?
A: There might have been some
accounting spreadsheets.
Q: And where did you get those
from?
MR. KAHN: It would have been from me.
That was part of it which was included in the stuff I mentioned earlier.
BY MR. ARNTSEN:
Okay.
Does your wife have some duties with your businesses?
A: Yes.
Q: What? Over what period of
time?
A: Off and on starting in
1992.
Q: Up through the present?
A: Yes.
Q: And were there any periods
of time that she wasn't involved in your businesses during that time period?
A: Yeah.
Q: What periods were those?
A: Oh, probably in '92 and we
had another child in '94, so she probably backed off there. And then again we
had another child in '99. So sometimes she was -- sometimes she was 100 percent
involved. I mean, it would sort of fluctuate depending upon the need of the
family, I guess.
Q: And what were your wife's
duties and responsibilities?
A: They varied on a given
task. You know, everything. She's pretty much done a little bit of everything
probably along the way, you know, so -
Q: For instance, was she
involved at all in these communications or payments to Mr. Gaiman?
A: I think so. I think she had
some involvement.
Q: Do you recall what that
involvement was?
A: Not specifically.
Q: And just some sort of
background questions on the various corporate entities here.
Todd McFarlane Productions,
Inc., are you the sole owner?
A: Yes.
Q: When did you start that
company?
A: I think in 1992.
Q: Are there any other
officers of the company?
A: Of that company?
Q: Yes.
A: I don't think so.
Q: Okay. And what's the
business of Todd McFarlane Productions?
A: Doing publishing,
licensing, holding the trademarks, doing free-lance art work. I mean, the whole
sort of gamut of creating ideas and stuff.
Q: TMP International, Inc.,
are you the sole owner of that?
A: Yes.
Q: When did you start that?
A: Maybe the beginning of '94
maybe.
Q: And what's its business?
A: Most of it is the
manufacturing and selling of action figures.
Q: You said "most of
it." What's the rest of it?
A: I think some -- we do -- I
think we have done like the odd vehicle or, you know, a box or something that's
a little off center, but, you know, still plastic goods, if you will, plastic
toys.
Q: McFarlane Worldwide?
A: I don't know.
Q: Are you the sole owner?
A: Yes, probably.
Q: What does it do?
A: You know what, I don't
know. I've got a lot of accountants and a lot of lawyers and a lot of tax
reasons for doing stuff.
Q: Okay.
A: So I don't know what.
Q: Todd McFarlane
Entertainment, Inc.
A: That is a company that
takes ideas into Hollywood
and sees if anybody will bite on any of those.
Q: Has Todd McFarlane
Entertainment, Inc. ever involved anything with the Angela, Cogliostro or
Medieval Spawn characters?
A: No.
Q: McFarlane Toys Canada,
Inc., what's that?
A: That essentially does the
same business as McFarlane Toys. It's just that again there are different rules
and regulations when you are distributing products up in Canada, so you need another company
to sort of abide by certain tax laws and rules.
Q: Did that company produce
any toys showing the Angela, Cogliostro or Medieval Spawn characters?
A: No.
Q: McFarlane Toys, Inc.,
what's that?
A: I think that -- I think
that's probably the dba or something.
Q: Oh, okay.
A: It's what we use. It's the
name an all the toys, McFarlane Toys, not TMP International.
Q: So it's the dba with TMP
International?
A: I believe so.
MR. KAHN: It may have once been in
the McFarlane Toys, Inc. I don't know.
BY MR. ARNTSEN:
TMP
Asia, Limited?
A: That helps us have an
office in Hong Kong.
It helps us with our
international sales to our various distributors internationally outside of North America.
Q: With toys or publications?
A: With toys.
Q: Did it produce anything
with Angela, Cogliostro or Medieval Spawn?
A: No.
Q: McFarlane Europe DB, what's
that?
A: Another channel of being
able to distribute our toys into Europe and so
-
Q: Does that include any
Angela, Cogliostro or Medieval Spawn characters?
A: In terms of what?
Q: Is McFarlane Europe DB
involved in distribution?
A: Probably over. If they were
-- if the company was alive when those toys were produced, they probably would
have had some involvement.
Q: And when was that? When
were Medieval Spawn toys produced?
A: Medieval Spawn was -- you
can't lock me to this. It might have been '94 and Angela was '95.
Q: And was there ever a
Cogliostro toy?
A: Yes. But that was -- I
believe that was done through our collectors club, so that was -- that was
never done as a wide distribution product.
Q: Okay. So were any of these
companies we've talked about involved in that toy?
A: Well, I don't know how
collectors club falls under all the umbrellas, but the collectors club sells
specialty toys, if you will, or limited runs of toys that we don't sell
nationally. So I don't know if that's -- if collectors club I think is actually
an official company, you know, so, but -
MR. KAHN: But the toys are made by
TMP International, right?
THE WITNESS:
Right,
right.
MR. KAHN: Just to give Allen that,
all roads with toys lead back to TMP International, right?
THE WITNESS:
Right.
TMP International is the toy manufacturer.
BY MR. ARNTSEN:
All
right. TMP International manufactures all of these toys that some of these
various corporations may be involved in the distribution of, correct?
A: Correct.
Q: What's McFarlane Global DB?
A: Don't know.
Q: Okay. What about TMP
Equities, Inc.?
A: Don't know.
Q: Okay. Quick answer to that. You've testified as to a couple conversations
with Terri Cunningham. Is she someone whom you spoke with on a regular basis?
A: No.
Q: So, I mean, how many phone
conversations can you recall that you've had with her? You talked about two,
but I mean I'm just trying to get a sense -
A: In my life you mean?
Q: Yes.
A: Well, I don't know. Terri
Cunningham was the sort of first person I ever knew at DC comic books because I
testified earlier I believe that I had a contract with DC comic books early in
my career. All those negotiations, all
subsequent conversations, all follow-up always ran through Terri. So my point
person at DC comic books on any contractual conversations or even looking for
answers all went through Terri.
Q: Okay. How about since you
started with Image; since 1992 how often have you talked with her?
A: Not much. You know, again I
run into her the odd time at a convention maybe. Maybe the odd time I've been
in New York
swung by the office and said, "Hi," but -
Q: Have you called her on any
occasions other than the two you've testified to?
A: Since then you mean?
Q: Yes.
A: I don't think so.
Q: Okay. And just if I
understand correctly from your testimony, with regard to Neil's DC contract
issues, you first had a phone call with her in which you talked about
derivative characters, correct?
A: Right.
Q: And then you've testified
to that.
And I believe it was your
testimony that even following that conversation you were still willing to go
forward with your deal with Neil, correct?
A: We were still -- I was
still willing to try and find a resolution.
Q: Then the second
conversation that you testified to was what made you stop trying, is that
correct?
A: Yes, yes. Unfortunately,
yes.
MR. ARNTSEN:
Okay.
Why don't we take a break for the evening?
MR. KAHN: Okay.
(Whereupon, the deposition
was then concluded at 5:10 p.m.)
TOMORROW: Day Two - McFarlane opens up some more...
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