Neil Gaiman vs Todd McFarlane: Round II - Neil Gaiman On The Stand

As promised yesterday, here's the morning session for the June 14, 2010 Neil Gaiman vs Todd McFarlane court case to resolve the issue of Dark Ages Spawn, Tiffany and Domina.  Appearing for Neil Gaiman was Allen Arnsten and Jeff Simmons, and appearing for Todd McFarlane we have Todd Smith and J. Alex Grimsley.  Mind you, this isn't finished by a long shot and tomorrow I'll post the afternoon session which saw Brian Holguin and the main man himself Todd McFarlaneon the stand.  Until then, enjoy Neil Gaiman's testimony in it's entirety.

THE CLERK: Case Number 02-CV-48-BBC. Neil Gaiman versus Todd McFarlane is called for a motion hearing. May we have the appearances, please.

MR. ARNTSEN: Plaintiff is here by Allen Arnteson and Jeff Simmons and Ken Levine, and Neil Gaiman is here personally.

THE COURT: Thank you. And I'd like to remind everybody to stay seated. We have streaming audio in the courthouse and there may be other people that want to hear what's going on.
MR. ARNTSEN: Your Honor --
MR. ARNTSEN: -- how will -- will that work for questioning from the ELMO? Because we need to question from the ELMO. How will that work? This is all visual.
THE COURT: We'll just move one of the mics over to that lectern.
MR. GRIMSLEY: Morning, Your Honor. Alex Grimsley on behalf of Defendants Todd McFarlane and Todd McFarlane Productions. Todd Smith is here as well, and
Mr. McFarlane is here on my left.
THE COURT: Thank you. How do you want to proceed this morning? Mr. Arntsen, do you want to make some sort of opening statement and then call witnesses or how do you -
MR. ARNTSEN: Yes. Our thought was make a very brief opening and then we'd call Mr. Gaiman. He's our only witness. And then -- first of all, we have an agreement with the defendant that the comic books published by defendants and images from their website are authentic. We don't need to worry about authenticating them. They are admissible.
MR. GRIMSLEY: I have no issues with authenticity, Your Honor. There may be some relevance, but in this sort of hearing I suspect that's not a reason to not have something admitted.
THE COURT: One of the reasons I wanted to have an evidentiary hearing is I want to see these images in a form that I can -- I couldn't even read a lot of the writing on some of them much less distinguish one figure from another or from the background. But I take it you have the color versions, actual versions?
MR. ARNTSEN: What we have -- we have the color versions, and what those will be -- those will be -- at least as far as the original exhibits which we premarked and then we'll examine the witness from the ELMO, because again, it's all visual. But then the exhibits will be left here with you with the numbers on them.
THE COURT: Fine. Wonderful.
MR. ARNTSEN: And at the close of the hearing if we need to adjust that, just let us know.
THE COURT: Okay. Mr. Grimsley, do you want to make some sort of opening statement now or do you wanton wait until Mr. Arntsen is finished?
MR. GRIMSLEY: I'm happy to make a very short opening statement so you know where we're all headed today.
THE COURT: Okay. Then Mr. Arntsen, you may proceed.
MR. ARNTSEN: Actually Mr. Simmons is going to make our opening.
THE COURT: Oh. Mr. Simmons.
MR. SIMMONS: Thank you, Your Honor. Just very briefly, I think our position is set out pretty well in the briefs. But what you'll see when you look at the exhibits today, there are three main things, three or four main things that courts typically look at when they're trying to determine whether a character is derivative or whether it's infringing, which is the flip side to the same issue. If it's a derivative character, it would be an infringing character if somebody else, somebody who was not authorized to use it used that character. And the things courts typically look at are kind of the back story of the character, you know, what their personal history is, their personal traits.

In the case of comic book characters, we look athel superpowers, the powers that the characters have.  And they also look at the costume that the character typically wears or the various costumes that they wear.  And then finally in some cases, as you noted in the Seventh Circuit opinion in this case, Judge Posner particularly said with regard to the Medieval Spawn character, you look at the way the character speaks.
Judge Posner said if he talks medieval and he looks medieval, then he infringes Medieval Spawn.

So that's what you'll see in the exhibits that we're demonstrating today. And while there will be some variation in the way the characters are portrayed in particular issues, I think what you'll see is there is a core set of character traits that's kind of present consistently throughout. You always expect characters to change somewhat from issue to issue, but still there will be some very basic traits that remain the same throughout.

And then just one other issue is in the briefs, there's a discussion of ideas versus expression, and the argument on the plaintiff's side -- excuse me, on the defendant's side is that well, these are just ideas.

They're not actually expressions. They're not copyrightable expressions. And that's simply not the case here. You'll see that in the exhibits, but you also, in some of the cases we cited, you'll see a discussion of ideas. Everything can be characterized as an idea on some level. And if you go about characterizing everything as ideas, then basically characters themselves would never be copyrightable because you wouldn't be looking at the actual way the characters are expressed. So you'll see the concrete expression of what have been described as just merely ideas by the defendants. They're more than that, they are the actual expression. That's all.

THE COURT: Okay. Thank you. Mr. Grimsley.
MR. GRIMSLEY: Thank you, Your Honor. As an initial matter, I'd be remiss if I did not reassert our position that we believe the topic of today's hearing was more appropriate for jury trial. I don't want there to be any doubt on the record that by proceeding today, we're not waiving -
THE COURT: I understand that.
MR. GRIMSLEY: -- that argument. Thank you. And we understand you've already ruled. Today we do have some conflict between idea and expression of the idea.

Mr. Gaiman, together with Mr. McFarlane, as was found in the prior trial, co-created two characters that are going to be talked about today, Medieval Spawn and Angela. Medieval Spawn, I think there will be no question, is actually derivative itself of the character that Mr. McFarlane had already created called Spawn.  The law is clear that when there's a copyright on a derivative character, the extent of the copyright on the derivative character is limited. It's limited to the additional elements that were added.

With respect to Medieval Spawn, this means whatever Mr. Gaiman co-owns is limited to those aspects of that character which are different, addition, modifications to the original Spawn character.

I think we will find today that the similarities that are going to be pointed out to you between the character that came to be known as Medieval Spawn and the character that Mr. Brian Holguin created called Dark Ages Spawn, those similarities in the main relate to two categories: One, elements that are taken from the pre existing Spawn, in which case you can't say that it's derivative of Medieval Spawn. The second are elements that would be present simply by the fact of having one of these Hellspawn creations exist in medieval times. The easiest example, for instance, is to say they both ride a horse. Well, of course if they're in medieval times they both ride a horse. That was the means of transportation. Stock character elements are another thing that cannot constitute part of that copyright.

When we get to Angela, the evidence will show that there are also elements of Angela that are actually derived from the original Spawn character. While the characters obviously appear quite differently, there are elements in the design of Angela that are designed from the Spawn character. There are other elements of Angela, the female warrior, that are somewhat just generic to the comic industry, and in this respect you could go all the way back to Wonder Woman to see many of those elements.

So at the end of the day, by the time we consider what are stock elements and what elements are derived from Spawn, the similarities between the characters here are not sufficient to say that they are derivative of those characters. To do so -- and this is why we say they're trying to protect the idea -- if the characteristics between the other two angel characters let's say, Tiffany and Domina, and their similarities to Angela are sufficient to say that those are derivative characters, essentially what Mr. Gaiman would be successful in arguing is that he has a copyright on the idea of the female warrior angel. And if Dark Ages Spawn is found sufficient to be derivative of Medieval Spawn and Mr. Gaiman is going to say the creative work that Mr. Holguin did was nothing more than copying his work, essentially Mr. Gaiman is saying I have a copyright on the idea of a Hellspawn from medieval times. The law is clear that those ideas cannot be the subject of the copyright, only the actual expression of those ideas.

And I agree with Mr. Simmons, when we consider the back story, the powers, the costume and the manner of speech, when we consider all of those elements with those characters, you will see just how different they are.

THE COURT: Thank you. Mr. Arntsen, you can call your first and only witness.
MR. ARNTSEN: Plaintiff calls Neil Gaiman.
MR. ARNTSEN: If don't mind, right from the start I'll put the mic up there for some of the introductory questions.
THE CLERK: I think the one on the left is the one with the longer cord. I was just looking at that.
THE COURT: You're sort of the guinea pigs. This is the first time I have used this courtroom with the equipment. Actually first time for any kind of trial procedure. So we're figuring out how it's going to work. We need some refinement.

Q:  Can you please state your name.
A:  Neil Gaiman.
Q:  Where do you live, Neil?
A:  Menomonee, Wisconsin.
Q:  Can you just briefly summarize your professional career.
A:  I'm a writer. I've written comics, adult novels.
Since the court case began, I've also started writing children's books. I've won the Eisner Award and so forth for comics, the Hugo Award and Nebula, and awards like that, for adult novels and most recently the Newbery Award for writing my last children's book.
THE COURT: And which one was that?
THE WITNESS: That was for The Graveyard Book.
That's the children's book award. And also had several films made of -- more recently of books that I've written, the most fun of which was probably Coraline, again a children's book, which was nominated for an Oscar.
Q:  Thank you. Turning to right away the topic at hand, can you briefly describe for the Court how you went about creating the characters Medieval Spawn and Angela?
A:  Sure. Todd had called me and asked me to write an issue of Spawn back in the early days because the way he explained it was the people at Image Comics, the comic company, were artists and they were getting a lot of flack for writing and he wanted celebrity writers and he got me, Alan Moore, Frank Miller, and a guy called Dave Sim -- and Alan, Frank and I were the top writers in comics at the time -- to write guest issues.
THE COURT: And when would this have been?
THE WITNESS: This was in '91/'92. I moved to America in '92, so it would have been '92. And the comic, I think, came out in April '93.
MR. ARNTSEN: Your Honor, just since we've all, you know, gone through a trial with this, any time, you know -- I'll be kind of rushing through, but any time you want additional -
THE COURT: That's fine. Thank you.
THE WITNESS: Todd had asked -- had told me that I could write anything that I wanted. He said I had complete cart blanch. If I wanted to do 23 pages of Spawn reading a newspaper, I could. And I think Todd was up to about Issue 4 or 5 of Spawn at that point.

And I looked at the comics and started thinking about the idea of Spawn, this warrior of Hell, a guy brought back from the dead to become -- to fight on the devil’s side, and I thought well, if you're a warrior of Hell, you've got to be fighting something and -

THE COURT: The Spawn was already in the first issues?
THE WITNESS: Spawn was already in the first comic. It was called Spawn. It was about Spawn. It was written and drawn by Todd. And in it, there's a guy call Al Simmons who has died. He's brought back from the dead by a character who is fundamentally the devil and given superpowers and told that he is a warrior for Hell. And I thought well, if you're a warrior for Hell, then you've got to be fighting something. So fighting Heaven seemed to make sense. And I thought if you're warriors, you can't have nice angels because you have to have somebody to fight, so therefore they have to be warrior angels. And thought why not make it a female character.

So I called Todd and said okay, this is the idea: Female character, angel, talked him through it a little bit; and also asked Todd could there have been previous Spawns, because you haven't actually seen any previous Spawns at that time. And he said he didn't see why not, as long as there weren't a lot of them. You couldn’t have one every few years, they had to come along every hundred years or so. Because I thought well, the best way to introduce a character who is going to fight Spawn is to actually show her killing a previous one of his predecessors which establishes that she's the kind of person who does that kind of thing, kills Spawns.

So Todd was in agreement. He -- you then -- and the way the comics business works, you have to do a solicitation and you had to have the cover of the comic ready before the comic was written and drawn. So Todd then drew the cover to Spawn 9.
Q:  Showing you what's been marked, previously marked Exhibit 1, I'll just show the exhibit sticker, but is that that cover?
A:  Yeah.
Q:  And tell the Court essentially what the cover shows in terms of the characters you co-created.
A:  Well, it shows the wreckage of some knight in armor, medieval times, Spawn costume, and a rather scantily clad young lady holding -- with a huge sword, a spear of some kind, and lots of ribbons, with ornamental headgear.

THE COURT: Just out of curiosity, when you say you have to have a solicitation in the form of a cover, what's the purpose of that?

THE WITNESS: You're asking the comic shops -essentially you have a network of comic stores across the world and they are ordering things in comic-by-comic. So you're letting -- at that point there were a lot of them. The comic distributors have advance information about your comic that they can then get out so the stores will order from them months in advance.
THE WITNESS: So before the comic was written or drawn, a -- I had to give Todd a little precis of what it would be, and he drew that cover, which wasn't exactly what I had in mind for the character, but I thought when we were talking angels, we were probably talking something with more clothes. But I thought great, that's what we're given and that's kind of fun; and so took the elements that Todd had created in there, the spear that he'd drawn, I thought great, I'll play with that. So that was really -- that was the first image.

I'd come up with the idea of a character, she was going to be called Angela, and I did a little precis and a description for Todd of what was going to happen. He drew that image. I then took that image and made that the character that I was writing when I wrote the comic.
Q:  And did you write the entire TF Spawn 9?
A:  Yes.
Q:  And prior to Spawn 9, were you aware of any other characters like Angela or the angelic army that you we recreating for Spawn?
A:  There definitely hadn't been an army, as far as I know anyway, I have not read anything, an army of female kick-ass warrior angels, lady angels who were also -who were hunters and merciless and not terribly nice.  Because I thought if Spawn and Co. are fighting these guys, then the other side needed to be almost as bad. So I made her a -- making Angela a hunter, for example, the idea of somebody who just hunts these things and she has their heads on her wall. No, nothing like that.
Q:  When you came up with Angela, was she sort of a unique loner character or was she part of a -- of her own sort of world that existed within the Spawn world?
A:  In my head there were lots of them. I didn't actually get to do the lots of them until I got to do the Angela comic about three years later.
Q:  Now I'm going to turn your attention to Medieval Spawn, and showing you what is on the screen now -
MR. GRIMSLEY: Your Honor, if I may interrupt for just a moment. Allen, for the record, the images that are being shown are from what I believe is going to be identified as Exhibit 1?
THE COURT: Thank you.
Q:  So showing you the image on the screen, which is from Exhibit 1, can you describe that for the Court in the context of again your role in this creation?
A:  Sure. The idea was that there would have been a Spawn, who was a knight in armor, and I had him essentially show up. I didn't have that many pages, it was one issue, so I came up with the idea of a Spawn who was a knight in armor. He shows up on his finely comparisoned horse. He has a shield, a sword, and a version of the Spawn costume that's essentially armor or something closer to what a knight in armor might wear or what a medieval knight would have wore. He shows up.

Would you like me to describe this or talk more about the character?
Q:  Yeah. I guess both. Talk more about the character in the context –
A:  Okay.
Q:  -- of the expression that's there in front of us.
A:  I mean as I said, I didn't have that much to do with him. I created a little back story for him, the idea that he had been tricked by a devil; that his sister who he loved had -- he returned from the dead to find that she had married his greatest enemy, somebody he hated, but he was still trying to be noble and knightly. And then he gets -- he believes that he is rescuing a damsel in distress who then transforms into Angela and kills him.
Q:  So after Spawn 9, what was the next comic you wrote for Mr. McFarlane?
A:  I wrote a three-part series called Angela and also wrote three pages of Spawn 26 before that came out, which was just a little setup for Angela by the way it's shown.

The Spawn character met another angel called, I think, Gabrielle. And then I did Angela a few years later because my son was twelve and he discovered the Spawn toys and things and wanted me to do something that he'd like, because most of the stuff I wrote was for adults in comics. So I wrote the Angela comic.
Q:  Showing you what's marked as Exhibit 17. It's on the screen in front of you. Can you tell us what that is?
A:  That is a close-up drawn by a wonderful artist called named Greg Capullo who did a lot of stuff for Todd called Angela, all splattery and bloody with her
big earrings.
THE COURT: Mr. Gaiman, I'm sorry. Was this supposed to be the first issue of the series?
THE WITNESS: This was the first, but we did a three-issues series. It wasn't something that was meant to go forever. It was what's called a mini series or a limited series. This was number one of three. It was a story with a beginning, a middle, and an end.
Q:  And so in connection with your writing the Angela series, did it give you an opportunity to expand on Angela's world?
A:  Sure. That was the part of the fun of it was creating this sort of huge back story. Lots -- the idea -- in the first Spawn I think you discover that she's 100,000 years old. You may actually have discovered that in Angela. And there's, you know, an angelic host, there's 330,000 of these beautiful warrior angels and they're arresting her. She's in trouble right at the beginning.
Q:  And I'm just putting up on the screen some of the images from Angela. But was part of what you were doing in Angela again essentially creating the world which she –
A:  She -
Q:  Sorry. Go ahead.
A:  Part of the fun for me was creating ideas. If you’re writing comics, what you always want to do is leave the ground more fertile than when you were there.  You want to leave more stuff for people who are going to be writing ongoing series to play with, which is why it was fun for me giving Todd, for example, the idea that there had been lots of Spawns. It was something that left him with more than had been before.

So with this, I created a heavenly city called Elysium. I created 300,000 warrior angels who all look like exotic dancers, and named, you know, named a few of them. And they all looked different. They all have certain very specific similarities that, you know, the masky thing around the eyes, for example. The fact that they are part of this order of kick-ass lady warrior angels.
THE COURT: And when was this?
THE WITNESS: This was '95/'96.
THE COURT: And did any of the angels in this series, were any of them Domina or Tiffany?
Q:  Do you recall the names of some of the angels that you specifically named?
A:  Gabrielle, Soriel, Anahita, Quan Yin. I basically just took names of angels or gods or goddesses -- or goddesses specifically from different cultures and gave them to the ladies. So in the same way that Angela was fundamentally a joke name, it was also a very serious name. It's angel. It's a name with angel in it. So I got a certain move-on from there.
Q:  And then can you describe the rest of the Angela series, essentially what happens there?
A:  Essentially it's been a long time and I haven't re-read it, but she gets arrested for being a traitor, for having hunted Spawn without a license, even though she said she did have a license. They go and get Spawn, the angels go and get Spawn to come and be a witness at her trial. She realizes she is being set up. She and Spawn escape from Heaven to Hell and have an awful lot of shouting, fighting, hitting and running around. And then the fact that she was set up, she essentially gets a confession out of Gabrielle, the lady who set her up, and Gabrielle gets arrested.

Angela is given a pardon or exonerated but decides that she doesn't want to be working for Heaven anymore, she wants to go freelance, and ended with her going freelance.
Q:  And what did going freelance mean?
A:  Not actually directly taking orders from anybody else, she was just going to be out there on her own to -- kick-ass angel for hire.
Q:  Turning back to Medieval Spawn for a minute, when -- specifically what period of time was Medieval Spawn set in?
A:  When I wrote it, it says 800 years ago, so some time in the 12th century.
Q:  Now the issue here that we're here to talk about -
MR. ARNTSEN: Your Honor, if it's okay -actually I'll just put this up here so that he's talking about an exhibit that we'll put in front of you.
Q:  I'll show you what's been marked Exhibit 19. Can you identify what that is?
A:  That's Angela Number 3.
Q:  And again just for authentication purposes, show you what's been marked Exhibit 18. Can you identify what that is?
A:  That is the cover of Angela Number 2 and it's got Angela and Spawn on it.
Q:  I guess I'll represent to you you just saw the cover. What the exhibit is is the entire comic.
A:  I absolutely believe you.
Q:  Now we're here today to talk about derivative characters. Can you -- have you been involved in writing comic series where -- that have extended over a period of time?
A:  Yes, very much so.
Q:  Can you give the Court some examples?
A:  Well, the most famous one would be Sandman, which was a comic that I wrote that ran 75 issues. It's now collected in ten volumes of paperbacks and also four big hardbacks. And that was a comic I did for DC Comics, who were the publishers most famously of Batman and Superman. And from the mid 80s to the mid 90s. And in it, I created a lot of characters and I also used some DC Comics characters and there were also some characters who were deemed derivative by DC Comics. When they worked up my royalty on them, some merchandising or some spinoffs happened.
Q:  And so over the course of a comic series, do characters evolve?
A:  Oh, sure. You don't -- characters change and character costumes change. And Batman -- the Batman of now does not wear the costume of the Batman of 1939; ditto Superman, ditto Wonder Woman. You don't -- you know, in the case of Sandman, Morpheus, my character in Sandman, he dresses in lots of different ways, always chiefly wearing black and having, you know, longish coats or cloaks. But always -- it's obviously the same character, it's obviously the same person, but you get different artists and they draw things differently. You decide to try things a different way.
Q:  Now I'm going to show you what's been marked Exhibit 11 and ask if you can identify what that is. I will put it up here.
A:  It looks like an Angela.
Q:  And do you recognize it as the cover of Spawn 97?
A:  Yeah, I saw the 97 on there. I couldn't have -had you put it in front of me, I would have said it's a Spawn. But yes, it's 97. Yes, it says 97 on it.
Q:  And first of all, did you have any direct involvement in -- I'm going to be asking you some questions about Spawn 97 to 100.
A:  Um-hmm.
Q:  First of all, are you generally familiar with what the story line is in those comics?
A:  I read them back when we went to preparing for the original trial in 2002 and flipped through them yesterday morning.
Q:  And is Angela a featured character in those?
A:  Oh, yes. She is the -- she's -- it's the big apocalyptic showdown and Angela dies in it. That's the big event issue, is in Spawn 100 he kills her, and that had already been announced. So this is the three issue Angela dies.
Q:  And does the angelic army that you came up with in your Angela series, does that appear in Spawn 97?
A:  Yes.
THE COURT: When would this have come out?
MR. ARNTSEN: Your Honor, the copyright notice is July -- my eyesight, July 2000 -
THE COURT: That's the kind of problem I was having trying to look at the exhibits.
MR. ARNTSEN: It's July 2000 something or other. I just can't quite tell the last digit.
MR. ARNTSEN: May be able to tell from -
THE COURT: That was available during the trial in 2002?
THE COURT: All right.
MR. ARNTSEN: 2000, 2001 or 2002. And again, perhaps on another one I'll be able to -- it is discernible by somebody with better eyesight than me.
Q:  I'll show you a page of Exhibit 97 and can you identify -- can you identify members of your angelic army there?
A:  Yes.
Q:  And where are they shown?
A:  You've got one of them in the top three panels and then you have a bunch of them in the bottom panel.
Q:  And -
THE COURT: Those are all supposed to be the army? Nothing else? I mean no Spawn or anything in the picture?
THE WITNESS: Can't see one.
Q:  And then again just turning to the next page, what's shown there?
A:  More of the angels.
Q:  And then I'll turn a couple pages later and does Domina appear there?
A:  You know, I am very bad at telling them apart, but –
Q:  Actually, you see where my finger is pointed?
A:  Yeah. It certainly says Domina and she's saying yeah. But yes, that would be the one; again, one of the angels.
Q:  And then I will show you -
MR. ARNTSEN: Actually here I can see it better. Looks like it's 2000, the copyright, Your Honor. This one is a little clearer.
THE COURT: Thank you.
Q:  I will show you another document marked Exhibit 12.
Do you recognize that as Spawn 98?
A:  I do.
Q:  And I'll just turn to one of the pages there. Is Domina shown on that page?
A:  Yeah.
THE COURT: In the upper left?
MR. ARNTSEN: Excuse me, Your Honor?
THE WITNESS: Yeah, upper left and then from behind on the bottom.
Q:  If you look at the top right bubble, it mentions her?
A:  The bubbles really aren't legible on this.
MR. ARNTSEN: Oh. I wonder if focusing -should I try focusing?
THE WITNESS: If you can read it and we can't, then focusing -
MR. ARNTSEN: Doesn't look like it.
THE COURT: No, it doesn't seem to make any difference.
MR. ARNTSEN: But again, the Court will have these exhibits.
Q:  And then showing again another page of Exhibit 12, what does that show?
A:  Looks like a bunch of angels and Angela.
Q:  And I don't know if you can read where my finger is pointed. Can you see Domina mentioned there or is it just not legible?
A:  No, it's not legible.
MR. MCFARLANE: Mr. Arntsen, sometimes on those machines if you take the exposure down on that light, sometimes you can bring the light level down and that might help. On that machine is there a way to dull the light on that? It might make it easier to read. On the overhead projector.
THE COURT: Before it looked like you were just bringing it in and I think there's a separate focusing.
MR. ARNTSEN: I've got a zoom and a focus.
MR. MCFARLANE: Oh, there's not an exposure button?
MR. ARNTSEN: Lamps just have on and off.
Doesn't look like it.
THE COURT: That's okay. We'll just assume you're telling the truth.
MR. ARNTSEN: The exhibits will be here.
Q:  And then again, one more photo from –
A:  More of the 330,000 warrior angels.
Q:  And is Angela shown on that page also?
A:  I think that's her from behind because she's got the long red hair, yes. That's the way you can -- and slightly more sort of -- they all have exotic headdress, they all have long hair -- most of them have long hair.  She has very long red hair with the sort of wing kind of headdress involved.
Q:  I will show you what's been marked Exhibit 13. Do you recognize that as Spawn 99?
A:  Yeah.
Q:  And show you one of the pages of that exhibit. Can you just generally describe what's there?
A:  Looks like Angela fighting someone else, another warrior angel. It's a bit blurred.
Q:  And again, I'll just represent the bubble on the bottom, it says "By Elysium! The heavenly hosts." What is that a reference to?
A:  Elysium was the place that they lived and the heavenly hosts were the 330,000 kick-ass lady warrior angels.
Q:  And again, were those elements that you created?
A:  Yes.
Q:  And then showing you what's been marked as Exhibit14, do you recognize that as Spawn Issue 100?
A:  I do.
Q:  And is that the one Angela dies in?
A:  Yes.
Q:  And I will show you one of the last pages of that exhibit. And can you recognize what's being shown there?
A:  Spawn holding Angela's dead body while all of the other heavenly hosts of kick-ass lady warrior angels who look a bit like her stand around in the air.
Q:  Now turning your attention more directly to Domina, I'll show you what's been marked Exhibit 34. Can you identify that?
A:  It's something from -- is it -- I cannot -- it's Spawn website where it's actually from, but it's one of those descriptions of characters from, whether a Spawn encyclopedia or a Spawn into of Domina. Says her first appearance is Spawn 96 and she is "the leader of a phalanx of Heaven's angels" and a warrior angel, you know, one of the leaders of the warrior angels.
Q:  I'll show you what's been marked -- it's also a part of Exhibit 34. Can you identify what that is?
A:  No. What is it? I mean it's one of the warrior angels. I would have thought it was Angela, but the hair is wrong and the headpiece is a little bit different.
Q:  Are you able to read the text at the bottom?
A:  Domina photo. Domina images. It's a Domina.
Q:  And I'm just going to put these side by side –
A:  I mean it's the same sort of thing as Angela, she’s got the big boobs and –
Q:  I'll show you the cover of Spawn 9 and then the Domina toy, see if I can -- how well I can do for getting them both on the same page here. Can you describe for the Court the similarities between the two?
A:  They are dressed incredibly similarly and they have the same facial stuff, very similar hair. Slightly different headpieces. I don't know, I would have assumed that this was one of the variant Angelas. He did a lot of -- Todd did a lot of Angelas in different costumes, in the red costume, and changed the way she looked as a toy. I would have thought it was one of those.
Q:  I'll show you again another -- the final page of Exhibit 34 and I'll again see if you can see at the bottom there –
A:  Same loin cloth, things wrapped around the leg, weaponry, slightly different upper body straps, but very similar costume.
Q:  And can you read the bottom? I can represent to you that this is from the website. It says Domina on it?
A:  I absolutely -- I can't read it, but I believe you.
Q:  Okay. Exhibit 34. Turning your attention to Tiffany, first of all I'll show you what's been marked Exhibit 16. Can you -- we just need to do it this way, I guess. First of all what's it titled?
A:  It's the Spawn Bible. It's like a who's who guide to Spawn characters.
Q:  And can you see that that's Exhibit 16?
A:  No.
MR. ARNTSEN: I'll represent it's Exhibit 16, Your Honor.
THE COURT: All right.
Q:  And then turning to a page of Exhibit 16, can you tell the Court what that is?
A:  That's a page of Tiffany, who's another one of the warrior angels: Sharp shoulder points and blonder and sort of hair that goes up and explodes rather than goes down, but there's sort of long hair around the back. Same knee things, same loin cloth and thong and big belt, and heavy shoulder piece. And also the weaponry.
Q:  And I'm putting next to Tiffany -- the thing is not laying flat -- I'm putting next to it Angela from Spawn 9. Can you explain to the Court the similarities?
A:  Similar pose, very similar character. Again, the hair color is very different, and Angela has sort of the Viking wings as a headpiece, which Tiffany doesn't. But they’re obviously very similar characters. The facial thing, the sort of masky face thing is the same, and the style is the same.
MR. ARNTSEN: And Your Honor, rather than reading it in, I could read it to the Court, but would it be helpful to call to the Court's attention some of the text from the biography here?
THE COURT: Sure. Go ahead.
MR. ARNTSEN: Review it.
THE COURT: Of Tiffany.
MR. ARNTSEN: On Tiffany. I'm reading -- I think this is the easiest way to do this. I'm reading from the Tiffany portion of the Spawn Bible.
MR. GRIMSLEY: Would it be easier to have your witness read it? I have another copy of a page of it here.
MR. ARNTSEN: Either. Whichever the Court would prefer.
THE COURT: Go ahead and read it, Mr. Arntsen.
Q:  "In all around skills as a hunter of Hellspawn, Tiffany is second to only Angela and that is a point Tiffany will argue to the death. This is a very noted point in the fact that she is a new angel. Her ambition and drive have increased her notification within the flight at a high rate. The only word that describes heris relentless. She harbors a strong distaste for Angela. She feels Angela has crossed the line between Heaven and Hell, an aversion brought on by Angela's consorting with Spawn." 

I'm just reading the first paragraph. I will show you what's been marked Exhibit 8. Can you identify what that is?
A:  Spawn.
Q:  Can you see what number it is?
A:  No.
Q:  I'll represent it's Spawn 44. Showing you one of the pages of Spawn 44, do you recognize Tiffany there?
A:  Yes. Something saying about Angela, which was the only word that I could actually read.
Q:  Showing you what's been marked Exhibit 9, do you recognize what that is?
A:  45. 45.
Q:  Spawn. And initially do you see in sort of the text where I'm pointing to here -- and again, what I'm going to do is just briefly read for the Court, but I’ll represent to the Court that what Spawn 45 -- it's got a brief synopsis of Spawn 44 in it because it's a continuing story through there.
Are you able to read this from the screen, Neil, or not?
A:  "Tiffany, wanting to make a name for herself and take Angela's place, as the" something "A-1 angel," priority angel, A-1 angel. And then it gets impossible to read.
Q:  Then showing you another page from Exhibit 9. Does that show Tiffany?
A:  Yeah.
Q:  And again is it referencing Angela again?
A:  She says Angela, that treacherous whore. Is that whore?
Q:  Showing you what's been marked Exhibit 10. Can you identify what that is?
A:  Spawn 46.
Q:  And do you see again that there is a synopsis at the start of it?
A:  "Tiffany and Spawn continue their battle. Denying defeat, this new angel," something "decapitates Spawn."
Q:  That's fine. I'll show you what's been marked Exhibit 35. Do you see Tiffany depicted there?
A:  Um-hmm.
Q:  I'll represent to you that Exhibit 35 are screen shots from the Spawn website.
Showing you the last page of Exhibit 35. Again, I will represent to you that on the bottom, if you could read it, it would -- can you read the –
A:  No.
Q:  -- text at the bottom?
A:  Can't.
Q:  I'll represent it's Tiffany images. Do you recognize that as a Tiffany toy?
A:  I would have assumed it was an Angela variant, but it could be a Tiffany toy. The hand is very different from the way the Tiffany is actually drawn. It looks an awful lot more like Angela.
Q:  And showing you again the drawing of Angela from Spawn 9.
A:  Yeah, looks a lot more like her.
Q:  Yeah. Can you describe for the Court the similarities?
A:  Actually the glare from the comics has kind of wiped out both images for me at this point, if you could -- the light really is bouncing back. But similar poses. Similar faces. Very obviously the same kind of thing.
THE COURT: That helped a lot.
MR. ARNTSEN: Thank you. Starting to see his examination be implicated by my technical problems here.
Q:  Now I want to turn your attention to Dark Ages Spawn. Can you identify what -
MR. ARNTSEN: Your Honor, may I have an exhibit sticker? Essentially I had a black and white copy of this and -
MR. SIMMONS: That's defendants. You don't want that.
Q:  I'll show you what's been marked Exhibit 28. Are you aware of what that is?
A:  I am. That was the comic that they did with the toy the first time -- when I came up with the idea of Medieval Spawn, Todd was thrilled because he was doing toys of the Spawn characters. So he did a Medieval Spawn toy, as well as his early line of toys and gave away a free comic with it and that's the comic that came with it.
Q:  And can you just -- I'd like to show you –
A:  It says "Todd Toys presents Dark Ages. Medieval Spawn. Story, Eldon Asp; Pencils, Brad Gorby," and so forth. And then it says underneath "Medieval Spawn created by Todd McFarlane and Neil Gaiman."
Q:  And then how does the comic start out?
A:  "800 years ago," which is the same as the way that Spawn 9 started out, 800 years ago.
Q:  I'll show you one of the pages. Are you able to read the text on this page at all?
A:  Let go with your finger a second. That really helped. That from the toy, took the stuff that I'd come up with in Spawn Number 9 when he talks about how his sister was this -- the person that he loved, but he came back from the dead to find her married to his enemy.

And it talks there about how -- I can see the "all save one his sister, whom he loved more than love, more than life itself."
Q:  What was your understanding of how often Hellspawn were to appear on Earth?
A:  Initially when I first talked to Todd, he said every hundred years or so. And then by the time I came to do the Angela mini series, it had been sort of formalized as every 400 years.
Q:  When you say formalized, what do you mean?
A:  I mean it was part of the Spawn mythos that it was 400 years. You got a Spawn every 400 years.
Q:  And did Todd explain to you why he wanted the Spawn spaced out?
A:  Because it kept them special.
Q:  Were there supposed to be more than one Hellspawn around at any given time?
A:  No. We sort of played with the idea. I suggested it to him, but I don't know if he ever used it, that the Cogliostro character I created was a very, very old Spawn who had never quite let his powers run out and had been around, you know, since -- for thousands of years.
But no, you don't get two Spawns at the same time; you get one and then you get another one 400 years later. I believe there's a futuristic Spawn comic or there used to be set 400 years from now, for example.
Q:  I'll show you what has been marked as Exhibit 6.  Can you identify what that is?
A:  Looks like Spawn 12 -- no, Spawn 32?
Q:  It's 32.
A:  Okay.
Q:  And I'll show you one of the pages that -- are you able to read the text in the yellow part below the middle panel?
A:  "They occur but once" -- and then I lose it.
Q:  I'll just read it. "They occur but once each 400 years and their infrequence are relegated to fable and legend." I'll represent that that's what that initial paragraph says. When they are talking about that, are they referring to Hellspawn?
A:  Yeah. You don't get one more than every 400 – you get one every 400 years.
Q:  I'll show you what's been marked as Exhibit 32 and I'll represent to you that it's a screen shot from the Spawn website. Are you able to read it?
A:  I'm afraid not.
Q:  I'll represent to you that what -- and it's very brief. "Spawn the Dark Ages. Spawn: The Dark Ages introduces Lord Covenant, a 12th century knight killed in a holy crusade far from his homeland, who returns to Earth as a Hellspawn." I'll read the rest. It's two -"As a plague of violence and turmoil cover the English countryside, the Dark Knight must choose whether to align himself with the innocent inhabitants of the once-thriving kingdom or with the malevolent forces of evil and corruption."

Now how does that character as described there relate to the character that you created in Spawn 9?
A:  I would have assumed it was the same character.
Q:  And why is that?
A:  Because it's the one 1200 years ago who's the knight in armor fighting the English countryside in medieval times. It's not like there were two of them.
Q:  Show you what's been marked Exhibit 22. Can you identify what that is?
A:  The cover of a Spawn, the Dark Ages.
Q:  I'll represent it's Volume 1.
A:  Okay.
Q:  The character depicted there, was is -- in your view what's the relation between that character and the character that you created in Spawn 9?
A:  It looks like the same kind of thing. It's a knight in armory Spawn, Spawn costume, big armory bits -- can't really see much detail around the face -with
a shield there.
Q:  Showing you another page from –
A:  That's the same Spawn, big Spawn shield that we have in Spawn 9.
Q:  And do you see at the bottom that Spawn is riding a horse?
A:  Riding a horse, big red cloak. Yeah, it looks like the same kind of thing.
THE COURT: This was a new series, Spawn the Dark Ages?
MR. ARNTSEN: Yes. And it's copyrighted 1998.
Q:  Can you identify what Exhibit 23 is?
A:  It a "Spawn the Dark Ages" cover.
Q:  You see it says Volume 2?
A:  Volume 2.
Q:  And again, does that show the same character?
A:  Yep.
Q:  Are there differences?
A:  Sure. You've got longer hair right now and a different kind of mask with sort of faintly dragonish kind of shape rather than just a knight-in-armor shape would be the obvious ones.
Q:  Are those changes consistent with the character that you created in Spawn 9?
A:  Sure. I mean we get to see the character I created in Spawn 9 in the five minutes before he gets killed. I assume he's worn different things; he could well have had a haircut.
Q:  Showing you what's been marked Exhibit 24. Can you identify what that is?
A:  Spawn the Dark Ages, with the Spawn character holding up a shield with arrows in it, and big sword.
Q:  Can you recognize that as Volume 3 or should I just –
A:  Oh, yeah. I can see the 3 on the bottom.
Q:  Showing you a page from Exhibit 24, are you able to read the area by where my finger is or no?
A:  "He had left behind a secret girl blossoming with" -- I can see the words "his sister Eloise," is it?
Q:  And what's your understanding of what role his sister Eloise plays in these initial volumes of Spawn the Dark Ages?
A:  He's come back from the dead and she's married to his greatest enemy.
Q:  Showing you what's been marked Exhibit 25. First I’ll show you the exhibit sticker. Can you identify what that is?
A:  It looks like a Spawn the Dark Ages and his costume has changed. It's sort of dividing at the front, the headpiece, and still has the big shield; something that could be sort of hair or tentacles or spaghetti all around his shoulders.
Q:  And again, you recognize this as the character you created as part of the Spawn 9?
A:  Yeah. I mean he's the 12th century Spawn.
Q:  Show you what's been marked as Exhibit 26. Do you recognize what that is?
A:  It says Spawn the Dark Ages,, and it's him with the big Spawn shield from Spawn 9 on his back.
Q:  And do you see what –
A:  It's Number 15.
Q:  Thank you. Might be pushing what you'll be able to read.
A:  It is.
Q:  Can you read the second paragraph or not?
A:  No, not at all.
Q:  I'll just read it for the Court. "It was a 400-year gamble laid down by players who had no intention of losing." What's your understanding of what that referred to?
A:  The every 400 years appearance of a Spawn.
Q:  I'll show you another page. Do you see there that the Spawn is getting a big axe?
A:  Um-hmm.
Q:  Again, is that consistent -- is that something that you would expect happening to the character that you created in Spawn 9?
A:  Sure. I would expect him to use all sorts of medieval weapons. That's the fun of having a character in that period. You get axes, you get maces, you get whatever kind of weapons you could have used at that time. In Angela Number 3, I have Angela fighting her way through Hell with a stolen axe. Actually I may have given Spawn a stolen giant axe. It's the kind of thing you do, you give them weapons.
Q:  Show you what's been marked Exhibit 27. Can you identify what that is?
A:  It's a Spawn the Dark Ages.
Q:  Can you tell what number it is?
A:  22.
Q:  And are you able to read the little blurp in middle of the page there?
A:  No.
Q:  I'll just read it to the Court. "There was something that Hell was not aware of, something not even the greatest evil of all times could control. No two Hellspawn can walk the Earth at once."

How does that in your mind relate to the issue of whether the protagonist, the Spawn the Dark Ages is the same character you created in Spawn 9?
A:  I use it's the same character. I mean you don't -as I said earlier, you get one every 400 years. This is the one in the 12th century.
MR. ARNTSEN: Jeff, did you have any other ones you wanted me to just put into evidence? Alex, what's the last exhibit number? Because I ended and then you started and then you ended somewhere.
MR. ARNTSEN: 66. So I'm going to mark 66 and 67 here.
Q:  I'll show you what's been marked Exhibit 66. Can you identify what that is?
A:  Spawn the Dark Ages 5.
Q:  And I'll show you -
MR. GRIMSLEY: Allen, that was actually Exhibit
MR. ARNTSEN: That's right. You marked all of these. How 'bout I'll just change the 66 to a 44, if that's okay with the Court.
MR. ARNTSEN: And then Alex, what number did you mark Spawn Dark Ages 8?
Q:  So again, rebooting just for a moment for a cleaner record, showing you what's been marked Exhibit 44, can you identify what that is?
A:  Spawn the Dark Ages 5.
Q:  And then showing you what's been marked Exhibit 47.
Can you identify what that is?
A:  It's a Spawn the Dark Ages and it's Number 8.
Q:  Show you one of the pages from Exhibit 47.
A:  It's the same character and a different set of clothes.
Q:  And what makes you say it's the same character?
A:  Because he's a knight in armory, Spawny. He's now wearing a completely different helmet and his hair looks different and -- but it's very recognizably the same character.
Q:  I'll show you what's been marked Exhibit 31, first page. Can you identify what that is?
A:  Looks like a toy of an olden days knight in armor, medieval period Spawn.
Q:  Is that the character you co-created?
A:  Yeah. It's a knight in armor. He has a big shield and he's a Spawn.
Q:  Showing you the second page of that exhibit. Can you read the text in the middle?
A:  It says "Spawn, Medieval Spawn, repaint/resculpt.
Q:  And what does that show?
A:  It's Medieval Spawn looking an awful lot like Dark Ages Spawn, the way he's drawn on the cover of that.
Q:  Showing you the next page -- first of all, are you able -- are you able to -- are you able to read the text at the bottom of the page or no?
A:  No. I mean that's one of the -- that's the same character it's a knight in armor Spawn. He's got the sharp shoulders, face paint, and this time again big bare arms. But it's the same character.
Q:  And I'll just represent that it's a shot from the website and at the bottom it says Medieval Spawn 2 as part of the website shot.

I'll show you the next page and I'll represent it also says Medieval Shawn 2.
A:  What's that? It's the same character with a scary skull face, which would be the sort of the Spawn face underneath the helmet.
Q:  And again, is that the same character that we –
A:  Same character, yes.
Q:  Showing you the next page. Can you just read the text?
A:  I can see Medieval Spawn 3/Spawn/Series 20/Spawn Classic Series 2.
Q:  And then I'll show you the next page which would tell –
A:  That's him. He's holding the great big axe. He's got the shield on. Again, it's much more sort of classic armory look than the previous Medieval Spawn we just saw with the bare chested and the big arm -- bare arm thing. But it's the same character.
Q:  I'll represent in terms of the website, it says "medieval" at the bottom and that that's the -- that's the next -- that's a screen shot you get from the previous page if you click on one of the buttons there.

Then I'll show you what's been marked Exhibit 33.  Are you able to read the text at the bottom?
A:  Dark Ages/Images/Series 26/Dark Ages 1.
Q:  What does that depict?
A:  Somebody with blue skin and a skull head and a shield and big boots.
Q:  Is that the character you created in Spawn 9?
A:  I don't think so. Maybe. I mean that one, if you handed me that one and said is this a knight in armor Spawn, Medieval Spawn, I don't think I would say yes on that.
MR. ARNTSEN: That's all I've got. Thank you.
THE COURT: Why don't we take a 15-minute recess at this point and then we'll resume with defendants' questioning.
(Recess 10:24-10:40 a.m.)

THE COURT: Mr. Grimsley.
MR. GRIMSLEY: Thank you.
Q:  Mr. Gaiman, I'm Alex Grimsley, one of the attorneys for Mr. McFarlane. I think we met earlier this morning.  As I understand your testimony, you are claiming a joint copyright interest in the idea of a Spawn from medieval times; is that correct?
A:  No.
Q:  So it would be possible for someone to create a Spawn from medieval times without violating your joint copyright?
A:  Sure.
MR. SIMMONS: I'm going to object to the extent this calls for a legal conclusion.
THE COURT: Sustained.
Q:  As I understand it, you're also claiming a joint copyright interest in the idea of female warrior angels who battle Hellspawn?
A:  No.
Q:  Okay. So you're not claiming that any female warrior angel who battles Hellspawn would violate your joint copyright ownership?
MR. ARNTSEN: Your Honor, object again as calling for a legal conclusion.
THE COURT: Sustained.
MR. GRIMSLEY: Your Honor, if I may, I was simply asking the plaintiff what he's claiming. I'm not asking him for –
THE COURT: The objection is still sustained.
MR. GRIMSLEY: Okay. Thank you.
Q:  In what was previously marked as Exhibit 16, there is a page describing Angela. Are you familiar with that page?
A:  No.
Q:  Okay. Let me actually bring it up to you.
MR. GRIMSLEY: May I approach, Your Honor, so he can have a hard copy?
THE COURT: Yes, and you don't need to ask.
MR. GRIMSLEY: Thank you. Old habits don't die easily.
THE COURT: It's okay to ask the first time.  You don't need to do it again is all.
Q:  Let me know when you've had a moment to review the page, Mr. Gaiman.
A:  Yes, I'm looking through it.
Q:  And the Angela described on that page, that's one of the characters that you co-created with Mr. McFarlane?
A:  Yes.
Q:  And is that an accurate description of the character you co-created?
A:  Yes.
Q:  The text summarizes sort of her motivations and drives and personality?
A:  The text is an adequate and fairly literate description by somebody else of the plot of Angela, of Spawn 9, and of Angelas 1 to 3. I don't know that I would agree with everything. I didn't write this.
Q:  Okay. Are there parts of it that you disagree with, having had an opportunity to look at it?
A:  The line "Angela comes from Elysium, the first level of the seven Heavens, closest to God" is not, for example, anything that I -- you know, I just created Elysium. If Todd wants seven levels, he can add another six. That's fine.
Q:  So –
A:  That's not –
Q:  -- it's a little more detailed than what you had in mind.
A:  How do you mean?
Q:  Seven levels or something is more than you had planned, had designed in your Heaven, in your Elysium?
A:  I created Elysium.
Q:  Did you provide -- did you create the detail of seven levels?
A:  No.
Q:  Yeah. So that's something someone else created?
A:  I would imagine, possibly the person who wrote this thing. I have no knowledge of who wrote it or –
Q:  And do you claim any co-copyright ownership in the idea that there's seven levels?
A:  I didn't make that up.
MR. ARNTSEN: Object, Your Honor, again in terms of claiming copyright ownership.
THE COURT: Sustained.
Q:  You don't contend that you co-created the idea of seven levels of Elysium?
MR. ARNTSEN: Same objection.
THE COURT: Overruled.
Q:  Do you need the question again, Mr. Gaiman?
A:  No. Alan Moore came up with the idea that there was seven levels of Hell in Spawn 8, and -- I'm pretty sure it was seven levels -- and that was Alan's idea, and I imagine that is a reflection of the same thing done in angel terms.
Q:  Okay. Anything else in that description from Exhibit 16 of Angela that you believe is not accurate of the character that you co-created?
A:  I didn't write this. It's somebody else's description. I would probably quibble with words all the way through it, but that's because I didn't write it.
Q:  So are you now saying that's not an accurate description of the character that you co-created that we're talking about today?
A:  No. But that wasn't what you asked me.
Q:  Okay. Are there aspects of the description on that page in Exhibit 16 that you do not believe fairly describe the character Angela that you co-created?
A:  I think that's a perfectly adequate description by somebody of the character in Spawn 9 and Angelas 1 to 3.
Q:  And that's the character Angela that you contend the character Tiffany is derived from?
A:  Yes.
Q:  And that's the character that you contend the character Domina is derived from?
A:  Yes. And the entire order of angels.
Q:  Okay. Are you claiming any ownership on all angels because you came up with the idea of a host of angels?
MR. ARNTSEN: Object. Legal conclusion.
THE COURT: Sustained.
Q:  Would it be possible -- would it be possible for someone to create a female warrior angel who was part of this army of angels without you feeling that they had derived it from Angela?
MR. ARNTSEN: Object. Calls for a legal conclusion.
THE COURT: Sustained.
Q:  Let me show you the page of Medieval Spawn from Exhibit 16. Medieval Spawn is another character you co-created?
A:  Yeah. I call him Olden Days Spawn, I think, in this script, but Todd started calling him Medieval Spawn.
Q:  And in the script you actually think you named him something?
A:  He was Spawn. He was the Spawn of 800 years ago.
Q:  In the script earlier, you just read something like Spawn rides up on a horse. You didn't even say Olden Day Spawn, did you?
A:  Something like that.
Q:  Have you ever seen this description of Medieval Spawn before that you've been handed from Exhibit 16?
A:  Don't think so, but -- okay, read it.
Q:  Is that a fair description of the character that you co-created?
A:  It's an invented back story, I guess. It could be -- I didn't make any of that up, so that's not my -- I don't know who wrote that.
Q:  There's more story there than you gave the character that you created?
A:  Yes. That's -- the story that I made up is the stuff right at the end and the stuff about the sister, which doesn't seem to be in there.
THE COURT: And I don't have that exhibit in front of me. Would you read the part at the end that you said you made up?
THE WITNESS: Sure. He resisted -- "he was destroyed by Angela, without ever fully comprehending what he was."
THE COURT: Thank you.
MR. GRIMSLEY: I'll take that back.
THE WITNESS: I think that's an adequate description.
Q:  But the rest of the back story is something you didn't have any contribution to?
A:  Not at all.
Q:  You didn't draw any of the images of Angela or Medieval Spawn, correct?
A:  I gave thumbnails and drew the characters. They were on the record in the previous trial. I don't know if they're in this one, but yes, I did.
Q:  Did you draw any of the published images of Angela or Medieval Spawn?
A:  No.
Q:  Okay. You wrote a script and then Mr. McFarlane and others did the illustrations?
A:  I wrote a script with thumbnail pictures, which I gave him as well, which Mr. McFarlane turned into a comic and then I drew thumbnails and dictated a script for Greg Capullo.
Q:  For the Angela 1, 2, 3 series?
A:  For Angela 1, 2 and 3.
Q:  Taking Angela first, did your script provide guidance as to how she should look?
A:  Yes. But the way that she would look had already been established by my co-creator, Mr. McFarlane.
Q:  With the cover?
A:  With the cover drawing. Because that was the -- I talked about the idea with him over the phone. He then -- I then sent him a written description, but just enough for the solicitation, and then he did the first drawing. So I described her in the script, but my co-creator had already given her a look.
Q:  And did your script provide any guidance as to how Medieval Spawn should look?
A:  I would have to look at the script again. I'm sure it did, but probably not very much. It would have said something like Spawn, you know, it would be a medieval version of the Spawn costume or an armored version of the Spawn costume. I would have included the big Spawn shield because that was on the cover.
Q:  Let me just put up the first page of Exhibit Number 1. I believe you testified earlier you recognize this as a cover for Spawn Issue 9?
A:  Yeah.
Q:  And that's the issue in which Angela and the character we now call Medieval Spawn first appeared, correct?
A:  Yes.
Q:  And you wrote the script for Issue 9, did you not?
A:  Yes.
Q:  And before reading that script, you had received prior issues of Spawn?
A:  I think there had been maybe three or four written at that time.
Q:  And you received drafts of issues that had not yet been published that were –
A:  Yeah.
Q:  -- in the work, right? And you read all those issues?
A:  And talked to -- Todd and I started talking about it prior to, at least while I think Todd was working on about Issue 5, because I remember having to do some -having -- talking to Alan Moore and needing to make sure that we were in sync on our stories.
Q:  And you needed to understand the background and the setting?
A:  Sure.
Q:  So you tried to gain an understanding of the story up to that point with respect to the character Spawn and the idea of these Hellspawn?
A:  Well, there weren't these Hellspawn at that time, there was Spawn.
Q:  Okay. We'll get to that. But you understand -understood that a Hellspawn was a creature fighting inHell's army?
A:  Yes.
Q:  And you understood that a Hellspawn was training or preparing for an upcoming war?
A:  No, I think I made that up.
Q:  Okay. You think you made up the idea that there was an army that was going to fight a war?
A:  I may have. I don't know. It was a long time ago and I don't remember.
Q:  I'll put up another exhibit. This is 37. Do you recognize this cover?
A:  That says Spawn.
Q:  You don't recognize the cover?
A:  No.
Q:  What if I put up the next page, does that help?
A:  Yeah, Spawn 8.
Q:  Spawn Issue 8, which preceded the issue that you wrote?
A:  Yeah.
Q:  Okay.
A:  Though I think we were writing at the same time.
Q:  I put up the second page of that. Bates number 174.
A:  Um-hmm.
Q:  Okay. I know it's a little fuzzy, it's hard to see, but you should be able to make out the words at the  bottom of the page?
A:  Yes. "In Heaven everything is fine."
Q:  So the idea of Heaven and Hell were already introduced prior to Issue 9?
A:  Sure. That's Alan Moore's issue. It's actually set in Hell. That's an ironic title.
Q:  And another page from that same issue, do you see the image at the bottom of the page there?
A:  Yes.
Q:  You probably can't read the text?
A:  No.
Q:  But it's talking about an evolving neural parasite?
A:  Um-hmm.
Q:  Does that have any meaning to you in the context of Spawn?
A:  Sure. That was -- Todd had asked Alan and he mentioned to me that he kept drawing the Spawn costume differently because he couldn't ever remember how many chains and spikes there were to be. So he was now getting letters from kids saying that the costume kept changing and could we come up with a rationale for why the costume was changing. So Alan came up with the idea, and I think we were talking about it, that it was-- the costume was a neural parasite and the costume was alive and it would keep the Spawn costume evolved and changed and responded and it wasn't actually a frozen thing.
Q:  So the costume itself is sort of a living thing?
A:  Yes.
Q:  And I think in your Issue 9 that you wrote, you referred to it as a carapace?
A:  Yes.
Q:  Which probably technically means something like an exoskeleton?
A:  Yes.
Q:  Then later in Issue 8, there is also -- the last page of the actual issue -- we have this page?
A:  Next issue, the Gaiman.
Q:  Right.
A:  Is it "the" Gaiman? Neil Gaiman.
Q:  Sorry this isn't better in focus. Let's see if we can manually zoom. See there at the feet of the devil creature?
A:  Um-hmm.
Q:  Can you make out what is gathered at his feet?
A:  Lots of -- lots of spawn costumes, probably with people in them.
Q:  So a mass of other Hellspawn?
A:  No, not necessarily. These are creatures in Hell.  You get one Hellspawn in -- on every 400 years. These were lots and lots of neural parasites wearing people.  The idea was -- or at least that was the way that Alan and I talked it through at the time.
Q:  Okay. So you don't view those creatures as being  Hellspawn because they're still in Hell?
A:  Yeah, they're not Spawn. Spawn is this guy –
Q:  And where -- I'm sorry.
A:  -- who comes to Earth -- well, not who comes to Earth. Every 400 years one of these guys gets tested to be officer material and the army -- those are the Grants in the army. It's the difference between a general and the troops.
Q:  Okay. So whatever those creatures are wearing, the neural parasites –
A:  Or the neural parasite wearing them.
Q:  They are the army?
A:  Sure.
Q:  Okay. All right. So the idea that there was an army of individuals in Hell wearing the neural parasitic suit or having a neural parasitic suit wear them, if you will, pre-existed Issue 9?
A:  That was Alan's idea at the time and we talked about it at the time.
Q:  And it pre-existed Issue 9, right?
A:  It pre-existed the publication of Issue 9, sure.
Q:  Right. I mean it was in Issue 8, that precedes Issue 9, correct?
A:  Not necessarily the way that comics are written I'm afraid. It's not like Alan writes this issue and then Todd draws it and then I write Issue 9 and then Todd draws it.
Q:  Several issues may be being worked on –
A:  May be working on them at the same time, so --
Q:  You knew there was an army in Hell. You knew Hell was preparing for a battle -A:  Um-hmm.
Q:  -- correct? And so the first creative leap that you made, if you will, is that an army in Hell would be battling Heaven?
A:  It seemed logical and is traditional.
Q:  And so you decided to create a character out of Heaven's army?
A:  Yes.
Q:  And that was a warrior angel?
A:  Hunter angel, but yes.
Q:  And you picked a female character because Spawn was male?
A:  Yes.
Q:  And in your script idea, you wanted to start off with this hunter angel killing a Spawn from another time and then have her set out to kill the Spawn in the current time?
A:  Yes.
Q:  Okay. And you picked the idea of a knight in armor Spawn because you thought it would be cool for 12-year-old boys?
A:  Yeah, basically, and because it seemed like the kind of thing that Todd could have fun with. He could make toys of this character.
Q:  And toys were made of the character, correct?
A:  Immediately, yes.
Q:  And relatively -- was the character ever named Medieval Spawn before the toy came out?
A:  No. I think Todd needed a name for the toy, so it said Spawn on the cover and then on the inside Dark Ages and then Medieval Spawn. It was a name for the thing.

And then I think so that he had some way to – the Medieval Spawn created by Neil Gaiman and Todd McFarlane, that's indicating we are talking this Spawn; this knight in armor Spawn.
Q:  So let's step back for a minute. You're a writer, correct?
A:  Correct.
Q:  And as a writer you invent stories?
A:  That's what I do.
Q:  And you invent characters who are part of those stories?
A:  Yes.
Q:  And sometimes your stories might bear similarity to another story?
A:  It happens over and over. They say there are three different stories you can tell.
Q:  Let's just take a real world example. I mean you're the author of American Gods?
A:  Um-hmm.
Q:  And you've been asked in the past to -- if American Gods was inspired by Eight Days of Luke by Diana Wynne Jones?
A:  Yes. The answer was no.
Q:  Right. And you've said basically although they do bear superficial similarity to each other, that was not your inspiration?
A:  You have to really push it to find similarity between the two.
Q:  Okay.
A:  What I actually said was that I came up with a way of telling the story which was going to be naming days of the week after the gods that they are named after and when I came up with that, I realized that Diana had done something in eight days -- Diana Wynne Jones, the English author, had done something similar in Eight Days of Luke. But the plot of American Gods and the plot of Eight Days of Luke bear no relationship to each other nor do the characters.
Q:  Okay. And sometimes characters that you create might bear superficial similarities to characters someone else creates, right?
A:  I'm sure it happens.
Q:  And that's true even when you've created characters out of whole cloth?
A:  That's always true.
Q:  And some of that is driven by the fact that two characters from the same time period may do similar things?
A:  You'd have to rephrase that question into something that's --
Q:  Let's take an extreme. Two different characters someone created that were cavemen might have some superficial similarities.
A:  They may. You're asking me –
Q:  I mean if you were –
A:  I'm not sure -
THE REPORTER: Whoa, whoa, whoa. One at a time, please.
Q:  I mean if you were to create a caveman character, I mean you might give him a club as a weapon, right?
A:  It's a strange hypothetical. I've never written a caveman that I can think of and I don't think I'd give him a club because it's kind of stupid. I'd probably give him a stone axe because that's what they used.
Q:  Okay. And then if someone else used a stone axe for a caveman, doesn't mean they derived it from your caveman, right?
A:  I would assume not.
Q:  Okay. Now with Medieval Spawn, you were working within the preexisting world of Spawn, right?
A:  Sure.
Q:  And you created a -- the idea of a knight in armor Spawn, right?
A:  No. I created the character.
Q:  Okay. So you created -- you created a knight in armor Spawn?
A:  Yes.
Q:  You and Mr. McFarlane together.
A:  Yes. That's why it says Medieval Spawn created by Neil Gaiman and Todd McFarlane on the top in the typing.
Q:  Okay. And certain aspects of what we'll now call Medieval Spawn were derived from Spawn himself, the original Spawn?
A:  Sure. That's why it's a derivative character.
Q:  And certain aspects of the character were derived from sort of the scene and the aspects of just the series Spawn, correct?
MR. ARNTSEN: Object. I don't understand the question.
THE WITNESS: Give me some specifics.
Q:  Sure. Spawn is full of fighting, right? The comic book series, it's full of fighting?
A:  I guess.
Q:  It's an action series, right? Spawn fights people.
A:  Yeah, sure.
Q:  So Medieval Spawn was going to be a fighting character probably, right?
A:  I guess.
Q:  Not a traveling minstrel, right?
A:  It could have been a traveling minstrel, that would have been fun to write, too.
Q:  And would that have fit –
A:  It would have been a different story.
Q:  Would that have fit with the notion of a creature who’s training to lead Hell's army?
A:  Might have been fun. I only had eight pages and I don’t think he would have wanted to do a minstrel toy, but we could have gone there.
Q:  So your choice that this 800 year ago Spawn would be a knight had nothing to do with the fact that it was supposed to be a fighting character?
A:  You have -- when you're starting any kind of writing process, you have an infinite number of ways to go. I could not pretend, seventeen years later at this point, to reconstruct my thought processes on how I decided it was going to be a knight in armor and why it would have been an 800 year ago. So I feel like any answer I could give you now would be fundamentally imaginary. I would be making up an answer which would give you that justice.
Q:  So you can't say really one way or the other whether the idea that this character would be a knight in armor was driven in some respects by the fact that he was going to be a fighting character, just like the original Spawn?
A:  In a comic called 1602 which I did for Marvel comics from 2002/2003 through 2004, I reinvented all of the Marvel characters and set them in the early 17th century, in 1602, and created Daredevil. Marvel's big fighting superhero was actually a minstrel in it and I invented him as a blind travelling minstrel. If you're a good writer, you create characters that live on that exist and you don't say ah, because this is fighting, you can only be this one thing. That's a nonsense.
Q:  Mr. Gaiman, I'm simply asking whether your choice of this character was a knight was driven in part by the fact that the character was going to be a fighting character. I mean you can either remember that or you can't.
A:  I don't remember.
Q:  Okay. Now the original Spawn had made a deal with the devil, correct?
A:  Um-hmm.
Q:  And so Medieval Spawn was going to make a deal with the devil.
A:  Um-hmm.
Q:  And as part of the deal the original Spawn makes, he's returned to Earth?
A:  Yeah.
Q:  And so with Medieval Spawn again, part of the deal is he's returned to Earth.
A:  Exactly.
Q:  Okay. And the original Spawn is endowed by the devil with certain powers.
A:  Yeah.
Q:  And so Medieval Spawn was going to be endowed with these same powers or similar powers.
A:  Similar one assumes, yes.
Q:  And the original Spawn didn't understand when he got returned to Earth what had happened to him initially, correct?
A:  Correct.
Q:  It took him a little while to adjust to being sent back to Earth.
A:  Initially he was a bit bewildered, yes, and it took a lot of people explaining the plot to him until he actually caught up the plot.
Q:  And the original Spawn, when he's returned to Hell, he's sent sort of into his own -- slightly into the future of his own prior existence, right?
A:  As I remember, yes.
Q:  And that's part of the confusion, right? Because things have changed a little bit in the world.
A:  Yeah, I guess. I mean I don't know -- I'll leave it for your question. I'm sorry.
Q:  That's quite all right. But again, when you wrote the character Medieval, who is now Medieval Spawn, he also didn't understand what had happened to him, correct?
A:  He -- he -- he hadn't figured out -- he didn't -he definitely didn't know all the ins and outs of it.
Q:  Well –
A:  I think his dying words are I don't understand or something like that and she says no, because you're stupid or words to that effect.
Q:  So he's killed before he ever really understands what's happened to him?
A:  There isn't a lot of opportunity on those eight pages for conversation. In my back story in my head, I think he'd been probably around fighting for, you know, five/ten years, but nobody had actually turned around at that point and said this is actually what's going on. You are going to be in Hell's army. Blah, blah, blah, blah, blah. But he had been -- he had still been going around doing a certain amount of good wherever he could and being noble, even though he was a Spawn.

I seem to remember some line about how when Spawns were young they could still do things that were -- still fight for good, and I assume in the case of young and fighting for good, I take it that Spawn is still fighting for good eighteen years after the comic started. So the print gives you eighteen years at least.
Q:  So Spawn, as you know, the portion where we meet Medieval Spawn and we first meet Angela is written assort of a hunting manual –
A:  Yeah.
Q:  -- right?
A:  hunting manual to train the angel characters how to hunt and dispatch –
A:  Sure.
Q:  -- Hellspawn. And one of the comments is it's easiest to kill them when they're young?
A:  Absolutely. What I was definitely thinking of at that point was the idea of this Cogliostro character, who I was calling Cogliostro, who shows up later in that issue, and he's an incredibly old Hellspawn. So -- and as they get older and older, they get eviler and trickier and harder to kill. So I figured a 100-year-old Spawn, dead nasty. Five-year-old, ten-year-old Spawn, probably a lot easier.
Q:  Can you at all make out –
A:  No. You're going to have to bring it up if you want me to read anything.
Q:  Let me read you from Exhibit 1 a line that the Medieval Spawn character utters. "No wizard, fair one.Once I was a man. A bad man. Now I know not what I am." Right? Does that sound familiar to you?
A:  Are you asking did I write it?
Q:  Yes. Did you write it?
A:  Yes, I wrote it.
Q:  Okay. And in that line, the Medieval Spawn character is expressing that has not figured out what or who he is.
A:  Or at least he is not -- whatever he has figured out, he's definitely not going to pass on to a damsel in distress that he's met at that moment, yes. I mean that --
Q:  Oh. So you think he's being coy with the maiden rather than actually expressing that he has not yet figured out who he is?
A:  Maybe.
Q:  Okay.
A:  I mean he's just met her. She's going ah, I'm a damsel in distress. Something bad is happening there. What are you? And he said well, I was a bad man. Now I could be anything, b-r-r-r-r, and he's off to fight.
Q:  Okay. So he's just keeping himself close to the vest.
A:  Yeah.
Q:  Okay. And then he's killed?
A:  Yeah.
Q:  Okay. And he's killed 800 years prior to the present day?
A:  Yeah.
Q:  Okay. Hand you a couple of the toys. Mr. Gaiman, the one on your left is Exhibit 43. The one on your right is actually the toy that contains the comic that was marked as Exhibit 28.
A:  Okay.
Q:  Okay? And let's start with the -- just using those two characters as a reference, you admitted that Medieval Spawn is derived from the character Spawn?
A:  I don't admit it. I avow it. It's a derivative character.
Q:  Right.
A:  That's the point.
Q:  Okay. In looking at those two characters, I mean you can see they both have spikes as part of the neural parasitic covering?
A:  No. They both have arm spikes. Well, they actually both have an arm spike on the right arm.
Q:  And the original Spawn, if you look under his cape, has spikes on his leg as well. It's hard to see.
A:  And on the left leg, yes. He has some spikes on his left leg.
MR. ARNTSEN: Your Honor, if these are exhibits, I'll stipulate the toys show what they show.  I don't know if we can move this along somehow, but -
MR. GRIMSLEY: I think it's important for us to understand which elements are shared by the various characters because it goes to the various -
THE COURT: And you don't think I could look at it to see that?
MR. GRIMSLEY: I'm sorry?
THE COURT: You don't think I could see that when I looked at it?
MR. GRIMSLEY: If you looked at the two. I'd like to highlight a few because they're going to be important with Dark Ages as well.
THE COURT: Okay. All right.
Q:  So we have the spikes. They both have the "M" on the chest, correct?
A:  Yes.
Q:  Okay. Both characters have green eyes, both Spawn and Medieval Spawn?
A:  In this toy, yes.
Q:  Okay. And in the comic?
A:  On the cover that I can see, yes. I have –
Q:  In the comics that you worked on.
A:  I'd have to go back and look at Number 9 to see if the eyes glow greenly. I will take your word quite happily.
Q:  And they both have the Spawn logo and things on the package. I mean the shield itself is the Spawn logo, correct, for the Medieval Spawn?
A:  Yeah.
Q:  Okay. Now beyond those elements, did you use any other works to add the knight-in-armor aspects to Medieval Spawn?
A:  I don't understand the question.
Q:  Well, there's aspects of Medieval Spawn that are derived from Spawn.
A:  Um-hmm.
Q:  Are there aspects of Medieval Spawn that are drawn from other works?
THE COURT: Other -- are you talking about other works that would be at issue in this case or just any other works?
MR. GRIMSLEY: Any other work.
MR. ARNTSEN: Object. Vague.
Q:  Okay. Did you draw in your general understanding what a knight in armor is?
A:  I -- okay. Things that I drew on to create the
Medieval Spawn would include Barbara Tuchman's book A Distant Mirror; many visits as an English child to museums; to Hever Castle, which although it's actually very, very late medieval, early Renaissance, has lots of great armor and things like that; going to the Tower of London; reading Thomas Malory, and so on and so forth.
Q:  You have a general understanding of what a knight in armor should be and what he should do, correct, from your background in life?
A:  From reasonably extensive reading, and yes, being a human being on this planet.
Q:  For instance, a knight in armor will typically ride a horse because that was the means of transportation 800 years ago, right?
A:  The horse and also the cart were definitely means of transportation 800 years ago.
Q:  Right. The cart being pulled by a horse or donkey or oxen or some other beast?
A:  Goat.
Q:  I mean so some of that is just based on the time period?
A:  Sure. He's not in a car.
Q:  Now sometimes when other authors create characters that might have similarity with characters you create, doesn't mean they're derived from your character, right?
A:  Right.
Q:  And you agree that superficial similarities between two characters doesn't mean that they were derived from each other necessarily?
A:  Absolutely.
Q:  You're familiar with a series, I think it's called Books of Magic?
A:  Um-hmm.
Q:  Okay. And is that a series you worked on?
A:  That's a series I created.
Q:  Okay. You created? And you created -- is there a male lead character?
A:  There is a character called Timothy Hunter.
Q:  Timothy Hunter. And is he a wizard kid?
A:  No. He has the potential to be the greatest magician the world has ever seen.
Q:  Okay, he's a magician.
A:  He's a magician.
Q:  Does he have a pet owl?
A:  He does.
Q:  Does he enroll in a school of magic?
A:  Not while I was writing he didn't.
Q:  Did he later in the series?
A:  I don't remember, did he?
MR. ARNTSEN: Your Honor, I'm going to object on relevance grounds.
THE COURT: Sustained.
Q:  He has heavily rimmed black grasses?
MR. ARNTSEN: Object on relevance grounds.
THE COURT: Sustained.
THE WITNESS: Timothy Hunter bears certain similarities –
THE COURT: I sustained the objection.
THE WITNESS: I'm sorry.
Q:  It's been suggested to you that the character Harry Potter is very similar to this character from Books of Magic?
MR. ARNTSEN: Object on relevance grounds.
THE COURT: Sustained.
Q:  And you publicly rejected the idea that Harry Potter was derived from your character?
MR. ARNTSEN: Your Honor, I object.
THE COURT: Mr. Grimsley, that subject has been explored as long as it's going to be explored.
MR. GRIMSLEY: Okay. I was simply trying to make my record so we had the questions on the record, understanding it would be sustained. Having further, may I proffer them in a written submission that these were the questions I would have asked?
THE COURT: You may.
MR. GRIMSLEY: Thank you.
Q:  So before we went down that path, in creating characters there are certain stock characteristics that you might apply to the endeavor, depending on the nature of the character?
A:  Give me an example.
Q:  Well, let's take a knight in armor. You might have armor, right?
A:  If he's a knight in armor, he would definitely have armor. If he didn't have armor, he would be a knight not in armor.
Q:  So I mean that's kind of a stock characteristic of a knight in armor, correct?
A:  No. It's actually part of the definition of a knight in armor that he wears armor.
Q:  Okay. Okay. Difference in terminology. Let's take it differently. If you were creating a mobster, he might have a Sicilian accent?
MR. ARNTSEN: Your Honor, object. Relevance.
MR. GRIMSLEY: He asked for an example, Your Honor. I'm just trying to get an example.
THE COURT: I'll overrule it to that extent.
Why don't you start again, Mr. Grimsley.
Q:  If you were creating a mobster, he might have an Italian or Sicilian accent?
A:  Probably not.
Q:  Not –
A:  I don't think I've ever created any Sicilian or Italian mobsters. I've written a lot of criminals.
Q:  So to you, that would not be something that would be likely to be on such a character?
A:  I'm not sure what you're asking.
Q:  My question was in creating characters, there's sometimes stock characteristics that you might apply, correct?
A:  And I said give me an example. Are you talking about -- are you talking about yourself as a writer or me as a writer?
Q:  I'm talking about you as a writer.
A:  Okay. Good. So give me an example for myself.
Q:  Well, I'm trying to take a hypothetical. Let's say you were creating a character as a judge. They might wear a black robe.
A:  Well, if there were in a American courtroom, of course they wear a black robe. But that's not a stock character. That's part of what they wear.
Q:  Well, I know judges who wear other colors, but you might –
A:  I don't. I only remember Judge Shabaz. They are very different. I can't see that I could create a stock judge from Judge Shabaz and Judge Crabb.
THE COURT: Thank you. Appreciate my individuality.
MR. ARNTSEN: Your Honor, I just object on relevance grounds. We should just try to stick to the point a little more.
THE COURT: I understand the point you're trying to make, Mr. Grimsley, but I don't think you're getting at it very directly. I understand you're trying to get Mr. Gaiman to agree that there are certain aspects of a character that once you think of the character, you think of certain stereotypes, cliches about that particular character, and those would be just part of the stereotype that we all have when we think of that character.
MR. GRIMSLEY: As long as you understand the concept, Your Honor, I don't need to continue with it despite the fact that our writer seems to not understand that concept.
MR. ARNTSEN: I object and move to strike that last comment.
THE COURT: Granted.
THE WITNESS: Thank you.
Q:  Let's bring the concept home. I mean when creating a knight in armor, would there be any stock characteristics of a knight-in-armor character?
MR. ARNTSEN: Object. Asked and answered.
THE COURT: Well, you can answer that. Are there any stock characteristics of a knight in armor?
THE WITNESS: No, because you'd have -- it depends who's in the armor, what they're doing. You could have a -- I mean I could sit here and come up with a dozen different kinds of knight in armor characteristics. You could have, you know, even in the Arthurian legends, there are hundreds of knights at the round table and they're all very different. You can't point to Gawain and say he's like Galahad or Lancelot going mad. They're very different people. You have an impulse for good for most of them, but then you have knights in armor who were evil or bad or whose motives are mixed up and conflicted.
Q:  Are there any obvious choices in creating a knight in armor as to costume armor? There's a list of potential weapons?
A:  Even armory are potential weapons.
Q:  Right. I mean there's things like a battle axe and a sword, a lance and shield, things like that?
A:  Sure.
Q:  Okay.
A:  There's sort of more clothing of the character, yeah.
Q:  But that's more of the accoutrement of the figure rather than his character, is that true?
A:  Yes.
Q:  All right. In creating a knight in armor character, regardless of whether the setting is Spawn or something else, you would distinguish the characters from other knights based on the personality; is that true?
A:  I like to.
Q:  And their personal history?
A:  It would depend on the knight.
Q:  Their motivations?
A:  I think a character is a character. A character is all of those things.
Q:  Right. I mean as a writer, you try to give a character capital C character, right?
A:  No, I try to make people.
Q:  Okay. That's a very nice way to put it. And each person is an individual collection of these elements, correct?
A:  Yes.
Q:  Now Medieval Spawn, as described in the Spawn Bible, is the son of a merchant. Do you recall reading that?
A:  I -- you handed it to me, I looked at it and said I don't know any of this stuff except the stuff at the end. If you say so.
MR. ARNTSEN: Your Honor, it's in evidence and I'll agree whatever it says.
THE COURT: You could just read it.
MR. GRIMSLEY: Sure. And are we agreeing that that's the character that we're talking about?
MR. ARNTSEN: I don't understand that question.
THE COURT: Are you asking whether the Medieval Spawn is what?
MR. GRIMSLEY: We just said that the personality is part of the character and the story and the history, and if this story -- are we stipulating that the story that's in Exhibit 16 for Medieval Spawn is the combination of all the elements for this?
MR. ARNTSEN: No, we're not. I believe Mr. Gaiman testified in some detail that that was a back-story written after he wrote his story.
MR. GRIMSLEY: Okay. So whatever was written here would be then further derivative of what Mr. Gaiman -- I'm just trying to make sure I understand, Your Honor. I think counsels' cross-chatter -
THE COURT: I don't think that's a question you can ask Mr. Gaiman, but you can talk to counsel at the next break.
Q:  And the Medieval Spawn that you co-created, was he the son of a merchant?
A:  I didn't get to write about his family history.
Q:  Okay. Was he a knight?
A:  Yes.
Q:  Okay. Did he serve King Henry the II?
A:  He was a bad man who had died, become a good man, and was out trying to do good.
Q:  And –
A:  Saving things and protecting people.
Q:  And he participated in the assassination of Thomas Beckett?
A:  That -- I think I noticed the name Thomas Beckett misspelled on that thing that you showed me. If -- I have already explained that's -- I don't know, something somebody made up and wrote down.
Q:  Okay. So as you co-created and the answer is just no, he hadn't -- that wasn't part of the story?
A:  Because I co-created him, I guess that’s absolutely, theoretically, hypothetically possible.  What I created was that character in armor going out, doing some saving.
Q:  And the fact that a Hellspawn on Earth would go around rescuing damsels, that wasn't original to Medieval Spawn, right?
A:  Are you asking if the idea of rescuing damsels was original? No, it definitely isn't. That's something that people have been doing for as long as there have been people.
Q:  And when we first meet the original Spawn, that's one of the first things he does.
A:  Absolutely. He's rescuing people.
Q:  Right. Okay. So what -- the Medieval Spawn that you created, what was his motivation for making a deal with the devil?
A:  We never found out in the issue that I wrote.  I always hoped that they'd come up with something good after I left, that Todd would go in and make up a good back story for him.
Q:  Okay. And if the character had –
A:  I mean if you're writing a comic, you create characters. You don't always create their entire life story. Bruce Wayne as Batman wasn't all there in Detective Comics 27. It comes in a bit at a time, but it’s still the Batman created in Batman Comic 27.
Q:  And the Medieval Spawn that you have a co-ownership of, does that include the elements that were added later by Mr. McFarlane and others to fill out that back story?
A:  I -- I'm not a lawyer. I don't know.
Q:  Okay. As a layman, do you have a view?
MR. ARNTSEN: Object. Calls for a legal conclusion.
THE COURT: Sustained.
MR. ARNTSEN: If he does, it's not relevant.
Q:  Now the Medieval Spawn that you wrote, you wrote his dialogue, correct?
A:  It was dialogue and thumbnails.
Q:  And I mean you wrote all the words, but I'm just asking you wrote his dialogue?
A:  Oh, yes.
Q:  So you wrote the way he speaks.
A:  Yes.
Q:  And he speaks in a fairly stilted, maybe old fashioned manner?
A:  He speaks in a sort of slightly old fashioned manner, yes.
Q:  He uses words like sweet maiden?
A:  He does.
Q:  Says things like I know not what I am rather than I don't know what I am?
A:  He does.
Q:  And his speech is consistent in that manner through all of his appearances, correct?
A:  All of his appearances meaning every panel he's in in that comic?
Q:  Yes.
A:  Yes. He doesn't suddenly start talking like a Todd or something.
Q:  Or you.
A:  Or me.
Q:  Now with Angela, do her motivations and her history separate her from other female warrior angel characters?
A:  They're what make her Angela, yes.
Q:  Okay.
A:  As opposed to Quan Yin or Domina or whatever. Sure.
Q:  Okay. So could other warrior angels have superficial similarities to Angela and not be derived from the characters you have a co-ownership in?
MR. ARNTSEN: Objection. Calls for a legal conclusion.
THE COURT: Sustained.
Q:  Now Angela is, I think it says at one point, 100,000 years old?
A:  Yes.
Q:  One of the few angels to be allowed to hunt Hellspawn?
A:  Yes.
Q:  And she's a huntress at heart?
A:  It's recreational, but yes.
Q:  Okay. Ultimately she fails to kill the original Spawn when they have an encounter?
A:  The original, you mean Spawn –
Q:  Al Simmons's Spawn.
A:  She fails to kill him, yes.
Q:  The Spawn that Todd created that started the series.
A:  Yeah.
Q:  And she is put on -- Angela is put on trial for treason?
A:  Yes.
Q:  And the Al Simmons's Spawn helps her to escape?
A:  Yes.
Q:  And I think you testified earlier she leaves Heaven's army and goes freelance?
A:  Yes.
Q:  Okay. And that's all part of her character and background of the story, correct?
A:  That's the plot that I wrote, yes.
Q:  Now how long have you been in the comic book industry?
A:  I think I wrote my first comic in 1985/'86 somewhere.
Q:  Always as a writer?
A:  Most of it was a writer. Occasionally I've drawn and it's been published.
Q:  Have you collaborated with other writers on a series?
A:  Yes.
Q:  Any names that come to mind when you answer that?
A:  I did a book called The Children's Crusade which I book ended, wrote sort of book ends, and worked with a number of writers Jamie DeLillo, Alisa Kwitney, Rachel Pollack, Nancy Collins and many others.
Q:  Okay.
A:  And of course when you're just writing -- I did most recently, my most recent comics work, was atwo-parter last year where I got to kill Batman called Whatever Happened to the Cape Crusader, which was the last Batman issue of Detective Comics and Batman Comics, and on that level, you're kind of collaborating with seventy years of people who have written Batman and the people who are writing it now.
Q:  Let's take any one of those writers; for instance, Ms. Pollack you mentioned.
A:  Um-hmm.
Q:  Are you saying she couldn't create an angel without it being derivative of Angela?
MR. ARNTSEN: Object. Calls for a legal conclusion.
THE COURT: Sustained.
Q:  Well, let's -- do you agree that other authors could create female angel warrior characters without having to use the character that you co-created?
MR. ARNTSEN: Object. Calls -- if it's relevant to anything, it calls for a legal conclusion.
THE COURT: I suppose. Sustained.
Q:  Do you agree another writer could create a Spawn from medieval times without having to rely on the Spawn that you created in Issue 9?
MR. ARNTSEN: Same objection. Irrelevant and calls for a legal conclusion.
THE COURT: Sustained.
Q:  Have you ever seen -- have you seen the description of Tiffany in the Spawn Bible?
A:  I think it was up on that screen, but I couldn’t read the words.
Q:  Okay. And you hadn't seen it before then?
A:  If I saw it as part of a big brief, I would have flipped through it.
Q:  By the way, have you read the Dark Ages series of comics?
A:  I read some of it.
Q:  Okay.
A:  I picked a few up as they were coming out, and again flipped through it yesterday on the way up.
Q:  You flipped through. Have you ever sat down and read all 28 issues?
A:  No.
Q:  This is the description of Tiffany from Exhibit 16.  And I'll let counsel correct me when I'm wrong rather than read it per se. But the gist of it is Tiffany dislikes Angela, right?
A:  Yes.
Q:  And can you tell from this image -- I mean Tiffany has sort of on her leg, on her right leg, it would be on our left-hand side, what appears to be like a little ammunition belt?
A:  I thought it was chocolates, but it could be ammunition. It could be anything.
Q:  Well, Tiffany uses guns, right?
A:  It's definitely a belt of some kind.
Q:  Well, is it correct that Tiffany uses guns?
A:  I haven't read every Tiffany appearance.
Q:  Well, I thought you said Tiffany was part of the host of angels that you created.
A:  Yes.
Q:  Did you create an angel in your host of angels who uses guns?
A:  I'm sure many of them did. I said there were 300,000 of them.
Q:  Did you ever write anything or have any drawings where the angel used a gun?
A:  No.
Q:  No. Okay. So from Exhibit 8, we have this picture of Tiffany. Just so we're clear, here do you see the gun in her hand?
A:  I don't believe somebody becomes less derivative of another character if they pick up a gun. Batman is still Batman if he's holding a gun. But yes, I see the gun.
MR. GRIMSLEY: Your Honor, if I may, I've had several objections and instructions when I've asked --
THE COURT: Disregard this.
MR. GRIMSLEY: -- this witness what would be derivative of something else. He's now volunteering and I believe it's opened the door to the entire line of questions that was objected to and sustained if he's going to offer that sort of testimony.
THE COURT: I'll disregard the answer, but I don't believe that he's opened the door to the other questions.
Q:  Do you see that Tiffany -- this angel character uses a gun?
A:  She is definitely holding something. If you bring it over here and I can see what it is properly, I can probably tell you if it's a gun or not. Up there honestly –
Q:  No, I appreciate that. It's hard on the screen.
A:  Yeah, it's a gun.
Q:  And Tiffany has some sort of wing on her back; it looks like blades, correct?
A:  Yes.
Q:  She doesn't have the headpiece that Angela wore?
A:  No.
Q:  Now both of these characters, both Tiffany and Angela, are, I guess to put it mildly, scantily clad?
A:  Yes.
Q:  Is it common in modern comic books to portray women scantily clad?
A:  Not the ones that I write.
Q:  Okay. But putting aside the handful that you write, is it fairly common?
A:  No.
Q:  No?
A:  I was the editor this year of Year's Best American Comics and I read an awful lot of comics and most of them had fully clad women. I will accept there may be some comics out there with scantily clad women, but no, I don't believe it's the norm.
Q:  Well, when we're using the adjective scantily clad, do you consider Wonder Woman to be full clothed or scantily clad?
A:  I haven't read a Wonder Woman comic in ten years. I have no idea what she's wearing currently. Throughout her history, it has moved backwards and forwards. At one point in the 60s and 70s she was in a trouser suit.  The costumes vary.
Q:  Let's just put up an image from Exhibit 38. A Wonder Woman at the bottom. Do you recognize that?
A:  Wonder Woman.
Q:  And would you agree that she is relatively scantily clad?
A:  It's a skin tight variant of the Wonder Woman costume. Normally has -- the last time I saw it, it definitely had a little dress or some of it went down further. But it seems to have crept further up her thigh.
Q:  Okay. The lines keep changing, don't they? By the way, Exhibit 38 is a publication called Previews from Diamond Distribution. Are you familiar with that publication?
A:  Yes.
Q:  And can you explain to the Court what Previews would be?
A:  Sure. There's -- well, the distribution system of comics that gives you the solicitation process that I was talking about earlier, those advanced solicitations from all the different comic companies, big and little, get put together by Diamond, who are one of the distributors, these days pretty much the only distributor, and that volume goes out to comic stores. So originally for retailers and now as much for customers as retailers.
Q:  Let me just flip through a few pages to make sure we understand each other. The women portrayed on this page, would you say they're scantily clad or fully clad?
MR. ARNTSEN: Your Honor, I object on relevance grounds.
THE COURT: Overruled.
THE WITNESS: Let's see, I can't see one, two -- of the ones on here, one of them appears to be wearing fishnet bondage gear; one of them looks like Power Girl, who is a Superman knockoff in a cape; and one of them is a weird manga thing. I'm not even sure if she's -- what she's wearing. Are they fully dressed?  No, they're wearing spandex.
Q:  I'll flip the page. There's another comic book character in bikini, right?
A:  Could be a bikini, could be a shirt tied up underneath.
Q:  Oh. Sure. Okay.
A:  They are scantily clad.
Q:  Another character with kind of a high thigh line and –
A:  With the guy holding the thing up.
Q:  Revealing.
A:  He's got a very, very high thigh line, he's just a little crotch, and he's holding a rock in the air and he’s fighting Thor. And there's a lady in front of him not wearing anything, too.
Q:  Yeah, another bikini?
A:  That's a swimsuit illustration and she's wearing a swimsuit on the cover.
Q:  So if we flip through -- I mean the Judge can do this, we don't have to do it now -- but it's -- would you agree that there would be a fair number of women who are portrayed as scantily clad in the comic books?
THE COURT: What is that exhibit number, Mr. Grimsley?
MR. GRIMSLEY: That is Number 38.
THE WITNESS: Again, I can absolutely, utterly, with my hand on my heart testify that the ladies in those pictures in those ads that you showed me weren't wearing very much, nor were the men. Beyond that, I think generalizing the comics is deeply problematic.
Q:  Now while we're talking about Angela and Tiffany, let me bring this back real quick. One last thing. You said Angela has this big flowing red hair, is that correct?
A:  Um-hmm.
Q:  And Domina has, at least as portrayed in the comic book, more spikey, sort of stand-uppish hair I think you said?
A:  I think I said Tiffany had –
Q:  I'm sorry?
A:  -- the spikish stand-uppish hair.
Q:  Tiffany has the shorter stand-uppish hair?
A:  Yeah, or at least in the pictures I was shown. Obviously I have not seen every Tiffany appearance.
Q:  Okay. Now the character Domina is not described in the Spawn Bible, is that correct?
MR. ARNTSEN: I'll stipulate that it isn't.  
A:  Okay, it's not.
Q:  In the comic that you were shown earlier in which Domina appeared, Domina and Angela have a bit of a run-in?
A:  Um-hmm.
Q:  Okay. Angela stops Domina from heading off to do war, from starting Armageddon?
A:  I think that's right.
Q:  Okay. And Domina, her headdress isn't the same wings as Angela?
A:  No. There are lots of different headdresses.
Q:  When you use the term Medieval Spawn, do you think of that as referring to a time period?
A:  No.
Q:  Okay.
MR. ARNTSEN: Your Honor, I apologize, Alex, for interrupting. When our hearing was set to start at eight o'clock, Mr. Gaiman made a reservation on a plane flight that's leaving Madison at two, which I thought would be fine being the first witness. I'm not sure how long you think you're going to be, Alex.
MR. GRIMSLEY: Let me see if I can wrap it up in 45 minutes with him, if we can take a late lunch.
THE COURT: All right.
MR. ARNTSEN: Thank you. I appreciate that.
Q:  What period in time is Medieval Spawn from?
A:  800 years ago.
Q:  800 years ago.
A:  12th century.
Q:  Okay.
A:  Obviously somewhere between 1100 and 1200, maybe 1250 if you wanted to push it.
Q:  And that's the period when he's killed, correct?
A:  Yeah. 800 years ago. I don't know that it was exactly 800, whether I was thinking 800 to the day or whether it was just generalization.
Q:  But that was the period when he was killed?
A:  Yes.
Q:  Was there anything in Spawn 9 that told us when he lived?
A:  I don't quite understand your question. Approximate -- I would have thought approximately the same time.
Q:  Okay. But one of the mechanisms in the story is that the Hellspawn have returned?
A:  Comes back a few years later.
Q:  But so there is nothing in Issue 9 that told us when this character lived, the issue that you wrote?
A:  No. You know that this event happens 800 years ago.
Q:  And there was nothing in Issue 9 that told us what country this character lived in?
A:  I assumed it was England, but I don't think we ever even locked that down, that part.
Q:  So there was nothing saying whether he was English, French, German, whatever.
A:  He does speak English.
Q:  But it's an English comic book, correct?
A:  Yeah, but I'm the kind of person who actually, if it was in France, might well have written in French just to make kids go and look up French words in dictionaries. I did that recently with some Latin stuff in a comic.
Q:  Okay. So if a Medieval Spawn spoke French, would that be different than the character you created?
A:  Actually a Medieval Spawn, thinking about it, probably would have been speaking French.
Q:  Okay.
A:  Because Saxon would have been -- I'm sorry.
Q:  Okay. But your character spoke in English.
A:  His dialogue was written in English.
Q:  So if his dialogue was written in French, would that be a different character than the one you created?
A:  I've seen issues of Spawn 9 translated into French and Japanese and Spanish and it's the same character.
Q:  If there was a medieval -- a Spawn from medieval times who spoke in rap, would that be different than the character you created?
A:  One would assume he was under some kind of horrible spell.
Q:  Is that a yes?
A:  That was -- I think it's a silly question, with all due respect.
MR. ARNTSEN: Your Honor, again, to me if these are relevant questions, they're calling for legal conclusions.
THE COURT: Sustained.
MR. GRIMSLEY: Your Honor, if I can proffer, I'm simply trying to get one of the co-creators to establish what it is he created. I don't think that calls for a legal conclusion. I'm asking a creator to describe what are the limits of this character that he created.
MR. ARNTSEN: What he created is in Spawn 9.  That's the comic. That's what's there.
THE COURT: I think that's what we're stuck with.
MR. GRIMSLEY: Very well.
Q:  So you said earlier that Medieval Spawn always speaks in this formal sort of medieval fashion in Spawn 9, correct?
A:  In Spawn 9.
Q:  Yes. And as we just all agreed, that's what we're talking about, right? Have you read through Dark Ages to see how he speaks?
A:  I read some of it.
Q:  Let's pull a couple of pages. This is from Exhibit  12. Pardon me. I have the wrong binder. Giving you Exhibit 22. This may be the very first line for the Dark Ages Spawn character that we see in any of these issues and he simply says "What am I," right? Do you see that?
A:  Yeah.
Q:  Okay. And is that line particularly medieval –
A:  Yeah.
Q:  -- speech?
A:  No, definitely. That's a simple English declarative sentence. It would have been the same going back all the way. That's nice.
Q:  Okay. So a modern person would not say what am I?
A:  The Bible, the King James Bible, which was written a long time ago, is filled with beautiful simple English declarative sentences that we would say now and that they said then. It's -- absolutely. It's a glorious little sentence.
Q:  And in your mind that's speaking medieval?
A:  In my mind that's a good clear English declarative sentence.
Q:  And is that speaking medieval?
A:  There is no such thing as speaking medieval.  Medieval is a time period. It goes approximately a thousand years, maybe 1500 years, but definitely a thousand years. It's not a language.
Q:  And the character Medieval Spawn, rather than saying what am I, said something to the effect of I think I know not what I am?
A:  Um-hmm.
Q:  I mean –
A:  No, it's a very different sentence. He is explaining something. That would be the equivalent of I don’t know what I am.
Q:  Okay. How about the simple phrase Go to Hell, Old Man. Would that be medieval or more modern?
A:  Again, short and simple. Go to Hell is an instruction. It's -- it would go all the way back.
Q:  So a short -- the way that you view the way Medieval Spawn spoke is really in just short declarative sentences; there's nothing else distinctive about his speech?
A:  No. I had him talking to a young lady in fair knightly terms. That's something that a character, you assume, has learned a little knightlihood and he's talking to a young lady and he's using his fancy words.  It's -- there's a difference between demotic speak and the fancy stuff and the stuff that you'd use if you were being knightly. If you're being courtly, I assume that if you're talking to your king, you don't talk the same way that you talk to your dog.
Q:  Okay. And Medieval Spawn speaks in that way throughout all the frames in which he has lines?
A:  Actually if you have the comic -
Q:  I can retrieve it for you.
MR. ARNTSEN: Your Honor, I stipulate that it says what it says. I'm not sure what this witness’s testimony will add to it. The Court can read it, the Court can read it and -
THE COURT: Mr. Grimsley can continue if he wants to. You can produce the comic.
Q:  You wanted to reference it?
A:  Sure.
Q:  You may.
A:  Thank you. So the last thing that Spawn says here is I don't understand. It's a nice simple English declarative sentence. It's not harsh. It's not clever.  I no longer have a name. And so on and so forth. It's -- absolutely. How you would, as a knight, speak to a maiden. It's not necessarily how you'd speak to the person killing you, which is why the language changes a little bit.
Q:  Do you know one way or the other whether Dark Ages Spawn speaks consistently in the same manner as Medieval Spawn?
A:  Looking through the comics, I thought Brian was doing a fairly creditable job of trying to give the feeling that this was happening in the old days.
Q:  Now it's your contention that Dark Ages Spawn is derivative of Medieval Spawn?
A:  No. It's my contention that Dark Ages Spawn is modic (ph) derivative of Spawn and is Medieval Spawn.  It's the same thing.
Q:  But it is Medieval Spawn.
A:  Sure.
Q:  So then your contention is that Brian Holguin, sitting here, the writer on Dark Ages, didn't create a new character?
A:  Yes.
Q:  Okay. He simply stole your character and put a new name on it.
A:  No. It's the same -- I assume it's the same character. It's Spawn in the 12th century as a knight in armor.
Q:  Okay. And you believe you have a copyright on that concept, Spawn in the 12th century as a knight in armor?
MR. ARNTSEN: Object. Calls for a legal conclusion?
THE COURT: Sustained.
Q:  So regardless of the back story and the history, you believe that any two Spawns who are knights in armor in the 12th century are the same character?
MR. ARNTSEN: Object. It's irrelevant. It’s leading.
THE COURT: Sustained.
Q:  Did the Medieval Spawn that you created ever go on one of the crusades?
A:  I have no idea.
Q:  As you created him, there was nothing to indicate to us that the Medieval Spawn had ever gone on a crusade?
A:  Absolutely not. I didn't -- there were eight pages.
Q:  There was nothing in what you created of Medieval Spawn to say that Medieval Spawn had ever been a Lord over a village or territory?
A:  No.
Q:  And there's nothing in what you created in Medieval Spawn to suggest that Medieval Spawn had had an affair with his sister's handmaiden?
A:  Other than him describing himself as a bad man while he was alive, no.
Q:  And there's nothing that you created in Medieval Spawn that would lead us to believe that Medieval Spawn ever came to realize what he is prior to being killed?
A:  Or nothing that he was definitely going to explain to a young lady that he'd just met.
Q:  The Medieval Spawn toy, do you recall if that was popular at all?
A:  From what I remember, it must have been popular because he did a lot more.
Q:  Okay. You've been in the comic industry for awhile. If you had a popular character and you're starting a new series, would you do something to reference the popular character based on the new series based on the popular character?
A:  No, not necessarily.
Q:  Okay. So if you were writing the solicitation for the issue, you wouldn't say, you know, here is a new series based on this popular character?
A:  That's a bit hypothetical I'm afraid.
Q:  Okay. You don't know one way or the other what you would do in marketing a new series like that?
A:  I'm a writer, not a marketer.
Q:  Okay. But you write the solicitation, correct?
A:  Normally, no.
Q:  Okay.
A:  No. I wrote the ones for Spawn 9 all those years ago because Todd asked me to and they had to put something out. But no, I don't think I've written a solicitation since.
Q:  Let me hand you Exhibit 42. This is another one of the toys and ask you if you recognize that character.
A:  It says Lord Covenant. And no.
Q:  You don't recognize that character?
A:  No.
Q:  Okay. That doesn't appear to be a character that you created?
A:  I wouldn't have thought so.
MR. GRIMSLEY: Okay. Thank you. Nothing further.
THE COURT: That was a quick 45 minutes, Mr. Arntsen.
MR. ARNTSEN: Nothing further, Your Honor.
THE COURT: All right. We'll take a lunch break until one o'clock.
MR. ARNTSEN: Your Honor, just to be clear, is it okay if Mr. Gaiman could be excused since he does have his flight?
THE COURT: He's excused, yes.
(Witness excused)
(Noon recess at 12:04 p.m.)


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