Originally published on August 3, 2010 on EntertainmentLitigation.com
In 1992, illustrator Todd McFarlane hired Neil Gaiman to write a script for McFarlane’s comic book entitled Spawn. Gaiman developed two new characters named Medieval Spawn and Angela; developed a backstory for each character, and wrote a script for one of the issues. A dispute over copyright ownership in the characters arose, and Gaiman filed suit against McFarlane and his production company seeking a judgment declaring that he was an equal co-owner of the copyrights in Medieval Spawn and Angela. In 2002, a jury agreed with Gaiman and awarded him joint ownership of the copyrights in those two characters (as well as a third one), and determined that Gaiman was entitled to an accounting and division of all profits derived from the exploitation of the copyrights.
In December 2004, McFarlane Productions, Inc. ducked into bankruptcy which, of course, stayed the ongoing accounting. The stay was lifted in November 2005, but the accounting still has not been completed.
The parties were recently before the court on a post-judgment motion to compel production of documents relating to the accounting, namely, with respect to profits derived from three subsequent characters which Gaiman did not create: Dark Ages Spawn, Tiffany and Domina. Gaiman contended that these three newer characters were derivative of Medieval Spawn and Angela in which he owns rights and, thus, he was a joint owner of the copyrights therein and entitled to an accounting and division of profits related to them. McFarlane argued that the characters were not derivative works of Dark Ages Spawn, Tiffany and Domina but are, instead, derivative of the original Spawn character in which Gaiman has no rights.
Judge Barbara Crabb of the Western District of Wisconsin held an evidentiary hearing and determined that Dark Ages Spawn is substantially similar to Medieval Spawn, and Tiffany and Domina are substantially similar to Angela. In a well-reasoned opinion, Judge Crabb explained that if Dark Ages Spawn, Tiffany and Domina had been created by a third party, that person would undoubtedly be liable for copyright infringement. The court considered not only the visual appearance and details of the characters and their respective histories, biographies, traits, and other personal attributes, but also analyzed the characters in the context of the “rules of the Spawn universe.” An excerpt from the court’s opinion is below:
Defendant argues that when the court disregards the elements of Medieval (Gaiman) Spawn that are derived from the original Spawn and the stock elements that accompany a person of aristocratic lineage in the middle ages, such as traveling on horseback, wearing armor and carrying a weapon, every other aspect of Dark Ages (McFarlane) Spawn is new and different from Medieval (Gaiman) Spawn. It is true that Dark Ages (McFarlane) Spawn and Medieval (Gaiman) Spawn differ slightly in their backgrounds, but these are elements of their characters that make them individually copyrightable, not ones that prevent Dark Ages (McFarlane) Spawn from being found derivative. It is more significant that Dark Ages Spawn has the distinctive look of Medieval (Gaiman) Spawn that would cause any reader, casual or constant, to see a substantial similarity between them.
In fact, the basic concept of the Spawn series raises questions about the individuality of Dark Ages (McFarlane) Spawn. In Spawn No. 9, plaintiff conceived of a new direction in the story line, introducing a courtly Hellspawn of the middle ages, the twelfth century, to be exact, who stopped to help a damsel in distress and who spoke “medieval.” According to the rules of the Spawn universe, only one Hellspawn could be on Earth at the same time and the Al Simmons Hellspawn was already around. Plaintiff suggested the idea of a middle ages Hellspawn in the form of a knight who existed on earth 800 years before the Al Simmons Hellspawn. After this knight made an appearance in Spawn No. 9, Tr. exh. 1, (and in issues Nos. 14 and 15, tr. exhs. 2 & 3, and the Spawn Bible, tr. exh. 16), a second knight from the same century and with many of the same characteristics then appeared in subsequent issues, albeit with more of a history. This new knight was referred to as a “Dark Ages medieval spawn” in a Spawn publication created to be sold with a toy, tr. exh. 28, inside front cover. In both cases, the characters were knights who had committed acts in the past of which they were ashamed and took actions to help the defenseless in an apparent desire for absolution. The two characters are similar enough to suggest that either Dark Ages (McFarlane) Spawn is derivative of Medieval (Gaiman) Spawn or it is the same character to which plaintiff owns the copyright.
Much as defendant tries to distinguish the two knight Hellspawn, he never explains why, of all the universe of possible Hellspawn incarnations, he introduced two knights from the same century. Not only does this break the Hellspawn “rule” that Malebolgia never returns a Hellspawns to Earth more than once every 400 years (or possibly every 100 years, as suggested in Spawn, No. 9, exh. #1, at 4), it suggests that what defendant really wanted to do was exploit the possibilities of the knight introduced in issue no. 9. (This possibility is supported by the odd timing of defendant’s letter to plaintiff on February 14, 1999, just before publication of the first issue of Spawn The Dark Ages, to the effect that defendant was rescinding their previous agreements and retaining all rights to Medieval (Gaiman) Spawn.)
If defendant really wanted to differentiate the new Hellspawn, why not make him a Portuguese explorer in the 16th century; an officer of the Royal Navy in the 18th century, an idealistic recruit of Simon Bolivar in the 19th century, a companion of Odysseus on his voyages, a Roman gladiator, a younger brother of Emperor Nakamikado in the early 18th century, a Spanish conquistador, an aristocrat in the Qing dynasty, an American Indian warrior or a member of the court of Queen Elizabeth I? It seems far more than coincidence that Dark Ages (McFarlane) Spawn is a knight from the same century as Medieval (Gaiman) Spawn.