Robot 6

Quote of the day | Erik Larsen, on the latest Gaiman vs. McFarlane ruling

Spawn: The Dark Ages #12

Spawn: The Dark Ages #12

“The Neil Gaiman thing perplexes me because it seems so unfair. The characters he created were clearly derivative of the ones Todd created. How anybody can look at Medieval Spawn and side with Neil just shows their bias against Todd. It’s Spawn on a horse, for cryin’ out loud! Everything Neil created was derived from Todd’s creations and all of it was designed by Todd. Claiming ownership just seems really unfair. Now Todd is forced to have people sign work-for-hire contracts. It’s sad — but that’s the price we all have to pay.”

– Image Comics partner Erik Larsen, on last week’s ruling that Todd McFarlane
owes Neil Gaiman a share of profits from the derivative characters Dark Ages Spawn, Domina and Tiffany

News From Our Partners

Comments

41 Comments

He’s right, quite frankly. Angela is understandable, but Medieval Spawn really is just Spawn on a horse. Gaiman shouldn’t really own any piece of him.

I haven’t read Spawn since issue #100, and even then I only got it because it was the hundredth issue. What’s so similar about Medieval Spawn and Dark Ages Spawn? One looks like a knight and the other a barbarian. I’m sure their origins are different as well. Or does Neil co-own any variation of Spawn on a horse? “Cowboy Spawn”! Sorry that’s a derivative.

I know the judge used some logic that you’d only find on a comic book message board, but it’s Todd’s universe so it’s Todd’s rules. He should be able to retcon anything he feels like.

Correct me if I’m wrong, but Gaiman never claimed exclusive ownership of the characters, right? He created new characters based on (derivative of) the Spawn mythos. He deserves credit and royalties for his part of the characters. Then if more new characters are created derivative of those characters, then they are derivative of something Gaiman co-created and he deserves compensation.

And yes, if you intend for work to be work-for-hire, it seems wise to sign work-for-hire contracts, but that’s just me.

“I know the judge used some logic that you’d only find on a comic book message board, but it’s Todd’s universe so it’s Todd’s rules. He should be able to retcon anything he feels like.”

Judge Crabb’s point is that, in her view, McFarlane appears to have changed or ignored established story logic in order to “exploit the possibilities” of Medieval Spawn without actually using that character. She writes parenthetically, “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.”

Even half ownership implies he brought something wholly original to the table. and with Angela he did, and so his co-ownership makes sense. Gaiman created the backstory and McFarlane created the look. That right there is a co-creation. With Medieval Spawn, Gaiman just said “hey, what if spawn existed in medieval times?” and then wrote that story. He didn’t actually create anything new.

I’m not even a Todd McFarlane fan. I’m happy about this verdict simply because I think McFarlane is a hack who doesn’t deserve the success he’s had, so fuck ‘em. But looking at it objectively I have to agee with Larsen here. Medieval Spawn is just Spawn back in time. Gaiman doesn’t really deserve any ownership in that.

I like Larsen’s “if you don’t side with Todd then you just don’t like Todd” attitude. Maybe Todd is in the wrong. Maybe, just maybe, he and Gaiman signed contracts stating that Gaiman had a claim to the characters that Gaiman created and then backed out of the contract. Maybe, just maybe, Todd has an already shady history with Image writers (stealing Alan Moore from 1963, anyone?). It’s sad to see Todd take it in the rear like this but really, if all his eggs are in a basket that’s almost twenty yrs old and completly irrelevant to the comic book landscape, his poor business decisions started waaaaay before this trial.

So, Larsen is just plain ignoring the contractual agreement made all the way back when Spawn 9 was being worked on, stating Gaiman owns half the rights to whatever he creates for the story?

“Now Todd is forced to have people sign work-for-hire contracts. It’s sad — but that’s the price we all have to pay”

There’s nothing sad about people entering into contractual relationships which clearly delineate their mutual rights, responsibilities, and obligations, especially when the alternative seems to involve expensive, time consuming and emotionally draining lawsuits. I would suggest that the opposite is sad– people who delude themselves into thinking they don’t need a contract, and finding out to the contrary and to their detriment that they were mistaken.

Perhaps if Mr. McFarlane had honored the contract that he originally had with Mr. Gaiman, this ruling would be moot…

But, as Mr. McFarlane decided NOT to honor the contract, this, regrettably, becomes necessary…

Perhaps Mr. Larsen should realize that Mr. McFarlane has no one to blame but Mr. McFarlane…

Again, no he’s not. He’s not saying anything about Angela, which it really can’t be argued that Gaiman did in fact co-create. What Larsen is arguing is that Gaiman didn’t actually create anything original in terms of Medieval Spawn.

When Mr. McFarlane and Mr. Gaiman did the original collaboration they didn’t have a contract, right?

Todd paid Neil a lot up front and figured it was work for hire. Neil figured it wasn’t.

That was in 1993. And they’re still suing each other over it in 2010!

@ Ziggy

Larsen says “Everything Neil created…” which has to include Angela if we all have the same meaning of what “Everything Neil created…” means.

This is all failry amusing. I haven’t dropped a single penny on an Image title since the con-job they did when Image was first formed and I wasted money on all those titles like everyone else.

Alemander:

Fair enough. He does say “Everything,” and depending on his level of doucheness when put to task, he may or may not argue that it includes Angela. I couldn’t say because I’m not in his head. What I do know is he references Medieval Spawn specifically in his comment when he says it’s “Spawn on a hours,” which I believe is accurate.

If Larsen argued that Gaiman doesn’t deserve co-ownership of Angela specifically I would disagree and say he’s showing HIS bias towards McFarlane, but in terms of Medieval Spawn I think Larsen is on the ball here.

Lots of ignorance over the whole issue going on in this thread. Lots of unintentional hilarity to be had. Keep it up fanboys.

“The characters he created were clearly derivative of the ones Todd created”

McFarlane apologists keep saying things like that, how it’s unreasonable to say “Medieval Spawn” isn’t derivative of “Spawn”, like they’re pointing out some big flaw in what Gaiman has claimed and the courts have ruled. Except that Gaiman’s claims are based on the laws governing derivative works:

“As the court of appeals found at an earlier stage of these proceedings, Medieval (Gaiman) Spawn is sufficiently distinct from Spawn to be copyrightable as a derivative work”

So the court of appeals found that Medieval Spawn was derivative.

And part of the whole point was that McFarlane’s words and deeds in the early days of their dealings seemed to accept that point of view (promising to give Gaiman a better deal than he would get from DC, offering to trade Miracleman rights for Gaiman’s Spawn-related rights), until it became inconvenient and he tried to assert a retro-active work-for-hire model on their dealings, without benefit of a contract. Which you can’t do, and you deserve to be sued for doing.

So McFarlane is clearly comfortable with using the work-for-hire model, so I’m glad to hear that he’s now apparently using it the right way, having people sign a contract spelling out their rights and responsibilities prior to the work being done rather than trying to impose it unilaterally after the case.

Andrew Collins

August 2, 2010 at 9:42 am

I’m suddenly remembering why I haven’t bothered with Savage Dragon or Spawn for almost 15 years now…

Todd’s success was built on dumb luck, and lately his luck seems to have run out. All that’s left is the dumb.

Larsen doesn’t know what he’s talking about.

Whether Medieval Spawn is derivative of Spawn was never the issue (the courts agree he is). And it’s disingenuous to suggest that Medieval Spawn is “Spawn on a horse” if you know that the bulk of the extended Spawn mythos that McFarlane went on to base multiple SERIES on all comes from thart one story, and is attached to that one character, that Neil Gaiman created.

But hey. I suppose the guy who created the Hulk with a fin on his head would know about Spawn on a horse.

Wasn’t the whole Image starting point about how McFarlane and other comic artists felt the big two companies weren’t giving them credit or royalities on things they created for their characters? Didn’t Niel Gaiman and the others write those early issues of Spawn to show their support of creator rights?

Good point, Marc.

Every time Eric Larsen opens his mouth, I’m always reminded of why I don’t buy Savage Dragon.

Ghostbore –

Yes, the Image founders left Marvel Comics because they felt Marvel was doing to them what Todd is doing to Neil.

And now, he is a hypocrite who has become the very beast he condemned.

Actually this is my favorite Larsen quote:

“it seems patently unfair that Neil could claim ownership of “Spawn on a horse” much less that an all woman jury, charmed by his English accent and sad story would award him that. .”

Stupid women. It’s an argument that Larsen has used repeatedly on various forums over the years.

http://www.imagecomics.com/messageboard/viewtopic.php?p=817634#817634

Yeah, it started out with some kids sampling bits of real music, and they get away with that and pretty soon intellectual property is a bad word. Something wrong with a generation that places no value on creation.

Steven R. Stahl

August 2, 2010 at 1:27 pm

Larsen’s reasoning isn’t as flawed as some people are making it out to be. Medieval Spawn doesn’t have any purpose outside of the Spawn universe. The character, as a concept, was obviously derived from Spawn; if Spawn is junk, so is Medieval Spawn. Gaiman might have been allowed to copyright it, but doing so didn’t serve any useful purpose as long as his copyright wasn’t violated. Going after derivative characters is arguably petty on Gaiman’s part, and the question of whether derivative characters, such as Tanya Grotter, should constitute copyright infringements has been debated by scholars. Do a Google search on copyrighting, derivative, and characters.

Probably neither the DC nor the Marvel universes would exist if the creators of characters were allowed to copyright them, or there would be far fewer characters. Gaiman, especially, is in a poor position to criticize derivative characters, given his comments about characters derived from the Harry Potter novels. From http://www.techdirt.com/articles/20100615/1842369840.shtml , a Gaiman quote:

My main reaction is, having read as much as I can about it, given the copyright grey zone it seems to exist in, is a “Well, if it was me, I’d probably be flattered”…. I can’t imagine myself trying to stop any of the unauthorised books that have come out about me or about things I’ve created over the years, and where possible I’ve tried to help, and even when I haven’t liked them I’ve shrugged and let it go…. My heart is on the side of the people doing the unauthorised books, probably because the first two books I did were unauthorised, and one of them, Ghastly Beyond Belief, would have been incredibly vulnerable had anyone wanted to sue Kim Newman and me on the grounds that what we did, in a book of quotations that people might not have wanted to find themselves in, went beyond Fair Use.

SRS

“Gaiman might have been allowed to copyright it, but doing so didn’t serve any useful purpose as long as his copyright wasn’t violated”

And the court ruled that his copyright was violated.

And the case Gaiman is referencing about Rowling isn’t really similar at all to the “Medieval Spawn” case, so I don’t really see a contradiction.

Again it’s a 50-50 split issue, though I still disagree with the recent decision based on Dark Ages Spawn.

Steven R. Stahl

August 2, 2010 at 2:38 pm

And the court ruled that his copyright was violated.

And the case Gaiman is referencing about Rowling isn’t really similar at all to the “Medieval Spawn” case, so I don’t really see a contradiction.

The issue isn’t whether the characters, Medieval Spawn, Cogliostro, and Angela, were used in ways that violated his shared copyright on them, it’s whether derivative characters violated his shared copyright. Even if an individual court can find that derivative characters are infringing, there’s considerable disagreement among scholars about whether that’s sensible policy. It’s intellectually inconsistent for Gaiman to opine that derivative characters are fine in some situations, but not in others.

SRS

How is that intellectually inconsistent at all? Apples and oranges. He’s talking about “unauthorized” guides to the Harry Potter universe. As I recall, there have been several such works created about Sandman, and I don’t remember Gaiman going after any of them.

Either way this sets a bad precedent for creator owned titles. One of the joys of these titles was creating your own universe, now every time someone works with you, you just sold a piece of your universe. Marvel has no problems with this b/c they own EVERYTHING, but no one’s complaining how unfair that is, people just accept it. Now this precedent is going to put comic creators more in line with major corps in having to declare very explicit contracts about creations–red tape which will affect the artists and hence the readers. Artists, especially of creator owned titles, need some flexibility for their art Artistic principle are often more laxed than legal principles so the artists can work effectively, esp in the comic medium where collaboration is so important. Oddly, if these were novels there would be little issue. Making proper changes to avoid copyright issues isn’t illegal. It may be a red flag for readers, but Neil would just look like a greedy bastard. Imagine if Grant Morrison and Chris Claremont and all the other writers on X-Men got paid a royalty on each issue their character got paid on. A single issue could demand a limitless amount of royalties. Fine for the law and those outside the comic world, but between writers, artists, and readers–this kind of sucks.

“It’s intellectually inconsistent for Gaiman to opine that derivative characters are fine in some situations, but not in others.”

The Rowling case he’s talking about is not about derivative characters, created in collaboration with and with the knowledge of the original owner. I’m sure if someone publishing fiction “in the Harry Potter universe” without Rowling’s permission he wouldn’t say it was fine, just as he’s not likely to sit back an let someone write stories set in the world of AMERICAN GODS. The case he’s talking about is about an “unauthorized guide”, similar to what he did for Douglas Adams’s work. A derivative work, not derivative characters. Very different things. The comparison would be if someone else was doing “The Unauthorized Guide to the Spawn Universe” and had entries on Angela and Medieval Spawn and Gaiman trying to stop them, and given his history I don’t think he would do that.

“Intellectually inconsistent” would be mouthing off on creator rights and then trying to retroactively apply work-for-hire conditions without having a signed contract. Do we know anyone who did that?

Wasn’t the whole Image starting point about how McFarlane and other comic artists felt the big two companies weren’t giving them credit or royalities on things they created for their characters? Didn’t Niel Gaiman and the others write those early issues of Spawn to show their support of creator rights?

_____________________________________

Yep.

The thing is, Todd didn’t create anything for Marvel. Todd falsely takes credit for the creation (or co-creation) of Venom, which he did not create. Like John Byrne said, drawing a tongue on an existing “character”/costume and drawing an existing character more muscular, does not count as creating a character.

Larsen sounds like he hasn’t paid very much attention to the specifics of the case.

funkygreenjerusalem

August 3, 2010 at 5:22 am

This is all failry amusing. I haven’t dropped a single penny on an Image title since the con-job they did when Image was first formed and I wasted money on all those titles like everyone else.

That’s not something to be proud of – you’ve missed some damn fine comics.

funkygreenjerusalem

August 3, 2010 at 5:22 am

Like John Byrne said, drawing a tongue on an existing “character”/costume and drawing an existing character more muscular, does not count as creating a character.

So Byrne is siding with McFarlene on Medieval Spawn then?

funkygreenjerusalem

August 3, 2010 at 5:25 am

Going after derivative characters is arguably petty on Gaiman’s part, and the question of whether derivative characters, such as Tanya Grotter, should constitute copyright infringements has been debated by scholars.

It’s intellectually inconsistent for Gaiman to opine that derivative characters are fine in some situations, but not in others.

I believe it was Todd who took this to court – Gaiman was awarded the derivative characters, and Todd went back to find out if these count.

So Byrne is siding with McFarlene on Medieval Spawn then?

_________________________________________

I don’t think Byrne is siding with anyone. Heck, I don’t think that he even commented on this latest ruling. However, he has (and rightfully so), called McFarlane out on their hypocrisy and BS.

“One of the joys of these titles was creating your own universe, now every time someone works with you, you just sold a piece of your universe.”

No, this isn’t what happened. Gaiman got 50 percent of Angela and Medieval Spawn copyright. McFarlane kept the other 50 percent. This means that both of them can use the characters any way they please – they just have to split the money they earned off their use 50/50. I don’t see anything wrong with that.

Steven R. Stahl

August 3, 2010 at 12:23 pm

Remember that Medieval Spawn was derived from Spawn. Substitute “derivative works” for “derivative characters” if you want to; the point is that derivative works are based on others’ works. Derivative works and characters aren’t inherently bad; derivative characters, especially, are just starting points for a writer who intends to develop them. WATCHMEN was based on derivative characters.

If Gaiman hadn’t been granted copyrights to the three characters, and he arguably shouldn’t have been granted copyrights, then the disputes never happen. If Gaiman were to argue that derivative characters generally shouldn’t exist, he’d be implying that Marvel and DC shouldn’t exist either. His actions don’t hold up well when subjected to critical scrutiny.

SRS

But Gaiman isn’t arguing that “derivative characters generally shouldn’t exist.” You’re not applying critical scrutiny; you’re creating a different argument.

But your argument that Gaiman is in a contradiction is based on a logical fallacy. The Rowling case he’s talking about, and the early books of his that he refers to, are completely different in nature from the dispute he has with McFarlane, so there’s nothing in his opinion of one that he has to reconcile with his opinion in the other. Just because they both use the word “derivative” doesn’t mean that they’re identical cases.

For example, you say WATCHMEN is “based on derivative characters”. And in a casual sense of the word, you’re right. But as far as I know legally they aren’t “derivative characters” in the sense being used in this case (in that the owners of the original Charlton characters couldn’t lay claims to rights to them, if it didn’t happen to be the same publisher)..

If you read the original transcript of the 2004 case, Judge Posner discusses derivative works in regard to copyright. In a nutshell, the law states that if you base a character on a pre-existing character or character-type (either of which are applicable to Spawn/Hellspawn, really), you will have a copyright interest in the derivative character IF said character is distinctly unique enough from the original character or character-type. The jury in the original trial (and I’m not even going to touch the misogyny in Larsen’s comments) ruled that Gaiman’s Medieval Spawn (drawn by McFarlane) was distinctly unique enough to constitute a copyrightable character, derived from McFarlane’s Spawn.

Gaiman has a copyright in Medieval Spawn because he wrote it as distinct enough to constitute a new character derived from Spawn. McFarlane has a JOINT copyright in Medieval Spawn because he drew it and he has the copyright in Spawn, the character from which Gaiman derived Medieval Spawn. Whether you agree Medieval Spawn is distinct enough from Spawn is a matter of opinion, and the jury, in their fact-finding capacity, decided Gaiman’s character was distinct. Gaiman never contested his character was not derivative. And, under copyright law, it doesn’t matter if it is. Also, Gaiman wasn’t claiming copyright to Spawn, the work upon which he derived Medieval Spawn, either. This whole thing is like “Pride & Prejudice & Zombies”. If Jane Austen were alive today, the character of Elizabeth Bennett in “P&P&Z” would probably be copyrightable to Jane Austen for the original character and Seth Grahame-Smith for the zombie-slaying version. But only Jane Austen would hold the copyright to Elizabeth Bennett from the original novel.

Gaiman has copyright interests in Angela and Medieval Spawn jointly with McFarlane (as writer and artist, respectively). That co-interest in property means McFarlane can use his interest however he wants, but he can’t bar Gaiman from using his interest. That’s what McFarlane was trying to do, and Gaiman sued him. Also, there was a separate issue of McFarlane using Gaiman’s name and likeness without Gaiman’s permission.

With Angela, she’s analogous to the original Spawn. Gaiman wrote her fresh; he has a joint copyright with McFarlane as collaborators. Subsequently, when McFarlane and his NEW collaborators created new avenging angels, they were derived from the original avenging angel Angela, co-created by Gaiman. As McFarlane has an interest in Medieval Spawn because it’s derived from Spawn (as well as the fact he drew the character), so Gaiman has an interest in Tiffany and Domina. (Same reason Jane Austen would have an interest in the derivative Elizabeth Bennett in “P&P&Z” in the hypothetical above.) Also, the court decided that McFarlane’s version of Medieval Spawn was NOT a new character. Instead, the judge said it was either derivative of Gaiman’s version or really just Gaiman’s character, and McFarlane was trying to pass it off as a new character.

Now, the reason DC and Marvel don’t run into this problem is BECAUSE they own the SOLE copyrights to all their characters and comics. That’s the standard way of a work-for-hire contract. Basically, an artist signs on for a specific amount of money, and, in return, s/he creates work for the company and rescinds his/her copyright to the company. It’s working on commission. Some people might think it’s strange/stupid to give up your copyright, but it gets the artist exposure, and they can make a lot of money that way. If you want to keep your copyright, you can negotiate to do that, but you won’t get paid as much. But this is why Joss Whedon could create a totally new character for a work-for-hire for Marvel for X-Men, then not be able to use that character in a new TV show he’s working on. Meanwhile, Marvel keeps using that character in new issues. That’s the trade-off.

Also, if I remember correctly, you can only give up a copyright in writing. The oral contract between Gaiman and McFarlane wouldn’t have created a work-for-hire contract with Gaiman rescinding his rights. And I don’t know why the hell anyone would bemoan having a contract; it just makes sure everyone knows where everything stands before work begins. It avoids messy litigation like this later.

Leave a Comment

 


Browse the Robot 6 Archives