On the 27th of January, 2012, Neil Gaiman and Todd McFarlane finally settled their long-running legal dispute over Gaiman's share of various Spawn properties. And when I say ‘long-running,’ this is very nearly an enormous understatement. Although Gaiman and McFarlane’s first meeting in court was on the 1st of October, 2002, nearly ten years ago now, the cause of their dispute goes back nearly ten years before that, with roots set in place some years before that, again. So, in an attempt to put it all into some sort of context, I’m listing what I see as the main points of their dispute, in chronological order, as exactly as I can, along with some earlier events, to put it all into context.
August 1985: Miracleman #1, reprinting stories originally published in Warrior, is published by Eclipse Comics in California. At this time, the copyright for Miracleman (recently changed from Marvelman, which it was originally), is believed to be owned by Alan Moore, Garry Leach, Alan Davis, and Dez Skinn in a ratio of 30% - 30% - 30% - 10%.
February 1986: Dez Skinn and Garry Leach sell their rights to Miracleman to Eclipse Comics, at least partly due to their unhappiness at Eclipse Comics’ Editor-in-Chief cat yronwode’s choice of Chuck Beckum as the next Miracleman artist, from issue #6. Garry Leach at this stage also owns Alan Davis’s share, so has 60% in total, with Dez Skinn still owning his 10%, meaning that Eclipse end up buying a 70% stake in the character.
One of the clauses in the contract between the parties says,
Transfer of Rights: Eclipse shall not assign or otherwise dispose of its rights in the Ownership hereunder to any third party except to Rights Holder, or a new corporation or entity in which the majority stockholders of Eclipse are and remain the majority stockholders or managing partners.
7 March 1989: Alan Moore transfers his 30% share in Miracleman to Neil Gaiman, who shares it with Mark Buckingham.
According to an article in The Comics Journal #185, in March 1996 (which I shall be referring to again shortly),
Under an agreement signed by Alan Moore on March 7, 1989, transferring his one-third ownership, the agreement states that Gaiman and Buckingham ‘will, in their turn, pass on their part of the trademark to their successors on the strip, or failing that, return the trademark to Alan Moore to keep or pass on as he sees fit.’
However, Gaiman and Buckingham’s first Miracleman story has actually appeared a few months beforehand. Issue #4 of Eclipse’s company-wide crossover, Total Eclipse, cover dated January 1989, contained a ten-page Miracleman story called Screaming, which would later be reprinted in Miracleman #21.
1 April 1989: After being given Alan Moore’s share of Miracleman, Neil Gaiman signs a contract with Eclipse publisher Dean Mullaney which states, amongst other things, that Gaiman is clearly the owner of his own work, and that he will produce eighteen 26-page issues of the comic for them. You can see the contract on Daniel Best’s excellent 20th Century Danny Boy blog, in this post. According to this agreement, Eclipse Comics owns two-thirds of the rights to Miracleman, with Gaiman and Buckingham sharing one-third, slightly different from the previous 70% - 30% split.
December 1989: After long delays, Moore’s last issue, Miracleman #16, finally appears.
June 1990: Miracleman #17, Neil Gaiman and Mark Buckingham’s first issue, is published by Eclipse Comics.
February 1992: Image Comics is founded. Amongst the founders is Todd McFarlane, with his studio, Todd McFarlane Productions.
June 1992: One of the very first comics to appear from the newly formed Image Comics is Todd McFarlane’s Spawn, with the first issue appearing in June 1992. It becomes obvious from early on that, although his art is seen as the comic’s strong point, his writing certainly isn’t. To counter this, McFarlane decides that he would ask some of the major comics’ writers of the time if they will each write an issue of Spawn for him. In the end Alan Moore, Neil Gaiman, Dave Sim, and Frank Miller all write issues #8 to #11, respectively.
March 1993: Spawn #9, written by Neil Gaiman, is published. This issue introduces three new characters to the Spawn mythos. These were called Count Nicholas Cagliostro (later changed to Cogliostro), the angelic hunter/warrior Angela, and a character named in the script as Olden Days Spawn, and later known as Medieval Spawn, but without a specific name given to him in his original appearance in Spawn #9.
August 1993: Miracleman #24, the last issue of that title to appear, is published by Eclipse Comics, although #25 was written and drawn, and you can see parts of it on Robert Ferent’s greatly informative Miracleman.info site, here.
December 1994: Angela #1, the first part of a three-part monthly miniseries written by Neil Gaiman, and drawn by Greg Capullo, featuring the character co-created by them in Spawn #9, is published by Image Comics. The three parts would be collected into a single-volume trade paperback in late 1995. As well as the three issues of Angela, Gaiman also writes a few pages of Spawn #26, cover dated December 1994, as an introduction into the Angela story.
21 December 1994: Eclipse Comics files for Chapter 7 bankruptcy, meaning they intend to dissolve the company, and sell its assets to pay off their debts.
According to an article called McFarlane Buys Eclipse Assets at Auction in The Comics Journal #185 (as mentioned earlier):
Eclipse Comics’ demise began in the summer of 1993 when cat yronwode and Dean Mullaney who, along with Jan Mullaney, owned the majority of Eclipse stock, entered into divorce proceedings. The company subsequently entered into bankruptcy proceedings after being hounded by a variety of creditors, as well as having lost a judgement to Studio Proteus owner Toren Smith. The California Superior Court awarded Smith $122,328 for the translation and packaging of several Japanese books Studio Proteus had done for Eclipse between 1988 and 1992. Eclipse also owed money to the artists who drew Miracleman, according to Neil Gaiman.
29 February 1996: The sale of Eclipse Comics’ assets takes place in Stony Point, New York under the order of the Bankruptcy Court. In the same article in The Comics Journal #185 it says,
The final chapter in the saga of Eclipse Comics came to an end when Image impresario Todd McFarlane purchased the trademarks and character rights, along with two pallets of tangible property, of the defunct comics company at a Stony Point, New York, auction on February 29th [1996].
McFarlane beat out eight other bidders for all copyrights, trademarks, characters, and other intellectual properties, along with the remaining trading cards, film negatives and publishing agreements held for Eclipse comic books by the court. According to Mary Ellen Lynch, the attorney handling the case for the Bankruptcy Court’s appointed Trustee, McFarlane employee Terry Fitzgerald quickly won the auction with a winning bid of $25,000. She told the Journal she believes Fitzgerald bought everything that remained of Eclipse, but that ‘it will take about a year or so to close out all the details.’
The most valuable piece of the purchase may prove to be the United States Patent and Trademark office registration (number 1,447,456) of the highly acclaimed series Miracleman. Also presented to the bidders as part of the auction was the written agreement on trademarks and copyrights for Miracleman between Eclipse publisher Dean Mullaney and Neil Gaiman, executed on April 1, 1989. Exhibit B of that agreement includes the transfer by Alan Moore to Neil Gaiman and Mark Buckingham of his portion of the Miracleman trademark. Within these nine pages of legalese lie fragmentary clues to one of the most debated questions in contemporary comics: who owns the rights to Miracleman?
The agreement between Eclipse and Gaiman called for the writer to script twenty-six pages for eighteen issues, with illustrations done by Buckingham. While the agreement stipulates that Eclipse Comics owns two-thirds and Gaiman and Buckingham jointly own one-third of ‘all the characters in the Stories and all the trademarks in and to the title Miracleman,’ under an attached agreement signed by Alan Moore on March 7, 1989, transferring his one-third ownership, the agreement states that Gaiman and Buckingham ‘will, in their turn, pass on their part of the trademark to their successors on the strip, or failing that, return the trademark to Alan Moore to keep or pass on as he sees fit.’ This agreement, like the one between Gaiman and Eclipse, excludes the characters created by Moore and Garry Leach in Warrior’s Warpsmith. Though Gaiman and Buckingham were granted permission to use them, Moore and Leach retained the trademarks to ‘the Warpsmiths, the Qys and related characters.’
Actually, on the same post on the
20th Century Danny Boy blog mentioned earlier (
this one), you can also see the letter of acceptance of McFarlane’s bid, which includes this observation:
As discussed, the onus is on you, as purchaser, to do your due diligence investigation.
Later in 1996: After the Eclipse assets had been sold at auction, and due to rumours circulating at the time that McFarlane was going to sell his company, Gaiman asks for a written contract to cover the work he had done for McFarlane, as up until then it was all done on a word-of-mouth agreement. In any case, the use of all three of the characters Gaiman had created has gone substantially beyond their original appearance in Gaiman’s stories. Without Gaiman’s knowledge or assent, McFarlane has registered copyright in his sole name for the comics and trade paperback with Gaiman’s story in it, and has copyright notices inserted that seem to indicate that the copyright is solely his.
Eventually, an agreement is reached whereby Gaiman will exchange his rights in Olden Days Spawn and Count Cagliostro for McFarlane’s rights to Miracleman.
31 July 1997: Neil Gaiman and Todd McFarlane are to swap their rights for the Spawn characters and Miracleman, respectively. This never happens.
27 October 1997: Todd McFarlane files three trademark registrations in the name Miracleman with the United States Patent and Trademark Office. Apparently he doesn’t want to trade rights with Gaiman after all.
14 February 1999: Neil Gaiman gets a letter from McFarlane telling him that he is withdrawing all his previous offers, and offering a deal to Gaiman on a ‘take-it-or-leave-it basis.’ This is that Gaiman will give up all his rights to Angela in exchange for all of McFarlane’s rights to Miracleman. It further states that ‘all rights to Medieval Spawn and Cogliostro shall continue to be owned by Todd McFarlane Productions.’ It is obvious that McFarlane isn’t going to give up without a fight, so Gaiman gets ready to give him one.
February 2001: Hellspawn #6 is published by Image, and includes a character called Mike Moran (Marvelman/Miracleman’s ‘secret identity’). There are plans to have Miracleman himself appear in #13, but this never happens, as Gaiman lodges an objection.
15 June 2001: In the meantime, McFarlane seems to have decided that not only does he own all the rights to Medieval Spawn and Cogliostro, but all the rights to Miracleman as well. In an interview with Michael David Thomas published on the Comic Book Resources website on the 15th of June 2001, the relevant part says,
Michael David Thomas: The rights to Miracleman seem to be a source of controversy that pops up now and again. It's coming back to the forefront. What kind of rights do you have to the Miracleman character?
Todd McFarlane: Ultimately? I've got all of them. We'll find that one out.
MDT: You own the rights to the character, lock, stock and barrel?
TMcF: Until someone proves otherwise.
MDT: The only reason I ask is that Neil Gaiman has cited as a partial owner. But as far as you're concerned, you've got all of that?
TMcF: Someone may very well prove that wrong, but I'm willing to prove the point. If somebody else thinks that they have control of this, then do something about it. Because I'll be right there on you, right now. Then we will solve this problem.
MDT: Is it something where it's been so murky, you want to get into a courtroom and get it over with, if someone really wants to litigate it?
TMcF: Nobody wants to litigate anything. It's a matter of people moving on with life, making a call as to what's a priority. If somebody feels as strong about Miracleman as I do, then I invite them to take as hard a stance as I will. If somebody steps that way, then we'll let somebody else decide which of us is right. Maybe neither of us will be. Maybe we'll both partially will be. Who knows? Until any of that happens, then I take the position that I own Miracleman. He was sitting there in the auction. He was a part of the auction we bought and I picked it up…
I would like to interject here to point out that, when McFarlane says, ‘If somebody feels as strong about Miracleman as I do,’ he never actually explains why he feels so strongly about it, having after all never actually worked on the character.
24 October 2001: Marvel Comics’ then Editor-in-Chief, Joe Quesada, and the company’s President, Bill Jemas, accompanied by Neil Gaiman, hold a conference call press briefing with journalists from the comics media. This is to announce the formation of a company called Marvel and Miracles LLC, founded by Neil Gaiman and lawyer Kenneth F Levin, whose purpose is to collect funds to allow Gaiman to fight his forthcoming court battles with Todd McFarlane, with any funds left over after it is all done to go to a few different comics charities. Talking at the press conference, as reported by the Comic Book Resources website, Gaiman says,
I've been talking to Todd about this for five years. I thought we'd all sorted it out in 1997 when he signed the rights over to me and handed over the film. Unfortunately, this being the modern world, sorting out takes lawyers and lawyers cost incredible amounts of money.
Alan [Moore] is completely aware of this. I've been checking with him every step of the way. I've been getting his blessing and a huge amount of moral support. And every now and then he apologizes for having given me Miracleman... It's a poisoned chalice. He's very much behind this.
Joe Quesada also makes it clear that, if the rights are recovered, Marvel Comics will not object to the name of the character being changed back to Marvelman. It is then announced that Gaiman is to write a six-issue miniseries with the profits from both the publisher and the writer going to fund Marvel and Miracles. This will eventually become the eight-issue miniseries Marvel 1602.
24 January 2002: Gaiman’s right to redress against McFarlane’s letter of February 1999 will expire in February 2002, after a three-year statute of limitations, so a month before that Gaiman files a suit under the Copyright Act, seeking a declaration that he is a co-owner of the characters that he has written for McFarlane. According to an article called Miracleman Heads to Court on the ICv2.com website on the 27th of January, 2002,
Neil Gaiman said, ‘This suit is not about the money, it's about respecting the rights of the creator and keeping promises.’ One of the leaders of Gaiman's legal team, Kenneth F. Levin, stated that Gaiman was filing the suit reluctantly after other avenues proved fruitless, ‘We did everything we could to get this solved outside the courts.’
1 October 2002: In a court in Madison, Wisconsin, the case of Neil Gaiman and Marvels and Miracles LLC v. Todd McFarlane et al opens in a jury trial before Judge John C. Shabaz and an all-female jury.
3 October 2002: In less than a week the trial is over, and the jury, after deliberating for just over a day, return their verdict this afternoon, finding for Gaiman in all specifics. They find that there was a contract between Gaiman and McFarlane in 1992, when McFarlane offered to look after Gaiman ‘better than the big guys,’ which McFarlane subsequently breached; that Gaiman has a copyright interest in the three characters that he created for Spawn #9; that there was a later contract in 1997, when there was to be an exchange of Gaiman’s Cagliostro and Medieval Spawn rights for McFarlane’s Miracleman rights, which again McFarlane was in breach of; and that Image Comics are in the wrong to use Gaiman’s name and biographical details on one of their trade paperbacks without his permission.
Unsurprisingly, McFarlane appeals.
7 October 2002: The actual judgement on the case is handed down, after which the damages phase of the case is heard, at which point Gaiman could ask to have the 1997 contract enforced, and to trade his copyright in Medieval Spawn and Cagliostro for McFarlane’s copyright in Miracleman, but he chooses not to. Although he doesn’t leave the court with the rights to Miracleman, Gaiman doesn’t go away empty-handed, as he is awarded damages of $45,000 for Image Comics’ unauthorised use of his name and biographical details on the back cover of one of their books. According to an article called Gaiman Keeps Share of Spawn Characters on ICv2.com,
Gaiman's attorney ... suggest[ed] in his final argument to the jury that the use of Gaiman's name in a book published in 2000, well after Gaiman and McFarlane had become estranged, was a cynical exploitation of Gaiman's increased fame and a 'slap in the face,' since Gaiman received no royalties for the book. The jury found for Gaiman in precisely the amount requested.
April 2003: Todd McFarlane releases a Miracleman statue through his McFarlane Toys company, quite possibly out of sheer spite. Gaiman says it looks ‘clenched’ (which it does) and produces a much nicer one in January 2005.
November 2003: Marvel Comics publishes the first issue of Neil Gaiman’s Marvel 1602, with the profits going to fund Marvel and Miracles LLC.
5 January 2004: Todd McFarlane’s appeal against the judgement in his case against Neil Gaiman, on the grounds that Medieval Spawn and Cogliostro were too generic as characters to be copyrightable, and that Gaiman’s time to contest McFarlane’s claim for copyright on the characters had run out anyway, begins. The appeal is heard in the United States Court of Appeals for the Seventh Circuit, again in Wisconsin, under circuit judges Richard Posner, Michael Stephen Kanne, and Ilana Rovner, who uphold all the rulings of the original court in 2002, and dismiss both of McFarlane’s grounds for appeal. In the transcript from the appeal in 2004, Judge Richard Posner says,
In addition to the copyright notices, McFarlane registered copyright on the issues and the books. But to suppose that by doing so he provided notice to Gaiman of his exclusive claim to the characters is again untenable. Authors don’t consult the records of the Copyright Office to see whether someone has asserted copyright in their works; and anyway McFarlane’s registrations no more revealed an intent to claim copyright in Gaiman’s contributions, as distinct from McFarlane’s own contributions as compiler and illustrator, than the copyright notices did.
The existence of a dispute over the terms of a publication contract does not alert the author to a challenge to his copyright. Quite the contrary, it presumes that he owns the copyright. If his work is in the public domain, the publisher could publish it without the author’s permission, so would hardly be likely to have promised to pay him for the ‘right’ to publish it - he would already have (along with the rest of the world) the right to publish it.
There was other evidence that right up until McFarlane’s 1999 letter, receipt of which clearly did start the statute of limitations running, he acknowledged or at least didn’t deny Gaiman’s ownership of copyrights in the three characters. There was the reference in the royalty reports to Gaiman’s being the ‘co-creator’ of the characters, the fact that McFarlane let pass without comment Gaiman’s claim in the demand letter to have created the characters, and the payment to Gaiman of royalties on the statuettes, payment that would make most sense if they were derivative works of copyrighted characters - with Gaiman the (joint) owner of the copyrights. McFarlane argues that he could have given Gaiman these royalties pursuant to contract, and he points out that under Gaiman’s work-for-hire agreement with DC Comics Gaiman received payments denominated as ‘royalties’ even though he had no copyrights. But McFarlane also contends that DC Comics would not have paid Gaiman royalties on the statuettes, so what would have been Gaiman’s entitlement to such royalties from him unless Gaiman had a copyright interest?
25 February 2004: In neither of the cases have the courts ruled on the copyright of Miracleman, as those rights were not part of the dispute, so their legal status remains unresolved. However, some further light is cast on what McFarlane might actually have bought in the Eclipse bankruptcy sale, and on why Gaiman might have chosen not to take the rights to Miracleman that McFarlane allegedly owned. Commenting on the case in his online journal, in a post called Last Legal Post for a long time, Neil Gaiman says,
I used to think that McFarlane actually had some rights in Miracleman. He told me he had, after all - he'd bought what was left of Eclipse from a bankruptcy court - and that he very much wanted to swap those rights for my rights in Cogliostro and Medieval Spawn. He never sent me any of the papers, though, after I agreed to the 1997 character swap, although he sent me the film for several issues of Miracleman. Then, a month after sending me the film, and having told me that he had transferred his rights in Miracleman to me, he sneakily filed an application for the trademark on Miracleman. Then a year or so later, he abandoned that trademark application. (This was something I didn't know, but that came out in the run-up to the court case.)
During the legal case, the one thing that no-one was confused about was that I, and Mark Buckingham, and Alan Moore, owned the copyright to our work in Miracleman. That was straightforward and obvious. We owned our copyright on our material; the bankruptcy of Eclipse didn't affect our rights.
Actually that's not quite true. Todd said in some interview online before that he owned all rights to Miracleman and if anyone said different, he'd see them in court. Well, he saw me in court...
As part of the court case, we finally got to see the Miracleman paperwork. It turned out the entire paperwork that Todd hadn't sent me consisted of an expired Eclipse Trademark registration for the Miracleman logo. From another source I also got to see the original contract, under which Eclipse had obtained their license to a part share in the Miracleman character, and it was explicit in saying that in case of Eclipse folding, or even substantially changing directors, that Eclipse's share in the rights to Miracleman would revert.
So one thing that the court case did establish was that Todd obviously didn't, as he had been claiming, own all of Miracleman. As far as I can tell, or any of the lawyers working with us on the case could tell, Todd probably doesn't actually own any share of Miracleman. He certainly has no copyright in any of the existing work.
Currently (as of late 2001) Todd has another trademark application in on Miracleman, on the grounds that it was an abandoned trademark, which we've opposed.
11 December 2004: Todd McFarlane Productions files for Chapter 11 Bankruptcy in U.S. Bankruptcy Court in Phoenix, Arizona, after hockey player Tony Twist was awarded $15 million damages against McFarlane, due to his creating a violent character named Antonio "Tony Twist" Twistelli in an early issue of Spawn. They eventually settle their case out of court for $5 million in 2007, after McFarlane appeals the original amount.
Early 2005: McFarlane still seems to believe that he had the rights to Miracleman, or at least is claiming that he believes this, as can be seen in an interview on the UGO.com website (The page seems not to be there any more, so I’m linking to this post from the 21st of March on Neil Gaiman’s site instead):
UGO: Has the Miracleman film gone back to Neil Gaiman or wherever it is supposed to go?
TMcF: With the lawsuit, Gaiman walked away from Miracleman. I have the trademark for Miracleman. No one wants to say it out loud, but that's what happened with the lawsuit. Everyone was like ‘Hah hah, he killed Todd,’ but unfortunately - or fortunately, depending on where you are standing - he had to pick some copyrights to some Spawn characters or pick Miracleman. He didn't pick Miracleman.
UGO: Did he take Angela?
TMcF: Yeah, he took some of the Spawn stuff. For whatever reason he walked away from Miracleman, so now Miracleman will be in the Image 10th Anniversary Book.
You can read Gaiman’s comments on this through the link.
November 2005: Image Comics publishes the Image 10th Anniversary Book, three years late. This includes the unnamed likeness of Miracleman in Todd McFarlane’s section of the book. The character will later be identified as Man of Miracles.
14 July 2008: As part of his bankruptcy case, McFarlane is ordered to pay $382,000 into a third-party escrow account to offset any possible losses that might arise in the Gaiman. You can see the documentation on this post on the 20th Century Danny Boy blog.
24 July 2009: Marvel Comics announces it has bought Mick Anglo’s copyright in Marvelman.
6 August 2009: Comic Book Resources reports on Todd McFarlane’s reaction to the news that Marvel has bought Marvelman:
Here’s what I know as a guy who’s been living a complicated life: I will be having meaningful conversations with my lawyer when I get home.
7 September 2009: In an interview with Sam Moyerman on the Broken Frontier website, Todd McFarlane seems to be taking a much more conciliatory approach to the rights to Miracleman, and it makes interesting reading, in light of what he’s said previously:
Sam Moyerman: Finally, I'd be remiss not to bring up another topic with you. I remember waiting with baited breath for months and months after seeing an Ashley Wood drawing of Miracleman that I'm really just curious as to what your plans were for the character…
Todd McFarlane: As you might imagine, that character has been a much talked about topic of conversation, even involved to some degree in the lawsuit with myself and Neil. It's a curious topic. I can't profess to have all the answers on it, so again I'd be sort of foolish to speak out of school.
Obviously Marvel believes they have certain rights to it. I know that I and my lawyers believe we have certain rights. The question is just what can we do to settle it and when can we settle it. One way would be for someone to just give up and say it's not worth it.
The other way would be to sit down and have a meaningful conversation like gentlemen, to find a way so that everyone can win. Not necessarily so either party can win, but for the comic community to win. To figure out a way to get this character back out there and not be a pain in the ass to the point where people have to look over their shoulder.
I don't know… we'll see where it all sort of ends up. It'll either be much ado about nothing or it'll be a hell of a book someday – the behind the scenes novel of it. "The True Story of Miracleman. Starring Matt Damon!" [laughs] But we'll find out how all that goes. I'm as curious as you are.
SM: There are so many things with the lawsuit where there are questions that can't be discussed and impossible to answer. You were able to fit in the Man of Miracles for the Image 10th Anniversary book. Do you plan on bringing him back and using him? Have you had to push him off to the side?
TMcF: Here's what happens that makes it tough. Every party involved has a position that they feel they are entitled to with the character. That would include Marvel, Neil, it [?] and myself. I think the prudent thing would be to see if there can't be an adult conversation to be had instead of rubbing people's noses in it.
So, for me to say I've got my Miracleman miniseries coming out the same time as yours, that would just be instigating something that might not be necessary.
Like I said, my whole hope is to just get together and have a real conversation about it. It might not necessarily solve everything, but just for everyone to state what they believe is their right and what they want to see and to see if there is any common ground anywhere in there and then move on from there.
SM: Well I would really hope so, because as much as I would love to see Neil finish his arc, I would love to see that Ashley Wood Miracleman that was supposed to come out back when.
TMcF: I agree it would be really cool, but I think that at this point everyone simply wants to see Miracleman done by someone who has the legal rights to get it out in the marketplace. It's always been a real curious topic amongst the fans and even amongst the lawyers because this is a complicated ball here. I'm sure if anything dramatic happens it'll become public record or Marvel and Neil will make an announcement.
Certainly, the ‘let’s all sit down and talk like gentlemen’ approach is a long way from his previous ‘come and fight me if you think you’re hard enough’ stance. It’s almost as if he knows he doesn’t have a leg to stand on, legally...
14 June 2010: Neil Gaiman and Todd McFarlane are in court again, in the United States District Court for the Western District of Wisconsin, where District Judge Barbara B. Crabb hears case #02-cv-48-bbc, to determine if the angel warrior characters Tiffany and Domina, both created by Todd McFarlane, who first appeared in Spawn #44 in March 1996, and Dark Ages Spawn, who first appeared in Spawn: the Dark Ages #1 in March 1999, and was created by Brian Holguin, are derivatives of the previously created characters Angela and Medieval Spawn, co-created by Neil Gaiman and Todd McFarlane.
29 July 2010: Judge Crabb finds for Gaiman. In her judgement she says,
Both Medieval (Gaiman) Spawn and Dark Ages (McFarlane) Spawn committed bad deeds in the past for which they want to make amends, both have sisters whom they loved who married men who were or became the Hellspawn’s enemies; both made a deal with the devil to let them return to Earth; and both use their powers to help the defenseless. The two characters are visually similar: both wear metal helmets and face masks with rivets; both ride horses and carry oversized swords and battle shields; both have armor shoulder pads with spikes. Both have aspects of the first Al Simmons Spawn: a ‘neural parasite cloak,’ a particularly shaped face mask, green eyes and a red ‘M’ on the chest.
Tiffany and Domina are visually similar to Angela and share her same basic traits. All three are warrior angels with voluptuous physiques, long hair and mask-like eye makeup. All three wear battle uniforms consisting of thong bikinis, garters, wide weapon belts, elbow-length gloves and ill-fitting armor bras. Angela and Domina each wear a long cloth draped between their legs and a winged headdress. Tiffany and Angela are shown in the Spawn Bible [Image Comics, August 1996] as having sharp wings. All three of these female characters are warrior angels who fight in the war between Heaven and Hell. When plaintiff conceived of Angela, he saw her as part of an army of 300,000 ‘female, kick-ass warrior angels, who are hunters, merciless and not very nice.’ Tiffany and Domina are part of this same heavenly army. Like Angela, Tiffany is described in the Spawn Bible as having failed to kill only one of the persons she intended to kill: Al Simmons, the original Spawn. Domina is a less developed character, but has superpowers substantially similar to Angela’s. She is described as having led angels into battle against the ‘superpowered Hell demon Urizen.’ Like Angela, she is headstrong and not inclined to obey Heaven’s commands.
I conclude that the newer characters are derivative and that plaintiff is entitled to his share of the profits realized by these characters and to the immediate production of all documents and other information material to the calculation of the profits.
Even the judge in the 2010 case seemed puzzled that McFarlane couldn’t come up with a different character concept of his own, rather than try to published a character who was pretty obviously a badly-disguised version of Medieval Spawn. At one point she said,
Much as defendant tries to distinguish the two knight Hellspawns, 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 Hellspawn to Earth more than once every four hundred years (or possibly every hundred years, as suggested in Spawn #9), it suggests that what defendant really wanted to do was exploit the possibilities of the knight introduced in issue #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 Spawn.) If defendant really wanted to differentiate the new Hellspawn, why not make him a Portuguese explorer in the sixteenth century; an officer of the Royal Navy in the eighteenth century; an idealistic recruit of Simon Bolivar in the nineteenth century; a companion of Odysseus on his voyages; a Roman gladiator; a younger brother of Emperor Nakamikado in the early eighteenth 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 Spawn is a knight from the same century as Medieval Spawn.
All of which inevitably led to a number of online pundits joking that the judge had a better imagination when it came to creating comic book characters than Todd McFarlane did.
16 June 2010: Meanwhile, Gaiman is still waiting for payment from McFarlane after the appeals court judgement went his way in 2004, as McFarlane had declared bankruptcy in the meantime, due to the Tony Twist case. However, as Gaiman said in his online journal,
This left me one of the biggest creditors of McFarlane's bankrupt comics company. Because they've been in bankruptcy, he's paid me nothing since the 2002 court case.
Now, some years later, McFarlane's comics company is coming out of bankruptcy, and an accountant whom Todd and I have mutually agreed on is trying to sort out exactly how much money I'm owed.
11 July 2010: Todd McFarlane’s again attempts to register the name Miracleman with the United States Patent and Trademark Office. This is opposed by Gaiman, and is not completed, pending some sort of final resolution of the rights to the name.
27 January 2012: Neil Gaiman and Todd McFarlane finally settle their legal dispute over Gaiman's share of Spawn properties. According to a report on minnesota.publicradio.org:
Fantasy industry giants Neil Gaiman and Todd McFarlane have agreed to settle their long-running legal battle over Gaiman's share of the Spawn universe.
Their attorneys filed notice Friday in federal court in Madison saying they've reached a deal that calls for declaring Gaiman a 50% owner of Spawn issues #9 and #26, the first three issues of a spin-off series on the angels and the issues' contents.
Jeffrey Simmons, one of Gaiman's attorneys, declined to elaborate, saying the terms are confidential.
So, if the settlement also contained any final agreement between Gaiman and McFarlane on issues related to Marvelman/Miracleman, we’re not going to be told, one way or the other.
24 February 2012: An order is made to release the $382,000 McFarlane paid into a third-party escrow account on 2008, along with any accrued interest, presumably as part-payment on McFarlane’s debt to Gaiman.
At this stage, Todd McFarlane needs to account for, and pay Neil Gaiman for, his share of:
Spawn issues #9 and #26, presumably also including the proceeds of any reprints of these issues in trade paperbacks;
The Angela miniseries and trade paperback;
The Spawn movie, which featured some of the characters co-created in Spawn #9;
The Spawn animated TV series, for the same reason as above;
Video and DVD sales of both of the above;
Any appearances of the characters Tiffany, Domina, and Dark Ages Spawn, that were found to be derivative of the characters in Spawn #9;
And, finally, the action figures based on all the above characters.
So, it seems that the $382,000 is only going to be a starter for what is going to be owed to Gaiman by the time all of that is accounted for.
19 March 2012: I don’t think we’ve seen the end of this, though. I would like to point out that these two parties have reached agreements before, and these have invariably been ignored by McFarlane. I’d like to think that this is the last time we’ll see these two in court, and that it will all finally end, but past experience doesn’t really point that way, I’m afraid. We shall see what we shall see.
1 May 2012: According to this post on 20th Century Danny Boy, Todd McFarlane has paid $1,100,000 to Neil Gaiman, according to his Summary of Disbursements, as filed with the Bankruptcy Court in Arizona for the quarter-year ending on the 31st of March, 2012, and signed off by the judge on the 24th of April.
So, it seems that it's finally over, after all this time. I mean it is over, isn't it? Right?
Addendum #1: Amongst the posts reporting on this, I want to single out this one on The Beat, which has some very useful comments from some people who were involved with some of the goings on I am reporting on. In particular these two:
Dean Mullaney says:
A correction, please: it wasn’t cat or anyone at Eclipse who chose Chuck Beckum to continue drawing Miracleman. It was Alan Moore who picked Chuck, over my objections. I had never even HEARD of Chuck Beckum until Alan brought him to the table. But in deference to Alan, I agreed. Turns out Chuck was a really nice guy but I — and everyone at Eclipse — thought he was complete WRONG for the series. And while cat and I have our differences, this is one thing she CAN’T be blamed for.
... And Dez Skinn agrees with him
Oh, and I agree with Dean. We were told at the time Alan Moore had chosen Chuck Beckham to replace Alan Davis (“he’s like another Hernandez brother”, was how it was put to us on a transAtlantic call quoting Alan.)Garry and I were in the office when we saw the end product, and both despaired.
Addendum #2: There was this exchange on Twitter I wanted to record, between Neil Gaiman and one of his followers:
Neil Gaiman [@neilhimself] - The history of the @todd_mcfarlane legal case, & how it related to Miracleman, laid out as a timeline. Well researched:[link to this post]
James Gaskell [@big_poppa_G]: @neilhimself Any lingering creative or personal hard feelings towards @todd_mcfarlane or perceived that he has them against you?
Neil Gaiman [@neilhimself]: @big_poppa_G read the timeline. How could you have any respect for someone who behaved like that, over and over?
