In February 1992 Todd McFarlane, along with six others, announced the founding of Image Comics, after having failed to negotiate more favourable terms for themselves at Marvel Comics. Whilce Portacio left right at the beginning, but the rest went on to set up their own studios, through which they would create work that would be published by Image. Amongst the guiding principles for the founding of Image Comics were things like ownership and creative control for comics’ creators, and those creators benefiting if their creations were successful, rather than just the publishers, and in general better conditions and treatment than were on offer at the two big comic companies.
One of the very first comics to appear from Image was McFarlane’s Spawn #1 in June 1992, originally to huge acclaim, but it soon became obvious that, if his art was the comic’s strong point, his writing was not. To counter this, McFarlane asked some of the major comics’ writers of the time if they would each write an issue of Spawn for him, which they agreed to do. Alan Moore wrote Spawn #8, Neil Gaiman wrote #9, Dave Sim wrote #10, and Frank Miller wrote #11, with both Gaiman’s and Moore’s issues selling something in excess of a million copies each. Of these four issues, Gaiman’s story in Spawn #9, published in March 1993, was to go on to have repercussions that continue to this day.
When he wrote Spawn #9, Neil Gaiman introduced 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. Gaiman would go on to write a three-issue miniseries featuring the angelic warrior, called Angela, published by Image between December 1994 and February 1995, and collected into a trade paperback later in 1995. As well as the three issues of Angela, Gaiman also wrote a few pages of Spawn #26 as an introduction into the Angela storyline. On the last page of the last issue of the Angela miniseries, quite possibly in an oblique reference to his approval of Image Comics, Gaiman has the title character say,
You don’t have to work for the big two. There are alternatives.
Angela was talking about Heaven and Hell, but it seems to me that you can substitute Marvel and DC for those two, and get the same sentiment.
All three of the characters Gaiman created went on to have ongoing roles in the Spawn story, which eventually led to a dispute between Gaiman and McFarlane over the copyright in the characters. Originally McFarlane had acknowledged Gaiman’s right to an equal share in the copyright of the characters, and paid him a royalty for their use in the ongoing series, as well as for things like graphic novel reprints and action figures based on them. Later on, though, McFarlane stopped paying Gaiman royalties, claiming that he owned all the rights to two of the characters, regardless of any agreement between them. To cut a very long story very short there were a number of court cases, and all the cases came down entirely in Gaiman’s favour, and he was awarded substantial settlements on more than one occasion, which have not been immediately forthcoming. There is an extremely detailed and very compelling telling of the entire saga – at least up to about 2006 – in Prince of Stories: The Many Worlds of Neil Gaiman (St Martin’s Press, 2008) by Hank Wagner, Christopher Golden, and Stephen R Bissette, so I’m only going to run through the story comparatively briefly here.
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 asked 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, the broad thrust of which was that McFarlane said that he would treat Gaiman ‘better than the big guys.’ In any case, the use of all three of the characters Gaiman had created had gone substantially beyond their original appearance in Gaiman’s stories. McFarlane created a toy company in 1995, and using Gaiman characters as the basis for a number of financially lucrative action figures. Without Gaiman’s knowledge or assent, McFarlane had registered copyright in his sole name for the comics and trade paperback with Gaiman’s story in it, and had had copyright notices inserted into them that seemed to indicate, again, that the copyright in the stories and characters was solely his. It should be pointed out that Gaiman was definitely not working for McFarlane as either his employee or under any sort of work-made-for-hire contract, which would have had to be in writing to be legal so, unless it was specifically agreed between them that it was the case – which it wasn’t – McFarlane had no grounds to claim ownership of Gaiman’s work.
After some to-ing and fro-ing, an agreement was reached whereby Gaiman would exchange his rights in Olden Days Spawn and Count Cagliostro for McFarlane’s rights to Miracleman. In the meantime, McFarlane had sent Gaiman royalty statements, where he acknowledged Gaiman as co-creator of the three characters. The final exchange of rights was to take place on the 31st of July, 1997, shortly after which Gaiman got various pieces of physical property related to the character, like film of the artwork for old issues of Miracleman, but on the 27th of October, 1997, McFarlane filed three trademark registrations in the name Miracleman with the United States Patent and Trademark Office. It would appear that McFarlane had not intended to let go of his share of Miracleman after all, despite never having worked on the character in any capacity.
Nothing happened for over a year, except that McFarlane continued to send Gaiman royalty checks, but on the 14th of February, 1999, Gaiman got a letter from McFarlane telling him that he was withdrawing all his previous offers, and offering a deal to Gaiman on a ‘take-it-or-leave-it basis.’ This was that Gaiman would give up all his rights to Angela in exchange for all of McFarlane’s rights to Miracleman. It further stated that ‘all rights to Medieval Spawn and Cogliostro shall continue to be owned by Todd McFarlane Productions.’ It was obvious that McFarlane wasn’t going to give up without a fight, so Gaiman got ready to give him one.
In the meantime, McFarlane seemed to have decided that not only did 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…
On the 24th of October, 2001, Marvel Comics’ then Editor-in-Chief Joe Quesada and the company’s President Bill Jemas, accompanied by Neil Gaiman, held a conference call press briefing with journalists from the comics media. This was to announce the formation of a company called Marvel and Miracles LLC, founded by Neil Gaiman and lawyer Kenneth F Levin, whose purpose was to collect funds to allow Gaiman to fight his forthcoming court battles with Todd McFarlane, with any funds left over after it was all done going to a few different comics charities. (Kenneth F Levin may sound vaguely familiar. This is because, as plain old Ken Levin, he was involved with First Comics when Dez Skinn was showing around his dummy comics featuring properties from Warrior.)
Talking at the press conference, as reported by the Comic Book Resources website, Gaiman said,
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 made it clear that, if the rights were recovered, Marvel Comics would not object to the name of the character being changed back to Marvelman. It was then announced that Gaiman was to write a six-issue miniseries with the profits from both the publisher and the writer going to fund Marvel and Miracles. This would eventually become the eight-issue miniseries Marvel 1602, published between November 2003 and June 2004, and collected into a single volume in October 2004.
In 1602, on page 17 of issue #2, Gaiman managed to squeeze in an oblique reference to Marvels and Miracles, when he has the Grand Inquisitor say,
We must not mistake the dark marvels of the witchbreed for the miracles of grace granted to the holy.
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.’
On the 1st of October, 2002, in a court in Madison, Wisconsin, the case of Neil Gaiman and Marvels and Miracles LLC v. Todd McFarlane, et al opened in a jury trial before Judge John C. Shabaz and an all-female jury*. In less than a week the trial was over, and the jury, after deliberating for just over a day, returned their verdict in the afternoon of the 3rd of October, finding for Gaiman in all specifics. They found 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 had 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 were in the wrong to use Gaiman’s name and biographical details on one of their trade paperbacks without his permission. Reflecting the DC Comics v Fawcett Comics case in the forties and fifties, a substantial amount of the argument in the case concerned copyright notices, in this case those that had been placed in the Angela titles, which stated that the entire thing was copyright to McFarlane, but it was held that simply putting them there was not the same as notifying Gaiman that McFarlane was claiming copyright for himself, and therefore giving him warning to contest the issue, if he wished. 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?
The judgement on the case was handed down on the 7th of October 2002, after which the damages phase of the case was heard, at which point Gaiman could have chosen to have the 1997 contract enforced, and to trade his copyright in Medieval Spawn and Cagliostro for McFarlane’s copyright in Miracleman, but he chose not to. This may seem strange, that he wouldn’t take something that he apparently wanted, according to the terms of a contract he once had, and seemed to want to have honoured. However, in the five intervening years, and particularly in the few years since Marvels and Miracles was set up, we must presume that Gaiman and Levin did quite a bit of digging into the history and rights of Marvelman and Miracleman, and perhaps Gaiman decided that he didn’t want to trade his rights in two characters with clear and easily traceable copyright histories for rights that McFarlane might not even have, and which already had perhaps the most complex copyright history of any character in comics.
[*It’s worth noting that the presence of an all-female jury seems to have irritated some of McFarlane’s supporters, and they locked onto it as being the reason for Gaiman’s winning the case, rather than things like, for instance, the facts. In correspondence on another matter between comics’ creators Dave Sim – who wrote Spawn #10 for McFarlane – and Erik Larsen, one of the original founders of Image Comics, quoted on Al Nickerson’s website on the 27th of July 2005, Sim wrote,
…and just between you me and the lamppost I think it had more to do with the all-female jury at the trial. It wouldn’t matter what Todd and Neil were disagreeing about, an all-female jury was going to find Todd in the wrong and Neil in the right just because Todd is Todd and Neil is Neil. Had the judge asked them, I’m sure the all-female jury would have been happy to give Neil the rights to Spawn, Todd’s house and cars, Madonna’s uniform from A League of Their Own and the Mark McGwire baseball and anything else Neil expressed an interest in.
Much later, on the 2nd of June 2010, Erik Larsen would write on the Image Comics online message boards (now no longer accessible, unfortunately, but referred to here, for instance),
‘Spawn on a horse’ does not strike me as an original creation. ‘Spawn on a horse’ may strike you as a wholly original creation that nobody but Neil Gaiman could possibly conceive of but to the rest of us – in the real world – 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.
…but I digress.]
Although he didn’t leave the court with the rights to Miracleman, Gaiman didn’t go away empty-handed, as he was 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 on the 4th of October 2002,
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.
As Gaiman was also found to co-own the copyright on the three characters he created in Spawn #9, all three of which had been used extensively in various Spawn comics titles from that time on, as well as being used in the Spawn animated television series, and as the basis for various statues and action figures, there would also have to be a reckoning for how much he was owed by McFarlane in royalties for his half of their earnings in the intervening time, a figure that was likely to run into many millions of dollars.
Unsurprisingly, McFarlane appealed the verdict, 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. The appeal was heard in the United States Court of Appeals for the Seventh Circuit, again in Wisconsin, beginning on the 5th of January 2004, under circuit judges Richard Posner, Michael Stephen Kanne, and Ilana Rovner. Perhaps also unsurprisingly, the appeal court judges in 2004 upheld all the rulings of the original court in 2002, and dismissed both of McFarlane’s grounds for appeal.
In neither of the cases had the courts ruled on the copyright of Miracleman, as those rights were not part of the dispute, so their legal status remained unresolved. However, some further light was 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, dated the 25th of February, 2004, Neil Gaiman said,
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.
The interview that Gaiman is referring to is the one with Michael David Thomas, quoted above, where McFarlane says, ‘I’ve got all of them. We’ll find that one out.’ McFarlane’s trademark applications can still be seen on the website of United States Patent and Trademark Office, where there are not only the three attempts at registering the name Miracleman from October 1997, but also an attempt to register the name on the 11th of July 2010, as mentioned by Gaiman, (where we see that McFarlane’s attorney of record is the wonderfully named Penny Slicer). This later attempt to register the name was opposed by Gaiman, and was not granted to McFarlane, pending some sort of final resolution of the rights to the name. All four are now ‘dead’ records, but we’ll be getting to all that later on…
In the meantime, Todd McFarlane, despite two court defeats, was by no means ready to give up the fight.
to be continued…