Gaiman v McFarlane

[Bonds25]

CBG EXPRESS

COMICS BUYER’S GUIDE Electronic Bulletin 1509.2

News Every Week -- Breaking News at Once!

 

 

BREAKING NEWS: Judge rejects expert witness in Gaiman v. McFarlane

As the case of Gaiman, Neil v. McFarlane, Todd (Case #02-C-0048-S) gets underway in United States District Court for the Western District of Wisconsin in Madison, Wis., presiding Judge John C. Shabaz has already rejected expert testimony called by the plaintiff in the case, with expert witness and former Kitchen Sink Press Publisher Denis Kitchen leaving Madison.

 

Jury selection in the case begins this morning (Monday, Sept. 30) at 11:30 a.m. ET. Gaiman will present his testimony first to be followed by McFarlane. With Shabaz hearing another case at this time, Judge Stephen L. Crocker is presiding over jury selection.

 

In January, Gaiman filed a nine-count lawsuit against McFarlane concerning arrangements made in 1992 between the two when Gaiman wrote Spawn #9, which introduced new characters to the Spawn mythos, including Hellspawn hunter Angela, alley-dweller Count Nicholas Cagliostro, and a medieval version of Spawn. In the suit, Gaiman said that McFarlane had agreed to recognize him as a creator on the issue, that he would be paid at a higher rate than he was receiving at the time for his work on Sandman, and that Gaiman would retain ownership of his "creative works." In addition to the work that appeared in the issue, Gaiman also provided background information on each of the characters.

 

The suit also addresses McFarlane's purchase of the assets of defunct publisher Eclipse. Gaiman contends that the purchase did not include the rights to Miracleman, a character he and Alan Moore worked on for Eclipse in the late 1980s and early 1990s.

[AlexH]

Let us know if you hear anything else out about this.Thanks for the info.

[read_em-migration]

UPDATE: Female jury to decide Gaiman v. McFarlane

A jury of seven women will begin to hear evidence Tuesday, Oct. 1, in the lawsuit brought by Neil Gaiman against Todd McFarlane and Image Comics in federal court.

Gaiman's nine-count suit, filed in January in Federal Court in Madison, Wis., concerns arrangements made in 1992 when Gaiman wrote Spawn #9, introducing new characters, Angela, Count Nicholas Cagliostro, and Medieval Spawn to the Spawn mythos. In addition to the work that appeared in the issue, Gaiman also provided background information on each of the characters and was promised that he would retain ownership of the characters. The suit also seeks to address ownership of the Miracleman characters.

Jury selection began mid-morning Monday, Sept. 30, with Judge Stephen L. Crocker presiding over the process. Both Gaiman and McFarlane appeared, as well as their attorneys, including one representing Image Comics. Aside from court personnel, most of the other attendees were potential jury members.

The process began at noon ET, with Crocker announcing, "I'm picking the jury for Judge [John C.] Shabaz for the case to be tried tomorrow" and initially 13 potential jurors -- four men and nine women -- were selected.

Following a brief summary of the case, concluding with the statement, "Each [plaintiff and defendant] denies the claims of the other," Crocker asked the jury to confirm that none of them had heard of the case before that moment. Crocker then made the firm statement that the case would not go beyond Friday, Oct. 4. Shabaz had said the case would wrap up by the weekend, and Crocker said, "If Judge Shabaz said you'll be done by Friday, you'll be done by Friday." Crocker added that Shabaz normally ends each day of trial between 5 and 6 p.m. and that the jury would not be sequestered.

Then Crocker began to question each of the prospective jurors regarding their backgrounds. Among the questions was whether they knew any of the potential witnesses, and that witness list consisted of 13 names. Nevertheless, as indicated by the CBG bulletin posted today (Sept. 30), only Gaiman and McFarlane are expected to be called, with Gaiman slated to appear on Tuesday.

Among those dismissed were people who had had knowledge of copyright or entertainment collectibles. In the end, attorneys had settled on a jury of seven with no alternates. Both legal teams and the judge expressed concern for a college junior majoring in communication arts who would miss classes, an exam, and a paper due at the end of the week, as well as an evening job. After the jury had been thanked and left, the judge commented on her "obvious distress" at having been chosen. "I don't have the power to strike her. I'm surprised you didn't strike her."

Crocker concluded that, now that the panel was picked, the case would "move expeditiously," adding, "You might be done before Thursday."

[Bonds25]

BREAKING NEWS: Gaiman v. McFarlane first-day testimony moves quickly

 

By Maggie Thompson

 

Madison, Wis. -- It quickly became clear Tuesday, Oct. 1, that Judge John C. Shabaz intended to move as speedily as possible through the case of Neil Gaiman v. Todd McFarlane. By the end of the first day of testimony, the opening statements of both sides had been made, plaintiff Gaiman had testified and been cross-examined, and defendant McFarlane had testified and was in the midst of cross-examination when the court was adjourned.

 

With brief time-outs for morning and afternoon breaks, lunch, and the conclusion of a criminal case Shabaz had begun the day before, the case ran from 8:45 a.m. until about 6 p.m. Among evidence in the courtroom were Gaiman’s thumbnails of the character later known as “Medieval Spawn” (which led to confusion over which side was up on the art, with Gaiman indicating the correct side and quipping, “It’s not THAT bad”), packaged action figures of “Medieval Spawn” and “Angela,” blowups of copyright applications, and even a video set-up for a brief attempt to show the animated Cagliostro, which misfired because the sound didn’t work on the video.

 

Shabaz instructed the jury at the start that, unlike a criminal case, in a civil case, the plaintiff must provide the preponderance of belief; in the counterclaims, the defendant must have the preponderance of belief to win the suit. Also, unlike a criminal case, finding “beyond a reasonable doubt” does not apply. Shabaz provided other initial guidelines and proceeded with the case, enumerating stipulations to which both parties had agreed.

 

Uncontested facts include that Gaiman filed the lawsuit Jan. 24, 2002, that Gaiman is a resident of Wisconsin and Marvels and Miracles LLC is a Wisconsin corporation, that the defendant resides in California and is the sole shareholder of the firms with his name (Todd McFarlane Productions Inc., TMP International Inc., and McFarlane Worldwide Inc.). McFarlane is also president of Image Comics, which is the other defendant with McFarlane and his three corporations. McFarlane clarified the purposes of his corporations. Todd McFarlane Productions Inc. produces the comic books and owns the trademarks and copyrights of all the published work. It has about 20 employees. TMP International Inc. manufactures and sells toys to the domestic market, starting with Spawn; it employs about 100 people. McFarlane Worldwide Inc. markets toys internationally.

 

The suit concerns material Gaiman created for Spawn #9 (Mar 93), three pages of Spawn #26 (Dec 94, shipped Dec. 27, 1994), and the Angela mini-series #1 (Dec 94), #2 (Jan 95), and #3 (Feb 95): the characters Angela, Count Nicholas Cagliostro, and the character later known as “Medieval Spawn.” Also involved were trade paperback reprints of the work and the copyright and cover copy information in the published material, including Image’s back cover copy on one of the collections.

 

McFarlane testified that he wrote, pencilled, and inked the first seven issues of Spawn and then approached four guest writers to write the next issues, one each by Alan Moore, Gaiman, Dave Sim, and Frank Miller, all highly regarded writers, three of them were not known for their super-hero work. McFarlane said that the artists who’d formed Image were good artists, but that there was a preconception that artists don’t know how to write. So, “They think I don’t like writers. I’ll get the writers.” He paid each of the writers $100,000 for their work and said he hadn’t discussed copyright with any of them at that point.

 

Boiling down some of the arguments to their most basic level, Gaiman’s argument is that he never signed over copyrights to any of the material he created for McFarlane and that, moreover, he created characters for McFarlane that McFarlane continued to use -- but for which he did not pay Gaiman royalties. Both Gaiman and McFarlane testified that McFarlane had promised to treat him better than the treatment he received from DC, and much of the testimony involved statements from DC regarding creator contracts in general and Gaiman’s contracts specifically.

 

The concept as Gaiman set it up for McFarlane was that Angela would be a hunter of Hellspawn, shown as such in the Middle Ages, and Gaiman came up with the story, whereas McFarlane came up with the character design. Gaiman’s concept for Angela had her looking more like a typical angel, whereas McFarlane drew her as she has come to be known, a more warlike angel. Moreover, McFarlane’s drawing of “Medieval Spawn,” which he also later named, had many parallel characteristics to those of his own Spawn.

 

Payments were detailed throughout the trial, including that McFarlane had sent a $10,000 advance against scripting Spawn #9 after Gaiman had sent McFarlane a discussion of what he planned for the issue. Among other testimony was that there was little in writing concerning the basic legal arrangements. Gaiman said he’d told his agent that McFarlane had provided nothing in writing “and that I could trust him.” One of the most emotional moments came late in the day, when his own attorney asked McFarlane why he had indicated a willingness in the late 1990s to pay Gaiman more than he thought he had to. McFarlane responded, “I just wanted to finish it.” His attorney asked, “Why?”

 

There was a long pause, as McFarlane sat silent. His attorney asked McFarlane whether he needed a moment. McFarlane drank from his glass and then quietly said, “I apologize,” and the attorney turned to a different line of questioning.

 

Testimony was occasionally complex, including such matters as the difference in royalty payments between the returnable and the non-returnable marketplaces, at what point accounting starts, and even the specifics of the definition of “net.” Shown in evidence were copyright applications in which McFarlane claimed he had written the material -- applications McFarlane said he had not seen before the lawsuit. Evidence also involved the basic storyline of Spawn and the characters Gaiman had created. There were, moreover, discussions of the difference between derivative characters like “Medieval Spawn” and original ones like Angela.

 

It is clear that the matter will go to the jury Wednesday, Oct. 2. If the jury finds for Gaiman, the next matter will be the awarding of damages. At that point, testimony from Gaiman’s expert witness, Denis Kitchen, could be taken. The trial will likely conclude before the weekend.

 

More updates as they happen!

[read_em-migration]

BREAKING NEWS: Jury begins deliberations in Gaiman v. McFarlane

Madison, Wis. – With testimony and cross-examination completed in the case of Neil Gaiman vs. Todd McFarlane in United States District Court for the Western District of Wisconsin in Madison by early afternoon Wednesday, Oct. 2, presiding Judge John C. Shabaz began his instructions to the seven-woman jury at 3:30 p.m. ET, concluding his statements one hour later when the jury was sent off to deliberate. Among the instructions were information on copyright law and that the women had to consider the preponderance of evidence. Judge Shabaz also required a unanimous verdict on each count in the suit and provided the jurors with a special verdict form to be completed. The jury also has more than 1,000 pages of evidence to consider in making its decisions.

As in most trials, no one knows exactly when the verdicts will be returned, but one opinion expressed by a knowledgable member of the court was that Judge Shabaz will push for a decision yet this evening in order to conclude the case by the weekend.

Depending on the verdicts returned, the case may or may not move on to a penalty phase in which expert witness and former Kitchen Sink Press Publisher Denis Kitchen may be called on to testify. Kitchen was dismissed Friday, Sept. 27 and returned to his Massachusetts home, but returned to Wisconsin Wednesday in preparation for potential testimony in this second portion.

As reported earlier, the suit concerns material Gaiman created for Spawn #9 (Mar 93), three pages of Spawn #26 (Dec 94, shipped Dec. 27, 1994), and the Angela mini-series #1 (Dec 94), #2 (Jan 95), and #3 (Feb 95): the characters Angela, Count Nicholas Cagliostro, and the character later known as “Medieval Spawn.” Also involved are trade paperback reprints of the work and the copyright and cover copy information in the published material, including Image’s back cover copy on one of the collections.

More updates as they happen!

[melmoth]

Anyone have an opinion as to the likely outcome of this trial? I don't know what to make of McFarlane and his 'emotional' outburst.

[comicinvestor-migration]

McFarlane will win on the "character concepts" since you can't copyright an idea, but only a finished concept. Since Big Mac's finished work differed from Gaiman's quite significantly, there is no way he owes anything.

 

As for the Miracleman debacle, I wouldn't put a cent on either side. It's a real mess.

[Guest]

As for the Miracleman debacle, I wouldn't put a cent on either side. It's a real mess.

I'd be surprised if the mess can be sorted correctly by a judge/jury with no knowledge of the industry, after a brief 2 day trial.

[blowout]

......i don't think we'll be seeing miracleman on our comic racks anytime soon................

[read_em-migration]

BREAKING NEWS: Jury continues deliberations in Gaiman v. McFarlane

Madison, Wis. -- The case pitting Neil Gaiman against Todd McFarlane went to the jury late in the day Wednesday, Oct. 2. By that point, an attorney for McFarlane had characterized Gaiman as confusing fantasy and reality: “I don’t know what was going on: greed or ego or jealousy that a goofy artist would be so successful.” And a Gaiman attorney commented, “The parties had an agreement. Todd likes to do what’s fair but Todd decides what’s fair.”

The day opened at 9 a.m., continuing Gaiman’s attorney’s cross-examination of McFarlane, with McFarlane saying Gaiman had supplied misleading sample figures from his DC contracts so as to provide guidelines for a contract. McFarlane identified a specific telephone conversation with DC’s Terry Cunningham about derivative characters in connection with a $124.50 payment to Gaiman (as a royalty on HBO use) as being “the straw that broke the camel’s back,” at which point McFarlane said the deal was off and he was rescinding all agreements to that point. He stopped taking Gaiman’s phone calls -- a fact addressed in re-cross, during which Gaiman’s attorney said that McFarlane intimated that Gaiman hadn’t called, when, in fact, McFarlane refused to take his calls.

Other topics included McFarlane’s filing for a trademark for Miracleman, declaring on Oct. 21, 1997, that he was the owner of the character and that McFarlane continued to pay Gaiman in 1998 “for foreign reprint royalties for Angela.” Why was McFarlane still paying by that point? “From my perspective, I have never had any big dispute about Angela. It’s the Medieval Spawn I have trouble with.”

As almost a sidebar to the discussions, Image’s attorney from time to time addressed the dual matter of absence of credit for Gaiman in reprints of some material he had created -- and using Gaiman’s biography and list of accomplishments to promote other material.

Closing arguments began at noon, with Judge John C. Shabaz first denying the motion to dismiss the fraud charges leveled at Gaiman, saying he would leave such matters to the jury.

Gaiman’s attorney said the case was “about keeping promises and being fair: Whom do you believe?” He went on to say the defendant’s case was “a bunch of ‘gotchas,’ starting with the fact that McFarlane didn’t want a contract and, ‘gotcha,’ didn’t have one.” He took the jury point by point through the special verdict form, arguing each point briefly on Gaiman’s behalf.

McFarlane’s attorney’s closing arguments commenced at about 12:40 p.m., and he began by saying the “gotcha” term was offensive. “I don’t believe a game of ‘gotcha’ is going on.” He said that Gaiman had told McFarlane when they began work on Spawn #9, “It’s your playground; I’m just in for an afternoon on the swings.” “Now,” said the attorney, “he wants to own the slide.” The attorney continued that, when McFarlane and Gaiman tried to do a business deal, “they did a terrible job,” adding, “It’s very sad how we’ve ended up here today.”

Following final arguments by Gaiman’s attorney, there was a one-hour adjournment, followed by Shabaz’ instruction of the jury at 2:30 p.m. That instruction lasted a full hour, beginning with remarks including, “Nothing I say should be taken as my opinion. Your function is to determine the facts.”

Shabaz’ remarks addressed the function of the jury, the way to consider each witness, what is involved in copyright, the statute of limitations with regard to copyright, what must be present in an agreement, what constitutes unjust enrichment, and what constitutes the burden of proof in such cases. Following a reading of the special verdict form, he told the seven-woman jury that its verdict must be unanimous on each count. In the course of discussing the verdict, they could change their own views but not surrender them. “You are not partisans, you are judges.”

At 3:30 p.m., the jury left to deliberate. No verdict was reached by 7 p.m., and indications were that deliberations would resume Thursday morning, Oct. 3.

More updates as they happen!

[read_em-migration]

BREAKING NEWS: JURY SIDES WITH GAIMAN

Madison, Wis. – A Wisconsin jury agreed with Neil Gaiman on all counts of his lawsuit decided against Todd McFarlane Thursday afternoon, Oct. 3. All the verdicts were unanimous, in accordance with the instructions of Judge John Shabaz.

The verdict form presented jurors with a number of questions which had to be answered, including if Gaiman had copyright interest in the characters Medieval Spawn, Cogliostro, and material that appeared in Spawn #26. The jurors agreed on all three points that he did.

The jurors did not agree that a reasonable person in Gaiman’s position would have discovered prior to Jan. 24, 1999, that the McFarlane defendents were claiming to be the sole owners of copyright interests in Medieval Spawn, Cogliostro, Angela, the Angela mini-series, Spawn #9, and Spawn #26.

The jury agreed that Gaiman and McFarlane entered into a contract in 1992 and 1997 and that McFarlane breached both those contracts.

The jury agreed that McFarlane’s failure to identify Gaiman as a co-author of Spawn #26, Spawn #27, and “Pathway to Judgement” was a false representation of the work, and that Gaiman said that this misrepresentation was likely to damage him.

The jurors did not believe that Gaiman consented in writing to the use of his name and biographical information on Angela’s Hunt. They also did not believe that Gaiman made misrepresentations or omissions of material fact to McFarlane concerning his DC contract during the negotiations of the 1997 contract.

Continuing his quick courtroom procedure, Shabaz immediately proceeded to the damage portion of the trial, saying “I don’t want ANY of us to be here this weekend.”

Upon that announcement, Gaiman’s attorney said, “Your honor, we would very much prefer to make opening statements in the morning.” To which Shabaz replied, “I’m sure you would” and scheduled a 15-minute recess.As the court was going into recess, McFarlane’s attorney called the verdict “the nightmare we feared,” and Shabaz said, “Not unless you make it one.”

The damage portion of the trial got underway shortly before 6 p.m. ET Thursday evening and testimony was expected to extend into the evening hours. By all indications, Shabaz plans to conclude the case sometime Friday.

More updates as they happen!

[cd4ever]

I'm glad to hear that. From what I've read, it seemed to me that Todd was just trying to get more money and ownership for himself. It's a shame because the initial concept behind Image was to allow artists and writers to protect their property. Now it's all about him and how many worthless baseballs he can buy. A shame. Awful writer, good artist though.