Comic books and copyright law

[This post is from 2004.]

These are two subjects that greatly interest me—I’ve been collecting comic books since the age of 12, and I teach copyright issues in several of my college courses. Two important figures in the industry, Todd McFarlane and Neil Gaiman have been squabbling over the legal ownership of some comic book characters created for the “Spawn” series. (Remember the movie? I’m trying to forget it). I just read the decision, Gaiman v. McFarlane, written by the mighty Judge Posner, in which Gaiman won. As someone on another website has remarked, “It’s worth the read just to hear Judge Posner tell us the legend of Spawn.”

Some background is in order. Comic book characters, like the Disney and Warner Brother Cartoon characters, are copyrightable. Most well known comic book characters come from just two companies: Marvel—who owns heroes like Spiderman, the Hulk, the X-Men, the Fantastic Four, etc., and DC— who have Superman, Batman, Wonder Woman, Green Lantern, etc. And those two companies make sure that when a character is created for them, they own it outright. This has led to some major resentment among the talent who create the characters, only to have to relinquish all of their rights to them (sometimes the talent are well-compensated, yet there are many horror stories—for instance, the two fellows who created Superman and hardly saw dime one. But that’s a whole ‘nother story entirely).

Spawn comes from neither of these two companies, but rather from Todd McFarlane’s “creator-centered” Image, which emerged because creators were feeling exploited by big business. Here is a description of the fundamental principles behind this company that McFarlane began with several other talent who were “hot” at that time: “Image would never own a creator’s property, and Image would never interfere creatively or financially with any of the creators whose work it published. Even today, all the partners agree that Image was always more about freedom than about money.”

Yet, there can be major drawbacks with this new way of doing things. For instance, what if Superman were created by one party and Lois Lane by another, each creator owning the characters outright? What if Lois’s creator wants to leave the company and take Lois with him? The solution seems to be to have each creator be responsible for creating his or her entire comic book universe. And this has generally worked. (For a good example of this and a good read as well, check out Kurt Busiek’s Astro City).

(There is another side note that is the subject of another story: Many of these “creator-own” independent books—even those done by top industry talent—failed to work out without the backing of Marvel or DC. Consequently many of those creators have gone back to work for the two big guns, or have sold their independent creations to Marvel or DC!)

However, even when creators assume responsibility and control over their creations, as this case indicates, unanticipated ownership problems can still emerge. In Gaiman v. McFarlane, Neil Gaiman was hired as guest writer for Todd McFarlane’s Spawn. McFarlane is a writer, artist, and a creator. He created Spawn, a best seller. But McFarlane is more talented as an artist than a writer. So, in trying to better his product, he would hire various top-tier writers to script issues of Spawn that McFarlane would draw. In just one issue, Gaiman had helped McFarlane introduce into the “Spawn Universe” three pivotal characters—“Medieval Spawn,” “Angela”, and “Count Cogliostro.” And the 7th Circuit just declared that Gaiman co-owns the copyright in those three characters and is owed an accounting for all subsequent uses of those characters, most in books that Gaiman had nothing to do with.

You see, in keeping in line with Image’s creator-friendly policy, there was no official intellectual property policy. But, you may ask, if Image hired Gaiman to write one of its already existing books, wouldn’t the company, or McFarlane, automatically own all of its content? No. Under copyright law, there is a doctrine known as work for hire. Under this doctrine, a company who hires an author to do creative work for it automatically owns the work if (1) the author is an employee doing the work within the scope of employment, or if not, (2) there is an explicit written agreement that the work is a “work for hire.” Here Gaiman was not “an employee” of Image; rather he did his work as an independent contractor. Thus, there needed to be an explicit written agreement that the work was a “work for hire.” And there was no such agreement. So Gaiman who helped create and introduce those three characters, co-owns them. All of this could have been avoided if McFarlane had a copyright policy more like Marvel’s or DC’s or at least some policy that could anticipate these types of issues which, looking back in hindsight, seem inevitable that they would occur.

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