Gaiman v. McFarlane, 360 F.3d 644, 661 (7th Cir 2004) (Posner, J.)
| 2004: Appearance is Everything | |
 Cover of SPAWN 1 (May 1992), Spawn's first appearance. Reprinted in SPAWN COLLECTION VOL. 1 (2005) |
Gaiman
v. McFarlane offers
insight to the protections afforded characters in general and
superheroes in particular. Todd McFarlane created a comic
book
featuring his new character Spawn, but he was criticized for his
writing skills. Therefore, he brought on Neil Gaiman to write an
issue. Gaiman
created three new characters in the issue, which McFarlane penciled,
including a predecessor of the lead character later dubbed Medieval
Spawn.
 Cover of SPAWN 9 (March 1993), first appearance of Angela, Medieval Spawn, and Cagliostro, the characters found by the court to have been co-created by Gaiman and McFarlane. This issue has not been reprinted. |
Due to contractual issues, the case turned on whether Gaiman was a co-creator and whether Medieval Spawn was a copy of Spawn, or a new derivative character. |
|
 SPAWN
9 (March 1993),
first appearance of Medieval Spawn, sufficiently different to be considered a derivative character. |
 SPAWN
9 (March 1993),
Modern-day Spawn meets Cagliostro, one of the characters at issue in the case, revealing his name for the first time. |
| Judge
Posner found that similar characters without sufficiently
substantial differences may be considered derivative. The
creation of
a derivative character without the permission of the owner of the
copyright in the underlying character infringes upon the holder’s
rights. The "doctrine of scènes à faire . . .
teaches that 'a
copyright owner can't prove infringement by pointing to features of his
work that are found in the defendant's work as well but that are so
rudimentary, commonplace, standard, or unavoidable that they do not
serve to distinguish one work within a class of works from
another.'"
Although the discussion focused on stock characters, the analysis
appropriately parallels a discussion of stock powers, such as those
implicated in Marvel v. NCsoft.
The listing of powers and attributes may be a description of an
unprotectable stock character, and may only become sufficiently
distinctive to be copyrightable and subject to infringement analysis
when drawn and named. |
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