Richard Posner

“ It would be difficult to write successful works of fiction without negotiating for dozens or hundreds of copyright licenses, even though such stereotyped characters are the products not of the creative imagination but of simple observation of the human comedy.
McFarlane argues that even as dolled up by the penciler, the inker, and the colorist, Cogliostro is too commonplace to be copyrightable. Gaiman could not copyright a character described merely as an unexpectedly knowledgeable old wino, that is true ”

“ But where two or more people set out to create a character jointly in such mixed media as comic books and motion pictures and succeed in creating a copyrightable character, it would be paradoxical if though the result of their joint labors had more than enough originality and creativity to be copyrightable, no one could claim copyright. ”

“ The contents of a comic book are typically the joint work of four artists—the writer, the penciler who creates the art work (McFarlane) , the inker (also McFarlane, in the case of Spawn No. 9, but it would often be a different person from the penciler) who makes a black and white plate of the art work, and the colorist who colors it. The finished product is copyrightable, yet one can imagine cases in which none of the separate contributions of the four collaborating artists would be. ”

“ Whether a particular work is copyrightable is fact-specific, which argues against treating the question as one of law, but tugging the other way is the concern that property rights not be placed at the mercy of a jury. ”

“ 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 significance of registration is that it is a prerequisite to a suit to enforce a copyright. ”

“ Related to the fundamental idea-expression dichotomy that we’ve already mentioned, the doctrine 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.” ”

“ The jury could have disbelieved his denial that he saw the “related characters” copyright notices in the paperback books. And the fact that he was content with compensation no greater than what he received from DC Comics for work made for hire allows an inference that the real deal between him and McFarlane was that McFarlane would own the copyrights but pay Gaiman as well as or better than DC Comics, which also owned the copyrights on Gaiman’s work, did. If better, then maybe paying him royalties on the statuettes was McFarlane’s method of treating Gaiman better than DC Comics did. ”

“ McFarlane makes two arguments for why Gaiman does not have copyright in Medieval Spawn (the name that McFarlane settled on for Olden Days Spawn) or Cogliostro. The first is that all that Gaiman contributed was the idea for the characters, and ideas are not copyrightable, only expression is and the expression was due to McFarlane’s drawing of the characters. It is true that people who contribute merely nonexpressive elements to a work are not copyright owners. ”

“ When co-ownership is conceded and the only issue therefore is the contractual, or in the absence of contract the equitable, division of the profits from the copyrighted work, there is no issue of copyright law and the suit for an accounting of profits therefore arises under state rather than federal law. ”

“ Gaiman and McFarlane are both celebrated figures in the world of comic books, but they play different though overlapping roles. Gaiman just writes scripts; McFarlane writes scripts too, but he also illustrates and publishes the comic books. In 1992, shortly after forming his own publishing house, McFarlane began publishing a series of comic books entitled Spawn, which at first he wrote and illustrated himself. “Spawn,” more precisely “Hellspawn,” are officers in an army of the damned commanded by a devil named Malebolgia, who hopes one day to launch his army against Heaven. ”

“ The decisions that say, rightly in the generality of cases, that each contributor to a joint work must make a contribution that if it stood alone would be copyrightable weren’t thinking of the case in which it couldn’t stand alone because of the nature of the particular creative process that had produced it. ”

“ The creator of a compilation is entitled to copyright it as long as it’s a work “formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” ”

“ In a brief scene, Cogliostro, drawn by McFarlane as an old man with a long grey beard who faintly resembles Moses—McFarlane had been dissatisfied with Gaiman’s verbal description, which made Cogliostro sound like a wino—explains to Simmons-Spawn some of the powers of Hellspawn of which Simmons is unaware. Cogliostro displays his mysterious wisdom by calling him “Simmons,” to the latter’s bafflement—how could Cogliostro have known? Angela then appears in her dominatrix costume, there is another duel, and she vanquishes Simmons (whose powers are in fact unimpressive) , but does not kill him. ”

“ He bides his time, living with homeless people and pondering the unhappy fact that once he exhausts his Hell-born energy he will be returned to Malebolgia’s domain and become a slave in an army of the damned with no hope of redemption. ”

“ So he created an “old man, who starts talking to Spawn and then telling him all these sort of things about Spawn’s super powers that Spawn couldn’t have known. And when you first meet him [Cogliostro] in the alley you think he’s a drunken bum with the rest of them, and then we realize no, he’s not. He’s some kind of mysterious stranger who knows things.”
Gaiman further described Cogliostro in a draft of Spawn No. 9 as “a really old bum, a skinny, balding old man, with a grubby greyish-yellow beard, like a skinny santa claus. ”

“ Spawn rides up on a huge horse. He’s wearing a kind of Spawn suit and mask, although the actual costume under the cloak is reminiscent of a suit of armour.” McFarlane drew “Olden Days Spawn” as (in the words of his brief) “essentially Spawn, only he dressed him as a knight from the Middle Ages with a shield bearing the Spawn logo.” To make him credibly medieval, Gaiman in his script has Olden Days Spawn say to a damsel in apparent distress, “Good day, sweet maiden.” The “damsel” is none other than Angela, a “maiden” only in the sense of making her maiden appearance in Spawn No. 9. ”

“ The expressive work that is the comic-book character Count Nicholas Cogliostro was the joint work of Gaiman and McFarlane—their contributions strike us as quite equal—and both are entitled to ownership of the copyright.
Medieval Spawn may seem to present a closer case than Cogliostro so far as copyrightability is concerned, because he has no name in Spawn No. 9. In fact he has never been named—“Medieval Spawn” is a description, not a proper name. ”

“ The work for hire concept isn’t limited to formal employment because a functionally identical relationship can be created by skillful drafting of contracts that purport to treat the (de facto) employee as an independent contractor. ”

“ Angela is dressed as a modern professional woman. The Al Simmons Spawn is lurking about in an alley and it is here that we meet Count Cogliostro for the first time. McFarlane had wanted a character who would be “basically... the wisened [sic] sage that could sort of come down and give all the information and assimilate it.” Gaiman interpreted this as an instruction to create “a character who can talk to Spawn and tell him a little bit more about what’s going on in the background and can move the story along.” ”

“ There is also nothing in the demand letter that Gaiman’s lawyer wrote McFarlane to indicate that Gaiman believed McFarlane was denying Gaiman’s joint ownership of the copyrights on the three characters. The issue of copyright ownership is distinct from that of the copyright owner’s entitlement to royalties when, as in this case, he is not the publisher of the copyrighted work. The fact that the author owns the copyright doesn’t determine how he and the publisher will divide the income from the sale of copies of the work. ”

“ He must try somehow to break his pact with the devil.
The early issues in the series were criticized for bad writing, so McFarlane decided to invite four top writers each to write the script for one issue of Spawn. One of those invited was Gaiman. He accepted the invitation and wrote the script for Spawn issue No. 9. Their contract, made in 1992, was oral. There was no mention of copyright, nor, for that matter, of how Gaiman would be compensated for his work, beyond McFarlane’s assuring Gaiman that he would treat him “better than the big guys” did. ”

“ At least one case takes a middle position: the plaintiff is presumptively entitled to subtract the entire period. Buttry v. General Signal Corp., supra, 68 F.3d at 1494.
We needn’t try to untangle this knot. For while Gaiman waited the full statutory period (minus a month) to sue, without an excuse that would entitle him to invoke a tolling doctrine that requires due diligence, he doesn’t need an excuse because the jury found that his claim did not accrue more than three years before he sued.
The case for rejecting the statute of limitations defense was not open and shut. ”

“ All that is important in this case is that it is no more the purpose of registration to start statutes of limitations running than it is the purpose of the copyright notice itself to do so.
We are therefore led to question the suggestion in Saenger Organization, Inc. v. Nationwide Ins. Licensing Associates, Inc., supra, 119 F.3d at 66, that registration provides constructive notice of a claim of ownership. That would not, to repeat, matter in a case such as this in which the registered work is a compilation. ”

“ The work for hire provision is not unique in sensibly forgoing a definition of “employee” or “employment” and by doing so empowering the courts to define these terms from case to case on a practical rather than formal basis, using the principles of agency law to prevent evasion of the statutory purpose. E.g., Clackamas Gastroenterology Associates, P.C. v. Wells, 123 S. Ct. 1673 (2003) ; EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 704-07 (7th Cir. 2002) . But there is nothing to suggest that Gaiman ever became a de facto employee of McFarlane. ”

“ One professor has brilliant ideas but can’t write; another is an excellent writer, but his ideas are commonplace. So they collaborate on an academic article, one contributing the ideas, which are not copyrightable, and the other the prose envelope, and unlike the situation in the superficially similar case of Balkin v. ”