Gaiman v. Mcfarlane

360 F.3d 644 (7th Cir. 2004)

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Nature of the Case

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Facts

P and D are both celebrated figures in the world of comic books. P just writes scripts. D writes scripts but also illustrates and publishes comic books. D began publishing a series of comic books entitled Spawn. The leading character in the series is a man named Al Simmons, who is dead but has returned to the world of the living as a Hellspawn. The early issues were criticized for bad writing. D decided to invite four top writers each to write the script for one issue of Spawn. P accepted the invitation. P wrote the script for Spawn issue No. 9. The contract, made in 1992, was oral. There was no mention of copyright, nor, for that matter, of how P would be compensated for his work. D assured P that he would treat him 'better than the big guys' did. P's work for D was not work made for hire. It was neither (1) work created by an employee within the scope of his employment nor (2) 'a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.' There was no written agreement and P was not an employee of D. In his script for Spawn No. 9, P introduced three new characters--Medieval Spawn (as he was later called by D--Gaiman had not named it and in the issue, he is just referred to as a Spawn, with no further identifier), Angela (no last name), and Count Nicholas Cogliostro. P described, named, and wrote the dialogue for them, but D drew them. Spawn No. 9 sold more than a million copies. D paid P $100,000 for his work on it. P contends that he and McFarlane are joint owners of the copyrights on the three characters by reason of their respective contributions to joint (indivisible) work. D contends that a reasonable jury would not have rejected his statute of limitations defense and that, in any event, two of the comic-book characters at issue were not copyrightable. D conceded joint ownership of Angela, but not of the other two. The court ruled that P was a co-owner of the characters in question (Medieval Spawn and Cogliostro). D appealed.