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Applying a distinctive characters-based doctrine, the 7th U.S. Circuit Court of Appeals has ruled that the creator of the popular Spawn comic book series must share the copyright with a writer who collaborated in developing the series’ storyline. Gaiman v. McFarlane, nos. 03-1331, 03-1461. In 1992, Todd McFarlane began the Spawn comic book series. The titular Spawn-used in the plural and short for “Hellspawn”-were an army of the damned under the command of a devil, hoping to attack Heaven some day. After early issues of Spawn were criticized for bad writing, McFarlane invited top comic book writers, including Neil Gaiman, to write for the series. While McFarlane and Gaiman made no specific written agreement, according to the court, McFarlane orally promised to treat Gaiman “better than the big guys did,” referring to industry leaders Marvel Comics and DC Comics. Gaiman created new characters, including Medieval Spawn and Count Nicholas Cogliostro. Gaiman wrote the characters’ dialogue and McFarlane illustrated the tales. Gaiman’s edition of Spawn was a tremendous success, selling more than 1 million copies. After Gaiman learned that McFarlane was considering selling the enterprise, Gaiman sued, seeking a declaratory judgment that he and McFarlane were joint owners of the copyrights on the characters by reason of their respective contributions to joint, indivisible work. A Wisconsin federal court jury found for Gaiman, and the trial court entered a judgment declaring him to be the co-owner of the characters in question, ordering McFarlane to designate Gaiman the co-owner on undistributed copies in which the characters appear and awarding modest monetary relief. McFarlane appealed, arguing that the characters were not copyrightable because they were stock characters under the scenes a faire doctrine. The 7th Circuit rejected McFarlane’s argument and affirmed the judgment, holding that the doctrine-which prohibits infringement actions for the use of “stock characters”-did not apply because both Medieval Spawn and the count were distinctive. Noting those characters’ unique traits, U.S. Circuit Judge Richard Posner proceeded to cite the stock characters from whom they were distinct, including “a drunken old bum,” “a drunken suburban housewife, a fire-breathing dragon, a talking cat, a Prussian officer who wears a monocle and clicks his heels, a masked magician,” and, of course, the stereotypical “gesticulating Frenchman.” Dated Feb. 20, the decision was posted on March 12. Posner noted that one can see the characters at http://spawn.home.sapo.pt/characters.html.

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