Tuesday, August 3, 2010

A win for Neil Gaiman

The long-running dispute between Neil Gaiman and Todd McFarlane over the ownership of some characters related to the "Spawn" comic book gives "Bleak House" a run for its money. They have already tried one plagiarism case and appealed the result to the Seventh Circuit. Gaiman won the first case and seems in pretty good shape with this new order. In the interest of full disclosure, Neil Gaiman is one of my favorite authors. Todd McFarlane is not.

Given your fondness for the Beatles and Billy Preston, I am surprised you didn't mention that Judge Crabb cites to Bright Eyes Music Corp., v. Harrisongs Music, Ltd., 420 F.Supp. 177 (S.D.N.Y. 1976), the George Harrison plagiarism case. In that case, Harrison was found to have plagiarized the song "He's So Fine" when writing "My Sweet Lord". Harrison claimed that the melody was written while he was "vamping" with Billy Preston. However, the trial court found that Harrison, who had heard "He's So Fine", had subconsciously taken the melody because he knew that it was melody that would be a hit.

In the Gaiman case, Judge Crabb gives the Harrison case a broad reading. Harrison had actually heard the song. But the case is cited as follows:
Brian Holguin, the writer of the Dark Ages (McFarlane) Spawn series, testified at trial that he made no effort to base his Dark Ages (McFarlane) Spawn on the character co-created by plaintiff and defendant. It is irrelevant whether he did or not; what is relevant is that he had access to Medieval (Gaiman) Spawn before he created his version of the middle ages knight. JCW Investments, Inc. v. Novelty, Inc., 482 F.3d 910, 915 (7th Cir. 2007) (“copying may be inferred where the defendant had access to the copyrighted work”); Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F Supp. 177 (S.D.N.Y. 1977) (holding that George Harrison had access to tune he used for “He’s So Fine”; therefore, even if copying was subconscious, it amounted to infringement).
Merriam-Webster defines access as the "freedom or ability to obtain or make use of something". Access can't be the right word, can it? Use of the word access suggests that it isn't whether someone actually made use of something but whether they could have. To the court it doesn't seem to matter whether Holguin actually read Gaiman's one issue of the "Spawn" comic series and three issues of "Angela". Instead, it just matters that he could have read them. But Harrison actually heard the song. It wasn't that the song existed prior to Harrison's song and he could have heard it.

The other part of the order I find a little strange is when the Judge writes:
If defendant really wanted to differentiate the new Hellspawn, why not make him a Portuguese explorer in the 16th century; an officer of the Royal Navy in the 18th century, an idealistic recruit of Simon Bolivar in the 19th century, a companion of Odysseus on his voyages, a Roman gladiator, a younger brother of Emperor Nakamikado in the early 18th century, a Spanish conquistador, an aristocrat in the Qing dynasty, an American Indian warrior or a member of the court of Queen Elizabeth I?
This is akin to saying that if Harrison had really wanted to not copy "He's So Fine" he would have written a funk song, or a concerto.

My quibbles aside, given the contentious history of the parties, it would not surprise me if McFarlane was trying to create characters as close as he could to Gaiman's creations without having to pay Gaiman. The fact that McFarlane violated his own rules regarding how often Hellspawn appear is a bad fact for the defendant. Gaiman certainly seems entitled to the discovery he wanted in his motion to compel.

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