In 2002, noted comics writer and novelist Neil Gaiman (The Sandman, American Gods) sued writer/artist Todd McFarlane for the profits accruing from some characters that Gaiman had created, in collaboration with McFarlane, for McFarlane's popular Spawn comic series during the 1990s. He claimed that he was a co-creator of the characters, and thus also held their copyright.
But McFarlane claimed that as the writer of Spawn #9, the comic in which the characters first appeared, Gaiman had only provided the ideas. It was he, McFarlane, through his distinctive illustrations and depiction in subsequent issues, who had turned those ideas into actual copyrightable characters.
The Spawn Characters Under Contention
One of the characters was called “Count Nicholas Cogliostro." McFarlane had instructed Gaiman to create a “wisened [sic] sage” to talk to Spawn, the eponymous hero.
Gaiman described the character in a draft of Spawn #9’s script as “a really old bum, a skinny, balding old man, with a grubby greyish-yellow beard, like a skinny santa claus [sic].” McFarlane’s illustrations for the character deviated from Gaiman’s description, as McFarlane felt it made Cogliostro “sound too much like a wino.”
The second character at issue was “Medieval Spawn,” essentially a reincarnation of the Spawn character in a knight’s costume who uses archaic language.
In the legal actions that followed, McFarlane made two arguments why Gaiman was not instrumental in the creation of these characters. The first was that since Gaiman only provided the idea for the characters, his contribution was not an expression significant enough to be copyrighted on its own.
But Judge Richard A. Posner, of the U.S. Court of Appeals, Seventh Circuit, determined in his decision that comics operate differently. Like films, he pointed out, comic books are often the product of many creators, and the nature of the medium's creative process wasn't taken into account by earlier legal decisions which stated that each contributor to a joint work must make a contribution that would be copyrightable by itself.
Posner continued: "Since the comic book is 'typically the joint work of four artists'—writer, penciler, inker, and colorist—it would be conceivable that there would be instances where, although the final product would be copyrightable, none of the separate contributions of the four collaborating artists would be."
Judge Posner Finds in Favor of the Plaintiff, Neil GaimanMcFarlane’s second argument was that Cogliostro, as imagined by Gaiman, is merely a stock character, which, under the legal doctrine of scènes à faire, cannot be copyrighted. The court rejected this claim too, stating that
"Gaiman could not copyright a character described merely as an unexpectedly knowledgeable old wino, that is true; but that is not his claim. He claims to be the joint owner of the copyright on a character that has a specific name and a specific appearance. Cogliostro’s age, obviously phony title (“Count”), what he knows and says, his name, and his faintly Mosaic facial features combine to create a distinctive character. No more is required for a character copyright."
The Implications of Gaiman v. McFarlane
Judge Posner’s decision in Gaiman is one of the most thorough treatments, from a legal perspective, of what creative effort goes into comic books. Posner’s reasoning suggests that comic book characters are comprised of non-visual aspects, such as the story, and, as Posner says, “what he [the character] knows and says.” Not only are writers and artists both equal creators in comics, but a character must "act" a certain way to be copyrightable in the comics medium.