## Facts

- Todd McFarlane invited Neil Gaiman to write a script for an issue of the comic book *Spawn* under an oral agreement: Gaiman would write and McFarlane would illustrate and publish.
- Gaiman scripted *Spawn* No. 9 (1992), introducing characters including Medieval Spawn, Angela, and Count Nicholas Cogliostro.
- McFarlane illustrated and published the issue, then continued using the characters in later comics and derivative products.
- Gaiman received some royalty payments and was at times treated as having a continuing interest, but the parties later disputed whether Gaiman had any copyright interest in the characters.
- In 1999, McFarlane sent a letter explicitly denying that Gaiman had any copyright interest.
- Gaiman sued seeking a declaration of joint copyright ownership in the characters and related remedies, including an accounting of profits.
- A jury found for Gaiman on key copyright issues; the district court declared Gaiman a co-owner, issued injunctive relief requiring acknowledgment of co-ownership on undistributed copies, and ordered an accounting.
- On appeal, because the accounting was unresolved, the appeal was limited to the injunction requiring McFarlane to acknowledge Gaiman’s co-ownership.

## Issues

1. When does a joint-ownership claim accrue for statute-of-limitations purposes: upon publication/registration notices asserting sole ownership, or upon a plain and express repudiation of co-ownership?
2. Were Medieval Spawn and Count Nicholas Cogliostro sufficiently delineated and original to be copyrightable characters?
3. Did Gaiman’s scripting contributions (names, traits, dialogue, backstory, and narrative choices) constitute protectable expression supporting joint authorship and co-ownership in a collaborative comic-book work?

## Decision

- The Seventh Circuit affirmed the district court’s determination that Gaiman was a joint owner of the copyrights in the characters at issue, including Medieval Spawn and Cogliostro.
- The court rejected McFarlane’s statute of limitations defense, holding the claim accrued when Gaiman’s co-ownership was plainly and expressly repudiated, which the jury could find occurred in the 1999 letter.
- The court upheld the injunction requiring McFarlane to acknowledge Gaiman’s co-ownership on undistributed copies in which the characters appear.
- Gaiman’s contingent cross-appeal became moot in light of the affirmance.

## Legal Principles

- A copyright co-ownership claim accrues, for limitations purposes, when the claimant’s ownership is plainly and expressly repudiated; ambiguous conduct or general copyright notices/registrations are not necessarily sufficient repudiation.
- Comic-book creation can be treated as a collaborative mixed-media work in which writing and art are integrated into a single unitary work.
- Joint authorship may exist where contributors intend to create a unitary copyrightable work and each makes a non-trivial contribution, even if a contributor’s portion might not be independently copyrightable standing alone.
- Fictional characters are copyrightable when they are sufficiently distinct and delineated through concrete expressive elements (such as specific names, traits, and backstory) rather than being mere generic types or abstract ideas.
- In determining authorship, courts separate unprotectable ideas from protectable expression; scripting and characterization choices can contain protectable expression beyond bare concepts.

## Conclusion

The Seventh Circuit held that Gaiman timely sued after McFarlane’s explicit 1999 repudiation and that the comic-book characters at issue were copyrightable, making Gaiman a joint author and co-owner whose co-ownership McFarlane could be compelled to acknowledge.


Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004)