Judge rules Dark Ages Spawn, Domina and Tiffany are derivative characters

A federal judge has dealt another blow to Todd McFarlane in his long-running copyright dispute with Neil Gaiman, ruling that the characters Dark Ages Spawn, Domina and Tiffany are mere derivatives of their earlier creations.

In a decision filed Friday, U.S. District Judge Barbara Crabb declared that the three characters are simply variations of Medieval Spawn and Angela, co-created by Gaiman in 1993 for McFarlane's Spawn series. Therefore, McFarlane has until Sept. 1 to provide Gaiman with an accounting of money earned from Dark Ages Spawn, Domina and Tiffany. As co-owner of the copyrights, Gaiman is entitled to one-half of the profits.

McFarlane's attorneys had argued the three characters were based on the Spawn universe, and not on earlier creations. Gaiman, and ultimately the judge, disagreed.

The case, which began last month in Madison, Wisconsin, is rooted in the prolonged legal battle between Gaiman and McFarlane over ownership of Medieval Spawn, Angela and Count Nicholas Cogliostro. A federal jury found in 2002 that Gaiman has a copyright interest in the creations. However, in 2004 Todd McFarlane Productions filed for Chapter 11 bankruptcy protection following the $15-million judgment in the Tony Twist case, leaving Gaiman unpaid. With TMP now emerging from bankruptcy, Gaiman petitioned for a ruling on the "knock-offs," and an accounting of what he's owed by McFarlane.

Crabb's decision is interesting for a few reasons, not the least of which is the role continuity and story logic plays in her findings.

"Much as defendant [McFarlane] tries to distinguish the two knight Hellspawn, he never explains why, of all the universe of possible Hellspawn incarnations, he introduced two knights from the same century," Crabb writes. "Not only does this break the Hellspawn 'rule' that Malebolgia never returns a Hellspawns [sic] to Earth more than once every 400 years (or possibly every 100 years, as suggested in Spawn, No. 9, exh. #1, at 4), it suggests that what defendant really wanted to do was exploit the possibilities of the knight introduced in issue no. 9. [...]

"If defendant really wanted to differentiate the new Hellspawn," the judge continues, "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? It seems far more than coincidence that Dark Ages (McFarlane) Spawn is a knight from the same century as Medieval (Gaiman) Spawn."

As a bonus, Crabb uses the phrase "kick-ass warrior angels" in reference to Domina and Tiffany.

Writing on his blog last night, Gaiman doesn't seem as relieved as you might expect: "I wish I took some kind of joy in this, but I don't. At this point all I hope is that Todd can do an accounting for all the comics I wrote for which he paid no royalties, and the rest of it; and that he'll settle up and I will make some comics charities very happy; that his comics company will finally come out of bankruptcy; and that I can forget this forever."

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