Medieval Spawn v. Spawn
Gaiman v. McFarlane, 360 F.3d 644, 661 (7th Cir 2004) (Posner, J.)

2004: Appearance is Everything

Cover of SPAWN 1 (May 1992), Spawn's first appearance.
Reprinted in SPAWN COLLECTION VOL. 1 (2005)

Gaiman v. McFarlane offers insight to the protections afforded characters in general and superheroes in particular.   Todd McFarlane created a comic book featuring his new character Spawn, but he was criticized for his writing skills.  Therefore, he brought on Neil Gaiman to write an issue.   Gaiman created three new characters in the issue, which McFarlane penciled, including a predecessor of the lead character later dubbed Medieval Spawn.

Cover of SPAWN 9 (March 1993),
first appearance of Angela,
Medieval Spawn, and Cagliostro, the characters
found by the court to have been
co-created by Gaiman and McFarlane.
This issue has not been reprinted.

Due to contractual issues, the case turned on whether Gaiman was a co-creator and whether Medieval Spawn was a copy of Spawn, or a new derivative character. 

SPAWN 9 (March 1993),
first appearance of Medieval Spawn,
sufficiently different to be considered a derivative character.

SPAWN 9 (March 1993),
Modern-day Spawn meets Cagliostro,
one of the characters at issue in the case,
revealing his name for the first time.

Judge Posner found that similar characters without sufficiently substantial differences may be considered derivative.   The creation of a derivative character without the permission of the owner of the copyright in the underlying character infringes upon the holder’s rights.   The "doctrine of scènes à faire . . . teaches that 'a copyright owner can't prove infringement by pointing to features of his work that are found in the defendant's work as well but that are so rudimentary, commonplace, standard, or unavoidable that they do not serve to distinguish one work within a class of works from another.'"   Although the discussion focused on stock characters, the analysis appropriately parallels a discussion of stock powers, such as those implicated in Marvel v. NCsoft.  The listing of powers and attributes may be a description of an unprotectable stock character, and may only become sufficiently distinctive to be copyrightable and subject to infringement analysis when drawn and named.

SPAWN 9 (March 1993),
first appearance of Angela, in civilian clothes and in costume.
Angela makes her first visual appearance on the cover of the issue.
There was little question that Angela was an original character co-created by Gaiman and McFarlane.

SPAWN 9 (March 1993),
first visual appearance of Cagliostro.
Cagliostro was found sufficiently delineated to be
considered an original character, and not a stock character.

SPAWN 9 (March 1993),.
  Cagliostro speaks his first lines.

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