Why Gaiman Sued McFarlane
Rights Swap Gone Bad
Published: 02/11/2002 12:00am
A few weeks back we wrote about the filing of a lawsuit by Neil Gaiman (and Marvels and Miracles, LLC) against Todd McFarlane, his companies, and Image Comics regarding a dispute over Miracleman (see 'Miracleman Heads to Court'). Now that we've had time to review the complaint, we can provide additional information about the origins of the dispute. Remember that this is written with only half the story, the one presented by the Gaiman side. McFarlane and the other defendants will presumably respond to the complaint at some point and we'll bring further news as we have it.
As we mentioned in the earlier article, the dispute revolves around two sets of rights -- those related to the Miracleman property, which was originally created in the UK, and the rights associated with work Neil Gaiman did for Spawn. According to the complaint (and our recollections), Miracleman in the US consisted of 24 comics, with the first sixteen written by Alan Moore, and 17-24 by Neil Gaiman. Those comics were published by Eclipse, which eventually went bankrupt. Todd McFarlane bought the assets of Eclipse in the bankruptcy. According to the complaint, the Miracleman assets purchased by McFarlane included '...tangible property which...had been used by Eclipse in its publishing of Miracleman,' presumably films, but did not include any publishing rights, which had lapsed.
Gaiman did work that was published in Spawn #9 (in 1994) and in the process says that he created three characters -- Angela, Cogliostro, and Medieval Spawn. The agreement on the terms under which that work was published was oral, according to the complaint. Gaiman says that he was told that over 1.1 million copies of Spawn #9 were sold! Based on the response to that successful comic, Gaiman wrote three issues of an Angela mini-series. He also says that a partial script he created was published in Spawn #26.
In 1997, Larry Marder of Image started to try to clean up the paperwork by getting Gaiman to sign a written agreement governing his work on Spawn and Angela. This initiated a period of negotiation, which culminated in an exchange of faxes between Gaiman and McFarlane that are reproduced in the complaint. Those faxes appear to indicate that a deal was struck for the exchange of Gaiman's rights in the characters and work he created for the Spawn and Angela comics for McFarlane's Miracleman rights, after payment of money owed to Gaiman. The transfer was supposed to happen on July 31, 1997.
Shortly after that date, Gaiman got paid and received the 'tangible property' related to Miracleman's Eclipse days from McFarlane. But in October of 1997, according to the complaint, McFarlane filed trademark applications for the Miracleman name, and subsequently has filed an additional 'intent to use' application for Miracleman. Gaiman alleges in the complaint that McFarlane never intended to honor the agreement to swap rights and lists 'breach of contract' and 'fraud' as two of the nine counts in his complaint.
The chain of events that included the 'swap' and McFarlane's subsequent Miracleman trademark applications appears to be the crux of the matter. Was there a deal or wasn't there? And if there was, why did McFarlane later make application for rights to Miracleman? McFarlane's version of these events will probably be the most interesting element of the response that is due from the defendants.
The nature of the deals cited in the complaint indicate that the Gaiman/McFarlane relationship was informal and was undocumented in many cases. From the beginning, when Gaiman apparently turned in work that was published under an oral agreement, all the way to the 'swap,' which appears to have been documented only with the exchange of faxes, there's not a single formal contract cited that lays out the rights and duties of the parties. From our vantage point, it appears likely that the lack of documentation was a contributing factor to this litigation.
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