When I read that Richard Posner was the judge who wrote the 7th Circuit Court of Appeals decision settling the case recently, I got curious, and looked it up; it can be found here as a PDF.

I find the sight of Posner, a renowned figure, writing on aspects of this case, quite amusing, in a fish-out-of-water, entirely dry, way. But I'm a big fan of dry humor, and I constantly get into trouble through overly-dry humor. I also have a long-standing interest in copyright law.

A few excerpts:

We need to do some stage setting. Gaiman and McFarlane are both celebrated figures in the world of comic books, but they play different though overlapping roles. Gaiman just writes scripts; McFarlane writes scripts too, but he also illustrates and publishes the comic books. In 1992, shortly after forming his own publishing house, McFarlane began publishing a series of comic books entitled Spawn, which at first he wrote and illustrated himself. "Spawn," more precisely "Hellspawn," are officers in an army of the damned commanded by a devil named Malebolgia, who hopes one day to launch his army against Heaven. The leading character in the series is a man named Al Simmons, who is dead but has returned to the world of the living as a Hellspawn. Al's story is an affecting one.

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The early issues in the series were criticized for bad writing, so McFarlane decided to invite four top writers each to write the script for one issue of Spawn. One of those invited was Gaiman.

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McFarlane's argument, however, reflects a misunderstanding of both the function of copyright notice and the nature of the copyright in a compilation. The function of copyright notice is to warn off copiers, [...] not to start the statute of limitations running.

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Remember that a claim inconsistent with the copyright holder's interest sets the statute running, and in particular circumstances a notice indicating that the defendant was the sole copyright holder might amount to such a claim. [...] But not when the work is a compilation, as Spawn No. 9 plainly is. For it contains, besides Gaiman's contributions and goodness knows who else's, a letter-to-the-editors column containing a number of signed letters from fans plus art work contributed by fans. As McFarlane concedes, the copyrights on those letters and on the art work are owned by the fans and his copyrighting the issue is not a claim to own their copyrights.

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But unless there is a duty of authors to read the copyright pages of works containing their copyrighted materials -- and there is not -- then since as we said the purpose of copyright notice is not to affect the time within which the victim of an infringement can sue (which is why there is no duty of authors to study copyright notices), the notice can affect the accrual of the cause of action only if the victim reads it. The jury was entitled to believe Gaiman's testimony that he had never seen the paperback books in which the suspicious notices appeared.

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We think they were copyrightable from the start, and that Gaiman owns the copyrights jointly with McFarlane. To explain this we must say more about the characters, black and white pictures of whom we append to this opinion. A detailed description of the characters may be found , along with color pictures, at http://spawn.home.sapo.pt/Characters.html.

McFarlane's original Spawn, Al Simmons, was a tall figure clad in what looks like spandex (it is actually "a neural parasite") beneath a huge blood-red cloak, making him a kind of malevolent Superman figure, although actually rather weak and stupid. His face is a shiny plastic oval with eyeholes but no other features.

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To make him credibly medieval, Gaiman in his script has Olden Days Spawn say to a damsel in ap-parent distress, "Good day, sweet maiden." The "damsel" is none other than Angela, a "maiden" only in the sense of making her maiden appearance in Spawn No. 9. Angela is in fact a "warrior angel and villain" who, scantily clad in a dominatrix outfit, quickly dispatches the unsuspecting Olden Days Spawn with her lance.

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In a brief scene, Cogliostro, drawn by McFarlane as an old man with a long grey beard who faintly resembles Moses -- McFarlane had been dissatisfied with Gaiman's verbal description, which made Cogliostro sound like a wino -- explains to Simmons-Spawn some of the powers of Hellspawn of which Simmons is unaware. Cogliostro displays his mysterious wisdom by calling him "Simmons," to the latter's bafflement -- how could Cogliostro have known? Angela then appears in her dominatrix costume, there is another duel, and she vanquishes Simmons (whose powers are in fact unimpressive), but does not kill him. He then blows himself up by accidentally pushing the wrong button on Angela's lance, which she had left behind. Happily he is not killed -- merely (it seems) translated into another dimension -- and will reappear in subsequent issues of Spawn.

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Had someone merely remarked to McFarlane one day, "you need a medieval Spawn" or "you need an old guy to move the story forward," and McFarlane had carried it from there, and if later a copyeditor had made some helpful editorial changes, neither the suggester nor the editor would be a joint owner.

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Otherwise almost every expressive work would be a jointly authored work, and copyright would explode.

But where two or more people set out to create a character jointly in such mixed media as comic books and motion pictures and succeed in creating a copyrightable character, it would be paradoxical if though the result of their joint labors had more than enough originality and creativity to be copyrightable, no one could claim copyright. That would be peeling the onion until it disappeared.

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A stock character is a stock example of the operation of the doctrine, [...] and a drunken old bum is a stock character. [...] If a drunken old bum were a copyrightable character, so would be a drunken suburban housewife, a gesticulating Frenchman, a fire-breathing dragon, a talking cat, a Prussian officer who wears a monocle and clicks his heels, a masked magician, [...] and, in Learned Hand's memorable paraphrase of Twelfth Night, "a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress."

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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. DC Comics Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 25, 28 (2d Cir. 1982) (Batman, though assumed rather than actually determined to be copyrightable); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 753-55 (9th Cir. 1978) (Mickey Mouse et al.); Detective Comics v. Bruns Publications, 111 F.2d 432, 433-34 (2d Cir. 1940) (Superman); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., supra, 73 F.2d at 278 (Betty Boop). As long as the character is distinctive, other authors can use the stock character out of which it may have been built without fear (well, without too much fear) of being accused as infringers.

We are mindful that the Ninth Circuit denied copyrightability to Dashiell Hammett?s famously distinctive detective character Sam Spade in Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, Inc., 216 F.2d 945 (9th Cir. 1954). That decision is wrong, though perhaps understandable on the "legal realist" ground that Hammett was not claiming copyright in Sam Spade -- on the contrary, he wanted to reuse his own character but to be able to do so he had to overcome Warner Brothers' claim to own the copyright.

The Ninth Circuit has killed the decision, see Olson v. National Broadcasting Co., 855 F.2d 1446, 1452 and n. 7 (9th Cir. 1988); Walt Disney Productions v. Air Pirates, supra, 581 F.2d at 755 and n. 11, though without the usual obsequies, but even if the decision were correct and were binding authority in this circuit, it would not rule this case. The reason is the difference between literary and graphic expression. The description of a character in prose leaves much to the imagination, even when the description is detailed -- as in Dashiel Hammett's description of Sam Spade's physical appearance in the first paragraph of The Maltese Falcon: "Samuel Spade's jaw was long and bony, his chin a jutting v under the more flexible v of his mouth. His nostrils curved back to make another, smaller, v. His yellow-grey eyes were horizontal. The v motif was picked up again by thickish brows rising outward from twin creases above a hooked nose, and his pale brown hair grew down -- from high flat temples -- in a point on his forehead. He looked rather pleasantly like a blond satan." Even after all this, one hardly knows what Sam Spade looked like. But everyone knows what Humphrey Bogart looked like. A reader of unillustrated fiction completes the work in his mind; the reader of a comic book or the viewer of a movie is passive. That is why kids lose a lot when they don?t read fiction, even when the movies and television that they watch are aesthetically superior.

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But the Lone Ranger doesn't have a proper name either (at least not one known to most of his audi ence -- actually he does have a proper name, John Reid), so that can't be critical.

Read The Rest as interested.

ADDENDUM: I forgot to mention that, based upon my extremely limited sampling, my impression is that Spawn sucks. I liked his early Infinity, Inc. art, though. Neil Gaiman, on the other hand, is a damn good writer. Period.