START // 10.10.02

SHAKING HANDS IS FOR SUCKERS
By Gus Dahlberg

Funny thing, lawsuits.

Between OJ, the Menendez brothers, Court TV, Greta van Susteren, Law & Order and Perry Mason and The Practice, the American public apparently can't get enough of its own legal system. There's something oddly fascinating to most people about the arcane process of trial by jury, of discovery and evidence and testimony and objections and "YOU'RE OUT OF ORDER" and Christ I could go on all night - you know what I'm talking about. You love that shit. Admit it.

I suppose that it's probably the same impulse that drives the ratings for Jerry Springer and Maury Povich, on some level: what the American public likes is to see someone get their comeuppance. The deadbeat dad is shamed by the woman in the crowd who scolds him for abandoning his baby. The cheating wife has to bear the insulted rage of her cuckold husband. The playa has to accept the DNA test results and take responsibility for his baby. And so on and so forth, ad nauseum.

Lawsuits and trials are pretty much the same kind of thing, just without the shouting and the chair-throwing. Mostly.

What I find most interesting about lawsuits and the public's fascination with them, however, is that in fixating on all the drama, all the pomp and circumstance, the point of the matter is quite often lost. So we get all excited when Lance Ito prohibits the admission of some evidence, or when Johnnie Cochran makes a motion that could make or break this entire case (can't you just hear CNN' bass drums behind that phrase?), and forget just why in the hell everyone's in the courtroom in the first place. We pay attention to the details and lose sight of the big picture.

You can see this in action for yourself. Take, for example, the trial that's got pretty much the entire comics industry in an uproar at the moment: Case Number 02-C-0048-S, United States District Court for the Western District of Wisconsin - Neil Gaiman v. Todd McFarlane, et al. You know this one, right?

The MIRACLEMAN trial.

Except that's not what this whole thing is about - and is, in fact, really only a very small part of the big picture. Yes, it's true, the rights to Miracleman are one of the items in dispute in this matter. Yes, it's true that there's some speculation that once this matter is cleared up, someone will be freed to reprint those Miracleman stories now racking up the big bucks on eBay. Yes, it's true that the intended use of Miracleman was one of the factors that prompted this suit in the first place.

But the issue here isn't who owns the rights to publish or use Miracleman-in fact, even after this trial that point will still need to be determined, as Gaiman and McFarlane are but two of many players in that soap opera. The issue in this lawsuit is, as seems to be a recurrent theme in comics over the last decade or so, when the creation of a new character or concept is work for hire-specifically, work that Gaiman did for McFarlane in SPAWN #9 and the ANGELA mini-series, where he created the enormously popular character Angela and made her an integral part of SPAWN's story. Gaiman believes, reasonably, that he's entitled to a piece of the ungodly large sum of money McFarlane has made off of Angela through comics, toys, TV, movies, etc, and has seen less money from McFarlane than Kirby got from Marvel.

You'd sue too, wouldn't you?

That's really it. It's not about the histrionics; it's a question of contracts and agreements, and when someone who brings something new into the world can legally be referred to as its "author." The entire mess can be boiled down to one simple phrase:

Get it in writing.

Obviously, this isn't a new refrain, and nearly everyone who's ever negotiated a contract will tell you the same: the deal isn't done until you've signed on the dotted line. You may think you can trust the guy on the other side, and you may think you're getting a square deal and that everything will come out all right in the end, but trust me, sooner or later, you'll eat those words. Gaiman certainly did; after all, McFarlane and the rest of the Image guys were all in favor of creators' rights and creative ownership, but here the two are in court, arguing over who owns Spawn's left thigh.

No one is suggesting that work for hire is somehow inherently bad. I feel like I have to emphasize and reemphasize this point - work for hire is merely a creation of the law that allows for the assignation of rights to work created for or at the direction of someone else. But, as we've seen over and over again (in the Marv Wolfman/Blade case and the Joe Simon/Captain America case, to name but two,) one has to absolutely understand that agreeing to a work for hire arrangement means giving up any hope of claiming any authorship rights to the work produced under that arrangement. Gone. Kaput. Nothing.

And, of course, the flipside is true: if you think you're getting into a working situation where you'll have some ownership in the finished product, spell it out in writing. It doesn't have to be all that complex (though it can be), but simply shaking hands and saying "we'll be good to each other and share the wealth" probably isn't going to get you where you want to go, despite Gaiman's favorable jury ruling. You don't want to be in the courtroom at all. You don't want there to be any question between you and your associates of what the deal between you entails.

Get it in writing. It's not a matter of trust or friendship - it's a matter of protecting yourself and your investment of time, of labor, of effort and hard work. You're not trying to screw the other guys, you're preventing future problems.

McFarlane may only own 99.99% of the Spawn universe. Gaiman may have spent a bunch of money only to have found himself with Miracleman rights that still have to be cleared up in further litigation. Todd's t-shirt may not have been the winning fashion move his legal team hoped for. If you take nothing else from their little legal adventure, though, focus on this: a detailed written agreement would have prevented this entire snafu, and there wouldn't be a trial to lavish so much attention on. There'd just be the comics everyone wants to see back in print.

And the sad thing is, even though Gaiman won this lawsuit, he hasn't really won anything yet. There will doubtless be an appeal, and assuming he wins that, there are several more legal steps that need to be taken in order to sort out the ownership and compensation issues on the table here. Or he and McFarlane could just settle, which is also a time-consuming process. This is isn't the end, it's only the beginning. And Miracleman is only one piece of everything on the table.

It's sad because it all could have been avoided if McFarlane and Gaiman had done something more than shake hands on the deal. Get it in writing, or you'll be the one who's out of order.