Gaiman, Neil v. McFarlane, Todd ( 2004 )


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  •                             In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    Nos. 03-1331, 03-1461
    NEIL GAIMAN and MARVELS AND MIRACLES, LLC,
    Plaintiffs-Appellees/Cross-Appellants,
    v.
    TODD MCFARLANE, et al.,
    Defendants-Appellants/Cross-Appellees.
    ____________
    Appeals from the United States District Court
    for the Western District of Wisconsin.
    No. 02-C-48—John C. Shabaz, Judge.
    ____________
    ARGUED JANUARY 5, 2004—DECIDED FEBRUARY 24, 2004
    ____________
    Before POSNER, KANNE, and ROVNER, Circuit Judges.
    POSNER, Circuit Judge. Neil Gaiman brought suit under
    the Copyright Act against Todd McFarlane and corporations
    controlled by him that we can ignore, seeking a declaration
    that he (Gaiman) owns copyrights jointly with McFarlane in
    certain comic-book characters. Merchant v. Levy, 
    92 F.3d 51
     (2d Cir. 1996); Zuill v. Shanahan, 
    80 F.3d 1366
     (9th Cir.
    1996); Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 
    161 F.2d 406
     (2d Cir. 1946). He sought additional relief under
    the Act, other provisions of federal law, and state law, as
    2                                       Nos. 03-1331, 03-1461
    well. The case was tried to a jury, which brought in a verdict
    for Gaiman. The judge entered a judgment that declared
    Gaiman to be the co-owner of the characters in question,
    ordered McFarlane to so designate Gaiman on undistributed
    copies in which these characters appear, provided modest
    monetary relief in respect of Gaiman’s supplemental claim
    for damages for breach of his right of publicity, and ordered
    an accounting of the profits that McFarlane has obtained
    that are rightfully Gaiman’s. The accounting is not yet
    complete, and so the judgment is not final; McFarlane’s
    appeal is therefore limited to the injunction requiring him to
    acknowledge Gaiman’s co-ownership.
    McFarlane contends that a reasonable jury would not have
    rejected his statute of limitations defense and that in any
    event two of the comic-book characters at issue are not
    copyrightable. The parties agree that the alternative defense,
    the defense of uncopyrightability, is strictly an issue for the
    court. We have found only a handful of appellate cases
    addressing the issue, and they are split. Matthew Bender &
    Co. v. West Publishing Co., 
    158 F.3d 674
    , 681 (2d Cir. 1998),
    and North Coast Industries v. Jason Maxwell, Inc., 
    972 F.2d 1031
    , 1035 (9th Cir. 1992), hold that copyrightability is a
    mixed question of law and fact, at least when it depends (as
    it usually does) on originality, and that it is therefore an
    issue for the jury or other factfinder. But Yankee Candle Co.
    v. Bridgewater Candle Co., 
    259 F.3d 25
    , 34 n. 5 (1st Cir. 2001),
    and our own Publications Int’l, Ltd. v. Meredith Corp., 
    88 F.3d 473
    , 478 (7th Cir. 1996), along with a number of district
    court cases, e.g., Collezione Europa U.S.A., Inc. v. Hillsdale
    House, Ltd., 
    243 F. Supp. 2d 444
    , 451-52 (M.D.N.C. 2003);
    Newton v. Diamond, 
    204 F. Supp. 2d 1244
    , 1253 (C.D. Cal.
    2002), hold that copyrightability is always an issue of law.
    Whether a particular work is copyrightable is fact-specific,
    which argues against treating the question as one of law,
    but tugging the other way is the concern that property
    Nos. 03-1331, 03-1461                                       3
    rights not be placed at the mercy of a jury. A nice issue, but
    this is not an apt occasion on which to reexamine our
    resolution of it in Publications Int’l.
    Gaiman’s cross-appeal, in which he is joined by a com-
    pany controlled by him, is from the dismissal of his aux-
    iliary claim for breach of contract. The cross-appeal is con-
    tingent on our reversing the copyright judgment, since
    Gaiman seeks no additional relief on his contract claim; it’s
    just a backstop to his copyright claim.
    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. Born in a quiet neighbor-
    hood outside of Pittsburgh, he was recruited by the CIA and
    eventually became a member of an elite military unit that
    guards the President. He saved the President from an
    assassin’s bullet and was rewarded with a promotion to
    lieutenant colonel. He was placed under the command of
    Jason Wynn, who became his mentor and inducted him into
    the sinister inner recesses of the intelligence community.
    When Al began to question Wynn’s motives, Wynn sent two
    agents, significantly named Chapel and Priest, to kill Al
    with laser weapons, and they did, burning him beyond
    4                                      Nos. 03-1331, 03-1461
    recognition. Al was buried with great fanfare in Arlington
    National Cemetery.
    Now Al had always had an Achilles’ heel, namely that
    he loved his wife beyond bearing and so, dying, he vowed
    that he would do anything to see her again. Malebolgia took
    him at his word (“would do anything” and returned Al to
    Earth. But a deal with the devil is always a Faustian pact. Al
    discovered that he was now one of Malebolgia’s handpicked
    Hellspawn and had been remade (a full makeover, as we’ll
    see) and infused with Hell-born energy.
    Returned to Earth in his new persona, Al discovers
    that his wife has remarried his best friend, who was able
    to give her the child he never could. He absorbs the
    blow but thirsts for revenge against Jason Wynn. He
    bides his time, living with homeless people and ponder-
    ing the unhappy fact that once he exhausts his Hell-born
    energy he will be returned to Malebolgia’s domain and be-
    come a slave in an army of the damned with no hope of
    redemption. He must try somehow to break his pact with
    the devil.
    The early issues in the series were criticized for bad writ-
    ing, so McFarlane decided to invite four top writers each to
    write the script for one issue of Spawn. One of those invited
    was Gaiman. He accepted the invitation and wrote the
    script for Spawn issue No. 9. Their contract, made in 1992,
    was oral. There was no mention of copyright, nor, for that
    matter, of how Gaiman would be compensated for his work,
    beyond McFarlane’s assuring Gaiman that he would treat
    him “better than the big guys” did. The reference was to the
    two leading comic book publishers, Marvel Comics (not to
    be confused with Gaiman’s company, Marvels and Mira-
    cles) and DC Comics, for which Gaiman and other writers
    write on a “work made for hire” basis. 
    17 U.S.C. § 101
    . This
    means that the publishers own the copyrights on their work.
    Nos. 03-1331, 03-1461                                          5
    § 201(b).
    It might seem that when McFarlane told Gaiman that
    he would treat Gaiman “better than the big guys” did,
    he just meant he’d compensate him more generously for
    work made for hire. But McFarlane rightly does not argue
    this. Gaiman’s work for him was not work made for hire.
    It was neither (1) work created by an employee within
    the scope of his employment nor (2) “a work specially
    ordered or commissioned for use as a contribution to a
    collective work, as a part of a motion picture or other audi-
    ovisual work, as a translation, as a supplementary work, as
    a compilation, as an instructional text, as a test, as answer
    material for a test, or as an atlas, if the parties expressly
    agree in a written instrument signed by them that the work
    shall be considered a work made for hire.” 
    17 U.S.C. § 101
    . There was no written agreement between Gaiman and
    McFarlane, and Gaiman was not an employee of McFarlane.
    Now it is true that a commissioned work not falling under
    (2) may be deemed a work for hire under (1) if, for example,
    the commissioning party pays the author a monthly stipend,
    pays health and other fringe benefits during the time the
    author works on the project, and exercises overall though
    not necessarily daily supervision. See Community for Creative
    Non-Violence v. Reid, 
    490 U.S. 730
    , 750-52 (1989); Saenger
    Organization, Inc. v. Nationwide Ins. Licensing Associates, Inc.,
    
    119 F.3d 55
    , 59-60 (1st Cir. 1997). The work for hire concept
    isn’t limited to formal employment because a functionally
    identical relationship can be created by skillful drafting of
    contracts that purport to treat the (de facto) employee as an
    independent contractor. The work for hire provision is not
    unique in sensibly forgoing a definition of “employee” or
    “employment” and by doing so empowering the courts to
    define these terms from case to case on a practical rather
    than formal basis, using the principles of agency law to
    6                                        Nos. 03-1331, 03-1461
    prevent evasion of the statutory purpose. E.g., Clackamas
    Gastroenterology Associates, P.C. v. Wells, 
    123 S. Ct. 1673
    (2003); EEOC v. Sidley Austin Brown & Wood, 
    315 F.3d 696
    ,
    704-07 (7th Cir. 2002). But there is nothing to suggest that
    Gaiman ever became a de facto employee of McFarlane.
    And while Gaiman could have assigned to McFarlane his
    copyright in any work he did under the oral contract,
    copyright assignments must be in writing, 
    17 U.S.C. § 204
    (a); Schiller & Schmidt, Inc. v. Nordisco Corp., 
    969 F.2d 410
    ,
    413 (7th Cir. 1992), and there was no written assignment.
    In his script for Spawn No. 9, Gaiman introduced three
    new characters—Medieval Spawn (as he was later called by
    McFarlane—Gaiman had not named it and in the issue he
    is just referred to as a Spawn, with no further identifier),
    Angela (no last name), and Count Nicholas Cogliostro.
    Gaiman described, named, and wrote the dialogue for them,
    but McFarlane drew them. Gaiman contends that he and
    McFarlane are joint owners of the copyrights on the three
    characters by reason of their respective contributions to joint
    (indivisible) work. 
    17 U.S.C. § 101
    ; Seshadri v. Kasraian, 
    130 F.3d 798
    , 803-04 (7th Cir. 1997); Erickson v. Trinity Theatre,
    Inc., 
    13 F.3d 1061
    , 1067-72 (7th Cir. 1994); Thomson v. Larson,
    
    147 F.3d 195
    , 199-205 (2d Cir. 1998). McFarlane concedes
    Gaiman’s joint ownership of Angela, but not of the other
    two; we postpone our consideration of the issue until we
    have disposed of the statute of limitations defense, to which
    we now turn. Evaluation of the defense requires us to
    consider a chain of events running from 1992—when the
    contract was made and Spawn No. 9, which states on its
    inside cover that it is copyrighted by McFarlane (actually by
    one of his companies, but that is immaterial), was pub-
    lished—to 1999.
    Spawn No. 9 was a huge success, selling more than a mil-
    lion copies. McFarlane paid Gaiman $100,000 for his work
    Nos. 03-1331, 03-1461                                        7
    on it. Gaiman testified that this was about what he would
    have expected to receive from DC Comics had he written
    the script of Spawn No. 9 for that company as a work made
    for hire.
    Because Angela was a big hit with Spawn’s readers,
    McFarlane asked Gaiman to do a “mini-series” of three
    issues starring her, which he did. He also wrote several
    pages for Spawn No. 26 to form a bridge to the Angela series.
    Because Angela hadn’t appeared in Spawn Nos. 10 through
    25, Gaiman was concerned that readers would not realize
    that Angela was an offshoot of Spawn. McFarlane paid
    Gaiman $3,300 for his contribution to Spawn No. 26 and
    more than $30,000 (the exact amount is not in the record) for
    the Angela series. Only one of these four issues (the second
    Angela) contains a copyright notice; the notice is similar to
    the one in Spawn No. 9.
    The Angela series was first published in 1994. The fol-
    lowing year, having created a toy company to manufacture
    statuettes (“action figures”) of Spawn characters, one a
    statuette of Medieval Spawn, McFarlane mailed Gaiman a
    check for $20,000 designated as royalties, presumably on
    sales of the statuette, though the record is unclear.
    McFarlane subsequently licensed the publication of pa-
    perback books that reprinted the comic books to which
    Gaiman had contributed. The books carry a copyright notice
    similar to the one in Spawn No. 9 and Angela No. 2 except
    that it adds that “all related characters” are also copyrighted
    by McFarlane. Besides inserting the copyright notices that
    we’ve mentioned, McFarlane applied to the Register of
    Copyrights for, and received, copyright registrations on
    these issues and books.
    In 1996, learning that McFarlane might sell his enterprise,
    Gaiman decided that he needed the protection of a writ-
    8                                       Nos. 03-1331, 03-1461
    ten contract and he asked McFarlane for one. McFarlane
    agreed to give him a written contract and also to pay him
    royalties for a statuette of Angela that McFarlane’s toy com-
    pany had manufactured and sold.
    After desultory negotiations, Gaiman’s lawyer wrote a
    letter to McFarlane’s negotiator stating that Gaiman had
    created the characters of Medieval Spawn, Angela, and
    Cogliostro not as work for hire but “pursuant to the terms
    of an oral agreement under which Mr. McFarlane agreed
    that Mr. Gaiman would be compensated on the same terms
    as set forth in Mr. Gaiman’s DC Comics Agreements dated
    August 1, 1993.” This was a surprising interpretation of the
    oral agreement, since in it McFarlane had promised to treat
    Gaiman better than DC Comics treated him; but as nothing
    turns on this interpretation we’ll ignore it. The letter goes on
    to “demand” that McFarlane “immediately forward all
    monies which are currently owed to Mr. Gaiman in accord-
    ance with the terms of the DC Agreement.” We’ll call this
    the demand letter.
    Direct negotiations between Gaiman and McFarlane en-
    sued. A tentative agreement was reached that McFarlane
    would pay royalties on the statuettes on the same terms
    as Gaiman would have gotten from DC Comics but that
    Gaiman would exchange his rights in Medieval Spawn
    and Cogliostro for McFarlane’s rights in another comic book
    character, Miracleman. Once the exchange was made,
    Gaiman would no longer receive royalties on Medieval
    Spawn and Cogliostro.
    For the rest of 1997 and 1998, McFarlane sent Gaiman
    royalty checks totaling about $16,000, presumably on ac-
    count of the statuettes and the paperback books, together
    with royalty reports that referred to Gaiman as a “co-cre-
    ator” of Medieval Spawn, Angela, and Cogliostro. On
    February 14, 1999, however, Gaiman received a letter from
    Nos. 03-1331, 03-1461                                        9
    McFarlane announcing that McFarlane was “officially re-
    scind[ing] any previous offers I have placed on the table.”
    The letter offered Gaiman the following deal on a take-it-or-
    leave-it basis: Gaiman would relinquish “all rights to
    Angela” in exchange for “all rights to Miracle Man,” and
    “all rights to Medieval Spawn and Cogliostro shall continue
    to be owned by Todd McFarlane Productions."
    The statement “all rights to Medieval Spawn and
    Cogliostro shall continue to be owned by Todd McFarlane
    Productions” was an unambiguous denial of Gaiman’s
    copyright interest and therefore is the last date on which his
    claim could have accrued and the three-year copyright
    statute of limitations, 
    17 U.S.C. § 507
    (b), thus have begun to
    run. This suit was brought in January of 2002—a month
    short of three years after Gaiman’s receipt of McFarlane’s
    letter. By the time of trial, Spawn was up to issue No. 120
    and had spawned a large number of derivative works,
    including posters, trading cards, clothing, the statuettes,
    an animated series on HBO, video games, and a motion
    picture. Many of these derivative works include all three
    characters to which Gaiman contributed, so that the finan-
    cial stakes in the case are considerable.
    A minor wrinkle concerning the statute of limitations
    defense is that Gaiman’s suit is not a suit for infringement.
    Gaiman concedes that McFarlane also owns copyright in the
    comic-book characters in issue. The claim rejected by
    McFarlane is that Gaiman is a co-owner, along with
    McFarlane. 
    17 U.S.C. § 201
    (a). As a co-owner, McFarlane
    was not violating the Copyright Act by unilaterally publish-
    ing the jointly owned work, but, as in any other case of
    conversion or misappropriation, he would have to account
    to the other joint owner for the latter’s share of the profits.
    Zuill v. Shanahan, 
    supra,
     
    80 F.3d at 1369
    . When co-ownership
    is conceded and the only issue therefore is the contractual,
    10                                       Nos. 03-1331, 03-1461
    or in the absence of contract the equitable, division of the
    profits from the copyrighted work, there is no issue of
    copyright law and the suit for an accounting of profits
    therefore arises under state rather than federal law. Goodman
    v. Lee, 
    78 F.3d 1007
    , 1013 (5th Cir. 1996); Oddo v. Ries, 
    743 F.2d 630
    , 633 and n. 2 (9th Cir. 1984); Mountain States
    Properties, Inc. v. Robinson, 
    771 P.2d 5
    , 6-7 (Colo. App. 1988).
    It is just like a suit to enforce a copyright license, which
    arises under state law rather than under the Copyright Act.
    Saturday Evening Post Co. v. Rumbleseat Press, Inc., 
    816 F.2d 1191
    , 1194-95 (7th Cir. 1987); T.B. Harms Co. v. Eliscu, 
    339 F.2d 823
    , 824, 828 (2d Cir. 1964) (Friendly, J.); cf. Interna-
    tional Armor & Limousine Co. v. Moloney Coachbuilders,
    Inc., 
    272 F.3d 912
    , 915-16 (7th Cir. 2001). And in that event
    the applicable statute of limitations would be state rather
    than federal.
    But more is involved in this case. As in Zuill v. Shanahan,
    
    supra,
     
    80 F.3d at 1371
    , and also Merchant v. Levy, 
    supra,
    92 F.3d at 56
    , and Goodman v. Lee, 
    815 F.2d 1030
    , 1031-32 (5th
    Cir. 1987), Gaiman seeks a declaration that he is a co-owner,
    which depends on whether his contribution to the comic-
    book characters in question gave him a copyright interest.
    That question, on the answer to which his entitlement to an
    accounting and other relief depends, cannot be answered
    without reference to the Copyright Act, and it therefore
    arises under the Act. Smith v. Kansas City Title & Trust Co.,
    
    255 U.S. 180
    , 199-202 (1921). As we said in Saturday Evening
    Post Co. v. Rumbleseat Press, Inc., supra, 
    816 F.2d at 1194
    , “the
    principle that disputes over the terms of copyright licenses
    do not arise under federal law has an exception for cases
    where establishing the plaintiff’s right will require interpret-
    ing federal law.” One can imagine, if barely, a case in which,
    though federal jurisdiction would lie because a copyright
    issue was unavoidable, the heart of the case lay elsewhere
    Nos. 03-1331, 03-1461                                         11
    and a more suitable statute of limitations than the one in the
    Copyright Act could be found. But this is not such a case.
    The question whether Gaiman has a copyright is central,
    and the Act’s three-year statute of limitations, which applies
    to any suit arising under the Act, and not just to a suit for
    infringement (for section 507(b) reads: “No civil action shall
    be maintained under the provisions of this title unless it is
    commenced within three years after the claim accrued”), is
    therefore, as the parties agree, clearly applicable to this case.
    The parties also rightly agree that the copyright statute of
    limitations starts to run when the plaintiff learns, or should
    as a reasonable person have learned, that the defendant was
    violating his rights, Taylor v. Meirick, 
    712 F.2d 1112
    , 1117
    (7th Cir. 1983), in this case by repudiating Gaiman’s owner-
    ship of copyright. Aalmuhammed v. Lee, 
    202 F.3d 1227
    , 1230-
    31 (9th Cir. 2000); Merchant v. Levy, 
    supra,
     
    92 F.3d at 53, 56
    ;
    Zuill v. Shanahan, 
    supra,
     
    80 F.3d at 1370-71
    . McFarlane claims
    that Gaiman knew, or certainly should have known, no later
    than 1997 when Gaiman’s lawyer wrote the demand letter
    from which we quoted, that McFarlane was denying that
    Gaiman had any copyright interest in the three charac-
    ters—that McFarlane had in effect appropriated Gaiman’s
    copyright interest. Actually McFarlane thinks that Gaiman’s
    copyright claim accrued a lot earlier—in 1993 when Spawn
    No. 9 was published with a copyright notice that did not
    mention Gaiman. It doesn’t matter; if Gaiman’s claim
    accrued before February 1999, the suit is untimely.
    McFarlane’s argument, however, reflects a misunder-
    standing 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, 
    17 U.S.C. §§ 401
    (d),
    405(b), 406(a); Fantastic Fakes, Inc. v. Pickwick International,
    Inc., 
    661 F.2d 479
    , 486-87 (5th Cir. 1981); Fleischer Studios,
    12                                     Nos. 03-1331, 03-1461
    Inc. v. Ralph A. Freundlich, Inc., 
    73 F.2d 276
    , 277 (2d Cir.
    1934), not to start the statute of limitations running. There
    may be situations in which the notice just happens to put a
    copyright owner on notice that someone is acting in dero-
    gation of his rights. 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. Saenger Organization, Inc. v. Nationwide Ins.
    Licensing Associates, Inc., supra, 
    119 F.3d at 66
    . 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 contrib-
    uted 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.
    The creator of a compilation is entitled to copyright it
    as long as it’s a work “formed by the collection and assem-
    bling of preexisting materials or of data that are selected,
    coordinated, or arranged in such a way that the resulting
    work as a whole constitutes an original work of author-
    ship.” 
    17 U.S.C. § 101
    ; see also § 103. The compiler’s copy-
    right entitles him to reprint the contents of the compilation
    in future editions of the compilation. 
    17 U.S.C. § 201
    (c); New
    York Times Co. v. Tasini, 
    533 U.S. 483
    , 493-97 (2001). But all
    the other rights of copyright remain in the authors of the
    contributions, provided the contributions satisfy the criteria
    of copyrightability. Therefore the compiler’s copyright
    notice is not adverse to the contributors’ copyrights and so
    does not put them on notice that their rights are being
    challenged. On the contrary, “a single copyright notice
    applicable to the collective work as a whole serves
    to indicate protection for all the contributions in the col-
    Nos. 03-1331, 03-1461                                         13
    lective work, except for advertisements, regardless of the
    ownership of copyright in the individual contributions and
    whether they have been published previously.” United
    States Copyright Office, Circular No. 3: Copyright Notice 3
    (2004); see Sanga Music, Inc. v. EMI Blackwood Music, Inc., 
    55 F.3d 756
    , 759-60 (2d Cir. 1995); Abend v. MCA, Inc., 
    863 F.2d 1465
    , 1469 (9th Cir. 1988), aff’d under the name Stewart v.
    Abend, 
    495 U.S. 207
     (1990).
    There is a close analogy to the doctrine of adverse pos-
    session in the law of physical property. That doctrine
    extinguishes the paper title if the property is occupied under
    an adverse claim of right for the statutory period. If the
    claim is not adverse, as where a tenant occupies the owner’s
    property—or, even more to the point, where a cotenant
    occupies property, because a joint copyright owner is a
    cotenant, e.g., Zuill v. Shanahan, 
    supra,
     
    80 F.3d at 1370
    ;
    Childress v. Taylor, 
    945 F.2d 500
    , 505 (2d Cir. 1991)—the
    statute of limitations does not begin to run. Howell v.
    Bradford, 
    570 So. 2d 643
    , 645 (Ala. 1990) (per curiam);
    Fantasia v. Schmuck, 
    395 S.E.2d 784
    , 786 (W. Va. 1990) (per
    curiam); Evans v. Covington, 
    795 S.W.2d 806
    , 808 (Tex. App.
    1990); Chicago, Peoria & St. Louis Ry. v. Tice, 
    83 N.E. 818
    , 819-
    20 (Ill. 1908). No more does it begin to run when the claim
    to the copyright is a compiler’s claim, because such a claim
    is not adverse to the contributor’s copyright.
    The copyright notices in the paperback books, how-
    ever—notices that claim copyright for McFarlane in “all
    related characters”—might seem to be an example of our
    earlier point that there may be cases in which a copyright
    notice denies a contributor’s copyright. But unless there is
    a duty of authors to read the copyright pages of works con-
    taining their copyrighted materials—and there is not—then
    since as we said the purpose of copyright notice is not to
    14                                       Nos. 03-1331, 03-1461
    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.
    In addition to the copyright notices, McFarlane registered
    copyright on the issues and the books. But to suppose that
    by doing so he provided notice to Gaiman of his exclusive
    claim to the characters is again untenable. Authors don’t
    consult the records of the Copyright Office to see whether
    someone has asserted copyright in their works; and anyway
    McFarlane’s registrations no more revealed an intent to
    claim copyright in Gaiman’s contributions, as distinct from
    McFarlane’s own contributions as compiler and illustrator,
    than the copyright notices did. The significance of registra-
    tion is that it is a prerequisite to a suit to enforce a copy-
    right. More precisely, an application to register must be
    filed, and either granted or refused, before suit can be
    brought. 
    17 U.S.C. § 411
    (a). There is an interesting question,
    left open in our recent decision in Chicago Bd. of Education v.
    Substance, Inc., 
    354 F.3d 624
    , 631 (7th Cir. 2003), and unnec-
    essary to decide in this case either, whether if registration is
    granted by mistake the registrant may nonetheless sue. All
    that is important in this case is that it is no more the purpose
    of registration to start statutes of limitations running than it
    is the purpose of the copyright notice itself to do so.
    We are therefore led to question the suggestion in Saenger
    Organization, Inc. v. Nationwide Ins. Licensing Associates, Inc.,
    supra, 
    119 F.3d at 66
    , that registration provides constructive
    notice of a claim of ownership. That would not, to repeat,
    matter in a case such as this in which the registered work is
    a compilation. But it probably wouldn’t matter in any case.
    Nos. 03-1331, 03-1461                                       15
    (We further note that there was actual as well as construc-
    tive notice in Saenger.) For one thing, the court was wrong
    to say that registration gives constructive notice. What the
    Act actually says is that recording a document in the
    Copyright Office gives constructive notice of the facts in the
    document if the document identifies a registered work. 
    17 U.S.C. § 205
    (c). The purpose is to establish priority in the
    event of disputes, in bankruptcy court or elsewhere, over
    creditors’ rights. In re World Auxiliary Power Co., 
    303 F.3d 1120
    , 1125-27 (9th Cir. 2002); Broadcast Music, Inc. v. Hirsch,
    
    104 F.3d 1163
    , 1165-67 (9th Cir. 1997); 3 Melville B. Nimmer
    & David Nimmer, Nimmer on Copyright § 10.07 (2003). A
    creditor who wants to know whether he can seize a debtor’s
    copyright consults the register; a co-author does not.
    There is also nothing in the demand letter that Gaiman’s
    lawyer wrote McFarlane to indicate that Gaiman believed
    McFarlane was denying Gaiman’s joint ownership of the
    copyrights on the three characters. The issue of copyright
    ownership is distinct from that of the copyright owner’s
    entitlement to royalties when, as in this case, he is not the
    publisher of the copyrighted work. The fact that the author
    owns the copyright doesn’t determine how he and the
    publisher will divide the income from the sale of copies of
    the work. That is a matter of contract. Sometimes author and
    publisher disagree over the meaning of their contract (and
    it is the contract that will specify the division of income) or
    whether the publisher is adhering to the contract in good
    faith. Disagreement was especially likely here, where the
    parties’ contract not only was oral but failed to specify the
    division of income beyond what could be inferred from
    McFarlane’s promise to treat Gaiman better than “the big
    guys” (in particular, it seems, DC Comics) treated Gaiman.
    The existence of a dispute over the terms of a publication
    contract does not alert the author to a challenge to his copy-
    16                                     Nos. 03-1331, 03-1461
    right. Quite the contrary, it presumes that he owns the
    copyright. If his work is in the public domain, the publisher
    could publish it without the author’s permission, so would
    hardly be likely to have promised to pay him for the “right”
    to publish it—he would already have (along with the rest of
    the world) the right to publish it. Sending the kind of
    demand letter that Gaiman’s lawyer sent no more suggests
    doubt about the legal basis for the demand than sending a
    collection letter, of which the demand letter was a variant,
    suggests doubt that the writer is entitled to the debt that he
    is seeking to collect.
    There was other evidence that right up until McFarlane’s
    1999 letter, receipt of which clearly did start the statute
    of limitations running, he acknowledged or at least didn’t
    deny Gaiman’s ownership of copyrights in the three char-
    acters. There was the reference in the royalty reports to
    Gaiman’s being the “co-creater” of the characters, the fact
    that McFarlane let pass without comment Gaiman’s claim in
    the demand letter to have created the characters, and the
    payment to Gaiman of royalties on the statuettes, payment
    that would make most sense if they were derivative works
    of copyrighted characters—with Gaiman the (joint) owner
    of the copyrights. McFarlane argues that he could have
    given Gaiman these royalties pursuant to contract, and he
    points out that under Gaiman’s work for hire agreement
    with DC Comics Gaiman received payments denominated
    as “royalties” even though he had no copyrights. But
    McFarlane also contends that DC Comics would not have
    paid Gaiman royalties on the statuettes, so what would have
    been Gaiman’s entitlement to such royalties from him
    unless Gaiman had a copyright interest?
    We have referred to statements and actions by McFarlane
    that seem positively to acknowledge Gaiman’s copyrights,
    and these sort of “lulling” comments might seem to suggest
    Nos. 03-1331, 03-1461                                        17
    an alternative basis for rejecting McFarlane’s statute of
    limitations defense—the doctrine of equitable estoppel.
    Hentosh v. Herman M. Finch University of Health Sciences/The
    Chicago Medical School, 
    167 F.3d 1170
    , 1174 (7th Cir. 1999);
    Singletary v. Continental Illinois National Bank & Trust Co., 
    9 F.3d 1236
    , 1241 (7th Cir. 1993); Buttry v. General Signal Corp.,
    
    68 F.3d 1488
    , 1493 (2d Cir. 1995). But that is a tolling
    doctrine, not an accrual doctrine, and tolling doctrines do
    not automatically give a person the full statutory period for
    suit. Cada v. Baxter Healthcare Corp., 
    920 F.2d 446
    , 452-53 (7th
    Cir. 1990). Suppose the claim accrued in Year 1 and the
    statute of limitations is three years, but because of lulling
    comments by the violator the victim doesn’t learn of his
    claim until Year 10. He cannot just sit on this haunches until
    Year 13, because his claim did not accrue in Year 10; he
    must sue as soon as it is feasible to do so.
    Or so, at least, some cases hold. Shropshear v. Corporation
    Counsel, 
    275 F.3d 593
    , 597-99 (7th Cir. 2001); Hi-Lite Products
    Co. v. American Home Products Corp., 
    11 F.3d 1402
    , 1406-
    07 (7th Cir. 1993) (Illinois law); Butler v. Mayer, Brown &
    Platt, 
    704 N.E.2d 740
    , 745 (Ill. App. 1998). Others, distin-
    guishing equitable estoppel, where the defendant is respon-
    sible for the plaintiff’s delay, from equitable tolling, where
    he is not, hold that in the former case though not the latter
    the plaintiff can subtract the entire period of the delay
    induced by the defendant, or in other words can extend the
    statutory period by the full amount of the delay. Doe v. Blue
    Cross & Blue Shield United of Wisconsin, 
    112 F.3d 869
    , 876 (7th
    Cir. 1997); Ott v. Midland-Ross Corp., 
    600 F.2d 24
    , 32-33 (6th
    Cir. 1979). At least one case takes a middle position: the
    plaintiff is presumptively entitled to subtract the entire
    period. Buttry v. General Signal Corp., supra, 
    68 F.3d at 1494
    .
    We needn’t try to untangle this knot. For while Gaiman
    waited the full statutory period (minus a month) to sue,
    18                                     Nos. 03-1331, 03-1461
    without an excuse that would entitle him to invoke a tolling
    doctrine that requires due diligence, he doesn’t need an
    excuse because the jury found that his claim did not accrue
    more than three years before he sued.
    The case for rejecting the statute of limitations defense
    was not open and shut. Gaiman was an experienced author,
    and may have smelled a rat early on. The jury could have
    disbelieved his denial that he saw the “related characters”
    copyright notices in the paperback books. And the fact that
    he was content with compensation no greater than what he
    received from DC Comics for work made for hire allows an
    inference that the real deal between him and McFarlane was
    that McFarlane would own the copyrights but pay Gaiman
    as well as or better than DC Comics, which also owned the
    copyrights on Gaiman’s work, did. If better, then maybe
    paying him royalties on the statuettes was McFarlane’s
    method of treating Gaiman better than DC Comics did. But
    all this is just to say that it was a close case. We cannot say
    that the jury was unreasonable to find that not until Febru-
    ary of 1999 was Gaiman placed on notice that McFarlane
    was denying that Gaiman had copyrights on the three
    characters, and thus to reject the statute of limitations
    defense.
    But we must consider McFarlane’s alternative ground for
    reversal—that Medieval Spawn and Cogliostro are not cop-
    yrightable. (Partial reversal, actually, because McFarlane
    concedes that Gaiman is a joint owner of Angela.) This
    ground may seem inconsistent with McFarlane’s contention
    that the “all related characters” copyright notice established
    that he, not Gaiman, owned the copyrights on Medieval
    Spawn and Cogliostro. If they were not copyrightable,
    McFarlane had no copyright in them. In fact, it became
    apparent at argument that McFarlane thinks that he owns
    copyright on them but that Gaiman doesn’t. His theory
    Nos. 03-1331, 03-1461                                      19
    seems to be that they became copyrightable, after Spawn No.
    9 was published, as a result of further work done on them
    by him. 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 fig-
    ure 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. Gaiman decided to begin
    Spawn No. 9 with a different Spawn, whom he called
    “Olden Days Spawn.” He explained to McFarlane that
    “[Olden Days] Spawn rides up on a huge horse. He’s wear-
    ing a kind of Spawn suit and mask, although the actual
    costume under the cloak is reminiscent of a suit of armour.”
    McFarlane drew “Olden Days Spawn” as (in the words
    of his brief) “essentially Spawn, only he dressed him as
    a knight from the Middle Ages with a shield bearing the
    Spawn logo.” 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.
    We learn that this event occurred in the thirteenth century,
    and the scene now shifts to the present day. Angela is
    dressed as a modern professional woman. The Al Simmons
    20                                    Nos. 03-1331, 03-1461
    Spawn is lurking about in an alley and it is here that we
    meet Count Cogliostro for the first time. McFarlane had
    wanted a character who would be “basically. . . the wisened
    [sic] sage that could sort of come down and give all the
    information and assimilate it.” Gaiman interpreted this as
    an instruction to create “a character who can talk to Spawn
    and tell him a little bit more about what’s going on in the
    background and can move the story along.” So he created
    an “old man, who starts talking to Spawn and then telling
    him all these sort of things about Spawn’s super powers that
    Spawn couldn’t have known. And when you first meet him
    [Cogliostro] in the alley you think he’s a drunken bum with
    the rest of them, and then we realize no, he’s not. He’s some
    kind of mysterious stranger who knows things.”
    Gaiman further described Cogliostro in a draft of Spawn
    No. 9 as “a really old bum, a skinny, balding old man,
    with a grubby greyish-yellow beard, like a skinny santa
    claus. He calls himself Count Nicholas Cagliostro” (later
    spelled Cogliostro). 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 domi-
    natrix 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.
    Nos. 03-1331, 03-1461                                      21
    McFarlane makes two arguments for why Gaiman does
    not have copyright in Medieval Spawn (the name that
    McFarlane settled on for Olden Days Spawn) or Cogliostro.
    The first is that all that Gaiman contributed was the idea for
    the characters, and ideas are not copyrightable, only
    expression is and the expression was due to McFarlane’s
    drawing of the characters. It is true that people who con-
    tribute merely nonexpressive elements to a work are not
    copyright owners. As we said in Seshadri v. Kasraian, 
    supra,
    130 F.3d at 803
    , “the assistance that a research assistant or
    secretary or draftsman or helpfully commenting colleague
    provides in the preparation of a scholarly paper does
    not entitle the helper to claim the status of a joint author.”
    There has to be some original expression contributed by
    anyone who claims to be a co-author, and the rule (we’ll
    consider an exception momentarily) is that his contribu-
    tion must be independently copyrightable. E.g., Erickson
    v. Trinity Theatre, Inc., supra, 
    13 F.3d at 1071
    ; Aalmuhammed
    v. Lee, supra, 
    202 F.3d at 1231
    ; 1 William F. Patry, Copyright
    Law and Practice 362-65 (1994). Had someone merely re-
    marked to McFarlane one day, “you need a medieval
    Spawn” or “you need an old guy to move the story for-
    ward,” 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.
    Cf. Erickson v. Trinity Theatre, Inc., supra, 
    13 F.3d at 1064, 1071-72
    . 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. The decisions that
    22                                      Nos. 03-1331, 03-1461
    say, rightly in the generality of cases, that each contributor
    to a joint work must make a contribution that if it stood
    alone would be copyrightable weren’t thinking of the case
    in which it couldn’t stand alone because of the nature of the
    particular creative process that had produced it.
    Here is a typical case from academe. One professor has
    brilliant ideas but can’t write; another is an excellent writer,
    but his ideas are commonplace. So they collaborate on an
    academic article, one contributing the ideas, which are not
    copyrightable, and the other the prose envelope, and unlike
    the situation in the superficially similar case of Balkin v.
    Wilson, 
    863 F. Supp. 523
     (W.D. Mich. 1994), they sign as
    coauthors. Their intent to be the joint owners of the copy-
    right in the article would be plain, and that should be
    enough to constitute them joint authors within the meaning
    of 
    17 U.S.C. § 201
    (a). This is the valid core of the Nimmers’
    heretical suggestion that “if authors A and B work in
    collaboration, but A’s contribution is limited to plot ideas
    that standing alone would not be copyrightable, and B
    weaves the ideas into a completed literary expression, it
    would seem that A and B are joint authors of the resulting
    work.” 1 Nimmer & Nimmer, supra, § 6.07, p. 6-23; see also
    1 Patry, supra, at 365-66.
    The contents of a comic book are typically the joint work
    of four artists—the writer, the penciler who creates the art
    work (McFarlane), the inker (also McFarlane, in the case of
    Spawn No. 9, but it would often be a different person from
    the penciler) who makes a black and white plate of the art
    work, and the colorist who colors it. The finished product is
    copyrightable, yet one can imagine cases in which none of
    the separate contributions of the four collaborating artists
    would be. The writer might have contributed merely a stock
    character (not copyrightable, as we’re about to see) that
    achieved the distinctiveness required for copyrightability
    Nos. 03-1331, 03-1461                                        23
    only by the combined contributions of the penciler, the
    inker, and the colorist, with each contributing too little to
    have by his contribution alone carried the stock character
    over the line into copyright land.
    McFarlane’s second argument against the copyrightability
    of Medieval Spawn and Cogliostro appeals to the confus-
    ingly named doctrine of “scènes à faire” (literally “scenes
    for action,” a theatrical term meaning the climactic scene in
    a play or opera, which is not the legal meaning). Related to
    the fundamental idea-expression dichotomy that we’ve
    already mentioned, the doctrine 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.” Bucklew v. Hawkins,
    Ash, Baptie & Co., 
    329 F.3d 923
    , 929 (7th Cir. 2003); see also
    Reed-Union Corp. v. Turtle Wax, Inc., 
    77 F.3d 909
    , 913-14 (7th
    Cir. 1996); Atari, Inc. v. North American Philips Consumer
    Electronics Corp., 
    672 F.2d 607
    , 616-17 (7th Cir. 1982);
    Williams v. Crichton, 
    84 F.3d 581
    , 587-89 (2d Cir. 1996). If
    standard features could be used to prove infringement, not
    only would there be great confusion because it would be
    hard to know whether the alleged infringer had copied the
    feature from a copyrighted work or from the public domain,
    but the net of liability would be cast too wide; authors
    would find it impossible to write without obtaining a
    myriad of copyright permissions.
    A stock character is a stock example of the operation of
    the doctrine, e.g., Cavalier v. Random House, Inc., 
    297 F.3d 815
    , 824-25 (9th Cir. 2002); Williams v. Crichton, 
    supra,
     
    84 F.3d at 588-89
    , and a drunken old bum is a stock character.
    Walker v. Time Life Films, Inc., 
    784 F.2d 44
    , 50 (2d Cir. 1986).
    If a drunken old bum were a copyrightable character,
    24                                     Nos. 03-1331, 03-1461
    so would be a drunken suburban housewife, a gesticu-
    lating Frenchman, a fire-breathing dragon, a talking cat, a
    Prussian officer who wears a monocle and clicks his heels,
    a masked magician, Rice v. Fox Broadcasting Co., 
    330 F.3d 1170
    , 1175-76 (9th Cir. 2003), and, in Learned Hand’s mem-
    orable 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.”
    Nichols v. Universal Pictures Corp., 
    45 F.2d 119
    , 121 (2d
    Cir. 1930). It would be difficult to write successful works
    of fiction without negotiating for dozens or hundreds of
    copyright licenses, even though such stereotyped characters
    are the products not of the creative imagination but of
    simple observation of the human comedy.
    McFarlane argues that even as dolled up by the penciler,
    the inker, and the colorist, Cogliostro is too commonplace to
    be copyrightable. Gaiman could not copyright a character
    described merely as an unexpectedly knowledgeable old
    wino, that is true; but that is not his claim. He claims to be
    the joint owner of the copyright on a character that has a
    specific name and a specific appearance. 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.
    Nos. 03-1331, 03-1461                                       25
    We are mindful that the Ninth Circuit denied copy-
    rightability 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 under-
    standable 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 copy-
    right. 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 de-
    tailed—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 nos-
    trils 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.
    26                                     Nos. 03-1331, 03-1461
    Although Gaiman’s verbal description of Cogliostro may
    well have been of a stock character, once he was drawn and
    named and given speech he became sufficiently distinctive
    to be copyrightable. Gaiman’s contribution may not have
    been copyrightable by itself, but his contribution had ex-
    pressive content without which Cogliostro wouldn’t have
    been a character at all, but merely a drawing. The expressive
    work that is the comic-book character Count Nicholas
    Cogliostro was the joint work of Gaiman and McFarlane—
    their contributions strike us as quite equal—and both are
    entitled to ownership of the copyright.
    Medieval Spawn may seem to present a closer case
    than Cogliostro so far as copyrightability is concerned, be-
    cause he has no name in Spawn No. 9. In fact he has never
    been named—“Medieval Spawn” is a description, not a
    proper name. 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. A more telling objection to copyright-
    ability is that the identifier, “Medieval Spawn,” was added
    by McFarlane in subsequent issues of Spawn to which
    Gaiman did not contribute. Only his costume and manner
    of speech, together with the medieval background, distin-
    guish him in Spawn No. 9 from other Hellspawn.
    But that is enough expressive content for copyrightability,
    because Spawn itself (the original Spawn, né Al Simmons)
    is not a stock character (McFarlane would have a heart
    attack if we said he was). Spawn is copyrightable, and the
    question is simply whether Medieval Spawn is sufficiently
    distinct from Spawn also to be copyrightable as a derivative
    work. 
    17 U.S.C. §§ 101
    , 103; Lee v. A.R.T. Co., 
    125 F.3d 580
    ,
    581-82 (7th Cir. 1997); Gracen v. Bradford Exchange, 
    698 F.2d 300
    , 305 (7th Cir. 1983); Entertainment Research Group, Inc. v.
    Nos. 03-1331, 03-1461                                        27
    Genesis Creative Group, Inc., 
    122 F.3d 1211
    , 1219-20 (9th Cir.
    1997); Woods v. Bourne Co., 
    60 F.3d 978
    , 990 (2d Cir. 1995).
    The purpose of requiring that a derivative work to be
    copyrightable be significantly different from the copy-
    righted original is twofold: to avoid the confusion that
    would be created if two indistinguishable works were
    copyrighted, Pickett v. Prince, 
    207 F.3d 402
    , 405 (7th Cir.
    2000); Gracen v. Bradford Exchange, supra, 
    698 F.2d at 304
    ;
    Entertainment Research Group, Inc. v. Genesis Creative Group,
    Inc., supra, 
    122 F.3d at 1220
    , and to prevent a copyright
    owner from extending his copyright beyond the statutory
    period by making an identical work as the statutory period
    was nearing its end, calling it a derivative work, and copy-
    righting it. Lee v. A.R.T. Co., supra, 
    125 F.3d at 581-83
    . These
    are really one point rather than two, since the second ploy
    would work only because a copier would find it difficult to
    prove that he had copied the expired original rather than
    the unexpired derivative work. Just suppose that the
    copyright on Work A expires in 2000 and the copyright on
    B in 2020, and in 2001 someone produces a work indistin-
    guishable from either and claims that he is copying A, not
    B, and so is not an infringer, and the owner of the unexpired
    copyright on B replies no, it’s B you’re copying.
    That is no problem here. A Spawn who talks medieval
    and has a knight’s costume would infringe Medieval
    Spawn, and if he doesn’t talk medieval and doesn’t look like
    a knight then he would infringe Spawn.
    To summarize, we find no error in the district court’s
    decision, and since the decision gave Gaiman all the relief
    he sought, there is no need to consider the cross-appeal.
    AFFIRMED.
    28                              Nos. 03-1331, 03-1461
    APPENDIX:
    SPAWN, MEDIEVAL SPAWN, ANGELA, AND COUNT
    NICHOLAS COGLIOSTRO
    Nos. 03-1331, 03-1461           29
    SPAWN
    30                Nos. 03-1331, 03-1461
    MEDIEVAL SPAWN
    Nos. 03-1331, 03-1461            31
    ANGELA
    32                Nos. 03-1331, 03-1461
    COGLIOSTRO
    Nos. 03-1331, 03-1461                                     33
    A true Copy:
    Teste:
    _____________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—2-24-04
    

Document Info

Docket Number: 03-1331

Judges: Per Curiam

Filed Date: 2/24/2004

Precedential Status: Precedential

Modified Date: 9/24/2015

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