Major Spoilers #380: A Long Time Ago…

1. 

   Xian on February 1, 2012 9:58 am

   Great episode, listened on the train into work!

   Some comments on the Gaiman v. McFarlane case… it actually wasn’t a work-for-hire situation, which would have made it infinitely more straight-forwards (Gaiman would have lost), because their agreement was oral and Gaiman wasn’t acting as an employee. The simple lesson there is that all creators / co-creators need to know your rights and get them in writing (unless 10 years of negotiations and legal wrangling sounds fun to you). The sum of their agreement was an oral promise to treat Gaiman “better than the big guys” and clearly there wasn’t a meeting of the minds as to what that meant! But that’s not really material just a cautionary tale…

   What’s legally interesting is how this case fleshes out what may or may not be protectable in terms of characters (I hedge with “mays” because jurisdiction matters… the 7th Circuit presides over Wisconsin, so the weight of its IP opinions aren’t going to be as persuasive or influential as, say, the 9th Circuit with the entertainment capital of the world, Hollywood- or the 2nd Circuit’s Manhattan publishing, etc)… basically, addressing two questions:

   1. Whether a jointly created derivative of McFarlane’s Spawn- Medieval Spawn- could count as a separate copyrightable character that Gaiman could jointly own.

   2. Whether a similar derivative of the derivative could escape liability by claiming to be a derivative of the original and / or being considered a separate character.

   According to the court, the answer to 1 is Yes (appellate) and the answer to 2 is No (district). So, even though Medieval Spawn was derived from Spawn, Gaiman could still co-own Medieval Spawn as a separately copyrightable character. Meaning Medieval Spawn was different enough from Spawn. McFarlane tried to argue, then, that Dark Ages Spawn was just another variation of Spawn- different enough to be separably copyrightable- however the court found Dark Ages Spawn to be infringing on Medieval Spawn. Meaning Dark Ages Spawn was not different enough from Medieval Spawn. And while it does provide some guidelines on how different characters need to be, the interesting thing about this relates to the wonky ownership and its potential application to the Superman case.

   The idea is that, irrespective of any reversion of original copyright in Superman to the heirs, that the current modern Superman is sufficiently different and distinct to create a separate copyrightable entity from the original… and this would be jointly co-owned by DC and the heirs. However, this case would also mean that minor shifts- like changing the underpants or not calling Smallville’s Clark Kent Superboy- would not let DC escape the joint ownership with the heirs / liability of that modern version just through such changes. In sum, IF this case ruling applied to Superman, then DC would still co-own modern Superman… but also be unable to escape the heirs (and vice versa, the heirs couldn’t go and sell Superman to Marvel, for example).

   (btw, if you’re wondering about the earlier Superman ruling where the heirs get Action #1 elements and DC gets developments afterwards… that’s not going to stand, that was just the judge’s way of splitting the baby to force both parties to settle, both parties are currently appealing that ruling and no higher court would actually affirm it because it’s impossible to enforce / calculate damages on)

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2. 

   Jimmy on February 1, 2012 7:25 pm

   I’m thinking The Boy needs to be on the show more often… “BUT BUT BUT! GEOFF JOHNS!” is classic. He should do a riff on the ol’ “KIRKMAN! GOTTA POOP!” joke.

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     Stephen Schleicher on February 1, 2012 11:27 pm

     not but but but, but FUDGE! FUDGE! FUDGE!

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3. 

   rabb1t on February 2, 2012 11:16 am

   I’m surprised you guys don’t know about / haven’t followed Kingdoms of Amalur: Reckoning. The people who are the main designers, 38 Studios, is a company founded by Curt Schilling (who I guess is a pretty hardcore gamer), Todd McFarlane (art) (why I’m surprised you guys haven’t heard about the game), and R. A. Salvatore (content). They have designed a document that covers 10,000 years of history for Amalur and are working on an MMOG (codenamed “Copernicus”.) They bought a studio to bring under their wings and make a single player game in that same universe, which is what Reckoning became. As Rodrigo read on the podcast, the lead developer for Reckoning has worked on past Elder Scrolls games. So what we’ve wound up with is a classless game where you can build into effectively 3 talent trees, and depending on how deep you go into each tree you unlock different destinies as you go. Those are sort of like classes, which give different bonuses to skills or abilities, but this allows players to build how they like THEN choose a class based on that. (You can respect by seeing a ‘Fateweaver’.) It’s a very action oriented game, and the combination of everyone’s talents make it a very exciting title. (A developer video stated that the ‘speed run through’ (going through and doing every quest without stealth and skipping through all dialog) was over 200 hours to complete. :D )

   It is due out Tuesday for PC, Xbox 360, and PS3. There is already a demo out and I highly recommend people go check it out. (The PC demo is via Origin or Steam, your choice. If you go PC I highly recommend you use a gamepad. It’s a lot more difficult to play without, IMO.)

   http://en.wikipedia.org/wiki/38_Studios
   http://en.wikipedia.org/wiki/Kingdoms_of_Amalur:_Reckoning
   http://reckoning.amalur.com/

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   • 

     rabb1t on February 2, 2012 11:18 am

     Er… respec… spellcheck must have auto corrected it. Pesky thing. O.o

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   • 

     Stephen Schleicher on February 2, 2012 3:59 pm

     I’m aware of Shilling and 38 Studios, just didn’t track it enough to know of the game title or anything specific. Thanks!

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     • 

       rabb1t on February 2, 2012 4:31 pm

       Yeah, being a new studio they’ve not gotten a lot of press about it until very recently. It likely slid under a lot of people’s radar. Probably a lot of noise about it after launch on Tuesday when people start seeing it everywhere. :)

       Reply

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