FOR THE SLEEP DEPRIVED
Evidently, oral arguments in were held yesterday in the appeal from the Gaiman/McFarlane lawsuit. The MPEG of the argument is here
; PDF's of the briefs are here
. But remember, heavy machinery should not be operated after reading legal briefs of any sort, and this site cannot be held responsible for any caused by legally induced drowsiness.
Looking at the briefs, Gaiman looks to be in better shape. Gaiman is in even better shape with Judge Posner on the panel. Perhaps more than any other Federal Judge, Judge Posner understands the perspective of an author; Posner is the Brian Michael Bendis of the Federal bench, cranking out book after book after article after opinion, most of impeccable quality, though not without controversy. This perspective is apparent in the oral argument; Judge Posner just lacerates McFarlane's lawyer on the sufficiency of the copyright notice included in various issues of Spawn. And then he tears into McFarlane's counsel for trying to claim that Gaiman had no rights to Cogliostro; after all, Posner notes, if Gaiman had no rights, what was McFarlane promising to get in return for giving up the rights to Miracleman? Given what we know about Todd, it doesn't seem likely that he'd give something for nothing, baseballs excepted.
Now, granted, the tenor of oral argument is not a perfect polestar to the eventual direction of the opinion. Sometimes Judges kick around lawyers whose position they agree with to make sure the parts really fit; or sometimes, just for the fun of it. Federal judges have life tenure, and get to be inscrutable if they want to be. Notwithstanding that caveat, I suspect that Gaiman comes out ok in this appeal. McFarlane's statute of limitations defense is very much crippled by the factual findings of the lower court; appellate courts do not very often disturb findings of fact--that's a big no no for appellate courts, which are not in a good position to evaluate facts or witnesses. McFarlane's second point on appeal, that Gaiman could have no rights in Cogliostro and Medieval Spawn as these characters can't be protected flies in the face of common sense. As Judge Posner points out, if these characters can't be protected, McFarlane Toys is in big trouble; and since McFarlane clearly thinks that--at least as used by him and his company--these characters can be protected, Gaiman could share in the copyright as joint author. Which means Todd owes Neil money or Miracleman, take your pick.
Final observation: it's never good practice to admit to an appellate panel that it's been over a year since you read the case you're putting forward as the touchstone to your legal analysis. Bad idea.
Final observation, part the second: Judge Posner is a personal hero to at least one of us here at the Intermittent. We would very much recommend his book Overcoming Law; a great work about the sources of legal doctrine, impeccably written, and with far more wit than is normally allotted to this type of scholarly work. More Posner here