From the Depths of Hell to a Courtroom in Madison

Jeff Simmons finds himself in the middle of a battle between two comic book titans

Published in 2019 Wisconsin Super Lawyers Magazine

Since his comics debut in 1992, CIA operative-turned-resurrected-demonic antihero Al Simmons—better known as Spawn—has fought some epic battles. He’s survived having his heart ripped out by his archnemesis Violator; he’s decapitated the ruler of the Eighth Sphere of Hell with an angelic sword. He’s even gone toe-to-toe with Batman. But the real-life legal battle over some of Spawn’s allies might top any of these fictional skirmishes.

Within a year of the launch of the Spawn comic, creator Todd McFarlane, esteemed more for his art than his writing chops, brought in several big-name writers to handle scripting duties on the series. Famed British scribe Neil Gaiman made a verbal agreement to pen Spawn No. 9, which introduced three characters who went on to become crucial parts of the series’ mythos: the warrior angel Angela, mysterious adviser Cogliostro, and Spawn predecessor Medieval Spawn. Eventually, the two creators disagreed on the ownership of the characters, and, in January 2002, Gaiman filed suit in his adopted home of Wisconsin under the Copyright Act, seeking co-ownership.

Enter Jeffrey Alan Simmons (no relation). He was a rookie attorney and hadn’t yet handled a copyright case when a firm partner asked him to help represent Gaiman. From Page 1, the larger-than-life personalities of the comics world made an impression.

“The case gave rise to one of the more unusual depositions I’ve ever been involved in,” Simmons says. “We were deposing Todd McFarlane, and he came to the deposition with what looked like a stack of index cards. He said, ‘You’ll have to excuse me, but we’re running a promotion right now where every certain number of McFarlane products comes with a Todd autograph inside.’ So, he spent a portion of the deposition signing these autographs, and it was very odd.”

Simmons says the result of the case, which went to trial in October 2002, rested on the credibility of the creators. “The two of them have very different personalities,” he says. “Neil has his British accent, and he’s got kind of a boyish charm to him with his glasses. He’s got a little bit of a Harry Potter aspect to him. Frankly, my impression was the jury ate him up, you know? It was a six-person jury, mostly women in their 30s and 40s. … I think Neil came across as a very likable guy.”

The jury found in favor of Gaiman—no necrotic energy blasts necessary—saying that McFarlane breached his reported promise to treat Gaiman “better than the big guys [would].” McFarlane appealed to the Seventh Circuit in 2004, claiming in part that the characters were too generic to be copyrightable.

“These were more than stock characters,” Simmons says. “There may have been similar characters in other contexts, but all three of the characters at issue had been pretty thoroughly fleshed out by both Neil and Todd so that they were independently distinguishable, and that’s what you needed for purposes of having them be protected by copyright.”

The panel of judges, which included Richard Posner, upheld the ruling. Bankruptcy proceedings for Todd McFarlane Productions delayed any payment to Gaiman and, in 2012, the parties settled for a confidential amount. Minnesota Public Radio reported that Gaiman was declared a 50% owner of the characters and the issues he’d written.

“I’ve had a number of copyright cases over the years,” Simmons says, “but the Gaiman case was a very unique combination of interesting copyright issues, fun context, comic book characters and interesting personalities. I didn’t realize how lucky I was, as a second- or third-year associate, being on that case. 

“And then winning’s kind of nice, too.”

Simmons’ office still displays a poster-sized panel from Spawn No. 9. Cogliostro, thinking Spawn has just died, stands in a puff of smoke and laments: “Pity Simmons. He could have been the one.”

The lawyer Simmons calls it his “main litigation prize.” Just don’t ask him to share a photo of it without permission.


Everyone’s a Critic

“When I first got the case,” Simmons says, “I didn’t know who these people were. I was getting some inkling that they were a big deal in the comic book industry, but I didn’t really have a full sense of it. After we filed our complaint in the case, there were these blogs of people who were interested in comics—and some law students mixed in with them. [Some] started critiquing our complaint and our legal theories. I was like, ‘What is this?’ So I quickly stopped looking at any of that stuff because it drove me up the wall.”

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