When Todd McFarlane invited Neil Gaiman, Alan Moore, Dave Sim and Frank Miller to contribute to his emerging and phenomenally popular Spawn mythos in 1992, the collaboration was presented as a true pact between artist and writer, creator and creator -- an enlightened variation on corporate work-for-hire arrangements.

Nine years later, McFarlane, who had left Marvel partly over issues of creator rights, found himself playing the role of corporate villain in most press and message-board accounts of Gaiman's lawsuit against McFarlane for breach of contract and misappropriation of Gaiman's name and reputation. Gaiman accused McFarlane of actually treating him worse than corporate employers like DC and launched Marvels and Miracles LLC as a fundraising entity aimed at liberating the temporarily dormant but popular Miracleman character from McFarlane's clutches. Though McFarlane had his loyal defenders, most fans seemed to rally behind Gaiman, who did a much better job of articulating his position. McFarlane responded with little more than his trademark public belligerence, and as the case went to court, he was pummeled by the comics press, pounded by Gaiman's lawyers and squashed flat by 12 Wisconsin jurors -- all women.

That much is known from the many reports of the case in the Journal and elsewhere, but a close look at the transcripts of the trial allows a more intimate perspective on not only the conflict between Gaiman and McFarlane, but also the way that the comics industry and the legal system handle issues of intellectual property. Courtroom procedure is also gratifying in that it allows lawyers to grill star creators and heads of corporations in a way that journalists can only envy. Once they are on the witness' hot seat, they are sworn to tell the whole truth and -- short of invoking the Fifth Amendment -- are not at liberty to respond to tough questions with a No Comment, or by hanging up the phone, slamming the door in your face or having you escorted from the premises. McFarlane was put through a particularly grueling cross-examination. While his own attorney was able to undo some of the damage on redirect, the spectacle of McFarlane being led into one trap after another as he was forced to admit contradictions between his testimony and the evidence of his own comics, as well as statements by his own staff, could not have made a favorable impression on the jury. But the transcripts also remind us that McFarlane is himself a creator, and that much of what has apparently motivated his legal position is his fear of losing full control and ownership of his creations.

In TCJ #250, excerpts from the transcripts, as well as DC Publisher Paul Levitz's deposition, trace the principal arguments in the testimony and cross-examination of Gaiman and McFarlane. That material is supplemented here by transcripts of the closing arguments from Gaiman's attorney Allen Arntsen and McFarlane's attorney Michael Kahn.

MD

CLOSING ARGUMENTS: NEIL GAIMAN ATTORNEY ALLEN ARNTSEN

ARNTSEN: At the start of my opening statement yesterday morning I said this was a case about keeping promises and being fair. It's also about a couple other things. It's about who do you believe? Who's telling the truth? There've been two witnesses, Neil Gaimam, Todd McFarlane. On a lot of things their stories are -- what they're telling you is dramatically different. And you, probably your primary function as a jury is to decide who's telling the truth, Neil or Todd.

Now, if you remember in Mr. Kahn's opening statement yesterday one of the things he made a big point of is that Todd asked Neil all the time to use DC Comics' contracts, but Neil would never send them. When Neil testified, the first question I asked him was, "Todd ever ask you for his contract?" Neil said, "No." Who do you believe? And there's the little evidence that you consider other than your observing the witnesses' testimony. Remember that when Larry Marder asked Neil to send contracts, he sent them to him. With no question, no objection. Remember, while Todd said, "No, I want to see these contracts," kept wanting to see these contracts, when Larry Marder summarized them for him, he never asked to see the contracts. He said he never saw the contracts. I submit to you that, with regard to that key central issue in the case, you should believe Neil Gaiman rather than Todd McFarlane.

Now, there are several claims that you'll be asked to resolve here and you'll be getting a verdict by the Court to fill in, and a little later in my closing I'm going to go through that verdict form for you, telling you what I believe are the appropriate answers, and why. But there are a couple of sort of basic kinds of issues here.

One relates to copyright. And I don't think there's any question by now that Neil and Todd were joint creators of characters Medieval Spawn, Angela and Cogliostro. I don't think there's any question about that. You'll get some instructions and answer the question. I don't think there's any question but that they were joint creators of the Spawn 9 comic book. Neil wrote the script, Todd did the artwork. They were joint creators of Spawn 26, and as the court will instruct you, "joint creators" doesn't mean 50/50. It means: Does each side contribute? And there's no question that with regard to Spawn 26, while it's a comparatively small part, it's a scene and you'll get a chance to see the scene when you look at the Spawn 26 comic book. Neil wrote part of the Spawn 26 comic book.

And the Judge will instruct you that one of the things you can look at in interpreting a contract is how did the parties perform it. In other words, the proof's in the pudding. It's not just that he said/he said; it's look at how the parties act. And the parties acted pursuant to an agreement. They had an agreement. Neil performed his part, and at least for a while, Todd was performing his part.

And then Todd stopped performing his part. He stopped sending the checks, didn't make any payments for the Angela toys. The trade paperbacks were coming out, and you heard all the problems with that. And so, then he says, OK, we've got our agreement here, but we're having trouble enforcing it.

We're having trouble implementing it. Let's get this all down on paper. And notwithstanding his last little declamation, I think the evidence was clear that Todd doesn't like written contracts, doesn't like lawyers, doesn't like -- he likes things to be person-to-person and, and not down anywhere.

And Mr. Kahn made that point in his opening statement. Todd's the artist. He's not the writer. Todd doesn't like written contracts. But finally Neil kept pushing because, you know, it was just too much trouble. It's not he didn't trust Todd, it's just too much trouble. You got to keep going back: What about this? What about this? Let's get a system in place to take care of it.

And they meet and they talk and they work things through, and it's a fairly arduous process, but then there in July of 1997 they reached an agreement. The fundamentals of the agreement were pretty clear. Neil's going to trade his rights, whatever they are, lock, stock and barrel, in Medieval Spawn and Cogliostro to Todd. And again, that was important for Todd because the Spawn movie and TV show are coming out by now and Cogliostro's got a role there. And Todd will trade to Neil everything he's got in Miracleman. And that's part of the deal.

So there was a contract. The parties had had their agreement. The problem was Todd didn't want to be bound by the agreement. Todd doesn't like being subject to agreements. Todd likes to be able to do what's fair, I think he likes to (inaudible) and that's the problem here with it. And the problem with Neil is Todd's idea of what's fair changes over time. And he just wasn't comfortable with that.

So again, fundamentally you're going to need to decide this case on who you find the most credible witness, Neil Gaiman or Todd McFarlane. You look at the other evidence there, but that's the bulk of it. Oh, one other thing on the deal. Todd says, "Oh, I didn't have a deal in 1997. We were just kind of working on it." Take a look at the memo, it's dated July 6, 1998, from Beau Smith, one of Todd's employees, regarding Neil Gaiman. What does it say? He just remembered Neil talked about how he was calling him. He was trying to, trying to get these one-offs. But Beau Smith, one of Todd's employees: "Since you signed the deal to let him do it, let's get it over with." It's right there from one of Todd's employees.

But now Todd's saying there's no deal because again, Todd doesn't want to be bound by a deal. And you might remember, at the start of my case, I read you some deposition narratives, and it's probably the high point of the case as far as interest, but the reason I had to do it then is to get the evidence in. I can quote you a couple parts of them now, and these will be very succinct.

Sheila Egger, who you'll see on these documents with the accounting, one of Todd's employees, said, and I'm just quoting from her narrative -- prior to the release of the Spawn movie in the summer of 1997 -- "I remember Todd talking to Neil and preparing some checks for Neil. I understand that Todd and Neil had reached an agreement during this time period. Todd told me that he and Neil had come to an agreement." That's Todd's own employee saying this in a deposition.

Something to think about in evaluating Todd and Neil's testimony. They were each up here for a fairly significant period of time. They each got a chance to tell their story on direct examination when I was asking Neil questions and when Mr. Kahn was asking Todd questions. Then we each got a chance and Ms. Carter got a chance to cross-examine Neil. Told his story. See, wait, what doesn't quite work? And I got a chance to cross-examine Todd. And cross-examination by a lawyer: it probably has a bigger role in my psyche than yours because it's a lawyer thing, but it's been called the greatest instrument out there to ferret out the truth.

Think about the cross-examination. Think how Neil Gaiman's testimony held up under cross-examination. Just to give you one way of measuring that, I asked one redirect question. And we were done. One. Think about how Todd did on cross-examination yesterday afternoon and this morning. Did you think he was credible? Did his story hold up? Mr. Kahn had a lot of redirect questions. He had a lot of clean-up to try to do today.

What put Neil on notice, arguably, the first time Neil could have known that Todd's saying "I'm taking it all," was when Neil got Exhibit 12, and it's undisputed that Neil got that sometime around Valentine's Day of 1999. He was -- I don't remember the testimony -- he was on a 30-day book-signing for Stardust, and he got home and it was waiting there for him. And so he got it in February 1999 and the lawsuit's timely with regard to that, if that's what put him on notice. They're saying no, we sent you copies of Spawn 9. Spawn 9's got a copyright notice, so you should have known. Well, you'll get a chance and it was cumulative to again read it to you during the evidence. But I can do this now.

With regard -- with the copyright notice, it's right down here, right, kind of at the bottom of the inside front cover (inaudible). And it says -- read it carefully -- Spawn and its logo are trademark, TM, and copyright, ©, 1993 Todd McFarlane Productions. All rights reserved. So guess what? Neil's not claiming a copyright for Spawn. He's not claiming a copyright for Spawn's logo. He's not claiming a trademark in either of those. What he's claiming is this copyright interest in the script he wrote for Spawn 9 and the characters for that. And this was, this was a copyright notice in Spawn 9.

Take a look at Angela 1, it's got a similar kind of notice. There's Angela there, her trademark. Let me -- you can read the Angela, look in the inside of Angela 1. Exhibit 21. Angela. What it says here, and I'll read it to you because I got to stay by the microphone. "Angela, its logo and symbol are registered trademarks 1994 of Todd McFarlane Productions, Inc. All rights reserved." Doesn't say a thing about copyright. So how does that put Neil on notice that Todd McFarlane has taken away his copyright interest in Angela? It doesn't.

And you'll see later, along the way, the McFarlane companies changed around some of their notices and stuff. But in my view, what I'm arguing to you, is that a reasonable person in Neil Gaiman's shoes, and again you'll remember, Neil's written -- you heard the testimony -- hundreds of -- I mean he's got a lot of books out there. The reasonable person would look at the thing you wrote, Spawn 9: "What's this say on copyright? Did Todd do what he said he'd do? Yep. Look at it. Oh, OK, it's fine." Same thing with Angela. Angela 1 comes in -- look at it: "Todd do what he said? Yeah. He's not claiming any copyright in my work. And that's fine."

And now the fraud. And probably this is the easiest way to do it. You recall yesterday Todd tried to give some testimony as to what Neil's contract -- so I took him through it this morning. I apologize. It took a while, it's kind of boring, but it was something that just kind of needed to be done a step at a time. Because the one thing that was clear, Neil's got a lot of DC Comics' contracts. So you've got to say, "Was this fair what Neil sent him?"

And I went through it with Todd and I showed where, in each of these situations, what Neil was proposing to Todd, we're not talking about the super-deluxe Stardust deal. You can look at the Stardust contract in there if you want. Parts of that were summarized, you know, parts of that were what were sent along to Larry Marder at the end of ë96. And Neil agreed he wouldn't use that one.

Neil agreed afterwards -- again, when he first came, Larry said, "Send me some copies of some of your DC Comics' contracts." So he sends him some, and Stardust was one he was working on. But then Todd says, "No, I don't want to be bound. I don't want to treat you that well. Can't we agree to, you know, not use the super-deluxe Stardust contract," and Neil says, "Fine." And the letter he sends him in May isn't the Stardust contract. It's standard DC Comic contracts going back to 1988, 1987, before Neil is a star. This is just his, these are his basic comic contracts. And there's no fraud there.

CLOSING ARGUMENTS: TODD MCFARLANE ATTORNEY MICHAEL KAHN

KAHN: Mr. Arntsen used a term that I found somewhat offensive. The term was "gotcha," that this was some sort of game. I don't believe on either side there was a game of "gotcha" going on. And I don't find it amusing. If we hadn't just spent all of this time in this trial, there'd be a certain amount of irony. When I look back at Mr. Gaiman's script for Spawn 9, 13 pages and he got paid $100,000 for it, and it ends after the script part. He tells Todd he can tidy up the dialogue if there's other problems. And he says, "It's your playground. I'm just in for an afternoon on the swings." And here we are 10 years later and now he's claiming he owns the swing, he owns one of the slides and he wants to be paid every time someone goes around the merry-go-round.

I told you at the beginning that there were two realities. There was Todd the artist and there was Neil the wordsmith. They make beautiful art. I think, particularly when Todd talks about Angela, you can tell that he very much appreciates that procreation that he and Neil did. And when they try to do a business deal they, they did a terrible job.

And what we've heard, Neil wanted more money. And that's when we entered this, this other reality, which is, which is a world of Neil, sort of a world of fantasy in reality. It's the world called my basic DC Comics deal.

I'm not a psychologist. I'm just a lawyer. So I don't know, I don't know what was going on. I don't know whether it was greed, whether it was ego for what is clearly a very talented writer, or maybe it was just jealousy. That this goofy artist would somehow -- has his own comic book and would have such success and then he'd be making toys and he'd be making movies and he'd be making other things. But they really, from what started off as a beautiful relationship, I think it's actually very sad how we've ended up here today.

We've heard about some of this dishonesty. And if you remember Mr. Arntsen had his assistant going through a whole bunch of different contracts, the Black Orchid contract, the Books of Magic. They tried to match, and they did a pretty credible job of trying to match Neil's deal. Trying to say, well, here, Neil really wasn't lying to Todd about what his deal was. But of course the evidence shows that when Neil and Todd talked about his basic DC Comics' deal, they weren't talking about Black Orchid or Timothy Hutton [sic] or these others, because he was talking about the two DC Comics' deals that this lawyer for Neil sent to Larry Marder out in California. Although Todd never saw those two, and when he met with Neil in their meeting they were talking about we'll match your DC Comics' deal.

You heard what triggered Todd's anger, which is Medieval Spawn and finding out he'd been lied to there and then sort of a follow-up, as he put it, "the straw in the camel's back," with finding out that, no, contrary to what Neil said, he didn't get a bonus if one of his characters was included in an animated feature. Well, when he got the contract Todd was quite interested and quite curious to see how did Neil's DC contracts match up to what he told Todd.

Now, in that testimony which was read to you, Paul Levitz talked about how do we go about deciding at DC Comics whether we're going to give someone like Neil character equity, which is a fancy way of saying some ownership rights and royalty rights and other uses of the character. And he said, it's very simple. Neil's been with DC Comics for years. He said, there's four things we look at.

We look at the origins of the character. And here they both were people who died and come back from hell. We look at their powers. They don't -- see, he's only on for two pages. We don't know enough about him. We don't know if there's any powers. That we don't know. Of course Neil didn't get his character equity in Sandman until he'd written 50 issues.

Then he said we look at the costumes. Remember he used the Supergirl/Superman example. He said they had the same costume. If we look at the costume that Todd showed you, how similar these two costumes were.

And finally, he said we look at the name. When we look at Neil's script for Spawn issue 9 what does he call this character? Spawn. And so there really is no dispute. Neil had no rights in Medieval Spawn and frankly should have known better.

Now, Todd testified to you, and Mr. Arntsen is correct, you need to decide some credibility issues. He testified to you, he said to you that you have to make your own judgments. And Todd testified that one of the problems in dealing with Neil was he was very hard to pin down. A lot of what a trial is, you may not think about it, but a trial is really a history story, right? Everything that we're talking about happened before. And in this case some of the things which get to the statute-of-limitations problem, copyright, happened a long, long time ago.

But of course what happens in the trial happens right before your eyes. And we have to make a credibility decision. He thought -- if Todd said that Neil was hard to pin down, was Todd telling the truth? I want to give you two examples. During this trial, it happened yesterday, of things that Neil said to you under oath. Right before the lunch break yesterday Gina Carter asked Neil whether he'd ever transferred his rights in Medieval Spawn and Cogliostro to Todd. And before lunch Neil said, no, he still had those rights.

Also before lunch Gina asked him to confirm that this basic DC Comics' deal that his May 5th letter was based on his two Sandman comics, the one for writers and the one for character equity. Remember what Neil said right before the lunch break, he said yes. He said it to me; he said it to you.

Then the judge had us take a lunch break. Neil left with his lawyers; Todd left with us. We went away for an hour. We came back. Now during the hour that -- I don't know what happened, but I will tell you that those two answers that Neil gave were extremely bad for his case. The transfer of the rights. Neil said before lunch, "I didn't transfer my rights in Medieval Spawn and Cogliostro." Well, guess what? This alleged 1997 contract that we've seen, lots and lots of things that Todd had to do, right? He had to pay him his late fee of $5,000 as an apology. He had to do a lot of accounting. He had to do this, he had to do that.

What did Neil have to do? Do you remember in that contract? He had to do two things. He had to transfer his rights in Medieval Spawn to Todd and he had to transfer his rights in Cogliostro to Todd, right? So before lunch when Neil said no, I haven't transferred my rights, what does that mean? If there was a contract it means Neil breached the contract, doesn't it?

And he also came back from lunch and he changed his story on whether he transferred the rights, didn't he? He said, no, he transferred his rights. He transferred his rights to Cog and Medieval Spawn and Todd had transferred his rights to him. We have no transfer documents. Both of them admit there were no transfer documents. But of course now he's -- it's an attempt, and I understand what's happening, to try to save his breach-of-contract claim. Because if he didn't transfer his rights, he's breached the contract.

And we have a very peculiar situation which Mr. Arntsen didn't touch on which goes to this first copyright claim. He transferred his rights, and I frankly don't know what he did any more because there's no paper that shows him transferring rights and he is the writer. He transfers rights. He doesn't even have a copyright claim in those characters, does he? He's got no claim because he's transferred them to Todd.

But you heard Mr. Arntsen when he went through the checklist. That very first item on the checklist. Does Neil Gaiman have a copyright interest in the following? And he told you to say yes to Medieval Spawn and yes to Cogliostro. I don't know which it is. All I know is that Mr. Gaiman showed you that he's a little hard to pin down on important facts. That's what Todd had to put up with for five years.

You saw yourself how frustrating it was for Gina Carter yesterday with Mr. Gaiman in the witness box and under oath, some sense of how difficult it was for Todd for five years with Mr. Gaiman not in a witness box and not under oath.

Now I would like to talk to you briefly about these different verdicts you're going to be asked to fill out. I have some different suggested answers to some of these questions.

The first one, "Does plaintiff Neil Gaiman have a copyright interest in the following? Answer yes or no." Well, and remember it's the burden of proof. He has the burden of proof. He's got to prove to you himself, and I have no idea any more whether he even claims he has any interest. I don't know whether he says he's transferred his rights in some magical way in the end of July of 1997 with no paper or whether he didn't.

If he did, then of course he has no rights, although Mr. Arntsen told you certainly he does. One of the things that when you hear these copyright instructions, and I'll tell you that they're hard even for lawyers on this thing. Copyrights are kind of a quirky area of the law. One of the things that the judge will try to instruct you on is you don't get copyright in an idea. OK? You can write, you know, Arthur Conan Doyle could write a Sherlock Holmes mystery. He can get a copyright in his book, but he can't get the copyright on an idea of a mystery set in London in the 1900s with a really brilliant guy and his sidekick. Other people can do that.

I submit to you all that what Neil produced was an idea. And Mr. Arntsen was pretty candid about it. He said he gave Todd a great idea. He gave him a great idea, and I would submit he was paid a lot of money for that great idea. But it's just an idea. He didn't have a copyright interest in here, assuming he didn't transfer.

Cogliostro is a different story. If he created enough to have an interest in Cogliostro, maybe he would have a copyright. But guess what happened? And this is the beginning of the change. If you recall, Todd didn't like the character and Todd started changing it. He left the name there, but the only Cogliostro you'll find today, outside of issue 9 where Neil's already been paid $100,000, he's a different character. The character Todd created, which is a more serious, remember, Moses-like character.

So my sense is that the answer on Cogliostro, you'll have to reach your own conclusion. The Cogliostro that exists today I don't see how Neil has a claim to that. Assuming he didn't transfer his rights, and I don't know where, where he is on that. In issue 26 he wrote a couple pages. Doesn't seem to me to be enough to be worthy of a copyright.

Now we get to the second copyright question. This is the statute of limitations question. This is where Mr. Arntsen says Todd was playing a game of "gotcha" with Neil. You may be wondering, as you were here today, why in the world do we have a lawsuit here that dates back to a copy -- to a comic book that was published in 1993 and to three characters who first appeared in 1993. Seems like a long time.

And under the Copyright Act, for a lot of different reasons, the Copyright Act says you have to bring your claim within three years of when you know or when a reasonable person should know that someone else is claiming the copyright in a piece of work that they think is theirs.

Now, Mr. Arntsen says this is a game of gotcha. But Todd didn't hide this notice. Copyright notice on issue 9, you recall, appeared exactly where you would expect to have a copyright notice: on that inside cover where it appears in all the comic books that Mr. Gaiman writes for DC Comics and it appeared in all the ones that Todd did at Marvel and DC Comics.

Mr. Gaiman, who's quite familiar with the copyright law, when he sees that copyright notice, if you really believe that he had a copyright interest, it was in March of 1993 or maybe in April when he and Todd are doing their signing. Remember that? They signed hundreds of copies of issue 9. I submit that any reasonable person, anybody conscious at that time, but particularly a writer, would say, "Wait a minute. This is my copyright, as well, if that's what he believed. And if he did, the clock started running in April and March of 1993. That's what you'll hear. And by April or March of 1996, those claims were gone.

Mr. Arntsen holds up the copyright notice as if there's something tricky there. I don't know what could be tricky. You'll see it when you get back to the room if this is an exhibit you want to look at. The word "Spawn" appears in italics. And italics, my understanding is that refers to something, a book. The person would be regular. It was the book. And certainly if Neil saw it and he had a question like, hmm, does this cover just the character or does this cover the issue called Spawn, he could have done some investigation I think before Jan. 24th of 1999.

Did the plaintiffs and the McFarlane defendants enter into a contract in 1992? Mr. Arntsen and I agree on this one. They did. Now you'll hear instructions from the judge that in order to be an enforceable contract you have to figure out what the terms are. And the terms you can't figure out, can't be part of an enforceable contract. We've had a lot of testimony. I don't think you're going to find the term as good as my DC Comics contract is a definite term. We don't even know what that means.

But I think that there was an agreement in 1992. Neil agreed to write a script for Todd for issue 9. Todd agreed to give Neil creative freedom in that script and to pay him $100,000. Neil performed his side of the deal; Todd performed his side of the deal. So was there a contract? That was a contract. That's the only one I've heard in 1992. Did the McFarlane defendants breach that contract? No, they didn't. They fully performed it.

Now we move to the 1997 alleged contract. And that's where, that's where we have a real difference of opinion. Todd believes, testified that he believed that they never reached the final lap of that contract. And there certainly is nothing that looks like a contract that you'll be handed. You'll be handed four pieces of paper. You'll be handed -- the only one of those four that, that Todd actually wrote, which was his "Beauty" letter, where he looks at Neil's points, he says, "I've got one thing to say. Are these points beauty!" "That's a Canadian term," he says. Before consummating this marriage I need some clarification. We know as of this letter, there was no marriage consummated.

And you remember what happened when Neil wrote him back his letter. That's when Todd began to get suspicious. His Medieval Spawn, here's how I would value it. Now, maybe, and I want to be completely fair in this, maybe there was an agreement, and part of what you have to decide is what was the agreement. And good luck to you, because I can't figure it out and Mr. Gaiman hasn't helped us. He's changed his story on what the agreement is.

Mr. McFarlane says that there wasn't an agreement. They were getting there; there wasn't an agreement. If there was an agreement, and it will be up to you to decide, I can't imagine it covers anything more than whatever these royalties were that Todd paid him. Remember he'd already paid him about 175, 180 thousand dollars. And he gave him all these accounting statements and he sent him more money. I think that they reached an agreement on that.

In fact, you even saw in the payment sheet, and you can read it when you're in the jury room, on Medieval Spawn. You can almost hear Todd's anger in that sheet when he tells Neil about his conversation with Tern Cunningham. And what Tern Cunningham told him, that he was going to pay some moneys anyway if we can get other things resolved. And you'll read it. So he paid the money. Todd's been paying money since 1992. But did they reach an agreement? No, other than if you find that they reached an agreement that was memorialized in those royalty payments, but that's it. And that'll get me, in a few moments on those payments, to one of our claims.

So did they enter into an agreement, a contract in the sense that Todd thought? I think the answer has to be no. He thought there'd actually been a contract. Todd -- a contract in the sense that Neil said I have no idea what it is. And you have to decide if there is a contract what the terms are.

The only thing I can see any agreement on is they worked out some sort of understanding about royalties. Although now Mr. Arntsen says no, Todd paid him the wrong amount. So maybe there's not even a contract there. Maybe there's a contract, maybe there isn't. Depending on what you think they agreed.

The fraud claim, if you listen carefully to the jury instructions. "Did Plaintiff Gaiman make misrepresentations and omissions of material fact concerning his DC Comics' contract during his negotiations in 1997?" You've heard the evidence. You heard about Medieval Spawn. You heard about the bonus, the HBO box office bonus. You heard about the letter that he sent Neil with the royalty rates. You decide if Neil was telling Todd the truth and was being candid or not.

Did Mr. Gaiman make those representations knowing they were untrue or recklessly without hearing whether they were true or not? Mr. Gaiman had the contracts. He says this is based on my DC contracts deal. Mr. Gaiman is the one who said "Tern Cunningham says I get a royalty in Medieval Spawn and Tern Cunningham says I get this bonus," and they all turned out to be false.

Did he make the misrepresentation with the intent to deceive and to induce defendants to act on it? As I said, I'm not a psychologist. I don't know what was motivating Neil; greed, ego, jealousy or what. But there's no question that all this stuff he told Todd in those letters he wanted Todd to rely on. And he knew they were false. So you make your own decision on that.

And did the defendants believe those misrepresentations to be true and justifiably rely upon it? You heard Todd. He paid money. He went ahead and paid money. We're not talking about a lot of money, but there was money paid in the end. And when you go back to your jury room to deliberate on that, I want you to keep that in mind.

[To read the rest of this article, please see The Comics Journal #250.]

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