Category Archives: The Law

December 8, 2007

Perspectives About Fansubbing

By omo

If opinions are like pieholes and everyone’s got one, then this blog post is like a public toilet?

I want an ensemble anime about fansubbing!

I kid. But more seriously people do need to think about the whole fansubbing fiasco with the open letter and what not. I took the time to compile a small list of general schools of thoughts regarding the matter and maybe that can help you make up your mind.

I compiled these things over the course of a couple weeks, but I know I am missing out on some of your more creative brothers and sisters in this disguise of a lesson on franchising. Com’on folks, we’re in the 21st century and this is a very old idea in comparison. Why don’t people understand it already?

But as usual, please share your perspective if you care. Lawson’s post takes it home my first impression–we are in this together. We are not enemies but people working together for a common goal. Keep your fault blaming at home like this man does. (LOL BOSS MAN?)

Perspective One: Fansubbing lets people watch anime for free. Digital distribution makes it easy for people, even computer illiterates, to download their favorite shows (for that matter, even non-fansub stuff) and watch it when companies are counting on you to buy them instead.

In a plain sense one has to overcome the baseline objection and perspective about getting something for nothing. But when it comes to disposable, consumer popular media, it’s a buyer’s market. If you want to make a buck selling anything you have to give the American audience something to think about. Kids love Naruto and most anime fans already have some collection of their favorite titles. There’s just no space for some “A” titles, so let alone “B” ones. Fansubbing cuts into the sales of these types of show in a notable way.

And you know what, that’s fine and agreeable. That is also the present-past. What can we do to make it better? Better for the fansub viewers, and better for the companies? That is the start of our discussion.

Perspective Two: Fansubbing is the root of anime fandom in the west, and it’s time to ditch it as mission complete. All the big shows in Japan gets licensed nowadays, just as a matter of time. It’s doing more harm than good in terms of financial strain on the licensees.

This is a fair stance to take given that anime is now a widely-recognized, Japanese national export. But this will also transform the fan scene that we know. For example, compare New York Anime Festival with Otakon. The two anime conventions detail very well what a fansub-less world would look like versus one that’s more traditional and we are familiar with. Ok, I’m sort of kidding (NY area anime cons generally suck, sadly), but maybe Anime Expo would serve as a more popular proxy of an industry-minded convention. In some sense, it is not a bad thing that fansubbing gives way to faster licensing and just generally, more direct industry mingling with the fan base (heh, I really enjoyed AXNY that one year), but that has not happened consistently (if often at all). Furthermore different corporate entities vary at how good they are at doing it. Some are terrible; others are epic wins.

That’s one area where companies can spend more of their marketing dollars and yield a lot of positive fan rapport as a result.

Perspective Three: It’s there, we take it.

I like this perspective because it rings true. But this is the kind of thought that gives rise to nonsense like DRMs. And even if it’s short and sweet, we don’t know if it’s a fair statement to make in face of the factual situation. Even with the entire world pirating over the internet, the media industry still makes a good buck, even if they are struggling to change the way they do business. There is, as widely recognized, a gap where the industry folks can move in and figure out some way to squeeze this new rock for blood. But this is the sad reality of things. And ultimately we have to recognize that anime, a form of mass media most of the time, is meant to be given away and freely taken as they were created. The value of TV anime plummets when no one watches it. That’s the simple fact.

It’s only the past few years US-based licensees are starting to sell things as franchises and not as products. IMO that’s epicfail. When Disney-Pixar makes a film, they are not selling just a film, folks. They are, in effect, selling shares of their fans’ and viewers’ minds. It’s priceless if you know how to make use of it. It’s there, why aren’t you taking it?

Perspective Four: It’s illegal.

It sure is not a sick bird. I think for everyone who are saying it’s illegal I hope you are a lawyer :D

(Warning: TL;DR. Skip the next paragraph if you don’t care about legality as much as how to make the producers and licensees money.)

What do I mean by that? OK, we all agree that unauthorized reproduction and translation of someone else’s copyrighted work is breaking the copyright code (at least, speaking from the American perspective), but please don’t compare it with every other act that you deem also as “illegal.” A long time ago I remember reading some random guy talking about fansubbing as about morally reprehensible as shoplifting. I think back to that and laugh. But my snide comments aside, there’s a reason why millions of people are getting away with this kind of piracy (pirating music, mp3s, etc) even within the US. There’s a reason why if RIAA do get on your butt on your music sharing habits, they don’t send the FBI on you, but they mail you a letter to let you know what’s going on (it’s just the beginning of a civil litigation). In fact, aside from actually dealing with courts (there are always court cops you have to deal with when you go to court), there is no space for cops to interfere. Breaking the copyright code carries criminal penalties, but it does not apply to the way most people are doing it (considering the going price of an episode of anime on the internet is about $3, and most people don’t upload more than 333 episodes of anything in a 180 day period). It certainly is not how far most fansubbers are doing it (lol talk about speedsubbing). We don’t even need to get to my copyleftist leanings to come to the conclusion that it’s non-criminal and illegal only because it’s convenient. It’s less criminal than speeding on the highway (no one died because of media piracy since I last checked. OH WAIT LAWL pun). It’s as illegal as being the victim in a car accident in a no-fault state (but much less dangerous). It’s definitely less illegal than being an illegal immigrant. It’s less illegal than speeding. It’s more annoying than being in civil disobedience, but probably also less illegal. It’s way, way less than shoplifting. It’s probably safer than having homosexual anal sex in some US states, and less criminal to boot! So how illegal is fansubbing? Quite illegal. But it’s a meaningless thing to say in this conversation. Just what does it accomplish? Do people even know the history of the copyright code in the US? It’s a dark abyss of moral indifference and corporate greed–a mechanism to regulate commercial competition between industries and to pad the pockets of federal legislators. And let’s not even talk about the internet in this context, because it’s LULZ.

But as many people have pointed out over time, we draw a very clear line between fansubbing and bootlegging. In reality the line is not so clear at some instances. This is the primary reason and harm caused that fansubbing ought to be stopped. If you’ve looked into an English-language bootleg lately, a lot of them are just fansubs that bootleggers downloaded and encoded.

Perspective Five: Fansubbing helps the industry today by bringing more press, more fanfare, and more buzz on the street.

O RLY. I just don’t know, though. Okay, we can say that without fansubs there would have been no early American anime fandom. But this stopped at some point–the very first proto-fans turned industry, and got the ball rolling. Soon we have people who are in for it not just for the love of passion but also to reap that immediate buck. The industry is self-sustaining. I recall some statement made by some industry guy saying the presence of bootlegs indicate that there is money to be made in this industry. It is just that while bootlegs are, by all means, a force of nature (in macro economics sense) to resolve short-term market inefficiencies, there is a long-term perspective to it that can yield more bucks if people invested towards it. But just how long-term are we talking about? Do we have the people and resources in the industry to capture it?

It may be generous to characterize the effect of fansubbing, from the perspective of people selling videos, as a double-edged sword. Remember bootlegs are also affected by the presence of fansubs. Or rather, bootlegs are affected by the ease and low cost of distribution via the internet. Factors like price, cost of production, timeliness, ease, and what is commonly accepted format all play a big role in the success of making money selling DVDs, along with many others. This is really the bottom line here, and if the lackluster numbers of DVD sales can be blamed on fansubbing, we have to isolate it a step further to really figure out what’s going on. At first glance we see that fansubs are convenient, speedy, and cheap all at once. But it’s probably not as good (with exceptions, but generally they aren’t) as a DVD you buy.

And this is where Perspective Three comes in. After it’s all said and done, fansubbing sometimes does help to market goods (HELLO SIMOUN) but at the same time it totally does not. Fansubbing is free market research. But also it makes fans all by itself. That’s what I call tilling the soil of the fans’ brains! Some company just need to swoop down and plant and grow some stuff instead of making us spend all this time on nicovideo doodling to bad Clannad fandubs. Or something. And they can save money on licensing cost by licensing the characters alone, and skip on video distribution or something.

Perspective Six: Fansubbing helps the industry today because I sure wouldn’t buy half the shows I own on DVD if I didn’t see it first.

This is probably the biggest reason why the US industry is flopping so much. I mean as much as God bless Geneon USA for licensing Nanoha, it just isn’t a title that’ll sell. It’s too otaku-poi. And face it, there are just very few otaku in the US. Few as in maybe thousands. And even so Nanoha is not everyone’s cup of tea. Adding on top the non-otaku interest to Nanoha (I think it’s a fine show for everybody?) it still doesn’t look very good from a marketability and revenue perspective.

Shows like that has gotten considerable attention from the fan base. But how about Fate Stay Night? I think this is a good example where we really need to distinguish between the anime and the franchise. Fate’s franchise is still going strong today; it still has a lot of fans. How this became to be is a complicated story (well, once upon a time there was this game…) but all the hype behind it crushed the anime that came as a result. People still bought it because it was interest enough, but it was not a very competitive product on its own. In the process of importing Fate there needs also the importation of the hype, the fandom, and the buzz that the Fate franchise has, and without having the original game reach the kind of penetration it did in Japan, that’s just not really possible.

This perspective is about marketing. I think people will buy any one thing if it had the right marketing pitch to it. Pet rocks anybody? Fansubbing, like word of mouth, the buzz on the street, what your mama says, etc, is a form of marketing. How do you market anime properly in the presence of fansubs? Or lack there of? That alone doesn’t do all the work, as I messily tried to point out with the above paragraphs about Fate and Nanoha.

More specifically, it’s not easy to market otaku-oriented anime. It’s easy to sell Howl’s Moving Castle, for obvious reasons. But when it comes to these more obscure stuff, people did try it with various means over the past several years. In fact, I think Bandai/Kadokawa did a great job with the Haruhi wave so far, sort of as the accumulation of the failure of others. And that’s just something that had to exist with fansubbing–or rather, fansubbing is the natural fruit of this kind of fan buzz. My opinion is that fansubbing is fansubbing. If you look at it just as subbing, then you are missing the boat and it would obviously be simply a bunch of people trying to cheat people out of their money by providing a free product. But the flip side is true. Don’t sub something commit copyright infringement over something you’re not a fan of. It’ll save you headache and precious time you could use for improving the lives of you and your immediate friends and families. It’s just not worth it.

That’s it for now. But if you take this serious I would be interested to hear what you have to say… Especially if it’s something I have not heard before… lol.

6 comments | posted in English Language Modern Visual Fandom, Franchises, Modern Visual Culture, Popular Culture, The Law

March 24, 2007

Signs of Trouble

By omo

A couple years ago, Otakon had announced a “sign” policy that regulates the use and display of signs within the convention by the con-goers. This is particularly amusing if you read about that without any idea how it was at Otakon, and twice more if you do.

And for the most part, it’s something of just trivial, passing interest.

Said trivial, passing interest came to mind when I read that one US Supreme Court oral argument transcript about signs at a school. It’s in the local news this past week, and the long and short of it is that some student held up a 14-foot banner saying “Bong Hits 4 Jesus” during a school assembly to watch the passing of the Olympic torch in Alaska.

During the oral argument, the various Supreme Court Justices pitched hypothetical to illustrate their points about managing kids in schools, First Amendment issues, and to test the possible ruling they are considering. Expectedly, there were some good ones. I think Justice Scalia’s “bong sign” comment wins them all, but it just occured to me that these signs are, depending on context, possibly very, very funny things. It’s like, a non-computer representation of a funny image, printed on something.

yarly

And then Otakon came to mind. Otakon 2004(?) was when the signs went crazy. Walking through the main exhibit hall corridors at the right time of day on Saturday means you probably saw like a hundred signs, many of them small and crude, plastered on walls or held up by random idling people. Most of them are pretty stupid things telling you the nature of fandom and what it means to be a fangirl or fanboy; who needs no pocky or glomping. Whatever. That year Otakon hit 20000+ in attendees, if I recall correctly, so it was a bit out of hands.

But does that infringes free speech? Naturally the BCC (and most other con hosts) are private locations, so at the very least, US laws allow the private organizations to arrange and manage things like sign usage when it’s on private property, as opposed to public schools.

Nonetheless free speech is an issue. Perhaps not so serious, but most anime cons in the US still screen fansubs; panelists and attendees exhort all kinds of crazy opinions that do not reflect the organizations that host these panels. The expression of people with signs are mostly harmless, but can be a public nuance if they become fire hazards or create litter. Still, if you really want to be glomped, there’s no reason to not let other people know about it, I think. I guess as much as I might regret saying it, signs (when responsibly used) exhibits individuality and personality and adds a lot more to cons, in the same ways cosplayers and live performances in the halls do, and gives it flavor. Perhaps it’s another story as to if signs can be responsibly used, and what that means.

To me anime cons are valuable as a exhibition and expression of fandom. On top of being a consumerist orgy of niche retail products and a giant networking opportunity, it’s a precious expression of freedom of speech and the freedom of people being who they want to be. Retarded kids need be policed by con management, yes, but what’s lost is not insignificant.

6 comments | posted in Conventions and Concerts, Modern Visual Culture, The Law

December 21, 2006

The Reason for the Season, or the Real Melancholy for Me

By omo

Social Anxiety Disorder?

If I haven’t made my Christian leanings clear to you yet, well, I probably won’t in this post.

I’m here to give thanks, in a way, and show some appreciation for the various people and entities that made this blog, this network of blogs, and all its readers and contributers stick together as a loosely associated community that, believe it or not, has meaningfully affected my life this past year. Doubly so for those who bear the brunt of my run-on sentences. Thank you.

But just thanking thankless fansubbers is not what I’m good at. If I were to dwell on that I’d quickly give into friendly jeering and mockery at our mutual detriment. Instead, I’m going to do it, with help with (and thanks to) Henry Jenkins, with a short article published in Reason Magazine.

Sure, when you boil it down, Jenkins’ article says nothing we fans haven’t heard of. It’s a rehash of the same argument I vaguely nodded to every time I debate about copyright and piracy’s empirical effects. Yet, at the same time it’s a celebration; it paints a concise picture to the historical example how a bunch of crazy retard fans paved the way for the fact that half of the anime blogs are chasing the disappearance of Suzumiya Haruhi and its reappearence. Just why did sos-dan.com sold out? Or ANN and Anime on DVD? I don’t know; but it’s only made possible through the road fansubbers have built.

Legal, illegal, ethical, unethical–that’s all besides the point. It’s unrealistic to expect everyone to see eye to eye on the issue in all of its nitpickery details. I’m going to just say that copyright law is arcane and ambiguous to even lawyers; and unless you’ve given it a lot of thought and self-education it’s hard to make heads or tails out of it. In fact, that’s part of the problem–people don’t know what they’re doing, so we’re in this mess.

But as much as manufactured culture expands through the growth of industrial media and technology into the arena of everyday life, it’s only because people are living safer, healthier, wealthier, and more leisurely. The product of a society less bothered by the drudgery of the Nine-to-Five is a society freed from the chain of necessity as a bar to creativity. This society gives freer and appreciate more what they have been given (so I argue). We might think this newfound freedom disturbing, but America has had at least 40 years of experience in this culture revolution; Japan is still struggling seriously, along with much of East Asia, Middle East, and parts of South America. Places like China and India are only a decade or two behind. What’s troubling about this revolution is that it occurs in the meta–it isn’t what people do or say, but the framework, the mass-market behavior and trends, and how businesses conduct themselves to be profitable; and ultimately, how people think and react to certain stimulus 3 years ago just isn’t going to be the same 3 years in the future. It’s not just a new school of thought or a subject matter, but demolishing entire perspectives and challenging the fundamental ways we think. From Superstring Theory to understanding why YouTube is worth 1.6 billion dollars, all these things are revolutionary in varying degrees.

Copyright law is just one of the major battlefields in this changing society. For the first time ever fans can import foreign cultures through distributed subtitling efforts (well, save for those people who do all their fansubbing by themselves) and promote an information good to audiences wide and far. We’re no longer in the SVHS days, folks, even if that information model was first put together during that nostalgic period in my life. Cheap broadband, anime clubs and cons, and fun fun websites just made it so much more accessible and easy, arguably, for a little Palestinian girl.

I guess revolution and battlefield might be extreme and loaded words to use, but if you’ve got 10 minutes left after reading Jenkins’ article, spend it here and hear it from some Open Source folks worrying about just where our culture are going. It’s dated, and it’s for Open Source folks, but it characterizes what’s at stake very well.

Alternatively, you can chalk up my crying wolf to my own personal experience this past half year; I’ve read more on this topic than that is probably healthy. Lessig and his company of copyleftists make a variety of compelling arguments. But much like the internet, it’s hard to see how it all translates into our daily experience; yet likewise I’m sure whichever genius that does will profit greatly along with society generally. It is a source of melancholy.

Anime is here because it was made free. We are blessed; and it’s only natural to extend this blessing to those trapped still. Even if that means making a funny nod at the doujin culture in Japan, so be it. Thank you for partaking in this subconscious act of civil disobedience; no matter as a fan or a subber or just someone clamoring for attention. No matter if you’re ill-intended or well-intended, we’re all in this for the long haul.

3 comments | posted in English Language Modern Visual Fandom, Modern Visual Culture, Popular Culture, Suzumiya Haruhi no Uuutsu, The Law

November 7, 2006

The Rise of a Networked-Economic Giant; or Everybody Wants to Go to Heaven, But Nobody Wants to Die

By omo

In Yochai Benkler’s book The Wealth of Networks, he explored the internet’s potential in transforming human society by comparing behavior of people living in advance economies between a industrial mode of information production and network mode of information production. In some ways it is a repackaging of the common, copyleftist argument about freedom–“free as in free speech, not free beer.” However, Benkler raises a contention that a networked, non-proprietary approach to creating valuable, marketable information can be just as good, if not superior to a classical, industrial mode of production of information. Benkler does this through both economic ally and in social and political terms. While his example of the open-source movement in the software industry is a common banner that copyleftists rally under, the generalized approach Benkler used to explain the situation can be applied across-the-board, to most, if not all, useful information that is produced today under an industrial mode of information production.

Taking a bottom-line, cynical approach, I ask: Is Google’s long-term strategy as a business entity to create a niche in the market and in the landscape of copyright law, a sustainable goal? While the public cannot be certain what goes on in Google’s board meetings, one can reasonably construe their recent actions, marketing strategies, and overall philosophy to suggest several things:

1. If one can fairly presume that Google is full of smart, intelligent managers, lawyers, and businesspeople, then their success thus far these past few years means a switching of gears that they are going to be in this business for the long haul. Google has not existed even for 10 years, and many years less in the eyes of the public (and investors). Given their position as a leader in the internet-related industries, they now have the wherewithal to take new kinds of risks and pioneer the future in this mostly uncharted area of business and law.

2. Jessica Litman’s Digital Copyright lays out a solid foundation and a rather cynical view of US copyright law. In part, she argues the current statutory regime is the direct result of many elaborate and complex negotiated-for bargains between the traditional players in the copyright industry. While Litman, Benkler, and many others warn the senselessness and unfairness of applying laws meant to enforce economic competition between businesses to everyday Joe and Jane, the fact that Google (and the majority of players in the higher level of abstraction of the internet market–to exclude telecom interests and ISPs from the picture) had no say during the late 1990s round of legislative negotiation, it leaves new players in new media little choice in dealing with laws that are designed keeps the old players in power. Indeed, this entire school of thought did not start to mature until years after the passage of the DMCA. (Perhaps talk about Yahoo here?)

3. Are Google’s lawsuits a form of impact litigation? No doubt, by bringing novel and new issues before courts, Google is trying to set laws in favor to itself. In fact, if Litman is right, the court may be the only real legal venue where Google can seek relief; and especially if the legislative process is as slow as Litman (and in the history of US copyright law) claims. But as a rule, outside the court room, lawsuits have deep and complex implications for businesses. One of the key implication is in the battle of mindshare. (Bruce Keller’s presentation about the ad-based model of Google and the comparison to TV and radio elicited in me a feel of irony in light of the big picture.) Google is viewed in the eyes of the public directly, and its good will with the public affects its earnings in a very direct way (as opposed to book publishers or the Author’s Guild, as examples of Google’s opponents). Thus, Google has a stake in swaying the law to embody a wider fair use, or more free use, in alignment of public interest. Google can paint its opponents in a light of how established players, lacking that judicial agility, fight to retain the way they do business against innovative technology. It is both a marketing ploy and a legal strategy.

4. This ties in with the perceived, Lessig-like argument about fair use. It is generally accepted that a business method relying on a legal interpretation of fair use is an extremely risky one. While that never stopped VHS and Betamax manufacturers, the full force of the copyleftist argument is that some of the new things we can do through new media seems to violate the section 106 bundle of rights, they shouldn’t. These uses should not even be “fair use,” but free, un-infringing use. However short of legislative changes, Google’s only alternative is to have a court declare that it is “fair use.” Once realized that these reforms are very pro-public and against the interests of the established, entrenched corporate interests in old media, the public will tend to rally towards Google, its free services, and its vision of a freer informational future.

5. The nature of a internet search engine cannot be reduced to the like of a yellow pages or any analogous argument someone may make in court as a biased counsel. The web itself has been transformed entirely by search engines; Google’s success alone is more than enough to testify to its significance. It can be fairly said that ultimately Google is a middleman in the balance of consumers, creators, and middlemen, but how will the courts appreciate the value Google adds to our economy today? How will the courts appreciate the value of YouTube? MySpace? Will it go the way of Grockster; or the VHS?

Conclusion: What does Google stand to lose if they do not press on at this time? This is the $64,000 question, but does sound business sense means anything in an industry that is fast-changing, dynamic, and highly developing? With high risk comes high rewards. The fact that Google is such a threat to traditional players in consumer media (and an ever-growing list of other traditional players), there are reasons to believe this is going to be the case only if Google breaks the ties of the legislative binds that hinders it as a corporation in competition with other economic entities interested in the same slice of the consumer pie. Why say yes to licensing when you can always say yes to licensing later? The cost of litigation plus even a poor settlement seems little when the entire future of the world’s information industry is in the balance. To call Google’s attorneys as “believers” is probably more fitting rather than calling them prophets, but that is exactly what is in the balance for them.

===

Yeah.

The above is a rough outline of what I plan to write in a week’s time into a short paper. (And forgive the random references that I make with no clear meaning as to what it refers to, just for my own sake.) The relevance to all things anime is small but it’s an answer to a question plaguing the content industry. The internet has long since been the worst kept secret to wealth in this information revolution. How do you make a buck? How do we work with fansubbing to make a buck?

Indeed, if what keeps fansubbing alive is the monetary barrier to bring a suit to a wide range of people all over the world, to sue potential customers of Kadokawa Shoten, Bandai, MediaFactory, King Record, and what have you…

1. Why hasn’t there been more concerted effort to bring “fansub groups” down?

2. Fansubbing has evolved. But where will this go next? To elaborate, since the days where we pipe text through a genlock to mail SVHS tapes in a SASE envelope to today where we can produce MTV-style parodies with Aegisub and put it on YouTube, things has changed. The legal liability and economic incentives changed. The use changed. The users changed. And it will continue to change. I find it disturbing that I have to make a distinction between fansubbing in various contexts.

3. What other relevant questions can we ask? What are all the stakes? Whose stakes are important? To whom?

What I would really apperciate are references and critiques if you can throw them my way. I’m still in mid-research, so to speak, so that sort of stuff can be very valuable for me. Pretty please?

8 comments | posted in English Language Modern Visual Fandom, Modern Visual Culture, Off Topic, Popular Culture, The Law

September 6, 2006

Of Gaiman and McFarlane, Posner and Me.

By omo

Angela in ... Nekomimimoodo!

If you cared for English-language comics, you might have heard of the long, strange, and fantastical mess of things behind the ownership of Marvelman. It is just odd, and somewhat irrelevant. So, here’s a bit of exposition behind all this: Marvelman is some comic franchise/character Neil Gaiman, famous comic artist and scriptwriter, tries to revive, for some reason. At one point Todd McFarlene thought he had the rights, and it happened that Gaiman is a co-owner of some of the key Spawn characters, namely Angela, Cogliostro, and Medieval Spawn. Anyways, at one point Gaiman and McFarlene decided to trade the rights to Cogliostro and Medieval Spawn with Marvelman (as it was worth pretty close to nothing at that point, compared to having a piece of the Spawn empire at the time). This was 1997.

However things didn’t work out between them, and they had to call in the lawyers. And there were judges. I’m going to come clean: I’m totally interested in this case because of Posner, and how he deals with this topical matter, and the topical matter itself. I care for Gaiman a tiny bit and definitely do not care about McFarlane at all; which is probably more than how much I care for Spawn or Angela or Marvelman (as a character).

But when I read this, I just can’t imagine someone like Posner (or one of his clerks, more likely) that would pour over the general concepts of Spawn. I suppose by the time that he authored the opinion he would have had the chance to see the movie. Yeah, I’m a bit of a Posner fanboy.

Ah well, I’ll let his writing do the work:

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 neighborhood 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 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 pondering the unhappy fact that once he exhausts his Hell-born energy he will be returned to Malebolgia’s domain and become a slave in an army of the damned with no hope of redemption. He must try somehow to break his pact with the devil.

Even better is when he goes on and describes Angela and the other Gaiman contributions regarding Spawn issue #9:

McFarlane’s original Spawn, Al Simmons, was a tall figure 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 wearing 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 apparent 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 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 dominatrix 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.

I mean, this is just brilliant. I don’t think many fans can even write and grasp the concept of Spawn so cleanly as Posner did. Granted back in 2004 when this was news, I wasn’t a Posner fanboy and I was equally ignorant of copyright law, so this didn’t ring a bell. Now I revisit the same material for class and I go all LOLOL over it. Sigh. At least you now know how it has to do with me. It does serve an important lesson for you fancy pants creative types, so know who you collaborate with!

Ahh, curiousities of American law and business methods.

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