Though the name Richard Posner may not mean much to you, he is well known to lawyers and law students around the United States. Until suddenly retiring in September, Posner was for many years one of the most outspoken and influential judges in the country. In his books, scholarly articles, posts on Slate.com, and, of course, his judicial decisions, Posner used a view of the law influenced by economics to decide many important cases and influence the development of U.S. law. For many years, Posner has been both an influential jurist and an outspoken critic of the judiciary, including the U.S. Supreme Court. Indeed, shortly after his retirement, he published a book entitled Reforming the Federal Judiciary: My Former Court Needs to Overhaul its Staff Attorney Program and Begin Televising Its Oral Arguments, in which he issues serious criticism of his former court.
From his position on the 7th Circuit, Posner wrote countless important decisions, including several on copyright law. I still remember the first time I really noticed Posner’s writing. It was in my law school copyright class and his decision in Gaiman v. McFarlane. In this case, Neil Gaiman, the popular author of books like Sandman, American Gods, and Good Omens (with Terry Pratchett) sued Todd McFarlane, one of the most famous comic artists/authors of all time, over characters from McFarlane’s original comic book, Spawn. McFarlane hired Gaiman to write several early issues of the comic, and together they developed one story line that features a Medieval Spawn, an angel, Angela, and a mysterious homeless man, Cogliostro. Gaiman argued that they both owned the copyrights as joint authors because he and McFarlane created the characters together. McFarlane, for his part, said that Gaiman only provided bare character sketches, and the characters really came alive because of McFarlane’s artistry.
In his decision, Posner ultimately held for Gaiman, writing that both Gaiman and McFarlane created the characters together, and both should own the copyrights.
The Trademark & Copyright Law blog, an excellent intellectual property blog, discusses several decisions on copyright by Posner, including this one. It’s worth your time to check it out. And now that Posner is off the court, I doubt we’ve heard the last from him. Indeed, I’m certainly looking forward to whatever Posner does next.