I don't generally read The Comics Journal, for all the standard reasons.

But, being the sort of person who reads court decisions in his spare time, I had to make an exception for August's issue. It devotes 63 pages to a transcript of the trial in Marv Wolfman's action against Marvel to recover the rights to Blade. And that's just Wolfman's evidence - next month they'll be giving us the other witnesses. I'm in heaven. They should fill up their magazine with court transcripts more often.

For present purposes I'm not really interested in who won. It's only Blade, after all. No, what interests me is the more fundamental question - namely, once you've taken it out of the context of a story, just what is a "character" anyway? After all, unless we know what a character is, it's a bit meaningless to talk about creators - or anyone else - owning them. Wolfman's case brings up some tricky points.

Some very rough background. Wolfman claimed he had only given Marvel the right to run his stories in print. He said he had never agreed to give them the rights to the actual characters, and the right to use the stories in other media (i.e., he should have got all of the money from the BLADE film, not Marvel). Blade and his enemy Deacon Frost were the most prominent characters involved, given the recent BLADE film. But several lesser characters were also on the list. Many of them nonentities like Goldbug and White Dragon, but people like Nova and Jessica Drew were in there too. (And I'll come back to those two in a bit.)

Marvel's position was that all of these characters were work for hire. In answer to that, Wolfman relied in part on Siegel v. National Publications. That case decided that Superman was not created as work for hire, because Siegel and Shuster had created the character and completed the original comic strip before National Publications hired them. Fairly obvious, you might have thought.

Taken out of the context of a story, just what is a "character" anyway? According to Wolfman, he had created five of the characters in dispute before he started freelancing for Marvel in 1972 - namely Nova, Blade, Deacon Frost, Janus and Skull the Slayer. We can forget about Blade and Frost, since they just depended on whether you believed Wolfman about when he had the idea. (The fact that artist Gene Colan gave evidence that Wolfman had created them after he started working for Marvel can't have helped.)

Nova, Janus and Skull the Slayer were a different matter. They had appeared in Wolfman's self-published fanzine, STRANGE ADVENTURES, between 1967 and 1971. Now, at first sight this appears clear-cut. Wolfman has, after all, published the damn characters. Surely this is conclusive proof that he created them before 1972.

But nothing is that simple. Hold on a moment, says Marvel's lawyers. Okay, you published those stories. No argument there. But are they really the same character? The versions Marvel published had been, at least, substantially revised from the self-published versions. Substantially enough that Wolfman was creating them afresh for Marvel. (Or so they argued.)

Whether or not you agree with Marvel on those three characters, the line of argument opens a can of worms. In principle, they have a point. Clearly if Wolfman had simply reused the name of an earlier unrelated character, that would not be the same character. There must be a point at which the Marvel character has drifted so far from the original character that you have to view it as a new creation. You can argue about whether these particular characters had crossed that line, but the argument is fundamentally sound.

Now, I've never read any Janus or Skull stories (though it does read as though Marvel were nitpicking). Nova, on the other hand, I'm vaguely familiar with, and Marvel may have had a point. In the transcript, Wolfman describes the self-published Nova as a figure "in the black uniform with the hood, the white, the sort of belt that has the stripe down the center that leads to the... bootstrap." (p27) Visually that's not at all like Marvel's version - but obviously there's more to a character than a costume design. However, the Marvel version of Nova was a teenage boy at high school, and the Wolfman version was given a secret identity as an adult doctor. This is starting to sound a bit like a different character with the same name, isn't it?

The Marvel Nova was a teenage boy, the Wolfman version an adult doctor. Doubtless there are similarities, and the self-published version is at least the prototype for the Marvel version. Who is right or wrong isn't really the point. But there must come a point where a revisal of a character has drifted so far from the original that it just isn't the same character. Sharing the same name isn't good enough. There has to be something more fundamental in common. Defining what that something should be, is not easy.

You may well say, surely this is hairsplittingly academic. It affects a few characters that might fit within Siegel v. National Publications. Otherwise, sure, a character might be substantially revised over time, but in practice it makes no difference.

But in the context of work-for-hire characters - the type whose ownership is most likely to be challenged - it does become significant. Those later revisions will not necessarily have been the work of the original creator. The version of a character that becomes popular and valuable may be based on ideas that were introduced years after the character's inception by completely new creators. To an extent these subsequent variations can be dismissed as derivative works which fall within the originator's ownership. But the nature of work-for-hire characters means that that reasoning will not always make sense.

To take a nice clear example - with apologies for lowering the tone - look at Wolverine. Supposedly his creators viewed him as a teenage boy with knives in his gloves. They gave him no real name; they didn't design an appearance for him out of costume; really, they didn't give him a great deal. Many of the defining elements of the character were added by Chris Claremont. Even the original costume's been dumped. He retains his nationality, his claws and his violent tendencies, but the version now in print is in large part the work of others. Is it really fair to characterise their work as derivative when in reality they've reinvented the character?

There's certainly something in this argument. After all, taking the alternative to its logical extreme you would end up with Chris Claremont as the creator of Cable, on the basis that he wrote the story where the infant Nathan Summers was born. That plainly can't be right. Wolfman certainly seems to have found this argument convincing, since his action included a claim to the ownership of Jessica Drew. A character who, by his own admission, he did not create.

Wolfman's action included a claim to a character he did not create. Jessica Drew, of course, was Spider-Woman. She first appeared in MARVEL SPOTLIGHT #32 (1977), written by Archie Goodwin. Wolfman was subsequently assigned to write her monthly book, which started in 1978. And Wolfman made no claim on Spider-Woman - his argument was that he had created her alter ego when he started writing the monthly series. In effect, his claim was that the character could be divided into two separate creations and that his was one. This is certainly a novel argument, and one which seems to blur the division between creating a new character and adding to an existing one, almost to the point of meaninglessness. Wolfman may well have added something new to the character, but to describe the Jessica Drew persona as a separate character in her own right seems intuitively absurd.

By most reasonable standards, Wolfman's claim to have created the Jessica Drew character just doesn't make sense. She's an aspect of Spider-Woman, not a character in her own right. What would Wolfman have owned, if he had succeeded? Still, all of this shows how viewing a character as the sole creation of its originator doesn't always work. When the ultimate character has been reinvented in a way that didn't draw on the original creator's ideas, it is artificial to dismiss that as purely derivative.

Characters are easiest to define in the context of a particular story. When they're viewed in isolation - as they have to be, if you're going to own them separately from the story itself - things are much less stable. It's easy to sympathise with the Steve Gerbers who plainly did all the work on their characters. But when the day comes that a third-rate creator tries to reclaim the rights to a dire character that only became worthwhile when somebody with more talent totally overhauled the idea, where do you stand then?

Paul O'Brien is the author of the weekly X-AXIS comics review.

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