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It is more complicated than that. McFarlane owed royalties because Gaiman was a joint owner of Medieval Spawn. The court held that Medieval Spawn was a copyrightable character because it contained original elements distinct from original Spawn. It was, in fact, a derivative work. Because the original elements of Medieval Spawn were authored by Gaiman, he held the copyright to those elements.  But Gaiman only owned as much as he contributed, e.g., the medieval nature and other characteristics original to Medieval Spawn. The original Spawn elements belonged to Gaiman. Becuase one could not use Medieval Spawn without infringing on the Spawn copyright, Gaiman was effectively precluded from doing anything with Medieval Spawn without McFarlane's blessing. He had to be paid royalties however for McFarlane's use of his copyright. I think, after the Court's ruling, the parties settled where Gaiman transferred ownership of his Medieval Spawn to McFarlane in exchange for full ownership of Angela.

Appropose to the Friedrich case, the issue, I believe, is whether Friedrich authored enough of the original elements of Johnny Blaze Ghost Rider prior to Marvel commissioning the work.  Marvel contends, at most, he presented a few ideas but ideas cannot be copyrighted. It contends that original and copyrightable elements of Ghost Rider were developed later, after Marvel already commissioned the work and began paying Friedrich.  If that is true, then WFH governs. If not, then Friedrich can prevail.

Brad touched upon one of the interesting concepts of the case to me--when did the idea of Ghost Rider/Johnny Blaze became fixed in a tangible expression that could be copyrightable?  Friedrich claims to have had an idea of a motor cycle riding hero since the 1950s that he finally put into a fixed medium when he gave Roy Thomas a written synopsis.  According to Roy Thomas, Friedrich didn't set anything down until after Stan Lee commissioned the work and it was a collaborative effort from then on.

The line between idea and execution can get pretty blurry in copyright law at the edges where the two concepts intersect.  Certainly, though, no one claim a copyright in "a motorcycle riding hero" because that is simply too generic.  But, a 1) motorcycle riding hero 2) with a flaming skull 3) who makes a deal with Satan 4) in exchange for curing his stepfather's cancer--those four elements together are almost equally certain to be copyrightable. The question is how many of those elements need to be present to cross the threshold.

Friedman appears to claim most or all of the four elements were put into a written synopsis (tangible medium) and presented to Marvel. If true, then those elements belong to Friedman because they predate a WFH relationship. Marvel appears to claim the synopsis was little more than "a motorcycle riding hero" and that all of the copyrightable elements came after they commissioned the work and in some instances (the flaming skull head) by people other than Friedman (Roy Thomas/Mike Ploog). Anything occuring after it was commissioned is likely WFH, meaning it was "authored" by Marvel under the law and the rights vest in them in perpetuity.

I can only assume the written synopsis is long since lost and the case will turn on whose testimony of that synopsis the jury decides to credit--Friedman or Thomas.  But that is why we have juries--to make a determination on facts that are disputed by the parties!

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Harlan Ellison sued -- and won -- over THE TERMINATOR, saying it contained elements from two different stories of his.

That struck me as a slippery slope, of plagiarism can be claimed from multiple sources. EVERYTHING comes from multiple sources!

Motorcycles, flaming skulls and deals with the Devil all long predate GHOST RIDER. If I was a judge, I would really have a hard time declaring Johnny Blaze a unique creation.

I don't think Ellison "won" in the sense that any judge or jury determined that what Cameron did violated copyright law.  From what I can tell, the case settled upon threat of the lawsuit because, as Mark notes, Cameron gave an interview saying he got the ideas for Terminator from two of Harlon's Outer Limits episodes. It seems the producers, allegedly, then had that sentence removed from the article but Ellison found out about it and got an original copy of the article. Could be the producers made it a lot worse by attempting to "cover it up."

To address your point, JB, I'm not sure Ellison would have actually won in court on a claim of copyright law unless he could prove that each element taken from each story were independently copyrightable and copied. In other words, I  would be inclined to say your view --that you don't copy by mixing and matching--is probably correct.

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How far would you go with that? Assuming the relevant trademarks weren't used to sell a comic, would you, in effect, consider Ghost Rider a public domain character about whom anyone could sell original comics?

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No. But a guy who made a deal with the Devil, and who now has a flaming skull and rides a motorcycle -- THAT would be very hard to "protect". Assuming, of course, the "creator" of this "new" character didn't want to call him "Ghost Rider".

And, of course, if ti was a CHICK with a flaming skull, whole new ballgame!