Neil GAIMAN and Marvels and Miracles, LLC, Plaintiffs-Appellees/Cross-Appellants, v.

Todd McFARLANE, et al., DefendantsAppellants/Cross-Appellees.

Nos. 03-1331, 03-1461.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 5, 2004.

Decided Feb. 24, 2004.

Rehearing and Rehearing En Bane Denied March 31, 2004.

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Kenneth F. Levin (Argued), Levin & Associates, Chicago, IL, Allen A. Arntsen, Foley & Lardner, Madison, WI, for Plaintiffs-Appellees in 03-1331, 03-1461.

Michael A. Kahn (Argued), Blackwell, Sanders, Peper, Martin, St. Louis, MO, R. Scott Feldmann, Crowell & Morning, Irvine, CA, for Defendants-Appellants in 031331.

Todd G. Smith, Lafollette, Godfrey & Kahn, Madison, WI, Michael A. Kahn (Argued), Blackwell, Sanders, Peper, Martin, St. Louis, MO, R. Scott Feldmann, Crowell & Morning, Irvine, CA, for DefendantsAppellees in 03-1461.

Before POSNER, KANNB, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

Neil Gaiman brought suit under the Copyright Act against Todd McFarlane and corporations controlled by him that we can ignore, seeking a declaration that he (Gaiman) owns copyrights jointly with McFarlane in certain comic-book characters. Merchant v. Levy,  92 F.3d 51 (2d Cir.1996); Zuill v. Shanahan,  80 F.3d 1366 (9th Cir.1996); Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 406 (2d Cir.1946). He sought additional relief under the Act, other provisions of federal law, and state law, as well. The case was tried to a jury, which brought in a verdict for Gaiman. The judge entered a judgment that declared Gaiman to be the coowner of the characters in question, ordered McFarlane to so designate Gaiman on undistributed copies in which these characters appear, provided modest monetary relief in respect of Gaiman's supplemental claim for damages for breach of his right of publicity, and ordered an accounting of the profits that McFarlane has obtained that are rightfully Gaiman's. The accounting is not yet complete, and so the judgment is not final; McFarlane's appeal is therefore limited to the injunction requiring him to acknowledge Gaiman's coownership.

McFarlane contends that a reasonable jury would not have rejected his statute of limitations defense and that in any event two of the comic-book characters at issue are not copyrightable. The parties agree that the alternative defense, the defense of uneopyrightability, is strictly an issue for the court. We have found only a handful of appellate cases addressing the issue, and they are split. Matthew Bender & Co. v. West Publishing Co.,  158 F.3d 674, 681 (2d Cir.1998), and North Coast Industries v. Jason Maxwell, Inc.,  972 F.2d 1031, 1035 (9th Cir.1992), hold that copyrightability is a mixed question of law and fact, at least when it depends (as it usually does) on originality, and that it is therefore an issue for the jury or other factfinder. But Yankee Candle Co. v. Bridgewater Candle Co.,  259 F.3d 25, 34 n. 5 (1st Cir. 2001), and our own Publications Int'l, Ltd. v. Meredith Corp.,