Neil Gaiman and Marvels and Miracles, Llc, Plaintiffs-Appellees/cross-Appellants v. Todd McFarlane Defendants-Appellants/cross-Appellees

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 co-owner 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 co-ownership.

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 uncopyrightability, 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 copyright-ability 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., 88 F.3d 473, 478 (7th Cir.1996), along with a number of district court cases, e.g., Collezione Europa U.S.A., Inc. v. Hillsdale House, Ltd., 243 F.Supp.2d 444, 451-52 (M.D.N.C.2003); Newton v. Diamond, 204 F.Supp.2d 1244, 1253 (C.D.Cal.2002), hold that copyright-ability is always an issue of law. Whether a particular work is copyrightable is fact-specific, which argues against treating the question as one of law, but tugging the other way is the concern that property *649 rights not be placed at the mercy of a jury. A nice issue, but this is not an apt occasion on which to reexamine our resolution of it in Publications Int’l.

Gaiman’s cross-appeal, in which he is joined by a company controlled by him, is from the dismissal of his auxiliary claim for breach of contract. The cross-appeal is contingent on our reversing the copyright judgment, since Gaiman seeks no additional relief on his contract claim; it’s just a backstop to his copyright claim.

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; McFar-lane 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 “Hell-spawn,” are officers in an army of the damned commanded by a devil named Ma-lebolgia, who hopes one day to launch his army against Heaven. The leading character in the series is a man named A1 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 A1 began to question Wynn’s motives, Wynn sent two agents, significantly named Chapel and Priest, to kill A1 with laser weapons, and they did, burning him beyond recognition. A1 was buried with great fanfare in Arlington National Cemetery.

Now A1 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. Male-bolgia took him at his word (“would do anything”) and returned A1 to Earth. But a deal with the devil is always a Faustian pact. A1 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, A1 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.

The early issues in the series were criticized for bad writing, so McFarlane decided to invite four top writers each to write the script for one issue of Spawn. One of those invited was Gaiman. He accepted the invitation and wrote the script for Spawn issue No. 9. Their contract, made in 1992, was oral. There was no mention of copyright, nor, for that matter, of how Gaiman would be compensated for his work, beyond McFarlane’s assuring Gaiman that he would treat him “better than the big guys” did. The reference was to the two leading comic book publishers, Marvel Comics (not to be confused with Gaiman’s company, Marvels and Miracles) and DC Comics, for which Gaiman and other writers write on a “work made for hire” basis. 17 U.S.C. § 101. This means *650 that the publishers own the copyrights on their work. § 201(b).

It might seem that when McFarlane told Gaiman that he would treat Gaiman “better than the big guys” did, he just meant he’d compensate him more generously for work made for hire. But McFarlane rightly does not argue this. Gaiman’s work for him was not work made for hire. It was neither (1) work created by an employee within the scope of his employment nor (2) “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” 17 U.S.C. § 101. There was no written agreement between Gaiman and McFarlane, and Gaiman was not an employee of McFarlane.

Now it is trae that a commissioned work not falling under (2) may be deemed a work for hire under (1) if, for example, the commissioning party pays the author a monthly stipend, pays health and other fringe benefits during the time the author works on the project, and exercises overall though not necessarily daily supervision. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 750-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989); Saenger Organization, Inc. v. Nationwide Ins. Licensing Associates, Inc., 119 F.3d 55, 59-60 (1st Cir.1997). The work for hire concept isn’t limited to formal employment because a functionally identical relationship can be created by skillful drafting of contracts that purport to treat the (de facto) employee as an independent contractor. The work for hire provision is not unique in sensibly forgoing a definition of “employee” or “employment” and by doing so empowering the courts to define these terms from case to case on a practical rather than formal basis, using the principles of agency law to prevent evasion of the statutory purpose. E.g., Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003); EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 704-07 (7th Cir.2002). But there is nothing to suggest that Gaiman ever became a de facto employee of McFarlane. And while Gaiman could have assigned to McFarlane his copyright in any work he did under the oral contract, copyright assignments must be in writing, 17 U.S.C. § 204(a); Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 413 (7th Cir.1992), and there was no written assignment.

In his script for Spawn No. 9, Gaiman introduced three new characters — Medieval Spawn (as he was later called by McFarlane^ — Gaiman had not named it and in the issue he is just referred to as a Spawn, with no further identifier), Angela (no last name), and Count Nicholas Cogl-iostro. Gaiman described, named, and wrote the dialogue for them, but McFar-lane drew them. Gaiman contends that he and McFarlane are joint owners of the copyrights on the three characters by reason of their respective contributions to joint (indivisible) work. 17 U.S.C. § 101; Seshadri v. Kasraian, 130 F.3d 798, 803-04 (7th Cir.1997); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1067-72 (7th Cir.1994); Thomson v. Larson, 147 F.3d 195, 199-205 (2d Cir.1998). McFarlane concedes Gaiman’s joint ownership of Angela, but not of the other two; we postpone our consideration of the issue until we have disposed of the statute of limitations defense, to which we now turn. Evaluation of the defense requires us to consider a chain of events running from *651 1992 — when the contract was made and Spaim No. 9, which states on its inside cover that it is copyrighted by McFarlane (actually by one of his companies, but that is immaterial), was published — to 1999.

Spaim No. 9 was a huge success, selling more than a million copies. McFarlane paid Gaiman $100,000 for his work on it. Gaiman testified that this was about what he would have expected to receive from DC Comics had he written the script of Spaim No. 9 for that company as a work made for hire.

Because Angela was a big hit with Spawn’s readers, McFarlane asked Gaiman to do a “mini-series” of three issues starring her, which he did. He also wrote several pages for Spawn No. 26 to form a bridge to the Angela series; because Angela hadn’t appeared in Spawn Nos. 10 through 25, Gaiman was concerned that readers would not realize that Angela was an offshoot of Spawn. McFarlane paid Gaiman $3,300 for his contribution to Spawn No. 26 and more than $30,000 (the exact amount is not in the record) for the Angela series. Only one of these four issues (the second Angela) contains a copyright notice; the notice is similar to the one in Spawn No. 9.

The Angela series was first published in 1994. The following year, having created a toy company to manufacture statuettes (“action figures”) of Spawn characters, one a statuette of Medieval Spawn, McFarlane mailed Gaiman a check for $20,000 designated as royalties, presumably on sales of the statuette, though the record is unclear.

McFarlane subsequently licensed the publication of paperback books that reprinted the comic books to which Gaiman had contributed. The books carry a copyright notice similar to the one in Spawn No. 9 and Angela No. 2 except that it adds that “all related characters” are also copyrighted by McFarlane. Besides inserting the copyright notices that we’ve mentioned, McFarlane applied to the Register of Copyrights for, and received, copyright registrations on these issues and books.

In 1996, learning that McFarlane might sell his enterprise, Gaiman decided that he needed the protection of a written contract and he asked McFarlane for one. McFar-lane agreed to give him a written contract and also to pay him royalties for a statuette of Angela that McFarlane’s toy company had manufactured and sold.

After desultory negotiations, Gaiman’s lawyer wrote a letter to McFarlane’s negotiator stating that Gaiman had created the characters of Medieval Spawn, Angela, and Cogliostro not as work for hire but “pursuant to the terms of an oral agreement under which Mr. McFarlane agreed that Mr. Gaiman would be compensated on the same terms as set forth in Mr. Gaiman’s DC Comics Agreements dated August 1, 1993.” This was a surprising interpretation of the oral agreement, since in it McFarlane had promised to treat Gaiman better than DC Comics treated him; but as nothing turns on this interpretation we’ll ignore it. The letter goes on to “demand” that McFarlane “immediately forward all monies which are currently owed to Mr. Gaiman in accordance with the terms of the DC Agreement.” We’ll call this the demand letter.

Direct negotiations between Gaiman and McFarlane ensued. A tentative agreement was reached that McFarlane would pay royalties on the statuettes on the same terms as Gaiman would have gotten from DC Comics but that Gaiman would exchange his rights in Medieval Spawn and Cogliostro for McFarlane’s rights in another comic book character, Miracleman. Once the exchange was made, Gaiman would no longer receive royalties on Medieval Spawn and Cogliostro.

*652 For the rest of 1997 and 1998, McFar-lane sent Gaiman royalty checks totaling about $16,000, presumably on account of the statuettes and the paperback books, together with royalty reports that referred to Gaiman as a “co-creator” of Medieval Spawn, Angela, and Cogliostro. On February 14, 1999, however, Gaiman received a letter from McFarlane announcing that McFarlane was “officially rescindfing] any previous offers I have placed on the table.” The letter offered Gaiman the following deal on a take-it-or-leave-it basis: Gaiman would relinquish “all rights to Angela” in exchange for “all rights to Miracle Man,” and “all rights to Medieval Spawn and Cogliostro shall continue to be owned by Todd McFarlane Productions.”

The statement “all rights to Medieval Spawn and Cogliostro shall continue to be owned by Todd McFarlane Productions” was an unambiguous denial of Gaiman’s copyright interest and therefore is the last date on which his claim could have accrued and the three-year copyright statute of limitations, 17 U.S.C. § 507(b), thus have begun to run. This suit was brought in January of 2002 — a month short of three years after Gaiman’s receipt of McFar-lane’s letter. By the time of trial, Spawn was up to issue No. 120 and had spawned a large number of derivative works, including posters, trading cards, clothing, the statuettes, an animated series on HBO, video games, and a motion picture. Many of these derivative works include all three characters to which Gaiman contributed, so that the financial stakes in the case are considerable.

A minor wrinkle concerning the statute of limitations defense is that Gaiman’s suit is not a suit for infringement. Gaiman concedes that McFarlane also owns copyright in the comic-book characters in issue. The claim rejected by McFarlane is that Gaiman is a co-owner, along with McFarlane. 17 U.S.C. § 201(a). As a co-owner, McFarlane was not violating the Copyright Act by unilaterally publishing the jointly owned work, but, as in any other case of conversion or misappropriation, he would have to account to the other joint owner for the latter’s share of the profits. Zuill v. Shanahan, supra, 80 F.3d at 1369. When co-ownership is conceded and the only issue therefore is the contractual, or in the absence of contract the equitable, division of the profits from the copyrighted work, there is no issue of copyright law and the suit for an accounting of profits therefore arises under state rather than federal law. Goodman v. Lee, 78 F.3d 1007, 1013 (5th Cir.1996); Oddo v. Ries, 743 F.2d 630, 633 and n. 2 (9th Cir.1984); Mountain States Properties, Inc. v. Robinson, 771 P.2d 5, 6-7 (Colo.App.1988). It is just like a suit to enforce a copyright license, which arises under state law rather than under the Copyright Act. Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1194-95 (7th Cir.1987); T.B. Harms Co. v. Eliscu, 339 F.2d 823, 824, 828 (2d Cir.1964) (Friendly, J.); cf. International Armor & Limousine Co. v. Moloney Coachbuilders, Inc., 272 F.3d 912, 915-16 (7th Cir.2001). And in that event the applicable statute of limitations would be state rather than federal.

But more is involved in this case. As in Zuill v. Shanahan, supra, 80 F.3d at 1371, and also Merchant v. Levy, supra, 92 F.3d at 56, and Goodman v. Lee, 815 F.2d 1030, 1031-32 (5th Cir.1987), Gaiman seeks a declaration that he is a co-owner, which depends on whether his contribution to the comic-book characters in question gave him a copyright interest. That question, on the answer to which his entitlement to an accounting and other relief depends, cannot be answered without reference to the Copyright Act, and it therefore arises *653 under the Act. Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 199-202, 41 S.Ct. 243, 65 L.Ed. 577 (1921). As we said in Saturday Evening Post Co. v. Rumbleseat Press, Inc., supra, 816 F.2d at 1194, “the principle that disputes over the terms of copyright licenses do not arise under federal law has an exception for cases where establishing the plaintiffs right will require interpreting federal law.” One can imagine, if barely, a case in which, though federal jurisdiction would lie because a copyright issue was unavoidable, the heart of the case lay elsewhere and a more suitable statute of limitations than the one in the Copyright Act could be found. But this is not such a case. The question whether Gaiman has a copyright is central, and the Act’s three-year statute of limitations, which applies to any suit arising under the Act, and not just to a suit for infringement (for section 507(b) reads: “No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued”), is therefore, as the parties agree, clearly applicable to this case.

The parties also rightly agree that the copyright statute of limitations starts to run when the plaintiff learns, or should as a reasonable person have learned, that the defendant was violating his rights, Taylor v. Meirick, 712 F.2d 1112, 1117 (7th Cir.1983), in this case by repudiating Gaiman’s ownership of copyright. Aalmuhammed v. Lee, 202 F.3d 1227, 1230-31 (9th Cir.2000); Merchant v. Levy, supra, 92 F.3d at 53, 56; Zuill v. Shanahan, supra, 80 F.3d at 1370-71. McFarlane claims that Gaiman knew, or certainly should have known, no later than 1997 when Gaiman’s lawyer wrote the demand letter from which we quoted, that McFarlane was denying that Gaiman had any copyright interest in the three characters — that McFarlane had in effect appropriated Gaiman’s copyright interest. Actually McFarlane thinks that Gaiman’s copyright claim accrued a lot earlier — in 1993 when Spawn No. 9 was published with a copyright notice that did not mention Gaiman. It doesn’t matter; if Gaiman’s claim accrued before February 1999, the suit is untimely.

McFarlane’s argument, however, reflects a misunderstanding of both the function of copyright notice and the nature of the copyright in a compilation. The function of copyright notice is to warn off copiers, 17 U.S.C. §§ 401(d), 405(b), 406(a); Fantastic Fakes, Inc. v. Pickwick International, Inc., 661 F.2d 479, 486-87 (5th Cir.1981); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 73 F.2d 276, 277 (2d Cir.1934), not to start the statute of limitations running. There may be situations in which the notice just happens to put a copyright owner on notice that someone is acting in derogation of his rights. Remember that a claim inconsistent with the copyright holder’s interest sets the statute running, and in particular circumstances a notice indicating that the defendant was the sole copyright holder might amount to such a claim. Saenger Organization, Inc. v. Nationwide Ins. Licensing Associates, Inc., supra, 119 F.3d at 66. But not when the work is a compilation, as Spawn No. 9 plainly is. For it contains, besides Gaiman’s contributions and goodness knows who else’s, a letter-to-the-editors column containing a number of signed letters from fans plus art work contributed by fans. As McFarlane concedes, the copyrights on those letters and on the art work are owned by the fans and his copyrighting the issue is not a claim to own their copyrights.

The creator of a compilation is entitled to copyright it as long as it’s a work “formed by the collection and assembling of preexisting materials or of data *654 that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. § 101; see also § 103. The compiler’s copyright entitles him to reprint the contents of the compilation in future editions of the compilation. 17 U.S.C. § 201(c); New York Times Co. v. Tasini, 533 U.S. 483, 493-97, 121 S.Ct. 2381, 150 L.Ed.2d 500 (2001). But all the other rights of copyright remain in the authors of the contributions, provided the contributions satisfy the criteria of copy-rightability. Therefore the compiler’s copyright notice is not adverse to the contributors’ copyrights and so does not put them on notice that their rights are being challenged. On the contrary, “a single copyright notice applicable to the collective work as a whole serves to indicate protection for all the contributions in the collective work, except for advertisements, regardless of the ownership of copyright in the individual contributions and whether they have been published previously.” United States Copyright Office, Circular No. 3: Copyright Notice 3 (2004); see Sanga Music, Inc. v. EMI Blackwood Music, Inc., 55 F.3d 756, 759-60 (2d Cir.1995); Abend v. MCA Inc., 863 F.2d 1465, 1469 (9th Cir.1988), aff'd under the name Stewart v. Abend, 495 U.S. 207, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990).

There is a close analogy to the doctrine of adverse possession in the law of physical property. That doctrine extinguishes the paper title if the property is occupied under an adverse claim of right for the statutory period. If the claim is not adverse, as where a tenant occupies the owner’s property — or, even more to the point, where a cotenant occupies property, because a joint copyright owner is a cotenant, e.g., Zuill v. Shanahan, supra, 80 F.3d at 1370; Childress v. Taylor, 945 F.2d 500, 505 (2d Cir.1991) — the statute of limitations does not begin to run. Howell v. Bradford, 570 So.2d 643, 645 (Ala.1990) (per curiam); Fantasia v. Schmuck, 183 W.Va. 361, 395 S.E.2d 784, 786 (1990) (per curiam); Evans v. Covington, 795 S.W.2d 806, 808 (Tex.App.1990); Chicago, Peoria & St. Louis Ry. v. Tice, 232 Ill. 232, 83 N.E. 818, 819-20 (1908). No more does it begin to run when the claim to the copyright is a compiler’s claim, because such a claim is not adverse to the contributor’s copyright.

The copyright notices in the paperback books, however — notices that claim copyright for McFarlane in “all related characters” — might seem to be an example of our earlier point that there may be cases in which a copyright notice denies a contributor’s copyright. But unless there is a duty of authors to read the copyright pages of works containing them copyrighted materials' — -and there is not— then since as we said the purpose of copyright notice is not to affect the time within which the victim, of an infringement can sue (which is why there is no duty of authors to study copyright notices), the notice can affect the accrual of the cause of action only if the victim reads it. The jury was entitled to believe Gaiman’s testimony that' he had never seen the paperback books in which the suspicious notices appeared.

In addition to the copyright notices, McFarlane registered copyright on the issues and the books. But to suppose that by doing so he provided notice to Gaiman of his exclusive claim to the characters is again untenable. Authors don’t consult the records of the Copyright Office to see whether someone has asserted copyright in their works; and anyway McFarlane’s registrations no more revealed an intent to claim copyright in Gaiman’s contributions, as distinct from McFarlane’s own contributions as compiler and illustrator, than the copyright notices did. The *655 significance of registration is that it is a prerequisite to a suit to enforce a copyright. More precisely, an application to register must be filed, and either granted or refused, before suit can be brought. 17 U.S.C. § 411(a). There is an interesting-question, left open in our recent decision in Chicago Bd. of Education v. Substance, Inc., 354 F.3d 624, 631 (7th Cir.2003), and unnecessary to decide in this case either, whether if registration is granted by mistake the registrant may nonetheless sue. All that is important in this case is that it is no more the purpose of registration to start statutes of limitations running than it is the purpose of the copyright notice itself to do so.

We are therefore led to question the suggestion in Saenger Organization, Inc. v. Nationwide Ins. Licensing Associates, Inc., supra, 119 F.3d at 66, that registration provides constructive notice of a claim of ownership. That would not, to repeat, matter in a case such as this in which the registered work is a compilation. But it probably wouldn’t matter in any case. (We further note that there was actual as well as constructive notice in Saenger.) For one thing, the court was wrong to say that registration gives constructive notice. What the Act actually says is that recording a document in the Copyright Office gives constructive notice of the facts in the document if the document identifies a registered work. 17 U.S.C. § 205(c). The purpose is to establish priority in the event of disputes, in bankruptcy court or elsewhere, over creditors’ rights. In re World Auxiliary Power Co., 303 F.3d 1120, 1125-27 (9th Cir.2002); Broadcast Music, Inc. v. Hirsch, 104 F.3d 1163, 1165-67 (9th Cir.1997); 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 10.07 (2003). A creditor who wants to know whether he can seize a debtor’s copyright consults the register; a co-author does not.

There is also nothing in the demand letter that Gaiman’s lawyer wrote McFarlane to indicate that Gaiman believed McFarlane was denying Gaiman’s joint ownership of the copyrights on the three characters. The issue of copyright ownership is distinct from that of the copyright owner’s entitlement to royalties when, as in this case, he is not the publisher of the copyrighted work. The fact that the author owns the copyright doesn’t determine how he and the publisher will divide the income from the sale of copies of the work. That is a matter of contract. Sometimes author and publisher disagree over the meaning of their contract (and it is the contract that will specify the division of income) or whether the publisher is adhering to the contract in good faith. Disagreement was especially likely here, where the parties’ contract not only was oral but failed to specify the division of income beyond what could be inferred from McFarlane’s promise to treat Gaiman better than “the big guys” (in particular, it seems, DC Comics) treated Gaiman.

The existence of a dispute over the terms of a publication contract does not alert the author to a challenge to his copyright. Quite the contrary, it presumes that he owns the copyright. If his work is in the public domain, the publisher could publish it without the author’s permission, so would hardly be likely to have promised to pay him for the “right” to publish it — he would already have (along with the rest of the world) the right to publish it. Sending the kind of demand letter that Gaiman’s lawyer sent no more suggests doubt about the legal basis for the demand than sending a collection letter, of which the demand letter was a variant, suggests doubt that the writer is entitled to the debt that he is seeking to collect.

*656 There was other evidence that right up until McFarlane’s 1999 letter, receipt of which clearly did start the statute of limitations running, he acknowledged or at least didn’t deny Gaiman’s ownership of copyrights in the three characters. There was the reference in the royalty reports to Gaiman’s being the “co-ereater” of the characters, the fact that McFarlane let pass without comment Gaiman’s claim in the demand letter to have created the characters, and the payment to Gaiman of royalties on the statuettes, payment that would make most sense if they were derivative works of copyrighted characters— with Gaiman the (joint) owner of the copyrights. McFarlane argues that he could have given Gaiman these royalties pursuant to contract, and he points out that under Gaiman’s work for hire agreement with DC Comics Gaiman received payments denominated as “royalties” even though he had no copyrights. But McFar-lane also contends that DC Comics would not have paid Gaiman royalties on the statuettes, so what would have been Gaiman’s entitlement to such royalties from him unless Gaiman had a copyright interest?

We have referred to statements and actions by McFarlane that seem positively to acknowledge Gaiman’s copyrights, and these sort of “lulling” comments might seem to suggest an alternative basis for rejecting McFarlane’s statute of limitations defense — the doctrine of equitable estoppel. Hentosh v. Herman M. Finch University of Health Sciences/The Chicago Medical School, 167 F.3d 1170, 1174 (7th Cir.1999); Singletary v. Continental Illinois National Bank & Trust Co., 9 F.3d 1236, 1241 (7th Cir.1993); Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir.1995). But that is a tolling doctrine, not an accrual doctrine, and tolling doctrines do not automatically give a person the full statutory period for suit. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452-53 (7th Cir.1990). Suppose the claim accrued in Year 1 and the statute of limitations is three years, but because of lulling comments by the violator the victim doesn’t learn of his claim until Year 10. He cannot just sit on his haunches until Year 13, because his claim did not accrue in Year 10; he must sue as soon as it is feasible to do so.

Or so, at least, some cases hold. Shropshear v. Corporation Counsel, 275 F.3d 593, 597-99 (7th Cir.2001); Hi-Lite Products Co. v. American Home Products Corp., 11 F.3d 1402, 1406-07 (7th Cir.1993) (Illinois law); Butler v. Mayer, Brown & Platt, 301 Ill.App.3d 919, 235 Ill.Dec. 167, 704 N.E.2d 740, 745 (1998). Others, distinguishing equitable estoppel, where the defendant is responsible for the plaintiffs delay, from equitable tolling, where he is not, hold that in the former case though not the latter the plaintiff can subtract the entire period of the delay induced by the defendant, or in other words can extend the statutory period by the full amount of the delay. Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 876 (7th Cir.1997); Ott v. Midland-Ross Corp., 600 F.2d 24, 32-33 (6th Cir.1979). At least one case takes a middle position: the plaintiff is presumptively entitled to subtract the entire period. Buttry v. General Signal Corp., supra,