The St. Louis Business Journal reports that a Missouri appeals court this morning upheld the $15 million jury verdict in ex-hockey player Tony Twist’s lawsuit against Todd McFarlane.
Twist had sued McFarlane and Todd McFarlane Productions for naming a mob boss in Spawn Antonio “Tony Twist” Twistelli, claiming they profited from using his name without his permission. Twist initially was awarded $24.5 million in 2000 by a St. Louis Circuit Court jury, but the judge overruled the decision.
In 2002, an appeals court ruled in McFarlane’s favor on First Amendment grounds. However, in July 2003 the Missouri Supreme Court ordered a new trial, claiming the use of Twist’s name was “predominantly a ploy to sell comic books and related products rather than an artistic or literary expression.”
McFarlane appealed the decision to the U.S. Supreme Court, but in January 2004 it rejected that appeal without comment.
Today’s decision stems from that new trial, which ended in a July 2004 verdict that McFarlane and his company had infringed on Twist’s right of publicity. He was awarded $15 million.
In December 2004, Todd McFarlane Productions filed for Chapter 11 bankruptcy protection.
Related: Missouri Court of Appeals opinion
More coverage: St. Louis Post-Dispatch article
June 20th, 2006 at 1:28 pm
Even if you don’t like Todd, this matter is so damn dumb.
June 20th, 2006 at 1:43 pm
The suit dosen’t make sense to me. It isn’t like McMarlane promoted Spawn as the comic with Tony Twist in it. Nor was the character highlited on the covers. And I can’t fathom anyone buying the book solely because they heard about that character. At best/worst McFarlane should have been forced to issue an apology and get rid of the offending character.
June 20th, 2006 at 2:11 pm
See.. normally I’d be on Todd’s side on this, but the man bragged in a letters page that Twistelli was indeed named after Twist, AND to watch future issues for other named characters as well. Legal no-no there.
Sponsors are really touchy about things like that, so I can totally believe that twist lost some endorsement opportunities because someone wrongfully thought he had a part in a comic book.
June 20th, 2006 at 2:48 pm
Wait, let me get this straight.
Tony: “Wee! I’m in a comic book! This is so cool… *pause* … I’ll sue for $15 million dollars, because I’m so damn amazing!”
Whatever.
June 20th, 2006 at 4:27 pm
Poor Todd.
This is the most stupid lawsuit of all time. Like ANY hockey player (other than Gretzky) would EVER earn a million dollars or more from endorsements deals.
The main reason most people in America even heard of this guy is bcuz Todd used a similar name in a comic book.
I hope that they continue to appeal and re-try the thing for another 25 years so that his grandkids are still whining about some comic book in 1992 that “hurt” their grandpa’s corporate appeal for mass-market endorsement deals.
Kobe Bryant “allegedly” performed a rape, was publically outed for it, and withing a couple years he’s shrugged it off and is back on TV selling goodies.
-Josh
June 20th, 2006 at 5:00 pm
Todd got what he deserved. He has become what he left Marvel because. How about the money he stiffed Greg Capullo and Neil Gaiman? They are included in the Chapter 11. He violated Neil’s rights to Miracleman with his BS. Karma is a bitch.
June 21st, 2006 at 3:59 am
So what this Twisterelli guy is saying is that he is not actually a man, he is a commodity trademark. I have no words suitable for family hour to describe such a creature.
June 21st, 2006 at 3:33 pm
Yeah, the makers of Celebrity Death Match will get what they deserve too when every celebrity in the world sues them for “right of publicity” violations. Futurama will have to stop using Pamela Anderson’s and Richard Nixon’s heads as characters. Eat that, Matt Groening!! Karma’s a bitch, eh? South Park will have to stop referencing celebrities lest they be drawn into in expensive lawsuits. Muhammed will get his revenge in the American legal system!!
June 21st, 2006 at 3:44 pm
SS: In its opinion, the appeals court seems to draw a distinction between parody, such as that in the TV shows you mention, and the use of Tony Twist’s name in Spawn.
The court writes: “[T]he predominant purpose of the use of the name ‘Tony Twist’ was to sell comic books and related products and not to make an expressive comment about Twist the hockey player. The defendants’ use of the name, therefore, is not entitled to First Amendment protection.”
June 21st, 2006 at 4:08 pm
So Spawn wasn’t funny enough or didn’t take the necessary personal cheap shots? Need McFarlane make the parody of a hockey goon portrayed as a Mob boss a bit broader and obvious? Is that too subtle in its parody, oh three judge panel of the Missouri Court of Appeals? Need we take an oath of poverty and explain our artistic vision more clearly for your honors?
Balancing whether something is predominantly designed to sell products or make an expressive comment is a nearly-meaningless distinction in art. Sometimes parody is broad, sometimes subtle, sometimes so faint as to work only on the subconscious level. And almost all art is intended to make a profit. Absolute trash of ruling that can only have a chilling effect on the use of celebrity references in entertainment or to make celebrity parody a mandatorily unsubtle matter. This will be overturned in the U.S. Supreme Court.
As an evidentiary matter, it’s preposterous that the Court uses against McFarlane BOTH his public admission that the character is based on Twist and his in-court denial that he intended to say anything about Twist.
June 22nd, 2006 at 4:04 am
You are on crack if you think this will make the Supreme Court. Todd will buy back the assets he wants, and everyone he owes money to will get stiffed.
June 22nd, 2006 at 4:54 pm
An excellent analysis about the current state of the suit is here:
http://volokh.com/posts/1150960800.shtml
The bottom line is that it ain’t over yet.
Inevitably if state appeals are exhausted and it does go to the federal courts, it should be overturned for the reasons stated in the above linked article.
June 22nd, 2006 at 4:57 pm
“You are on crack if you think this will make the Supreme Court.”
Wow, I haven’t heard such insightful commentary since “Jane, you ignorant slut!”
June 22nd, 2006 at 5:06 pm
Thanks for the link, Shawn.
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