NEWS MEDIA UPDATE · MISSOURI · Copyright/Intellectual Property · June 23, 2006
Court rejects First Amendment protection for comic book
June 23, 2006 · The First Amendment does not protect the drawings of a comic book artist because they violate the publicity rights of a professional hockey player, a Missouri appeals court ruled Tuesday.
In the legal faceoff between artist Todd McFarlane, who created Spawn comic book character Tony Twist, and former St. Louis Blues player Tony Twist, the Missouri Court of Appeals in St. Louis upheld a $15 million jury verdict against the artist.
“The predominant purpose 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. Therefore, the use of the name is not entitled to First Amendment protection,” Judge Glenn A. Norton wrote for the unanimous three-judge panel.
This is the second time in eight years the case has wound its way through the Missouri court system.
A character named Anthony Twistelli, who became Tony Twist, first appeared in the comic book Spawn in 1992. McFarlane later told fans the character was modeled after the hockey player for the Quebec Nordiques.
The real Twist joined the St. Louis Blues in 1994 and in 1997 sued McFarlane after discovering the comic book version of himself. The first time the case went to a jury, Twist was awarded $24.5 million but the judge threw out the verdict, ruling that the First Amendment protected McFarlane’s drawings and story line. The Missouri Court of Appeals agreed, but in 2003 the state Supreme Court overturned the decision and sent the case back for retrial.
In that decision, the state’s highest court adopted a predominant-use test: speech with a predominant artistic purpose is protected while speech with a predominant commercial purpose is not. The test, not used by any other state, is adopted from a law review article by Mark S. Lee, “Agents of Chaos: Judicial Confusion in Defining the Right of Publicity — Free Speech Interface.” The Loyola of Los Angeles Entertainment Law Review published the article in 2003.
Disagreeing with the test, McFarlane appealed to the U.S. Supreme Court, but the court refused to hear the case.
The Authors Guild and several prominent writers also stepped in, filing a friend-of-the-court brief to the Supreme Court arguing that it should take the case because such “a subjective and indeterminate test leaves writers with little guidance about when they may use a particular literary device.”
“Under the Missouri Supreme Court’s reasoning, authors are no longer free to include a famous person’s name in a novel, screenplay, or other work, if a jury finds that the name was used ‘with the intent to obtain a commercial advantage,'” the Guild also argued.
After the Supreme Court’s refusal, the case was retried in the St. Louis City Circuit Court. McFarlane tried show that the comic book should be protected even under this new test. He argued that when the comic book character first appeared there could have been no commercial purpose to using his name since Twist was then a relatively unknown player in Canada.
The jury disagreed and the appeals court in its Tuesday ruling said McFarlane was not correctly interpreting the test. It was enough that McFarlane intended to created the impression that the hockey player was associated with the comic book, the court said.
“If we were in any other state, except for Missouri, the plaintiff would” have lost, said Michael Kahn, an attorney for McFarlane.
Kahn said the jury verdict has pushed McFarlane’s company in bankruptcy but that he plans to appeal to the Missouri Supreme Court. “Our client has been in this battle for eight years and he hasn’t given up yet.”
(Doe v. McFarlane; Michael Kahn, Blackwell Sanders Peper Martin, St. Louis, Mo.) — HB