X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A Missouri judge has overturned a $24.5 million jury verdict awarded to a former hockey player who brought suit after his mother was outraged to learn that her son’s name had been used, without permission, as the name of a fictional thug in the “Spawn” comic book series. Circuit Judge Robert H. Dierker Jr. cited First Amendment considerations and skepticism about the endorsement income potential of the hockey player in his ruling. He also noted, “the critical evidence needed to support the jury’s verdict is absent.” Doe v. Tele-Communications Inc., No. 97209415 (Cir. Court, St. Louis). The case pitted Anthony Rory Twist, formerly of the Quebec Nordiques and St. Louis Blues, against Todd McFarlane, creator of the Spawn series. Also named as defendants were various entities that printed and distributed the comic books, as well as HBO, which produced and aired a television adaptation of the comic. The original jury verdict was issued in July. ‘IRRATIONAL’ JURORS? “We are going to take this to the court of appeals, absolutely,” said Robert D. Blitz of Blitz, Bardgett & Deutsch of St. Louis, who represented Tony Twist. “The judge decided the jurors were irrational. He sat these jurors, praised them on their wisdom, polled them, then all of a sudden they’ve become irrational.” Michael A. Kahn of the St. Louis office of Stinson, Mag & Fizzell of Kansas City, Mo., represented Image Comics, a distribution company formed by McFarlane and other comic book creators to distribute their publications. He said that the judge’s ruling is in line with judicial opinion in similar cases. “This is definitely a developing area of the law,” said Kahn. “The courts have gradually recognized that the dividing line in these cases is libel. If what you have done libels the plaintiff, then it is actionable, but not otherwise.” The jury found in July that McFarlane had intentionally used Twist’s name for a profane, stereotypical Mafia character. McFarlane testified that he is a rabid hockey fan with a particular interest in the Quebec Nordiques. “In comic books, names are truly destiny,” said Kahn. “It’s important to have a memorable name, and alliteration is a big advantage. Think of Peter Parker, Lois Lane and Clark Kent.” According to the plaintiff, the suit is rooted in a phone call Twist received in 1997 from his mother. She was indignant that a youngster bearing a Spawn trading card for the fictional Tony Twist had approached her for an autograph. On a later occasion, Twist was approached by another youngster, asking him to autograph a magazine. His photograph and that of the Tony Twist character were displayed side-by-side on the cover. The flesh-and-blood Twist claimed that the use of his name for the unsavory character undermined his prospects for earning endorsement income. Noting that Twist had no endorsement income, the judge dismissed the claim as both unfounded and irrelevant. The judge said the evidence was insufficient to prove that the use of Twist’s name was intentional. “When the only thing appropriated by a defendant is the plaintiff’s name, there can be no right of action, outside the purely commercial or advertising context, unless the defendant intended to use the plaintiff’s name and concomitantly intended to injure the plaintiff’s marketability of his name, or in fact intended to and did derive economic benefit from the use of the plaintiff’s name,” wrote Judge Dierker. The Spawn character, in the judge’s words, is “a brutal, swarthy, stereotypical mafioso” named Antonio Twistelli, a.k.a. Tony Twist. When the Twistelli character was introduced into the Spawn story line, Anthony Rory Twist was, again in the judge’s words, “an obscure hockey player with the also-ran Quebec Nordiques.” The judge found “no credible evidence” that McFarlane intended economic damage to Twist, and he dismissed as “unworthy of belief” the calculations of economic benefit to the defendants presented by plaintiff’s experts. The judge found that Twist was “unknown to the general public” and that there was little evidence of anyone connecting him with the Twist character. “Only three members of the public ever connected plaintiff with the fictional Mafioso in ‘Spawn’ and one of these was the plaintiff’s mother,” wrote Judge Dierker.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.