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A retired hockey player who sued the creator of his comic book namesake is not entitled to the $24.5 million that a jury awarded him on his misappropriation claim, a Missouri appellate court has ruled. The Missouri Court of Appeals, Eastern District, said on July 23 that the First Amendment protects the author from liability because it was a work of fiction. Todd McFarlane, the creator of a comic series called “Spawn,” told his fans that he named a lot of characters after hockey players, including Anthony R. Twist, who is better-known as Tony Twist. A former right wing for the Quebec Nordiques and then the St. Louis Blues, Twist was what is known in professional hockey as an “enforcer” — a violent player who protects his team’s main scorers by making sure their opponents don’t play any dirty tricks. McFarlane’s fictional creation was a Mafia thug named Antonio “Tony Twist” Twistelli — also an “enforcer,” the hockey player claimed. In his suit against McFarlane and other defendants associated with “Spawn” products, Twist claimed the endorsement value of his name had been damaged by his association with the comic book villain. After the jury returned a verdict in Twist’s favor, the trial court granted judgment to the defendants notwithstanding the verdict, saying that the evidence could not support a finding that the defendants had intended to harm Twist or benefit themselves. The Court of Appeals affirmed on different grounds. It accepted a defense theory previously rejected by the trial court. “As a work of fiction, Spawn is fully protected by the First Amendment,” the court wrote, and it “does not lose that protection because it is published for profit.” John Doe (Tony Twist) v. TCI Cablevision of Missouri, No. ED78785. The court recalled Jerry Falwell’s emotional-distress claim against Hustler, which had featured, in its November 1983 issue, a cartoon parody entitled “Jerry Falwell talks about his first time.” Just as no one would think Falwell really lost his virginity to his mother in a drunken outhouse rendezvous, the court said, no one would mistake the fictional Twistelli for the real-life hockey player. Twist could not prevail because “Spawn” did not depict facts “of and concerning” him, the court concluded. ‘TEXTBOOK’ OPINION “The court’s opinion is very well-written,” said Edwin D. Akers Jr. of St. Louis’ Gallop, Johnson & Neuman, counsel for McFarlane. “It reads like a First Amendment textbook.” He said the free-speech issue was well-established under federal law, but case law on this point was sparse in Missouri. Akers said Twist was not especially famous yet when McFarlane named the comic book villain after him in 1993. McFarlane just liked the alliteration in the name, Akers said. “It’s catchy, like Clark Kent.” Twist’s lawyer, Robert D. Blitz of St. Louis’ Blitz, Bardgett & Deutsch, did not return phone calls seeking comment about the decision.

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