Tony Twist, the former rock ’em-sock ’em Blues hockey player, was awarded $15 million Friday by a jury that concluded comic book artist Todd McFarlane had profited by using Twist’s name without his permission.
McFarlane, formerly the principal artist and writer of Spiderman comics, gave the name Tony Twist to a violent New York mob boss in McFarlane’s Spawn comics in the early 1990s.
In a case that could have broad meaning for artistic freedom, McFarlane insisted the name had literary value and his use of it was protected under the First Amendment, but Twist contended McFarlane had exceeded free speech rights. . . .
McFarlane’s attorneys argued that his use of the name was protected and that no reasonable person would confuse the fictional character with the real person.
“The use at issue in this case is no different from Simon and Garfunkel’s use of the name Joe Dimaggio in the song ‘Mrs. Robinson,'” said Michael Kahn, one of McFarlane’s attorneys. . . .
Kahn vowed to appeal the verdict “all the way.”
Michael Kahn is absolutely right: This sort of literary device — which has been used by countless writers and filmmakers (Aldous Huxley, Steve Martin, Robert Heinlein, and many more) — should be fully protected by the First Amendment. In context, it’s clear that the use is fictional, not an assertion of fact, so there’s no viable defamation claim. And people (especially famous people) shouldn’t have the right to stop others from alluding to them in works of fiction.
McFarlane had already asked the U.S. Supreme Court to consider the case (there has already been a trial and a Missouri Supreme Court decision in it; this trial is the retrial after the Missouri Supreme Court ruling). I filed an amicus brief on behalf of Michael Crichton, Larry David, Jeremiah Healy, Elmore Leonard, Harry Shearer, Ron Shelton, Scott Turow, Paul Weitz, and the Authors Guild, Inc. supporting the petition for review — check out the brief (it’s short and should be pretty readable) for my explanation of why McFarlane has a First Amendment right to do what he’s done.
The Supreme Court refused to hear the case, but I think that may well have been because of the procedural posture — the Court is often reluctant to consider a case, even when the lower courts disagree on a legal question, when there has been no final judgment in the case below. Now that there has been a jury verdict, which the Missouri appellate courts will presumably affirm (since the Missouri Supreme Court has already considered the legal question), that procedural barrier will be absent if McFarlane asks the U.S. Supreme Court to consider the case again. So I think there’ll still be a good chance of the Justices agreeing to hear the matter; and if they do, I’m quite confident that they’ll hold for the author.