The Missouri Court of Appeals has upheld the $15 million damages award against comic book author (Spawn and more) Todd MacFarlane, who named a character after hockey player Tony Twist. The award was based simply on MacFarlane's use of Twist's name in the comic books -- a supposed infringement of the right of publicity -- and not on any alleged defamation.

When the Missouri Supreme Court allowed the case to go forward, I filed an amicus brief on behalf of writers 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 U.S. Supreme Court review. The Justices declined to hear the case, but I hope it was because there wasn't yet a final decision, since the Missouri Supreme Court had sent the case back down for a new trial. (The lack of a final verdict, especially in a case coming from state courts, is recognized as a very serious, though not insuperable, procedural obstacle to U.S. Supreme Court review.)

If MacFarlane asks the Missouri Supreme Court to review the case, and the Missouri Supreme Court either refuses to review the case or affirms the verdict, then there will be a final judgment, and the case will be procedurally ripe for U.S. Supreme Court review. And I think the U.S. Supreme Court then ought to take it, especially given the inconsistency between this case and a California Supreme Court case also involving the right of publicity, the First Amendment, comic books, and characters named after semi-famous figure (though there two singers rather than a hockey player). Mind you, I don't say "will take it," but "ought to take it."

There's a good deal more to say about the case, and the brief I wrote (with the help of my coblogger and actual Supreme Court Bar member Erik Jaffe) says some of it. But here, I just wanted to repeat one observation from the brief, which I think might be illuminating for some other "It's speech! No, it's commerce!" debates.

The Missouri Supreme Court, which upheld Twist's general legal theory, faced a potential obstacle to its ruling: Fiction writers in fact often name characters after famous people, for a variety of reasons. Sometimes they include those people as characters, as in the movies Forrest Gump and Zelig, or in Steve Martin's play Picasso at the Lapin Agile (which has as its lead characters Pablo Picasso and Albert Einstein). Sometimes writers just refer to those people in passing, or name characters after them -- consider Yogi Bear; the characters Bernard Marx, Lenina Crowne, and Benito Hoover in Aldous Huxley's Brave New World; characters nicknamed after Ginger Rogers and Fred Astaire, in Federico Fellini's Fred & Ginger; and the reference to Joe DiMaggio in Paul Simon's Mrs. Robinson. The list could go on.

The Missouri Supreme Court tried to deal with by creating a distinction between (a) speech that is said "with the intent to obtain a commercial advantage" -- speech that is "predominantly a ploy to sell comic books" -- and (b) "artistic or literary expression." But this distinction just can't work.

Most successful creators intend both to obtain a commercial advantage and to express themselves. By expressing yourself in a way that readers want to read, you make money. By making money, you get the free time needed to express yourself. The prospect of making more money gives you an incentive to produce more works, and to make your works better.

That is a basic aspect of the free market (see Adam Smith). And it's also the view embodied in the Constitution's Copyright and Patent Clause. As the U.S. Supreme Court has said, "[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."

And of course from the reader's and the public's perspective, creative works add to public debate, to the "marketplace of ideas," or just to the stock of entertainment regardless of the speaker's motive. A biography is valuable whether the biographer is motivated predominantly by "commercial advantage," by a desire for "literary expression," or by both. Likewise for a comedy routine that mentions a famous person, or a story or novel (whether purely textual or graphic) that does the same.

Trying to distinguish "artistic" or "literary" expression sold for money from "commercial" expression that consists of art and literature thus makes no sense. (I set aside here commercial advertising, which is a separate First Amendment category; MacFarlane's comic books don't fit within that category.) People are often tempted by this distinction, because of many people's sense that commerce is "low" and art is "high." That is a temptation that must be resisted.