August 8, 2006

First Amendment Rights Checked by Right of Publicity

Holland & Knight Newsletter
Thomas W. Brooke

The most recent decision in a long-running legal battle between a former hockey player and a comic book artist goes to the hockey player, Anthony “Tony” Twist.

The Missouri Court of Appeals found that the comic book artist’s “predominant purpose” for using the “Tony Twist” name was to sell comic books. First Amendment protection, according to the court, did not apply. In Missouri, an individual seeking to assert a right of publicity need only show that another person using the first individual’s personal name without permission did so for commercial gain, as opposed to making an expressive comment.

The artist, Todd McFarlane, as part of his comic book series Spawn created a villainous mob boss character named “Anthony ‘Tony Twist’ Twistelli.” Although the fictional Tony Twist does not resemble the retired hockey player, the character does share a tough-guy, enforcer persona. In the real world, Twist was known as an “enforcer” during his playing career, protecting teammates from injury while skating the ice rinks of the National Hockey League.

This most recent decision in favor of the real Tony Twist resulted from a Supreme Court of Missouri decision in 2003 overturning a trial court’s ruling in favor of McFarlane and remanding the case back for a second trial. The original trial court held that Twist failed to prove that McFarlane had injured Twist’s marketability, capitalized on consumer’s recognition of Twist’s name and derived any financial benefit. Missouri’s Supreme Court found that two of these tests were improperly applied. Under Missouri law, a party seeking to protect his name under the doctrine of right of publicity need only show that the name was used to obtain a commercial benefit. Twist prevailed at the second trial, demonstrating exactly that.

McFarlane acknowledged that the Tony Twist character was based upon the real person and Twist presented evidence that McFarlane’s comic books were marketed to hockey fans. McFarlane unsuccessfully asserted First Amendment defenses, but the court found that any artistic expression or expressive content was outweighed by the real Tony Twist’s right to market his own name.

McFarlane appealed the second trial court’s decision to the Missouri Court of Appeals. In its June 20, 2006, ruling, the court said that because McFarlane’s predominant purpose for use of the “Tony Twist” name was to sell comic books rather than to make some artistic, political or social commentary point about Tony Twist the hockey player, or hockey in general, McFarlane could not claim the First Amendment’s protections. During the original trial, McFarlane had conceded that use of Twist’s name had not been a parody or other expressive comment on the character or actions of the real Tony Twist.

Because Missouri’s “predominant purpose” test may be unique, the case is likely to be appealed back up to the Missouri Supreme Court, if not the U.S. Supreme Court. Neither court will be required to hear the case, however.

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