ST. LOUIS — A Missouri appeals court yesterday upheld a $15 million jury verdict against a comic strip creator for using the name of former National Hockey League enforcer Tony Twist without his permission.
In a 3-0 opinion, a three-judge panel of the Eastern District court ruled that the comic book creator's "predominant purpose" for using the "Tony Twist" name was commercial gain, not artistic expression, and therefore was not entitled to First Amendment protection.
Michael Kahn, one of the attorneys for comic-book creator Todd McFarlane, said the long First Amendment battle wouldn't stop now.
"We'll seek review of this opinion by the Missouri Supreme Court, and if necessary, the U.S. Supreme Court," he said.
Neither court is obligated to hear the appeal.
Twist won $15 million from McFarlane, creator of the comic series, "Spawn," and his company, Todd McFarlane Productions Inc., after a St. Louis jury trial in 2004. The former St. Louis Blues and Quebec Nordiques hockey player had charged in a 1997 lawsuit that use of his name in the comic strip had hurt his public image and precluded any future career as a product promoter.
But McFarlane, the former principal artist and writer of Spiderman comics, appealed, saying use of the name Antonio "Tony Twist" Twistelli for a violent New York mob boss character in his Spawn comics was protected by the First Amendment.
McFarlane's attorneys also claimed the judge should have kept the jury from seeing a magazine article in which the artist says he named the Twist character after the hockey player, and a video of the HBO series, "Spawn." They also objected to testimony about the marketing potential of Twist's name.
The Missouri Court of Appeals in St. Louis disagreed, deferring to an earlier Supreme Court ruling.
The case has gone to trial twice. In 2000, a jury awarded a $24.5 million verdict against McFarlane, but the judge threw it out, and the Missouri Court of Appeals affirmed.
The state Supreme Court ordered a new trial in 2003, resulting in the $15 million jury verdict.
What changed was the Supreme Court's recognition of a right of publicity to market one's own name.
"The jury found that McFarlane had violated Twist's right of publicity to the tune of $15 million," attorney Robert Blitz said.
Missouri's "predominant purpose" test is unique, Kahn said, adding that "had the case been tried anywhere else, (use of Twist's) name would have been protected by the First Amendment."