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Tuesday, January 13, 2004

Supreme Court Declines to Hear Twist Case: The Supreme Court yesterday denied cert in the case between "Spawn" comic book creator Todd McFarlane and former NHL player Tony Twist. Twist sued McFarlane for misappropriation of his name and right of publicity, arguing that the character Antonio (Tony Twist) Twistelli, which was based on Twist, hurt his image and cost him endorsement deals. A Missouri jury awarded $24.5 million in damages, but the amount was overturned by a Missouri court of appeals and the state's Supreme Court has ordered a new trial.

You can read Eugene Volokh's amicus brief in the case, which he wrote on behalf Michael Crichton, Larry David and others. Read his post about the case on the Volokh Conspiracy. The Trademark Blog also has an interesting post.

The Missouri Supreme Court opinion and Missouri Court of Appeals opinions are also available. The appellate court opinion in particular is a very good read.

It seems that McFarlane doomed his case when he admitted several years ago that the character was based on Twist. In addition, the lack of historical significance in a comic book character would distinguish this case from ETW v. Jireh. In that case, an artist painted a portrait, The Masters of Augusta, which prominently featured Tiger Woods over a backdrop of past Masters champions. You can see the print here (scroll down). Woods sued, claiming the work infringed on his trademark rights and right of publicity. The artist countered that the 1st Amendment protected the work, as it depicted an historical event of which Woods was a part. The district court granted summary judgment for the artist and the Sixth Circuit affirmed.

You can read the full opinion, or a summary of the court's findings. The court emphasized that the work contained "significant transformative elements" that made it worth of 1st Amendment protection and minimized the economic impact on Woods' protected right of publicity. Because the work "does not capitalize solely on a literal depiction of Woods" but rather "consists of a collage of images . . . which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods's achievement in that event," it is entitled to "the full protection" of the 1st Amendment.


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