110 S.W.3d 363 (Mo. 2003)
Anthony Twist began his NHL career in 1988 playing for the St. Louis Blues, later to be transferred to the Quebec Nordiques, only to return to St. Louis where he finished his career in 1999, due to injuries suffered in a motorcycle accident.1 During his hockey career, Twist became the League’s preeminent “enforcer,” a player whose chief responsibility was to protect goal scorers from physical assaults by opponents. In that role, Twist was notorious for his violent tactics on the ice.2
In 1992, respondent Todd McFarlane created Spawn.3 In 1993, a fictional character named “Anthony ‘Tony Twist’ Twistelli” was added to the Spawn storyline.4 The fictional “Tony Twist” is a Mafia don whose list of evil deeds includes multiple murders, abduction of children and sex with prostitutes. The fictional and real Tony Twist bear no physical resemblance to each other and, aside from the common nickname, are similar only in that each can be characterized as having an “enforcer” or tough-guy persona.5
In the September 1994 issue, McFarlane admitted that some of the Spawn characters were named after professional hockey players, including the “Tony Twist” character.6 In April 1996, Wizard interviewed McFarlane, and the published article noted the real-life persona as Tony Twist, NHL St. Louis Blues right winger, accompanied by a photo of a Tony Twist hockey trading card.78
In 1997, Twist became aware of the existence of Spawn and of the comic book’s use of his name for that of the villainous character.9 In October 1997, Twist filed suit against McFarlane and the companies associated with the Spawn comic book, seeking an injunction and damages for misappropriation of name and defamation.10 At trial, the jury returned a verdict in favor of Twist in the amount of $24,500,000.11 The circuit court granted respondents’ motion for judgment notwithstanding the verdict and, in the alternative, ordered a new trial.12 After appeal to the Court of Appeals, Eastern District, this Court granted transfer.13
Whether Twist presented sufficient evidence that his name was used as a symbol of his identity?14
To establish that a defendant used a plaintiff's name as a symbol of his identity, the name used by the defendant must be understood by the audience as referring to the plaintiff.15 The fact-finder may consider evidence including the nature and extent of the identifying characteristics used by the defendant, the defendant's intent, the fame of the plaintiff, evidence of actual identification made by third persons, and surveys or other evidence indicating the perceptions of the audience.16
Yes. McFarlane admitted in the September 1994 issue of Spawn that the character was named after the hockey player Tony Twist.17 In the April 1996 Wizard article, the published piece noted the real-life persona as Tony Twist, NHL St. Louis Blues right winger, and included a photo of his hockey trading card. Young hockey fans approached Twist's mother with Spawn trading cards depicting the Mafia character Tony Twist, and at an autograph session Twist was asked to sign a copy of the Wizard article.18
This evidence established that the name was understood by the audience as referring to the real Twist.19
Twist presented sufficient evidence that his name was used as a symbol of his identity.20
Whether Twist presented sufficient evidence that the defendants used his name with the intent to obtain a commercial advantage?21
In a right of publicity action, the plaintiff must prove that the defendant used the plaintiff's name as a symbol of his identity without consent and with the intent to obtain a commercial advantage.22 It is irrelevant whether the defendant intended to injure the plaintiff or actually succeeded in obtaining a commercial advantage.23
Yes. Respondents marketed Spawn products directly to hockey fans by producing Spawn hockey jerseys and pucks and sponsoring Spawn Night at a minor league hockey game where products featuring the Tony Twist character were distributed.24 McFarlane stated in the November 1994 issue of Spawn that readers would continue to see current and past hockey players' names in his books.25 This induced Spawn readers who were hockey fans to continue purchasing the comic book.26
This evidence showed that respondents used Twist's name intending to obtain a commercial advantage by attracting consumer attention.27
Twist presented sufficient evidence that the defendants used his name with the intent to obtain a commercial advantage.28
Whether the First Amendment barred the right of publicity claim?29
If a product is being sold that predominantly exploits the commercial value of an individual's identity, that product should be held to violate the right of publicity and not be protected by the First Amendment, even if there is some expressive content in it that might qualify as speech in other circumstances.30 If the predominant purpose of the product is to make an expressive comment on or about a celebrity, the expressive values could be given greater weight.31
No. There is an expressive component in the use of Twist's name as a metaphorical reference to tough-guy enforcers.32 However, respondents agreed that the use was not a parody or other expressive comment or a fictionalized account of the real Twist.33 The metaphorical reference has very little literary value compared to its commercial value.34 On this record, the use of Twist's name and identity has become predominantly a ploy to sell comic books and related products rather than an artistic or literary expression.35
The First Amendment did not bar the right of publicity claim.36
Whether the verdict director properly instructed the jury on the commercial advantage element?37
The elements of a right of publicity action require that the defendant used the plaintiff's name as a symbol of his identity without consent and with the intent to obtain a commercial advantage.38 The verdict director must require a finding that the defendant used the plaintiff's name with the intent to derive a commercial advantage rather than merely that the defendant derived an advantage.39
No. The verdict director required only that defendants derived advantage from the use or publication of plaintiff's name.40 This allowed the jury to render a verdict based on the mere incidental result of the use rather than the intentional result.41 McFarlane testified that the real reasons he used Twist's name were that it is a pretty cool name and it is easy to remember.42 This indicated the jury could have found no intent to obtain a commercial advantage even if some advantage resulted incidentally.43
The verdict director did not properly instruct the jury on the commercial advantage element.44
Whether the circuit court properly denied the request for injunctive relief?45
An injunction that is overbroad because it could interfere with legitimate and proper expressive activities by the defendants in the future that are protected by the First Amendment should be denied.46
Yes. The requested injunction attempted to prohibit respondents from using Twist's name, commercial image, persona, autograph and likeness for any purpose without his consent.47 This would have prohibited respondents from engaging in a variety of expressive activities unrelated to the subject matter of this lawsuit and undoubtedly protected by the First Amendment, such as a parody of plaintiff, a commentary on his fighting style, or a factual report on this lawsuit.48
The circuit court properly denied the request for injunctive relief.49