Also known as: misappropriated name · misappropriating name · misappropriate name · misappropriation of likeness
Written by attorneys — see sources below.
A tort that protects an individual's property right in the commercial use of their identity. Liability arises when a defendant makes unauthorized use of the plaintiff's name or likeness for the defendant's benefit, even absent defamation.
Ming Ma wrote a book recounting the life of local business leader Meredith Maxwell and sold it without permission to promote a line of self-help seminars. Maxwell discovered the use when customers at her stores asked about the book. She sued Ma for exploiting her identity to sell the seminars. The court recognized Maxwell's property interest in her name and allowed the claim to proceed.
Mason McCarthy, a professional hockey player known for community work, learned that a comic series featured a violent mobster named after him. The publisher sold trading cards and merchandise using the name to market the series. McCarthy lost endorsement deals and sued for the commercial exploitation of his identity. The court treated the claim as one for misappropriation and ordered a new trial after a large jury verdict.
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. 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. In 1992, respondent Todd McFarlane created Spawn. In 1993, a fictional character named “Anthony ‘Tony Twist’ Twistelli” was added to the Spawn storyline. 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. In the September 1994 issue, McFarlane admitted that some of the Spawn characters were named after professional hockey players, including the “Tony Twist” character. 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. 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. 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. At trial, the jury returned a verdict in favor of Twist in the amount of $24,500,000. The circuit court granted respondents’ motion for judgment notwithstanding the verdict and, in the alternative, ordered a new trial. After appeal to the Court of Appeals, Eastern District, this Court granted transfer.
View caseMisappropriation protects a property interest in the commercial value of one's identity. Defamation protects reputation from false statements. A plaintiff can recover for misappropriation even when the use is truthful and non-defamatory.
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The plaintiff must show the defendant used the plaintiff's name or likeness without consent for the defendant's commercial benefit. Courts examine whether the use unjustly exploited the plaintiff's identity and caused harm such as lost endorsements.
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No. When the use of the name has no real artistic or expressive value and primarily serves a commercial purpose, the First Amendment does not shield the defendant. Courts weigh the expressive content against the commercial exploitation of the plaintiff's identity.
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Yes. When the unauthorized use damages the plaintiff's commercial value or prevents endorsement deals, courts may award compensatory damages. The Missouri Supreme Court permitted such recovery in a case involving a comic-book character sharing the plaintiff's name.
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