TWIST v. McFARLANE STILL ALIVE, TWIST AWARDED $15 MILLION

**MattBrady** · 07-11-2004, 06:44 PM

Showing as much tenacity to stayt alive as Spawn himself, the Tony Twist/Todd McFarlane case Friday again sprung to life, with a jury siding in favor of the former hockey player for $15 million.

This time, a St. Louis circuit court jury decided that, according to the AP, “that McFarlane and his comic book company, Todd McFarlane Productions Inc., infringed on Twist's publicity rights” by naming a mobster in Spawn Anthony “Tony” Twistelli, aka, Tony Twist.

McFarlane claimed First Amendment protection, Twist claimed damages. Initially, a jury found in favor of Twist, awarding the hockey player $24.5 million in 2000. That decision was overruled by the judge in the case.

In 2002, the Missouri Court of Appeals' Eastern District ruled in McFarlane's agreeing with McFarlane's claim of First Amendment protection, but in July 2003, the Missouri Supreme Court ordered a new trial. The Supreme Court of Missouri leaned toward Twist's agruement, stating that McFarlane's use of Twist's name was "predominantly a ploy to sell comic books and related products rather than an artistic or literary expression."

McFarlane appealed to the U.S. Supreme Court in December 2003, arguing that Spawn characters "are purely fictional fantasies, and no reasonable person could confuse the plaintiff with the fictional fantasies and characters portrayed therein."

The high court rejected the appeal without comment in January, allowing for the new trial.

``They made Tony into a Mafia boss,'' said James Holloran, an attorney for Twist in the AP’s report. ``He was involved in murders and kidnappings and rapes.''

Michael Kahn, one of McFarlane's attorneys, vowed to appeal the latest ruling, according to the AP. ``The use at issue in this case is no different from Simon and Garfunkel's use of the name Joe DiMaggio in the song 'Mrs. Robinson,''' Kahn said.

""This is just round four in this First Amendment battle," McFarlane's attorney continued. "We will appeal this all the way."

Jed Saxon · 07-11-2004, 06:54 PM

*evil grint*

tralfaz · 07-11-2004, 07:03 PM

I feel kinda dirty for rooting for McFarlane on this one.

I think Ill name all evil characters in all stories I write Tony Twist

RDuarte · 07-11-2004, 07:36 PM

I hate McFarlane. I love free speech. Which side do I cheer for?

Todd is a big hockey fan (heck he owns part of a team, doesn't he?), so he probably knew who Twist was. I think he was hoping Twist would be flattered by the "cameo." IIRC, when Twist sued, Todd said it was a coincidence and claimed free speech. Yet, when all this started years ago, I remember seeing a side by side comparison of Twist (the hockey player) and Twist (the character). They did look alike.

Still, I hate to think of the slippery slope on this one should Twist win his case.

MaxPower · 07-11-2004, 08:07 PM

Well, much as I hate seeing McFarlane win, I hope he wins.

But, he can't very well do it by claiming that he doesn't know who twist is, as he has been doing. One of the first 7 issues of Spawn has him confirm in the letter column that he did indeed name the character after the player, as an homage...

Scooby2099 · 07-11-2004, 09:39 PM

This is sad. This Tony Twist person wasn't hurt one bit by the McFarlane character. All he sees is a big pay day. Shame on him. And this whole mess seems like a ping pong game. One court says something and then another decides something else.

Easy Reader · 07-11-2004, 10:07 PM

Ridiculous!

I'm not a MacFarlane fan at all, but I wish him the best in this battle.

15 millions! OUtrageous!
He's a hockey player! He already has millions!

Halapeno · 07-11-2004, 10:18 PM

Quote:

Originally posted by RDuarte
Still, I hate to think of the slippery slope on this one should Twist win his case.

No kidding.

I'm no fan of McFarlane, but this ruling just is just....wrong. Where's Larry Flynt when you need him?

YDLM · 07-12-2004, 01:16 AM

Im with everyone else here, this is bullcrap, Twist hasnt lost any money because of Todd and Todd hasnt made any money because the Twist character. Twist must have a great lawyer because this is just wrong.

OcCaM · 07-12-2004, 01:20 AM

Yep, I must have been one of those many Hockey fans who saw Twist's name in a Spawn comic and said I must rush out and get it!

This case is ever a joke, no wonder our legal system is a joke! I cant' even really remember who this Tony Twist guy is, aside from this case. Is he trying to compare himself to someone actually famous like Joe DiMaggio?

Ah where have you gone Tony Twist? Jesus loves you more than you can know... (Ok so it doesn't rhyme anymore...)

Laughable this is just laughable. Much as I hate siding with the anti-Christ, what's right is right!

FIG · 07-12-2004, 01:56 AM

Quote:

Originally posted by Scooby2099
This is sad. This Tony Twist person wasn't hurt one bit by the McFarlane character. All he sees is a big pay day. Shame on him. And this whole mess seems like a ping pong game. One court says something and then another decides something else.

Word. I hope some random lightning bolt strikes Tony Twist and the frivolous lawsuit he rode in on.

woodstock · 07-12-2004, 02:12 AM

I'm rooting for Twist, just because it's Tod McFarlane.

saiyanspider · 07-12-2004, 02:37 AM

This is BS man, I personally can not stand McFarlane. Very opinionated views on certain subjects, and his actions tend to contradict themselves on some levels and that irritates me. Never the less, I don't see any grounds for this lawsuit. I highly doubt any one thinks the Hockey player is in fact a mobster, and being a "celebrity" means you loss a certain amount of privacy. Todd was a fan and put him in his comic, like my wife says "build a bridge and get over it. "Celebrities make cameos lots in comics, and that's protected in the first amendment. Also this twist guy isn't a big enough celebrity to make the case that this was done to sell more comics, I mean who the heck is this guy, I wouldn't know. If that were the case why not use a celebrity, or sports figure the mass majority of people would know?

Houdinimachine · 07-12-2004, 04:10 AM

I'm originally from St. Louis, and I can tell you right now Tony Twist is one of the nicest guys in sports. If he's going after Todd, Todd deserves it. Twist is loved in my old hometown for a reason. He was a tough player that had a good heart when it came down to it.

Todd's use of Tony as a villain is not only demeaning to a man that has given tons of money to charities and spent time off the ice helping those in need when he didn't have to, but just low to begin with. It's no secret that Todd's Oilers were beat up a lot by Twist when he was with the Blues. He tried to take it out on Twist and is currently failing. Boo frikkin hoo.

Go Twister! Some of us comic fans know who the real hero is.

manou · 07-12-2004, 04:20 AM

That sucks!!!

I wish MacFarlane good luck!

Posco · 07-12-2004, 07:01 AM

15 Million. That would be how much dollars for each reader of Spawn who saw that story?

Christian

jd142 · 07-12-2004, 10:05 AM

There's slightly more than McFarlane's right to free speech here. Twist has the right to determine how his likeness is used and marketed, as does anyone, but that becomes more economically important as you gain more celebrity status. No one would want an action figure of me, but they would of Twist. Could McFarlane have done a statue or action figure base on the character? Wouldn't that interfere with Twist's own right to have his own action figure?

McFarlane can license Spawn to endorse a product. Spawn Underoos, let's say. If Twist didn't have some rights to his own likeness, then McFarlane could market Tony Twist Underoos using his character which only coincidentally looks like and has the same name as a hockey player. And no one would think that was right. Well, Spawn underoos aren't right no matter what, but you get the idea.

There's a gray area between being about to reference a public person and appropriating their likeness for your own gain. Two different juries found that McFarlane crossed that line.

That's why there are very few celebrities that actually appear in comic books these days as ongoing characters. It's one thing to use their likeness as a throwaway reference, .i.e., "I couldn't have kill the guy Batman, I was home watching Letterman." But it's another to have them as a character. For better or worse, I doubt you could do the Spidey Team Up with SNL today. There'd be too many people involved.

Not having read the comics, this sounds like the character was an ongoing part of the storyline(at least a couple of issues as a supporting character). Someone compared this to the Joe DiMaggio reference in Mrs. Robinson. In the song, the reference to DiMaggio was in a couple of lines specifically in reference to his pop culture status. They didn't write a song about a Doe JiMaggio and coyly pretend it wasn't about Joe DiMaggio.

Hebime · 07-12-2004, 10:36 AM

well, let's pretend for 5 seconds this guy actually lost any endorsment deals. There was no real damage. Somebody, regadless of his nice he is or how well loved he is in my soon to be new hometown, is just looking to pull the handle on the BIG cash register and stuff his little pockets with all he can carrry.
Please correct me if I'm wrong, but I remember seeing a profile of Twist when this started up, and wasn't he a very short lived player? Played a few years then faded to obscurity? You can be damn sure his lawyer is working on contingency.

It's not that I hope Todd wins, I just hope that this issues is resolved in a manner which does not trample the 1st ammendments and give a huge cash payoff to somebody who doesn't deserve it.

Besides, doesn't Todd need that money to pay Neil Gaiman off?

FREE MIRACLEMAN!

Hebime

MrThatGuy · 07-12-2004, 10:46 AM

The problem here is that McFarlane intentionally used his name. No compensation, or even aproval was given for this... if McFarlane accidentally used someone's name that is different.

That is why most stories have the disclaimer that any resemblance to real persons living or deceased is purely coincidental.... this character was based (however loosely) on a real person & hence he should be compensated.

SpySwatr · 07-12-2004, 12:34 PM

Think about all of the people represented, either by name or by image, in comics. Nearly every comic artist and writer have been depicted. Neal Conan from NPR, any US president at the time a comic was written (I'm thinking specifically of Dubya in the first arc to Ultimate X-men), etc etc etc...

Look at X-men...the character of Madeline Pryor...that character's name comes from Maddy Prior, the Irish folk singer of Steeleye Span and Fairport Convention...and she was turned into a goblin posessed psycho...

If this case goes through, what's to stop any of those other people from turning around and suing...

..it's just ridiculous. I was a kid, obsessed with Spiderman when McFarlane hit his prime...I thought he was a god then...then he started his own production company and started spinning off clone artists, etc etc... I quickly became to despise the man's work (not that he was actually physically doing most of it)

...that being said, naming a character after a real person is just a part of comics....no harm was meant. no harm was done. leave it at that.

dollman · 07-12-2004, 01:07 PM

Quote:

Originally posted by RDuarte
I hate McFarlane. I love free speech. Which side do I cheer for?

Todd is a big hockey fan (heck he owns part of a team, doesn't he?), so he probably knew who Twist was. I think he was hoping Twist would be flattered by the "cameo." IIRC, when Twist sued, Todd said it was a coincidence and claimed free speech. Yet, when all this started years ago, I remember seeing a side by side comparison of Twist (the hockey player) and Twist (the character). They did look alike.

Still, I hate to think of the slippery slope on this one should Twist win his case.

Todd is part of the ownership group that owns the Edmonton Oilers, and yes he knew who Tony Twist was. I think you're right, he named the character out of homage to Twist, the enforcer on ice, thinking Twist would get a kick out of it.

And if McFarlene wasn't the multi-millionaire he is, Twist probably wouldn't had thought twice about it. Twist's argument for bringing on the suit was that McFarlene damaged his endorsement potential. That's a load of crock!

Fact is, Twist got into the NHL by beating up players. His hockey skills were modest at best, and he wasn't really in the top tier of so-called enforcers in the NHL. Unless you follow hockey, the average person would have no idea who Tony Twist is.

Twist has been retired from hockey since 1999. I think his motivation for this suit is an easy pay check.

starvenger · 07-12-2004, 01:34 PM

Quote:

Originally posted by dollman
Fact is, Twist got into the NHL by beating up players. His hockey skills were modest at best, and he wasn't really in the top tier of so-called enforcers in the NHL. Unless you follow hockey, the average person would have no idea who Tony Twist is.

I'm sure that Todd knows this, and of course Tony knows this, and I'm also sure that Twist's lawyers managed to get this dismissed as frivolous and irrelevant.

Quote:

I'm originally from St. Louis, and I can tell you right now Tony Twist is one of the nicest guys in sports. If he's going after Todd, Todd deserves it. Twist is loved in my old hometown for a reason. He was a tough player that had a good heart when it came down to it.

So basically, if McFarlane created a character named, say, Barry "Bonds" Bondskelli, you'd have no problem with it, because Bonds is reportedly not a nice guy? Makes no sense...

meverat · 07-12-2004, 01:36 PM

I think an appropriate descision would be to change the name of the character in any future reprints.

$15 mil is just ridiculous.

it is not Tony Twist's likeness that is being used just his name. I can tell the difference between a retired hockey player and a fat mob boss. I never heard of Tony Twist before I read Spawn so this has actually improved his profile as a celebratory and I hardly assumed that he was a bad guy because a character with the same name was one. We know that Todd is a hockey fan and that's that/

Kolimar · 07-12-2004, 01:55 PM

Tony who??...

Oh gawd...

Go Todd!!

Peace

Jim · 07-12-2004, 02:07 PM

Quote:

Originally posted by SpySwatr
Look at X-men...the character of Madeline Pryor...that character's name comes from Maddy Prior, the Irish folk singer of Steeleye Span and Fairport Convention...and she was turned into a goblin posessed psycho...

Quite true. In the end, though, it depends on how the individual feels about it. If singer Pryor doesn't mind, then she doesn't sue. If she does mind, then she can sue regardless of the state or outcome of this case (up until the United States Supreme Court makes a pronouncement on the issue).

Part of the issue does go beyond whether Twist's likeness was used, though. By using the name in the comic for a character who is not supposed to be the real Twist, McFarlane does establish a paper trail for potential trademark establishment. If Twist has any media intentions of his own, he has to fight that.

My belief is that McFarlane is in the wrong, but that Twist is suing for way more than is warranted. A couple hundred thousand plus lawyer fees might be better.