Musings from Brian J. Noggle

Close Second to Censorship

Headline in the St. Louis Post-Dispatch: Tony Twist wins $15 million verdict. The story goes like this:

Tony Twist, the former rock 'em-sock 'em Blues hockey player, was awarded $15 million Friday by a jury that concluded comic book artist Todd McFarlane had profited by using Twist's name without his permission.

McFarlane, formerly the principal artist and writer of Spiderman comics, gave the name Tony Twist to a violent New York mob boss in McFarlane's Spawn comics in the early 1990s.

In a case that could have broad meaning for artistic freedom, McFarlane insisted the name had literary value and his use of it was protected under the First Amendment, but Twist contended McFarlane had exceeded free speech rights.

It was the second time for Twist's claims to go to trial. A St. Louis Circuit Court jury ruled in Twist's favor in 2000 and awarded him $24.5 million, but the trial judge overruled the verdict and the state appeals court later ruled in McFarlane's favor citing his free speech rights. The Missouri Supreme Court, however, last year ordered a new trial after concluding that McFarlane's use of Twist's name was driven more by moneymaking than by "artistic value."

"They made Tony into a Mafia boss," said James Holloran, an attorney for Twist. "He was involved in murders and kidnappings and rapes."

Reporters have a constitutional right to write freely about Twist as a hockey player, even calling him a "goon" or "enforcer" for his rough play on the hockey rink, but that First Amendment freedom does not extend to using his name for commercial advantage, Holloran said.

McFarlane's attorneys argued that his use of the name was protected and that no reasonable person would confuse the fictional character with the real person.

McFarlane did not name the mobster Tony Twist. Tony Twist in the Spawn comic book was a nickname given to a mobster whose real fictional name was Antonio "Tony Twist" Twistelli (more detailed Sports Illustrated article). So a tough guy enforcer thug with a name of Antonio Twistelli was given the nickname Tony Twist, an allusion to the hockey player made his living espousing those qualities. Not a rapist nor a murder, but the nature of metaphor is that it's not an exact photograph, merely an outline and comparison.

I get it. I don't mistake an inked mobster with the former Blues favorite. But then, I am capable of cognitive thought, and am not of the great abstract masses purportedly unable to tell the difference.

The use of the Twister's name (hey, will he sue the producers of that movie for stealing his nickname?) represents realistic idiom. When people talk, make slang, and assign nicknames, they often use allusions to contemporary events, celebrities, and sub-celebrities in the public eye. Writers often make idiomatic use of a famous person's name to describe something about their characters and the story. However, this ruling sets the precedent that if the idiomatic use is not flattering, the sensitive celebrity whose name is getting used in a less-than-flattering light (often because the celebrity has done something mockworthy or less than flattering) can sue for millions of dollars, no matter how little the celebrity's actual worth is impacted. Woe to the writers in America, since these little casual asides now must be vetted for legal exposure and liability.

Coming soon, Monica Lewinsky's action against Law & Order and countless other stupid lawsuits. The government, by encouraging (and make no mistake, the precedent will encourage) these worthless lawsuits indirectly prohibits another small measure of free speech in America.

- posted by Brian J. @ 7:57 PM