tony twist appeal denied
Friday, July 26, 2002
TONY TWIST APPEAL DENIED
Missouri Court Upholds 2000 Ruling
July 26, 2002
Todd McFarlane and the McFarlane companies are pleased to announce a favorable conclusion to the Tony Twist lawsuit.
On Tuesday, July 23, 2002, the Missouri Court of Appeals handed down a ruling upholding the November 2000 dismissal of the $24.5 million judgment against Todd McFarlane. The ruling came in a 35-page opinion written by Judge James R. Dowd, a member of the three-judge Missouri Court of Appeals' Eastern District panel.
"This was a First Amendment case, pure and simple," Spawn creator McFarlane said. "This ruling reaffirms that comic books are an important storytelling medium entitled to the full protections of the First Amendment; something we in the comic book community have always known to be true."
In 2000, former professional hockey enforcer Tony Twist filed suit against McFarlane, claiming the comic creator's use of the minor character Antonio Twistelli (nickname Tony Twist) in Spawn cost Twist endorsements and other business opportunities.
A jury in the original case agreed, awarding Twist $24.5 million. But St. Louis Circuit Court Judge Robert H. Dierker Jr. -- who presided over the case -- wiped out the award, saying at the time the case lacked "credible evidence that McFarlane at any time intended to injure Twist's marketability, to capitalize on the market recognition of the name Tony Twist, or in fact derived any ... benefit whatsoever." He added that when McFarlane first used the name Tony Twist, the plaintiff had no market recognition and "was earning precisely zero income from endorsements."
Dierker noted that "Spawn is a work of fiction," and "there is no resemblance between plaintiff and the comic book Twist whatsoever." He also said "the court cannot find a single case, certainly no Missouri case, in which injunctive relief has been granted to prevent the use of a name by a writer or publisher in a work of fiction."
In their ruling this week, the Missouri Court of Appeals agreed, stating, "We conclude that a reader could not reasonably believe that the Twist comic book character is meant to portray, in actual fact, Twist the hockey player."
McFarlane has stated all along this case was a free speech issue. In July 2000, he said, "This is way beyond Tony Twist, this is a First Amendment issue. If I lost and the damages were only $10, I'd still fight this thing, because you can't let what happened stand. I'm not trying to cover my ass on this. What I was just found guilty of, there are now thousands of people in the entertainment and publishing industry guilty of the same crime. We all became guilty. You can take my name out and put in CNN or Time Warner or Stephen King ... you're guilty."
McFarlane attorney Michael Kahn agreed. "It's a terrific victory for the First Amendment," he said. "As far as we're concerned, the court of appeals got it right."