Doe v. TCI Cablevision
110 S.W.3d 363 (2003)
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Rule of Law:
The use of a person's identity in a creative work is not protected by the First Amendment if the predominant purpose of the use is commercial exploitation rather than expressive commentary. Such use violates the person's right of publicity.
Facts:
- Anthony 'Tony' Twist was a well-known professional hockey player for the National Hockey League, famed for his role as an 'enforcer'.
- Despite his aggressive on-ice persona, Twist was popular with fans and actively cultivated a positive public image through endorsements, media appearances, and charity work to prepare for a post-hockey career.
- Todd McFarlane, a hockey fan, created the 'Spawn' comic book series and introduced a villainous character named 'Anthony ‘Tony Twist’ Twistelli', a Mafia don.
- The fictional 'Tony Twist' character and the real Tony Twist shared the same name and a 'tough-guy' persona, but did not physically resemble each other.
- McFarlane explicitly admitted in the comic book and in a trade magazine interview that the villainous character was named after the real Tony Twist.
- The trade magazine article included a picture of Twist's actual hockey trading card next to a drawing and description of the villainous character.
- McFarlane's companies marketed 'Spawn' merchandise specifically to hockey fans, including 'Spawn' logo hockey pucks and jerseys, and sponsored a 'Spawn Night' at a minor league hockey game.
Procedural Posture:
- Anthony Twist filed a lawsuit against Todd McFarlane and his associated companies in Missouri circuit court, alleging misappropriation of name and defamation.
- The trial court dismissed the defamation claim but allowed the misappropriation claim to proceed.
- A jury found in favor of Twist, awarding him $24,500,000 in damages.
- The trial court judge then granted the defendants' motion for judgment notwithstanding the verdict (JNOV), which nullified the jury's verdict.
- In the alternative, the trial court ordered a new trial in the event its JNOV ruling was reversed on appeal.
- The trial court also denied Twist's request for a permanent injunction.
- Twist, as appellant, appealed the trial court's post-trial rulings to the Missouri Court of Appeals, Eastern District.
- Before the appellate court could rule, the Supreme Court of Missouri granted transfer to hear the case directly.
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Issue:
Does the First Amendment protect the use of a celebrity's name for a fictional character in a creative work when the predominant purpose of that use is commercial exploitation rather than expressive commentary?
Opinions:
Majority - Limbaugh, Jr.
No, the First Amendment does not protect the use of a celebrity's name for a fictional character when the predominant purpose is commercial exploitation. To establish a right of publicity claim, a plaintiff must prove: 1) the defendant used the plaintiff's name as a symbol of his identity, 2) without consent, and 3) with the intent to obtain a commercial advantage. Here, Twist presented sufficient evidence for a jury to find all three elements. McFarlane's admissions and the marketing targeting hockey fans demonstrated that Twist's name was used as a symbol of his identity with the intent to gain a commercial advantage by attracting consumers' attention. In balancing the right of publicity against the First Amendment, the court adopts a 'predominant use' test. This test weighs whether the use of the identity is primarily for commercial exploitation or for expressive purposes. The court found that the use of Twist's name was predominantly a ploy to sell comic books rather than a meaningful artistic or literary expression, and therefore must give way to the right of publicity. However, the court affirmed the grant of a new trial because the original jury instruction was flawed; it failed to require a finding that the defendants intended to obtain a commercial advantage, allowing a verdict based on merely incidental gain.
Analysis:
This decision is significant for adopting the 'predominant use' test in Missouri to resolve conflicts between the right of publicity and First Amendment protections for expressive works. Unlike the 'transformative' test used in California, this balancing test provides a more flexible, fact-intensive inquiry into the creator's motives. The ruling signals that courts may look beyond the creative nature of a work to scrutinize its commercial purpose, potentially limiting First Amendment defenses for uses of a celebrity's identity that appear to be more of a marketing tactic than a genuine artistic statement. This precedent may influence how creators in various media use real-life personas, as it narrows the safe harbor for uses that are not clearly commentary, parody, or biography.
