Bankrupt court decision
I don't usually blog heavy on a weekend, but I still can't get over the worst judicial result in years. A St. Louis jury (a while ago) awarded NHL star Tony Twist $15 million for the unauthorized use of his name in a Todd McFarlane comic, and the decision was (in the main) upheld. McFarlane is the very successful creator of Spawn.
This case never should have gone to trial. There should be a First Amendment right to use a famous person's name within a book or work of art. It's astounding that such an insignificant use of a name--any name--can be actionable.
McFarlane nicknamed a crime boss Antonio "Tony Twist" Twistelli. It seems to me an affectionate tribute, but who cares. Even if it was done because McFarlane hates Twist, no rational reader would think the character is anything like the real person. But because of the ever-encroaching right of publicity, we have less and less freedom to write as we wish. How long will satire be protected? What about mixing real life characters in fiction (a la Ragtime)?
The jury declared McFarlane's company profited by using Twist's name. Huh? Show me one person who spent a single cent because he couldn't wait to read about a villain named after a hockey player. And, in the other direction, I don't see how this has done anything but help the moneymaking potential of Tony Twist's name.
So, damage to Twist--$0. Profit to McFarlane due to use of Twist's name--$0. Jury award--$15 million.
McFarlane has just declared bankruptcy. The Supreme Court has, alas, rejected his appeal. Perhaps they're waiting for a split in the circuits, but the law here is too important and unsettled to leave alone.
I'm now wondering whether to publish this. It's merely my opinion, and I have honestly tried to get the facts straight. But who knows what's legal these days?
I should send this to my friend, Tom Franck, a stand-up comedian. Go to his blog to find the connection to DC comics. Apparently, an old friend decided to give him a tribute and so Tom, in Green Lantern, is the most popular comedian in the world. But he is taken hostage and harmed, so maybe Tom can get his $15 million anyway.
posted by LAGuy @ 2:41 AM
2 Comments:
"I'm now wondering whether to publish this. It's merely my opinion, and I have honestly tried to get the facts straight. But who knows what's legal these days?"
While I agree this case seems like it should be a slam dunk dismissal, I think your hyperbole is actionable in the blog world.
You often critique others for saying that one court case or incident is going to be the end of the world for their cause. (their use of this hyperbole is often done to raise funds from the red meat supporters.) But then you go and do the same thing.
Obviously we can still write just about whatever we want and this case is notable because it goes against thousands (maybe millions) of incidents TODAY of people using another's name in parody of fiction wtihout receiving any inhibition. Let's call it what it is: totally outside our reasonable expectations about free speech without necessarily having much precedence.
Now quite tangentially this raises for me the problem with our current least checked branch of govt: the judiciary. They write laws people. They don't just interpret them, they write 'em. And they get away with it cause we let em.
I sometimes do attack others for hyperbole, and try to avoid it in my writing. If you can show me a bunch of other essays I've written on recent judicial cases calling them the worst result we've had in a while, then you've got me. But I haven't. This simply is an outrageous First Amendment case, and, as you may be able to tell, I'm big on the First Amendment. The only case as bad that I can think of in the past few years is the campaign finance decision that (as confusing as it is) allows for regulation of political speech in the months before an election.
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