ST. LOUIS - A Missouri appeals court has upheld a $15 million jury verdict against a comic strip creator for using the name of former NHL enforcer Tony Twist without his permission.
In a 3-0 opinion, a three-judge panel of the Eastern District court ruled Tuesday that the comic book creator’s “predominant purpose” for using the name was commercial gain, not artistic expression, and therefore was not entitled to First Amendment protection.
Michael Kahn, one of the attorneys for comic book creator Todd McFarlane, said the long First Amendment battle is not over.
“We’ll seek review of this opinion by the Missouri Supreme Court, and if necessary, the U.S. Supreme Court,” he said.
Twist, who played for the St. Louis Blues and Quebec Nordiques, won $15 million from McFarlane, creator of the comic series Spawn, and his company, Todd McFarlane Productions Inc., after a St. Louis jury trial in 2004.
Twist, known mostly for his skills as a fighter on the ice, had charged in a 1997 lawsuit that use of his name in the comic strip had hurt his public image and precluded any future career as a product promoter.
McFarlane, the former principal artist and writer of Spiderman comics, appealed on the grounds that his use of the name Antonio “Tony Twist” Twistelli for a violent New York mob boss character in his Spawn comics was protected by the First Amendment.
The case has gone to trial twice. In 2000, a jury awarded a $24.5 million verdict against McFarlane, but the judge threw it out, and the Missouri Court of Appeals affirmed.
The state Supreme Court ordered a new trial in 2003, resulting in the $15 million jury verdict.
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