Doe v. TCI Cablevision — Right of Publicity

Q: Who was Tony Twist and what did the comic do?

Anthony 'Tony' Twist was an NHL enforcer known for fighting. The comic book Spawn introduced a Mafia-don villain named 'Antonio Tony Twist Twistelli,' and creator Todd McFarlane acknowledged the character was named after the hockey player. Twist sued for misappropriation of his name.

Missouri's high court let NHL enforcer Tony Twist sue Spawn creator Todd McFarlane, adopting a 'predominant purpose' test to balance the right of publicity against free speech.

Spawn, Todd McFarlane’s hugely popular comic, was full of grim characters, but one of them carried a real man’s name. Anthony “Tony” Twist, a National Hockey League enforcer famous for dropping his gloves, discovered that a Mafia-don villain in the series was called “Antonio ‘Tony Twist’ Twistelli” — and that McFarlane had publicly acknowledged naming the character after him. Twist sued. In Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003), cert. denied, 540 U.S. 1106 (2004), the Supreme Court of Missouri, in an opinion by Judge Stephen N. Limbaugh, Jr., held that Twist had a viable right-of-publicity claim and that the First Amendment did not bar it. To draw the line between protected storytelling and commercial exploitation, the court adopted a new “predominant purpose” test that has shaped publicity law ever since.

At a glance

Case: Doe a/k/a Tony Twist v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) (en banc), cert. denied, 540 U.S. 1106 (2004).
Court: Supreme Court of Missouri; opinion by Judge Stephen N. Limbaugh, Jr., for a unanimous court, decided July 29, 2003.
Posture: Appeal after a jury verdict for Twist that the trial court set aside via judgment notwithstanding the verdict; the high court reversed the JNOV and remanded for a new trial.
Holding: Twist made a submissible right-of-publicity case; the use of his name was not protected expression because, under the predominant purpose test, it was used chiefly to exploit commercial value, but defective jury instructions required a new trial.
Significance: Announced and applied the “predominant purpose” test as a method for balancing the right of publicity against First Amendment speech.

A name that crossed over

Tony Twist built his hockey reputation as an enforcer, and he marketed himself accordingly, doing charity work and endorsements tied to his tough-guy persona. Beginning in 1993, the Spawn storyline introduced a violent crime boss named Tony Twist. McFarlane and his collaborators did not hide the borrowing: in interviews and in the comic’s “Spawning Ground” letters section, McFarlane admitted the character was named after the hockey player and indicated that fans would keep seeing real hockey names used in the books.

Twist sued the comic’s creators, publishers, and marketers, asserting misappropriation of name (right of publicity) and defamation. The defamation count was dismissed below, and the case went to the jury on the publicity claim. A jury awarded Twist $24.5 million, but the trial court entered judgment notwithstanding the verdict for the defendants, reasoning the use was protected speech. Twist appealed to the Missouri Supreme Court.

Rejecting the transformative test, adopting predominant purpose

The court first confirmed the elements of a Missouri right-of-publicity claim: that the defendant used the plaintiff’s name as a symbol of his identity, without consent, and with the intent to obtain a commercial advantage. The pivotal dispute was how to reconcile that right with the First Amendment when the use appears in an expressive work like a comic book.

The court surveyed existing approaches, including the Comedy III transformative-use test and a “relatedness” test, and found each wanting for this kind of case. Instead it embraced a “predominant purpose” test drawn from commentator Mark S. Lee. As the court framed it, if a product or work that uses a person’s identity is sold predominantly to exploit the commercial value of that identity, the right of publicity prevails even if there is some expressive content; but if the predominant purpose is to make an expressive comment about the person, the speech interest is weighted more heavily. The test focuses on what is really being sold.

Applying the test to Spawn

Applying that standard, the court concluded that the use of Twist’s name was “predominantly a ploy to sell comic books and related products rather than an artistic or literary expression.” The fictional crime boss bore no resemblance to the real hockey player beyond the shared name, and the evidence — including McFarlane’s own statements courting a hockey audience — suggested the borrowing was meant to draw fans and boost sales rather than to comment on Twist himself. The First Amendment, the court held, did not shield that commercial exploitation.

Twist’s victory was nonetheless incomplete. The court found that the jury instructions failed to require a finding that the defendants intended to obtain a commercial advantage — an essential element — and instead allowed liability for merely incidental commercial benefit. Because that error went to the heart of the claim, the court reversed the JNOV but ordered a new trial rather than reinstating the multimillion-dollar verdict. On retrial Twist again prevailed and ultimately secured a large judgment.

Open questions

How do courts measure “predominant” purpose? The test invites a holistic judgment about what is really being sold, but offers little concrete guidance for works that genuinely mix commentary and commercial appeal.
Does the test travel? Some jurisdictions favor the transformative-use or Rogers relatedness tests instead; Doe deepened a split over the right methodology that the Supreme Court has not resolved.
What about pure naming? The case turned on borrowing only a name with no resemblance; the analysis is murkier when a work uses fuller aspects of a real person within a fictional narrative.

Implications

Borrowing a name is not automatically protected. Even inside an expressive work, using a real person’s identity mainly to drive sales can support a right-of-publicity claim.
A new balancing tool entered the field. The predominant purpose test gives plaintiffs an alternative to the transformative-use framework, and which test a court picks can decide the case.
Creators’ own marketing can sink them. McFarlane’s public statements about courting hockey fans helped show a commercial, rather than expressive, purpose — a caution for how artists discuss their inspirations.
Intent matters and must be charged correctly. Liability requires intent to gain commercial advantage; sloppy jury instructions on that element can unwind even a large verdict.
The split persists. Litigants should expect outcomes to vary by jurisdiction, making forum and choice of law central to publicity disputes over expressive works.

Frequently asked questions

Who was Tony Twist and what did the comic do? Anthony “Tony” Twist was an NHL enforcer known for fighting. The comic book Spawn introduced a Mafia-don villain named “Antonio ‘Tony Twist’ Twistelli,” and creator Todd McFarlane acknowledged the character was named after the hockey player. Twist sued for misappropriation of his name.

What is the predominant purpose test? Adopted by the Missouri Supreme Court in this case, it asks whether a work that uses someone’s identity does so predominantly to exploit the commercial value of that identity, or predominantly to make an expressive comment. If commercial exploitation predominates, the right of publicity prevails over the First Amendment defense.

Did Tony Twist win damages in this decision? Not in this ruling. The Missouri Supreme Court held Twist had made a submissible right-of-publicity case and rejected the First Amendment defense, but it found the jury instructions defective and ordered a new trial. Twist later prevailed on retrial and obtained a substantial judgment.