## Facts

- John Doe, also known as Anthony “Tony” Twist, was a former National Hockey League player known as a violent “enforcer” and a popular local sports figure.
- Twist had commercial value tied to his name through endorsements, media appearances (including a television talk show), and public activities.
- TCI Cablevision and related entities created, published, and sold the comic book *Spawn* and related products.
- *Spawn* introduced a villainous mob character named “Anthony ‘Tony Twist’ Twistelli.”
- The fictional character shared a “tough guy” persona with Twist but otherwise did not resemble him.
- In interviews, the *Spawn* creator stated that the fictional character was based on the real Tony Twist and also stated that other comic characters were named after hockey players.
- Twist sued for misappropriation of name (right of publicity) and defamation based on the use of his name for a criminal villain.
- Twist sought damages for (i) the fair market value of a license fee the defendants should have paid to use his name and (ii) harm to the endorsement value of his name by connecting it to a villain.
- The trial court dismissed the defamation claim before trial, but submitted the misappropriation/right-of-publicity claim to the jury.
- Twist introduced evidence that defendants intentionally used his name and sought to gain financially by appealing to hockey fans, including Twist’s fan base.
- Defendants argued the character was not truly based on Twist, that they did not receive a special financial benefit from any association with Twist, and that the use was protected by the First Amendment as part of an expressive work.
- The jury found for Twist and awarded $24.5 million.
- The trial court granted judgment notwithstanding the verdict (JNOV) for defendants and, in the alternative, ordered a new trial if the JNOV was reversed; it also denied injunctive relief.
- The Missouri Supreme Court granted transfer and decided the appeal.

## Issues

1. Whether there was sufficient evidence for a reasonable jury to find defendants misappropriated Twist’s name by using it as a symbol of his identity, without consent, with the intent to obtain a commercial advantage.
2. Whether the First Amendment barred liability for using Twist’s name in a comic book and related merchandise when the use had both expressive and money-making aspects.
3. Whether errors in the jury instructions required a new trial even if the evidence was sufficient to support the verdict.

## Decision

- The Missouri Supreme Court reversed the JNOV, holding that the record contained sufficient evidence for the jury to find that defendants used “Tony Twist” as a symbol of Twist’s identity and did so with the intent to obtain a commercial advantage.
- The court rejected defendants’ argument that the First Amendment automatically shielded the use of Twist’s name simply because it appeared in an expressive work; instead, the court evaluated whether the use was predominantly expressive or predominantly a commercial use of Twist’s identity.
- On this record, the court held the defendants were not entitled to judgment as a matter of law on First Amendment grounds.
- The court affirmed the order granting a new trial because the jury instructions were erroneous and did not properly frame the governing standards, requiring retrial with correct instructions.
- The case was remanded for a new trial on the misappropriation/right-of-publicity claim; the $24.5 million verdict was not reinstated.

## Legal Principles

- A Missouri misappropriation/right-of-publicity claim requires proof that the defendant used the plaintiff’s name (or other identifying attribute) as a symbol of the plaintiff’s identity, without consent, and with the intent to obtain a commercial advantage.
- A defendant does not avoid liability merely by placing the plaintiff’s name inside an expressive work; the First Amendment analysis focuses on whether the defendant’s use of the plaintiff’s identity is predominantly expressive or predominantly a commercial exploitation of that identity.
- Evidence such as admissions that a fictional character was based on the plaintiff, along with proof that the defendant sought to profit by appealing to the plaintiff’s fan base, can support a finding of intent to obtain a commercial advantage.
- When jury instructions misstate the elements or limits of a right-of-publicity claim, a new trial may be required even though the plaintiff presented sufficient evidence to go to the jury.

## Conclusion

In *Doe a/k/a Twist v. TCI Cablevision*, the Missouri Supreme Court held that the evidence was sufficient for a jury to find that the defendants misappropriated NHL player Tony Twist’s name for commercial advantage through a *Spawn* character, and that the First Amendment did not require judgment for defendants as a matter of law; however, because the jury was improperly instructed, the court affirmed an order for a new trial and remanded for retrial under correct instructions.


Doe a/k/a Twist v. TCI Cablevision, 110 S.W.3d 363 (2003), cert. denied 124 S. Ct. 1058 (2004)