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Charles Reece on the Twist/McFarlane Legal Outcome Preceding the Bankruptcy
posted December 21, 2004
 

Charles Reece
via the Internet

My take:

"At trial, McFarlane denied that the comic book character was "about" the real-life Tony Twist despite the fact that the names were the same. McFarlane also denied that he or the other defendants had attained any benefit by using Twist’s name. Twist, however, presented evidence that McFarlane and the other defendants had indeed benefited by using his name. For example, Twist introduced evidence suggesting that in marketing Spawn products, McFarlane directly targeted hockey fans -- Twist’s primary fan base -- by producing and licensing Spawn logo hockey pucks, hockey jerseys and toy zambonis. On cross-examination, McFarlane admitted that on one occasion defendants sponsored "Spawn Night" at a minor league hockey game, where McFarlane personally appeared and distributed Spawn products, including products containing the "Tony Twist" character. Another "Spawn Night" was planned to take place at a subsequent NHL game, but the event never occurred. On the issue of damages, Twist, through purported expert testimony, offered a formula for determining the fair market value that McFarlane and the other defendants should have paid Twist to use his name. In addition, Twist introduced evidence that his association with the Spawn character resulted in a diminution in the commercial value of his name as an endorser of products. To that end, Sean Philips, a former executive of a sports nutrition company, testified that his company withdrew a $100,000 offer to Twist to serve as the company’s product endorser after Philips learned that Twist’s name was associated with the evil Mafia don in the Spawn comic book."

It's more than just parody at that point, but it's sort of stupid when people confuse some villain in comic named after a real person with the actual merits of the person himself. But, I suppose, it's a stupid world in which we live and we get the law we deserve. Presumedly, in order for parody to work, the reader would have to know of the subject of the parody. The parody wouldn't have worked on me, since I didn't know "Tony Twist" until this lawsuit. What I'm getting at here is that I'm not sure that McFarlane did anything morally wrong, and the reward/punishment is a bit steep. Attending a few gathering of hockey fans to say, "you'll find my parody funny" isn't like he was producing Twist's likeness for some big gain. And, the advertiser who withdrew is a bit of a dipshit. Would any of his potential product buyers go, "I'm not buying anything from a guy with mafia ties!"? I know the point of advertising is to assume people are as stupid as possible and still manage to drive to the stores, but that's a bit far-fetched even for the reactionary minds working in the commercial world. Will there ever come a day when we start holding people behaving in a stupid manner responsible for the behavior, and not the artists or the object to which stupid people were responding? So, the current ruling seems legally sound, but I find it a bit sad, while not caring one whit that McFarlane is getting some kharma thrown at him.