John Doe, a/k/a Tony Twist v. TCI Cablevision, et al.

Summary

The Supreme Court of Missouri considered a right of publicity claim arising from the use of professional hockey player Tony Twist's name for a villainous character in the Spawn comic book and related products. The court held that Twist presented sufficient evidence that defendants used his name as a symbol of his identity, without consent, and with intent to obtain a commercial advantage, and it addressed whether the First Amendment barred the claim.

Holdings

1. A right-of-publicity plaintiff must prove that the defendant used the plaintiff's name as a symbol of the plaintiff's identity, without consent, and with the intent to obtain a commercial advantage. Twist presented sufficient evidence on each element to submit the claim to the jury.
2. On the record presented, respondents' use of Twist's name and identity was predominantly a commercial ploy to sell comic books and related products rather than protected artistic or literary expression; therefore, the First Amendment did not bar the right-of-publicity claim.
3. The verdict director was erroneous because it did not require the jury to find that respondents used Twist's identity and used his name with the intent or purpose of obtaining a commercial advantage. The error required the verdict to be set aside and supported the circuit court's alternative grant of a new trial.
4. The circuit court properly denied Twist's requested injunction because it was overbroad and would have prohibited expressive activities protected by the First Amendment, including parody, commentary, and factual reporting.

Questions Presented

1. Whether Twist presented a submissible right-of-publicity case by showing that respondents used his name as a symbol of his identity without consent and with intent to obtain a commercial advantage.
2. Whether the First Amendment barred Twist's right-of-publicity claim based on respondents' use of his identity in a fictional comic book and related products.
3. Whether the verdict director was prejudicially erroneous because it failed to require the jury to find that respondents used Twist's identity and intended to obtain a commercial advantage.
4. Whether Twist was entitled to the requested permanent injunction prohibiting respondents from using his name, commercial image, persona, autograph, or likeness for any purpose without consent.

Disposition

reversed_and_remanded