So the Supreme Court has refused to take on the McFarlane/Tony Twist case, and it’s being kicked back to the lower courts where it’s to be retried.
Despite the amicus briefs submitted by a flotilla of recognizable Hollywood names, this is not a First Amendment case. This is, and always has been, a Todd’s-Being-A-Ðìçk case.
Years ago, when I was looking into the notion of suing someone for libel, my lawyer said that–in this great country of ours–you can say practically anything about someone as long as you stop short of characterizing him as committing criminal acts. So what did Todd do? In “Spawn,” he named a criminal enforcer “Tony Twist” and openly copped to naming him after hockey player Tony Twist. (Un)surprisingly enough, the hockey player didn’t cotton to having his name appropriated by a criminal character.
My lack of sympathy for Todd in this has zero to do with our history (or his charming stunt of naming two members of the KKK “Peter and John” after Byrne and myself in another “Spawn.”) If Todd had created a hockey character named Tommy Twitch who started pounding on other players in the first two seconds of a game, and Tony Twist sued, I’d be 100% on Todd’s side. Fair use, parody, satire. Or if he’d had Tony Twist skate onto panel, wave, someone says “Hey, Tony!” and he skates off and Twist sued, again I’d be saying, “C’mon, the guy should be flattered. No harm was intended.” If Todd weren’t a hockey fan, never heard of Tony Twist (I know I hadn’t before this), and it was pure coincidence, I’d support him.
But that’s not what happened. Todd thought it would be funny to name a criminal after a real person–a criminal who also showed up in the HBO “Spawn” animated series, exposing the characterization to millions of viewers. Here’s the problem with doing something funny: There’s always people who are going to think it’s NOT funny. I should know: I’m the guy who was accused of being anti-Semitic because I named some evil aliens in a Trek novel after the objects on a sedar plate.
Tony Twist didn’t think it was funny to be characterized as a criminal. Big surprise. So he sued Todd. Big surprise. Okay, actually, in this litigious society of ours, it’s NOT a big surprise. So Todd should not have been surprised when it happened. Which means that, if he’d given it a scintilla of thought, he wouldn’t have done it. But he didn’t give it any thought, or if he did, he went ahead anyway. Why? Same reason he jerked Neil Gaiman around: Because he’s being a dìçk. And because he figures he can (and should) be able to get away with it…not because he has a First Amendment right to do so, but because he’s the Toddster.
I thought at the time, and still do think, that the jury’s initial monetary award to Twist was ludicrous. But what’s even more ludicrous is the notion of Todd embarking on yet another court go-around when he could be spending his time on more important things, like not drawing comics.
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