TWIST AGAIN (LIKE WE DID A FEW SUMMERS AGO)

76 comments on “TWIST AGAIN (LIKE WE DID A FEW SUMMERS AGO)”

1. Styer:

   I agree the First Amendment is an issue in this case, it just doesn’t appear that this particular case rises to the level of a Supreme Court appeal on constitutional grounds simply because the scope is well defined.

2. Hmm. My name was used for a classic Trek Starfleet Admiral, who certainly have a rep for being dumb, insane, etc.

   Peter, there something you want to tell me? 🙂

3. Jeff Linder said:

   I agree the First Amendment is an issue in this case, it just doesn’t appear that this particular case rises to the level of a Supreme Court appeal on constitutional grounds simply because the scope is well defined.

   Then we’re pretty much in agreement.

4. If you come up with Edger Pickabutt – there’s probably one somewhere – in therapy . . .again.

   This is true and it’s why, despite the amicus briefs filed, that I don’t think that this case is going to cause any “chilling effect” in how writers name characters.

   In order to prevail in this case, Twist had to prove that Todd used the name with malicious intent. To prove that, he first had to prove that Todd intentionally used the name “Tony Twist,” knowing that it was associated with a hockey player. Todd was dumb enough to make that part easy by admitting to it.

   But I guess if you act like a jerk and get in someone’s face – you’re going to get sued and 12 schmoes who aren’t smart enough to get out jury duty will wind up misplacing the decimal point when giving you an award and there you go, thus perpetuating the Mc Donald’s Hot Coffee 10 million dollar theories of why our court system blows.

   Which is where the real problem with this case is found. Tony Twist has the right to control how his name is used, no question. But how much damage did Todd being a dìçk cause him? Twist says he lost endorsement deals over it, but did he actually bring a potential client into court to testify, “Yeah, we are all setup to have Tony be the pitch man for Ed’s Pizzeria, but then I saw this fat guy in a comic about a dead guy who had the same name and I thought, whoa, no way I want my pizza associated with that piece of garbage.”?

5. Hmmm….if McFarlane’s use of the name and likeness of Tony Twist in a defaming manner is ruled libelous, what are we to do with Al Franken’s and Don Simpson’s excellent “Operation Chickenhawk: Episode One,” a chapter in Franken’s “Lies and the Lying Liars…”?

   Well, IANAL, but several things come to mind:

   1. As public figures, Messrs. Twist, Cheney, Thomas, et al have to show they suffered financial damage before they could win a libel case. I am not aware of any claims from Bush, Cheney, Thomas, etc. about suffering any financial damages because of Franken’s book.

   2. As political figures, I imagine that Bush, Cheney, Thomas et al probably have a higher level of proof they must meet for any claims of “libel” to stick — because criticism is part and parcel of the political process. Twist, as far as I know, has no political affiliations whatsoever.

   3. Finally, as you noted, it’s very obvious that the piece in Lies and the Lying Liars was satire, and far removed from reality — Bush et al never served in Vietnam, much less together, and Al Gore and John Kerry haven’t been shot in the back. Whereas I don’t believe there was a similarly strong indication in Spawn that the real-life Tony Twist was nothing like his comic counterpart. While Spawn himself is obviously a fictional character, was there any indication in the comic that the real-life Tony Twist was not engaging in criminal behavior?

   Again, IANAL, but the two situations don’t seem comparable to me.

6. Sorry Peter, I don’t agree with you on the assertion of Todd being a dìçk. In this case, I see it more as Tony Twist being an opportunist, and seizing on a chance for an easy pay day.

   Let’s face it, unless you were a hockey fan (like me), or specifically a St. Louis Blue fan, the average person would not have even heard of Tony Twist. Twist was a mediocre player at best, who got into the NHL by pounding the crap outta other players. Twist also retired from the league when the average salary wasn’t a million US$, even for players with his questionable talents.

   My guess is that Twist probably wouldn’t had care if Todd wasn’t worth millions and blowing wads of dough on McGuire and Bonds home run balls.

   Was Todd being spiteful in naming a mob enforcer after him? Even though Todd’s a big sports fan and part owner of the Edmonton Oilers hockey team now, he wasn’t back in the early 90s. Nor would I have any reason to suspect that Todd and Twist’s paths ever crossed prior to Spawn. I’m willing to give Todd the benefit of the doubt and think in some twisted fashion, he thought he was paying homage to Twist the hockey player.

   At worst, Todd is guilty of bad judgement, and not thinking through the ramifications of naming a character after a quasi-famous person. But what if Todd had named the enforcer John Smith? Does this mean every John Smith should be calling his lawyer to get a piece of the McFarlene empire?

   I agree Todd has done pretty crappy things to you and Neil Gaimen, but in this case I think he’s in the right.

7. I hope I don’t sound naive by posting this. I have had no contact with Mr. McFarlane and only heard of his famous personality quirks through others. I also don’t know the circumstances of his admission about the fact that Tony Twist was the basis for this mobster.

   However, is it a possibility that he admitted to basing the character on Mr. Twist because he was giving a sworn depostion and didn’t want to lie under oath? Or did he simply blurt this our in public?

8. PAD: Well, first of all, I usually do such Tuckerizing with the knowledge and permission of the participant. And second, as I noted in my initial post, I wouldn’t cast them in a criminal light.

   Not to criticize, but IIRC, didn’t you state in one of your “what do you want to know” entries that you named a crewman after some guy who dated your sister and broke her heart and had this character thrown into the warp core to die a gruesome death? Do you feel this is different from Tuckerizing someone as a criminal? If so, how so and why? And which is worse? Thanks for the clarification.

   And to clarify my position, I really enjoy jokes like that when I’m reading; as a result, this is just an objective question, not an attack. And I agree that asking permission before using the name is the best way to go and what Todd should have done (and what you have stated that you always do).

   Chris

9. So, okay, if Al Fraken’s book (specifically its “Operation: Chickenhawk” chapter), which uses both the names and likenesses of real public figures (Kerry, Gore, Cheney, Thomas, Bush, etc.) in a manner which is clearly defamatory as well as satrical is understood as being ipso fact non-libelous because it’s not purporting to be real—how do we get to something in a comic book about a superhero coming back from the dead being (potentially) libelous for doing a similar thing?

   Not trying to be dense here, and my ideaological cards are on the table: I think Al Franken’s a Great American and Great Satirist and a Great Guy, whereas I think Todd McFarlane’s a Mediocre Artist and a Lousy Writer and a Prìçk of a Guy. But I’m just trying to be consistent, since I value a very high bar being set for libel. Are we to accept that Mr. Twist’s potential business partners could be reasonably confused as to his character and possible involvement with organized crime if they saw an issue of “Spawn”? But we accept that the reasonable person recognizes Franken’s and Simpson’s work as satire? Sorry–that doesn’t track for me. What am I missing?

10. Here’s some stuff from the Libel Defense Resource Center’s website, followed by my take on the situation.

    What is Libel?

    Libel and slander are legal claims for false statements of fact about a person that are printed, broadcast, spoken or otherwise communicated to others. Libel generally refers to statements or visual depictions in written or other permanent form, while slander refers to oral statements and gestures. The term defamation is often used to encompass both libel and slander.

    In order for the person about whom a statement is made to recover for libel, the false statement must be defamatory, meaning that it actually harms the reputation of the other person, as opposed to being merely insulting or offensive.

    The statement(s) alleged to be defamatory must have been published to at least one other person (other than the subject of the statement) and must be “of and concerning” the plaintiff. That is, those hearing or reading the statement must identify it specifically with the plaintiff.

    The statement(s) alleged to be defamatory must also be a false statement of fact. Since name-calling, hyperbole, or exaggerated and heated words cannot be proven true or false, they cannot be the subject of a libel or slander claim.

    The defamatory statement must also have been made with fault. The extent of the fault depends primarily on the status of the plaintiff. Public figures, such as government officials, celebrities, well-known individuals, and people involved in specific public controversies, are required to prove actual malice, a legal term which means the defendant knew his statement was false or recklessly disregarded the truth or falsity of his statement. In general, in most jurisdictions private individuals must show only that the defendant was negligent, that he failed to act with due care in the situation.

    A defamation claim will likely fail if any of these elements are not met.

    While on many of these issues the burden of proof is on the plaintiff, the primary defenses to a defamation claim are that the statements are true, are not statements of fact, or are privileged. Some defamatory statements may be protected by privilege, meaning that in certain circumstances the interest in communicating a statement outweighs the interest in protecting reputation. For example, most, if not all, jurisdictions recognize a privilege for fair reports of government and judicial proceedings, and for reports of misconduct to the proper authorities or to those who share a common interest (such as within a family or an association). Privileges do vary somewhat from state to state in their scope and requirements. They often apply to non-media defendants to the same degree as to media defendants.

    A successful defamation plaintiff may be entitled to a jury award of money damages. In some instances, the plaintiff may also be awarded punitive damages for particularly reprehensible conduct. The parties to the claim are entitled to appeal and cases are carefully scrutinized on review to protect the defendant’s First Amendment rights.

    Defamation claims can be brought by living persons and legal entities such as corporations, unincorporated businesses, associations and unions that are considered “persons” under the law. Governmental entities cannot maintain actions for libel or slander, although a government official can bring suit for statements about the official individually.

    Libel and slander are civil claims, but a handful of the states recognize an action for criminal defamation. Prosecutions are rare, especially against the media.

    Since we’re talking about the law, I figure it might actually be helpful to inject some actual legal talk into the matter.

    Personally, I don’t see how Tony Twist can win this. There are “enforcers” in hockey. There are “enforcers” in organized crime. One does not have to take a huge mental leap to connect the two in a fictional manner. If nothing else, McFarlane’s characterization cuts it as hyperbole. Or for that matter, satire, which already enjoys legal protection stemming from a case involving Luke Campbell of 2 Live Crew and Roy Orbinson’s music publishing company. (In this case, being classified as satire would pre-empt any claims that there was actual malice involved.)

    I also have a hard time believing that anyone would think Tony Twist is a criminal, which is what he would have to prove in order to win damages. (Hëll, I’d be suprised if more than one tenth of 1 percent of the population has even heard of the guy. After all, he is a hockey player, and let’s not kid ourselves that those of us who enjoy hockey are anything but a tiny minority.)

    -Dave O’Connell

11. I remember when you put the Seder aliens into Imzadi. I was trying to figure out if you were being clever or just were short on names.

    Has anyone else noticed the names in The Rift? Alt and Macro, to be precise. And I often wonder if Ecma is a corruption of Acme.

    Still, keep up the good work. I’m especially enjoying New Frontier.

12. Not to criticize, but IIRC, didn’t you state in one of your “what do you want to know” entries that you named a crewman after some guy who dated your sister and broke her heart and had this character thrown into the warp core to die a gruesome death? Do you feel this is different from Tuckerizing someone as a criminal? If so, how so and why? And which is worse? Thanks for the clarification.

    Well, yes, it’s very different.

    First off, the guy in question wasn’t introduced specifically to get slaughtered. I tuckerized both him and my sister into NF, and he was extremely pleased about it. But I warned him up front. I said, “If you break my sister’s heart, I’m dropping your character into the Excalibur’s warp core.” And he said, “Understood.”

    And he broke my sister’s heart, and I dropped him in the warp core.

    However, even in that circumstance, his character died heroically, saving her life. The death itself was pleasingly (to me) agonizing, but it wasn’t a negative portrayal of the guy himself.

    Meanwhile, Twist’s lawyers presented a witness who stated that the portrayal of Twist as a criminal, particularly on HBO, cost him a specific promotional gig that would have netted Twist $100,000. Some people dispute the veracity of that testimony, but for what it’s worth, the jury found him credible.

    See, this is why it really *isn’t* a First Amendment issue. Because the First Amendment doesn’t give you the right to portray someone with no criminal record as actively pursuing criminal actions.

    Hey, isn’t it funny to portray Peter David as a KKK member, advocating racism and murder? Well, no. Hey, isn’t it funny to portray a hockey player as a criminal? Well, no. Every time a writer pulls something like that–defames someone by attaching criminal activities to their name–he runs the risk of the party in question seeking redress in the courts, particularly if they believe (or can even prove) that the depiction cost them money.

    So if you’re smart, you don’t do it.

    Todd did it.

    Do the math.

    PAD

13. See, this is why it really *isn’t* a First Amendment issue. Because the First Amendment doesn’t give you the right to portray someone with no criminal record as actively pursuing criminal actions.

    Except it is a First Amendment issue in the sense that it defines the parameters in which speech can be considered free. One cannot define free speech without also clarifying what isn’t free speech. And McFarlane’s characterization of Twist falls within what I think most people would consider to be speech. I’d go so far as to consider it free speech (for the reasons cited in an earlier post of mine; it’s satirical, and whether or not the satire is smart or not, parody and satire are considered free speech and above “actual malice”, which is not satirical. Hëll, if 2 Live Crew legally cuts it as satire or parody, then surely McFarlane’s Twist-esque character does), though apparently a jury (and Peter David) feel otherwise.

    But it doesn’t matter what the nature of the satire is, or whether or not the target of the satire has a criminal record, as long as it is satire. There aren’t different degrees of satire. Speech is either satirical or it isn’t. Hopefully, a lower court will figure this out.

    -Dave OConnell

    P.S. That case, by the way, is Campbell v. Acuff-Rose (1994).

14. Adding on to what I just said, here’s Justice David Souter’s opinion in favor of the defendant.

    Much of that case dealt with fair use, but this excerpt might work as a comment on the McFarlane case.

    Parody’s humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to “conjure up” at least enough of that original to make the object of its critical wit recognizable. See, e. g., Elsmere Music, 623 F. 2d, at 253, n. 1; Fisher v. Dees, 794 F. 2d, at 438-439. Whatmakes for this recognition is quotation of the original’s most distinctive or memorable features, which the parodist can be sure the audience will know.

    -Dave OConnell

15. **And how did Todd violate the religious and civil rights of others?

    Posted by Bladestar @ 01/12/2004 07:44 PM ET**

    Lighten up Bladestar, I was making a joke to parody another thread on here. I’m happy to admit that not everyone, and maybe no one but myself, though it was funny.

16. There was nothing in the post to indicate it was a joke, and the host of this site is actually siding with the hockey player I’ve never heard of…Plus I’ve never read or watched Spawn, so Twist was in no way defamed.

    As many others have also said, there are lots of people, including fictional ones) that share names…

    Twist is a moron and needs to grow up…

17. Peter David: See, this is why it really *isn’t* a First Amendment issue. Because the First Amendment doesn’t give you the right to portray someone with no criminal record as actively pursuing criminal actions. Hey, isn’t it funny to portray a hockey player as a criminal? Well, no.

    Luigi Novi: But he didn’t portray Twist as a criminal. He created a character that bore no resemblance to Twist in either appearance, background or occupation, and just named him after Twist. Does that constitute portraying the original person as such?

    Peter David: Hey, isn’t it funny to portray Peter David as a KKK member, advocating racism and murder? Well, no.

    Luigi Novi: But in that case, as immature a reaction to yours and Byrne’s legitimate criticisms of him and Image as it was, he didn’t use your full names, did he? And did he have the two characters depicted to look like you and Byrne? Don’t get me wrong, Todd is certainly three or four different flavors of immature áššhølë, but does what he did to you and Byrne constitute portraying the real life you and Byrne as clansmen?

18. Did anyone see this week’s Teen Titans? This has got to be one of the biggest cases of irony I’ve seen in a while. TEENY, TINY SPOILER: Cassie’s new principle is named Mrs. David. Since the issue features a few characters from Young Justice I think it’s a nice tip of the hat to Peter. However, appearing a couple days after Peter wrote about fictional characters being named for real people is pretty funny.

19. Personally, I think the amount Todd’s spent on this case is punishment enough,considering the original cash award ordered in the first trial (and believe me, there’s no one I’d like to see eating a nice big s—burger than Todd McFarlane). I think it’s time we come together and get angry about important stuff, namely, screwing Gaiman out of profits of Angela, Cogliostro, Medieval Spawn, and his blatant copyright infringement on Miracleman.

20. Sorry. The last comment in parentheses should read as follows: (and believe me, there’s no one I’d like to see eating a nice big s—burger more than Todd McFarlane).

21. PAD, I want to be sure I understand your position on this.

    If I’ve read you correctly, you think that what McFarlane did with regard to Tony Twist was

    1) Stupid (I agree.)

    2) Rude (I agree.)

    3) Insulting (I agree.)

    What I’m not sure about is whether or not you also think it should be ruled libelous. If you do, then, well, I can’t agree. No reasonable person would understand any issue of a fictional comic book to be presenting itself as fact. McFarlane’s stupid, rude, and insulting use of Mr. Twist’s name must be accorded the same protection from charges of libel as Franken’s use of Bush, et al, or as any other satirical, parodic, or fictional work. The law isn’t interested in the quality of the parody, nor should it be.

22. I think it’s time we come together and get angry about important stuff, namely, screwing Gaiman out of profits of Angela, Cogliostro, Medieval Spawn, and his blatant copyright infringement on Miracleman.

    I agree about Angela and Cogliostro, but I still think Medieval Spawn is pushing it. Don’t get me wrong, Todd ripped Gaiman off, but I don’t get the Medieval Spawn thing.

    And I really hope Twist loses. I never was into McFarlane but honestly, if this was anyone else almost everyone would be his strongest defenders.

23. This case is silly b/c as stated – Tony Twist bore NO resemblance to the actual hockey player.

    Now if Todd was under oath and said he specifically named the guy after the hockey player than he can’t save himself with the disclaimer in movies and in fiction that any similarities to people living and/or dead is coincidental.

    But then again – THAT would have to show similarities between the people.

    What similarities exist OTHER than a name. A NAME that has alliteration to begin with and sounds like a comic book name.

    I can’t see how this jury decided and it’s another Mc Donald’s coffee case where it gets decided by laypeople who just aren’t getting the law and then EVENTUALLY gets overturned.

24. Sorry, haven’t been online in two days, thanks for the clarification, PAD.

    Chris

25. I have to disagree here, not on the “Todd’s being a dìçk” part, that’s par for the course. I’ll even agree that naming a character after a villian in a work of fiction is a cheap, petty mean-spirited thing to do. (again, par for the McFarlane course) but libel? I don’t think so. Since this was a work of fiction, the fictional Tony Twist and the real Tony Twist are 2 different people, so making a fictional Tony Twist a criminial doesn’t necessarily constitute “characterizing a person as committing criminal acts” (the threshold mentioned earlier) because there is a difference between fiction and reality. Had McFarlane been making a documentary, or writing a news article (don’t laugh, it’s a hypothetical) then that would surely be libel, and Todd would have to write and 8-figure check, but anything written in fiction is, by definition of fiction, NOT true, so while I’d love to see someone smack down McFarlane, I love the Rule of Law more and the laws as written would seem to indicate McFarlane is a bášŧárd, but not a libelous bášŧárd.

26. what was tony’s salary

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