PeterDavid.net

This is a rather strange question, isn't Todd from Canada? If so, has he gained a citizenship in the US to do business? If he hasn't, he must think that First Amendment rules don't apply to him.

Born in Canada, moved to California at age 18 months, moved back to Canada in 1975 at age 14, and moved to Oregon in 1990.

(information obtained from several bios around net)

Even if he weren't a US citizen he'd be answerable to US laws residing here since 1990.

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.

/me thinks

Okay, now I have to pull all of them out of my shelves and reread so I can remember again...

PAD said:

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-Dick case.

It is a First Amendment case. Todd McFarlane said something, Tony Twist didn't like it, and now Tony Twist is attempting to harness the power of the state to punish McFarlane for saying something Twist didn't like.

You or I may not judge naming a criminal character after a famous person a case of speech that we care to defend, but that doesn't change the fact that the prohibition of such speech, with money damages to be paid by the speaker, is an infringement on free expression.

spyderqueen: That was "Imzadi," PAD's tale of how Riker and Troi first met. IIRC, it was the names of the Sindareen raiders (sp?) that were names whose translations meant things like "bitter herbs."

Chris

Styer: McFarlane's actions constitute libel and defamation of character. That's what the case is about. As PAD pointed out, if McFarlane just wanted to say he was a jerk, then that would be fine. He could devote the entire back of his book to saying what idiots Peter and Tony and John Byrne are. That's free expression. He can't name a child molestor after any of them. That's not protected speech. It never has been.

That was one of the reasons I had issues The Reagans. It bordered on what I considered defamation of character (though I think CBS should have aired it and let the chips fall where they may, since they bankrolled it, but I'm sure their lawyers might have thought otherwise).

Interesting, but, I thought YOU COULDN'T use real people in any form of fiction???? Any writer knows that to use someone's real name in a fiction, even in a comic is bound to be some trouble...

SER said:

McFarlane's actions constitute libel and defamation of character. That's what the case is about.

I understand that. But laws making libel actionable harness the power of the state against expression. Thus the First Amendment is implicated.

That's not protected speech. It never has been.

Correct. I'll even agree that it shouldn't be protected speech. But drawing a distinction between "protected speech" and "unprotected speech" is counter to the letter of the First Amendment, which does not mention that distinction. It's a long-settled point of constitutional law that the distinction exists and is meaningful, but it is precisely that distinction that props up obscenity prosecutions and the like.

I believe the key point in any libel or slander case involving a public figure is that the person must show they have suffered some harm. All it takes for an ordinary person to sue for libel or slander is for it to be untrue and negative. For a public figure like Twist, he has to prove that McFarlane's characterization of him as a criminal has caused him some loss of reputation and/or money.

The First Amendment allows you to say whatever you want - but it also requires you to face the consequences of your words, particularly when they do harm to others and are patently false.

Oh, how great it would have been to hear the CNN reporter say, "The High Court refused to hear the 'Todd's-Being-A-Dick' case today..."

Did the character in the comic look or act like this "Tony Twist" guy?

Just how many names are there in the world? How many Peter Parkers? How many Scott Summers? ( yeah, I know, they're names are those of good guys in comics).

Unless Todd made the character look like this "Tony Twist" guy, then I cannot support this stupid lawsuit just over a character name...

Tony Twist can go eff' himself...

I think Mr. Twist said he did lose money because he lost endorsements due to him being portrayed as a criminal in the comic. I have to say I think that is a stretch. Like Peter, I never heard of him, but even for those who had I find it unlikely that they wouldn't buy a product he may endorse because there was a comic book bad guy named after him.

It's not about defamation, and it's not about free speech. It's about money. Twist's reputation hasn't been harmed by the SPAWN character, and I don't think McFarlane meant it maliciously -- he's a hockey fan. It was a tip of the hat. Same as when he named an amoral assassin who has been reincarnated as an agent of Satan after one of his best friends (Al Simmons/Spawn). What he's saying is, "I've named a comic-book character after you. Isn't that cool?"

Twist evidently doesn't think so. And the reason he's pissed off is that someone used his name and/or likeness, made money off it, and he didn't get a cut.

I think it's debatable how much profit it brought McFarlane to introduce a character called Antonio Carlo Twistelli and nickname him "Tony Twist". But there is another case of a comics character recognisably useing a current celebrity likeness, attaching it to a morally dubious character, and raking in the cash.

Imagine if Sting was as litigious as Tony Twist. He'd have sued the asses off Moore, Bissette, Totleben and DC Comics for John Constantine...

Come on, this is as frivolous as the Von Doom v. Marvel case from the early 60's.

Seriously, though...I think the only reason Twist has a case at all is because Todd was assfaced enough to admit that he named the character after the hockey player.

I'm not a hockey fan. I thought the name "Tony Twist" was inspired, and that it was obviously made up, when I first read it.

I just heard that Bush is going to initiate a new consitutional amendment called the "Defense of Todd McFarlane Act" so Todd can violate the religious and civil liberties of others.

I just heard that Bush is going to initiate a new consitutional amendment called the "Defense of Todd McFarlane Act" so Todd can violate the religious and civil liberties of others.

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

//That was "Imzadi"//

Yes! Thank you Chris! I KNEW I'd seen the names, I just wasn't completely sure which book. Kept thinking it was from NF or something.

It's not whether or not the name is a real guy - we know that. No matter what name you come up with for a character - it probably exists on some real person.

If you come up with Edger Pickabutt - there's probably one somewhere - in therapy . . .again.

Now I am not an intellectual property lawyer - but am a lawyer - and as I recall if you deal with a public figure the only thing the public figure has to show is actual malicious intent.

If Todd Mcfarlane thought this hockey player was overly aggresive and so he names his character the same name - it's not a problem.

Of course if the ass-clown (Jehrico gets props here although it was in the movie Office Space first) admits he did it on purpose - now you have the begining of a case . . . but then again I don't know if it's successfull.

What if you create a character who is a pacifist - but his name happens to be Mike Tyson - so other characters make fun of him because he';s got the aggresive name but wears alot of pinkl and sings showtunes if you get my drift.

Can he be sued.

I say nay.

Why?

It's parody and fair use. It's the basis of what a writer has to CREATE something out of nothing.

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.

Now I don't follow how Mc Farlane has fallen from his high seat of comic stardom - but it appears that many aren't too fond of him - so I guess if it had to happen to someone . . .

Later,

Udog

Not a big fan of the Toddster but this suit seems foolish, for reasons that others have pointed out.

I've told several friends who are comics professionals to feel cheerfully free to kill a character named "Bill Mulligan" in as gruesome a way as possible. Peter, you may ceratinly do the same and, given my politics, I won't even begrudge you a chuckle while doing so. (For all my efforts, only Tom & Mary Bierbaum took up the offer and, inexplicably, the Mulligan character actually SURVIVED one of the ALIENS miniseries. How raw a deal is THAT?)

If Mr. Twist wins, won't this really encourage the crazies who sue at the drop of a hat? Like the guy who was named Noid and tried to sue Pizza Hut a few years back because of the Noid character, convinced that the commercials were actually aimed at him.

Was there anything about the Tony Twist character other than the name which would lead one to believe that he was based on the actual person?

Bill Mulligan said:

Was there anything about the Tony Twist character other than the name which would lead one to believe that he was based on the actual person?

Yes. The fact that McFarlane has admitted the character was named after the actual person.

Let me preface this by stating that I've met both Todd McFarlane and Neil Gaiman. My opinion of Todd is that he has taken "asshat" to a level that could only be dreamed of before. Mr. Gaiman on the other hand... Well, let's just say that the one encounter my daughter and I had with him is still bragged about. He's one of those people that has a charisma that's simply incredible to encounter.

Having said that, I have to disagree with you on this Peter. This is about 1st Amendment rights, with the issue being whether or not the name "Tony Twist" was fair use. Much like the Air Pirates case, the question is simply trying to find the line between parody and harm. Misstating the fact about Willie Horton in order to harm your political opponent is probably not protected speech. But using the name Peter David for a fictional sf/comic book geek should be, even it was a percieved by you as an insult. Though I desipe Todd McFarlane as person, I hope that he eventually wins this case.

Now, if someone were to sue him for the stress he's caused, by delaying the Miracleman trades...

Peter, has anyone on Twist’s legal team ever contacted you or (to your knowledge) Byrne, on the grounds that Todd’s naming the KKK guys after you showed a pattern of behavior on his part of naming defamatory characters after real-life people he didn’t like? I'd imagine they'd love to show that to the jury.

I never bought Todd’s denial that he named the character after the hockey player. The very idea of naming an Italian mafia guy Tony “Twistelli” is stupid, since there’s no “w” in the Italian alphabet, yet another example of Todd’s shitty excuse for writing and research.

SER: McFarlane's actions constitute libel and defamation of character.

Luigi Novi: Doesn’t libel require the offender to actually make an assertion about the alleged real-life victim? Is any such thing done by merely naming a criminal character after him?

Bladestar: Did the character in the comic look or act like this "Tony Twist" guy?

Luigi Novi: Given that the Mafia character is the stereotypical obese Italian guy, and that he doesn’t at all resemble the photos of twist at http://www.tonytwist.com/, I’d say no.

Stu West: I don't think McFarlane meant it maliciously -- he's a hockey fan.

Luigi Novi: Being a hockey fan doesn’t mean you like every player, particularly players that aren’t on your favorite team. Is it possible that Todd doesn’t like Twist (Twist has been described as being known more for his fighting than his skating), and he named the character after him because of this, similar to how he named two KKK racists after Peter and Byrne?

Bill Mulligan: If Mr. Twist wins, won't this really encourage the crazies who sue at the drop of a hat?

Luigi Novi: They’re already so encouraged, Bill.

If I understand this correctly, Tony is upset because a character with the same name is a non-hockey playing criminal? All I have to say is so what? If the character were a criminal hockey player then I think the similarities grow close enough to be a potential problem. However, if they just happen to share the name and nothing else then I think this is a tempest in a teapot.

On the other hand, if the Real World Tony Twist could show he had plans to introduce dolls and get other endorsements, then the Spawn Tony Twist could possibly be shown as interfering with those plans, thereby making things a tad murkier....

//Is it possible that Todd doesn’t like Twist (Twist has been described as being known more for his fighting than his skating), and he named the character after him because of this, similar to how he named two KKK racists after Peter and Byrne?//

Sure, it's possible. And even if he was a Twist fan before the lawsuit, chances are he isn't now. But given that in the comic, a guy who has the name of the president of McFarlane Enterprises is married to a woman with the same name as Todd's wife, I don't think you can read too much subtext into these things. He puts the names of real people in the comic because he thinks it's cool to do so.

I don't have much of an opinion one way or the other on the Twist issue (not knowing all, or indeed much of any, of the particulars) -- but I've a related question.

PAD, I think it's fair to say that you're fairly well known for Tuckerizing quite a few people over the years (at least 3-4 of whom have been sighted around these parts). While I find it hard to believe any of us would ever remotely consider suing for libel ("Your Honor, I am not now nor have ever been a lovesick Starfleet sergeant..."), but where do you as a writer draw the boundaries of what's okay and what's not when using real people's names intentionally?

Prof. TWL

If Mr. Twist wins, won't this really encourage the crazies who sue at the drop of a hat? Like the guy who was named Noid and tried to sue Pizza Hut a few years back because of the Noid character, convinced that the commercials were actually aimed at him.

He wasn't crazy-- he was Para Noid.

[rimshot]

There's a major difference between PAD naming characters after fans and what Todd did. Tony Twist is a public character. His name is part of the deal which could earn him substancial income thru endorsements. And yes, the key word is "could". Looking at the money sports figures (even mediocre ones) make in endorsements, Twist does have a valid arguement. And Todd's position isn't helped by his admitting he named the villian after the athlete. In contrast, if PAD wanted to name Adm. Jellico's ruggedly handsome and brave assistant after me, I wouldn't have much to do about it since I'm not a public figure.

It looks like Todd was just trying to be cute. We all love homages, but he didn't have the talent and ability to do so correctly.

Glenn Hauman pwnes!

All I wanted the guy to do was draw Spidey. Then he had to go and write Spidey. Ugh. Then he had to go and leave Marvel to form Image. Ugh. Then he had to go and turn into a jerk. Or, wait, do I have that last one out of order?

Todd does this kind of thing because he thinks it's brilliant writing or because he thinks it's funny. It's neither.

Todd will continue to do things like this because he thinks the rules weren't made for him.

Pete Rose lied about his betting on baseball and will continue to do so because he thinks the rules weren't made for him.

Not to get off topic...but WHERE ARE MY MIRACLEMAN TRADES?!?! =P

The Noid was a Domino's Pizza thing, nice to see the negative Noid associated wih their competition.

I think it's fair to say that you're fairly well known for Tuckerizing quite a few people over the years (at least 3-4 of whom have been sighted around these parts). While I find it hard to believe any of us would ever remotely consider suing for libel ("Your Honor, I am not now nor have ever been a lovesick Starfleet sergeant..."), but where do you as a writer draw the boundaries of what's okay and what's not when using real people's names intentionally?

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.

PAD

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

Correction Todd drew the cover of Spawn #131. It was listed in the December 2002 Previews so he did manage to draw one page in 2003. He is also listed as being involved in the plot so maybe plotting hinders his drawing. At this rate though Spawn #144, listed in this month's Previews will be out sometime in 2017. Maybe Diamond will cancel it before than.

Two things of note here:

He's admitted that the character is named from the hockey player (or so it has been stated in this thread).

And the character is a criminal.

I didn't take too kindly to being called a liar, anti-seminist, supporting terrorism, etc, in another thread on this website recently.

I can only imagine what it's like to be pissed on in a comic book read by hundreds of thousands, if not millions, of people just because the writer thinks he can get away with it.

How many would say it's ok if PAD says he doesn't like you, then makes a homicidal maniac out of you in the next comic he does? then admits as much?

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..."?

Not trolling, but honestly wondering what the difference would be. It's pretty clear to anyone with a brain that Franken's and Simpson's piece is an extended satire and political critique (regardless of whehter one agrees with their message), and I can't imagine John Kerry, Al Gore, George Bush, Clarence Thomas, Dick Cheney or any of the other public figures whose names and likenesses are used in it getting very far with a libel suit, despite the fact that the piece uses some information from their actual lives (Kerry and Gore *were* in Vietnam, for instance). In what way is McFarlane's one-off use of Tony Twist (other than artistic quality, which we don't legislate in this great country, excepting obscenity) any different? Is it that he didn't take the portrayal far enough, didn't make it clearly enough of a parody? Surely that can't be the stnadard--if so, Matt Groening would be getting sued for libel every week.

Why should McFarlane's lousy appropriation of a real public figure's name and likeness be any less protected than Franken's and Simpson's excellent ones? It's not as if McFarlane was claiming to be presenting the real person and his activities, after all--since "Spawn" is manifestly *not* a piece of reportage or documentary, but a work of fiction.

I have mixed feelings about the case. If it was someone I didn't have the level of contempt I do for McFarlane that was being sued, I suspect I'd be siding more strongly with the defense. I really like that libel is so difficult to prove in this country; while it allows for this sort of abuse occasionally, it also means that politicians can't silence the press with threats of lawsuits like they can in Britain.

Didn't Todd McFarlane used to draw comic books?

(Bonus question: How long will it be before people ask that question without being a smartass?)

Luigi Novi posted: Twist has been described as being known more for his fighting than his skating

Then...

Jeff posted: It looks like Todd was just trying to be cute. We all love homages, but he didn't have the talent and ability to do so correctly.

Except that in the hockey world, guys that are known more for fighting than skating are called "enforcers." So naming a mob "enforcer" "Tony Twist" was actually a relatively clever pun (one of the few clever things Todd's ever accomplished).

It's a shame the real-life Twist couldn't take it in the spirit in which it was obviously (to anyone that known hockey) intended.

While I do think Todd's a dick, as PAD so eloquently put it, I do think this IS a First Amendment issue and that the Toddler is odiously in the right.

Did a little research. I found a copy of the legal briefs filed in the case (subscription site so I can't link em) and got the original text of the statement where McFarlane admitted the character in the book was based on twist.

The gist of it (as reported) was McFarlane basically directly connected profession and criminal behavior, with the intent to disparage, which is over the line.

If that's the case, then its libel. I didn't see the award amount so can't comment on excessiveness.

To solve this in the future, Peter, you are expressly given permission to use my name (Jeffrey Linder) and likeness as you see fit. Having met ya, I think I can trust ya :) (Dear god, what have I just done...)

Almost Forgot...

Libel/Slander and the First Amendment are two different issues.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The first amendment is primarily used in the defense of CRIMINAL issues, i.e. you cannot be prosecuted for or prevented from exercising your right to protected speech.

It does NOT allow you to use that speech for the wanton defamation of an individual. That becomes a Libel/Slander case, which is a CIVIL matter.

Basically, under the first amendment McFarlane has the right to SAY anything he wants. He also has to face the civil consequences of such statement. That becomes a matter of proving intent to harm.

This is why the Supreme Court chose not to hear the matter, it is not a matter of constitutional law. McFarlane was never prevented from nor prosececuted for his statements. The libel law does not prevent the publication of such statements, it simply allows for injured parties to seek redress and is fully constitutional.

Julio Diaz: Except that in the hockey world, guys that are known more for fighting than skating are called "enforcers." So naming a mob "enforcer" "Tony Twist" was actually a relatively clever pun (one of the few clever things Todd's ever accomplished).

Luigi Novi: Isn’t the Tony Twist character a mob boss, rather than an enforcer?

Jeff Linder said:

The first amendment is primarily used in the defense of CRIMINAL issues, i.e. you cannot be prosecuted for or prevented from exercising your right to protected speech.

Even if the First Amendment is "primarily concerned" with criminal issues (and the text makes no such distinction: "Congress shall make no laws" not "Congress shall make no Criminal laws"), a law authorizing civil liability for speech implicates the First Amendment -- it turns the power of the state against a speaker based on what the speaker said. This is a well-settled point of Constitutional law. Take a look at New York Times v. Sullivan for a seminal case on the First Amendment implications of civil defamation law.

This is why the Supreme Court chose not to hear the matter, it is not a matter of constitutional law.

The fact that the Supreme Court chooses not to hear a case does not necessarily indicate that the case is not a matter of constitutional law. There are any number of reasons the Court might decide not to hear a case that unquestionably has Constitutional implications. The Justices may feel the time is not right politically for them to touch the issue; they may prefer to wait to see how the various Circuit Courts handle the issue; they may not feel the case is important enough to squeeze into their limited schedule; the case may implicate a Constitutional principle that the Court feels it has adequately addressed in prior cases. The list goes on. Unless the Court explicitly states why it chooses not to hear a given case, we can only speculate as to the reason.

This is unquestionably a matter of Constitutional law (look at New York Times v. Sullivan), but it is arguably an area in which the law is settled.

A link, in case anyone is interested to Findlaw.com's text of New York Times v. Sullivan:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=376&invol=254

If I am interpreting the referenced case correctly the crux of the matter would be this...

The first amendment would not apply because no attempt was made to restrict the media in question. If Twist had attempted to recall all printe books and media that would be a separate issue.

The case quoted above refers primarily to the criticism of governmental persons, not the general public, and in the presentation of a news (factual) publication as opposed to fictional text also.

A more relevant case might be http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/501/496.html which in part says...

(a) As relevant here, the First Amendment limits California's libel law by requiring that a public figure prove by clear and convincing evidence that the defendant published the defamatory statement with [501 U.S. 496, 497] actual malice. However, in place of the term actual malice, it is better practice that jury instructions refer to publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity. Pp. 509-511.

This clearly states that intent is a matter for (by definition civil) jury decision and that the first amendment limits application of, but does not proscribe jury involvement.

Basically a public figure would have to show that there was malice aforethought...

Jeff Linder said:

The first amendment would not apply because no attempt was made to restrict the media in question. If Twist had attempted to recall all printe books and media that would be a separate issue.

No, Sullivan deals with money damages:

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" - that is, with knowledge that it was false or with reckless disregard of whether it was false or not." (Emphasis added)

The case quoted above refers primarily to the criticism of governmental persons, not the general public, and in the presentation of a news (factual) publication as opposed to fictional text also.

You're right. Sullivan is not completely on point because it deals with government officials, not celebrities. I cited it for the proposition that defation laws, though civil, implicate the First Amendment. Later cases extended the Sullivan standard to situations involving "public figures," but I honestly don't remember the names of those cases.

But whatever post Sullivan case we turn to, the Sullivan "actual malice" standard, in some formulation, applies.

Just to clarify, I'm not taking a position one way or the other in the Tony Twist case -- I just don't know enough about it. My point was simply that the First Amendment is involved, and that the same sort of calculus that finds defamation unworthy of First Amendment protection finds "obscenity" unworthy of First Amendment protection, and that defenders of free speech should keep that in mind.

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.

PAD

Hey, I resemble that remark.

Well, he asked for trouble when you use a real person for a fictional chatacter. None of it will hold up in court and thats why it got shot down. It's a waste of tax payer's money.

Correction: Udog is absolutely right, and I was wrong. The difference between a public figure and a private figure is that a public figure must prove malicious intent. This is what happens when I try to remember Comm Law off the top of my head.

(Of course, the conversation has moved on, but never let it be said that I don't admit when I'm wrooooong.) :)

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.

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? :-)

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.

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 dick 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."?

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.

Sorry Peter, I don't agree with you on the assertion of Todd being a dick. 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.

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?

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

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 Prick 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?

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. (Hell, 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

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.

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

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. Hell, 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).

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

**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.

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...

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 asshole, but does what he did to you and Byrne constitute portraying the real life you and Byrne as clansmen?

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.

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.

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).

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.

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.

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.

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

Chris

I have to disagree here, not on the "Todd's being a dick" 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 bastard, but not a libelous bastard.

what was tony's salary