realization, and the development of individual autonomy). Content-based restrictions on speech are disfavored because they are in essence a manifestation of government's distrust of the individual's ability to decide for themselves the type of
information or entertainment they wish to view or hear. Content-based restrictions can, therefore, stand only if they pass strict scrutiny. Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). In applying strict scrutiny to any state action that proposes to restrict the content of speech, we must determine if the state action protects a compelling government interest. If so, we then determine if the restriction is narrowly tailored to further that interest. Id. The "compelling government interest" that Twist seeks to advance is the state's interest in protecting his property right in his persona and its endorsement value. Citing Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), Twist argues that the First Amendment does not apply to a property-based tort such as the right of publicity. In Zacchini a local television station aired a performer's 15-second "human cannonball" act on the evening news without his consent. Id. at 564. The Supreme Court held that the First Amendment did not protect the television station from Zacchini's right of publicity claim because the television station aired Zacchini's "entire act." Id. at 578-79. The Zacchini court said: the State's interest in permitting a "right of publicity" is in protecting the proprietary interest of the individual in his act in part to encourage such entertainment. As we later note, the State's interest is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation. Id. at 574-75 (citations omitted). Twist would have us conclude from this that the First Amendment never applies to a right of publicity claim. But the Supreme Court drew a clear distinction between what was appropriated from Zacchini and what is taken in the usual "right of publicity" or "misappropriation of name" case, saying: the broadcast of petitioner's entire performance, unlike the unauthorized use of another's name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of petitioner's ability to earn a living as an entertainer.
Id. at 576 (emphasis added). The Zacchini Court was not concerned with the use of another's name or identity, but "the appropriation of the very activity by which the entertainer acquired his reputation in the first place." Id. The Tenth Circuit has more accurately, we think, described Zacchini as a "red herring," reading it not as a right of publicity case at all, but rather a "right of performance" case. Cardtoons, L.C. v. Major League Baseball Players Association, 95 F.3d 959, 973 (10th Cir. 1996). We believe, like the Tenth Circuit, that Zacchini was written with the express purpose of allowing a performer to derive a benefit from his own performance without interference from the First Amendment. Id. Subsequent Supreme Court treatment of Zacchini confirms the very specific nature of its holding. See San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 532-33 (1987)(reading Zacchini to
provide protection only when the very expression being complained of is the product of the plaintiff's "own talents and energy, the end result of much time, effort, and expense"); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556-57 (1985)(interpreting Zacchini as a protection of copyright and citing it for the proposition that "copyright assures those who write and publish factual narratives . . . may at least enjoy the right to market the original expression contained therein as just compensation for their investment." (emphasis added)); Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991)(citing Zacchini for the proposition that "[t]he press, like others interested in publishing, may not publish copyrighted material without obeying the copyright laws."). Zacchini does not carve out a wholesale exception to the First Amendment for right of publicity or misappropriation of name claims. It simply stands as an affirmative protection designed to vindicate the right of a performer to derive a benefit from his own performance. See McCarthy, The Rights of Publicity and Privacy section 8:27. Because we disagree with Twist's reading of Zacchini, we conclude that the First Amendment must be applied to his claim that Spawn, an undisputed work of fiction, violates his right of publicity. The First Amendment and Works of Fiction Twist insists that Spawn is a product and nothing more and, as such, is not entitled to First Amendment protection. Twist does not allege that his performance was taken, but that his name was misappropriated in pursuit of commercial gain. We must therefore determine if a public figure's property interest in his identity as represented by his name can survive a First Amendment defense raised by a publisher who names a character in a work of fiction after that public figure. To make such a determination we must balance the competing interests. Konigsberg v. State Bar of California, 366 U.S. 36, 49-51 (1961). When balancing a state's interest in protecting reputation and property against the First Amendment the scales are heavily weighted in favor of freedom of speech. This is because, as Justice Cardozo has said, the First Amendment represents "a different plane of social and moral values" without which "neither liberty nor justice would exist . . .." Palko v. Connecticut, 302 U.S. 319, 326-27 (1937) (finding that freedom of thought and speech are "the matrix, the indispensable condition, of nearly every other form of freedom."). Speech need not be "political" to be protected by the First Amendment. United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 223 (1967). "The First Amendment was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Connick v. Myers, 461 U.S. 138, 145 (1983) (emphasis added). In the words of Justice Thurgood Marshall: The First Amendment serves not only the needs of the polity but also those of the human spirit -- a spirit that demands self-expression. Such expression is an integral part of the
development of ideas and a sense of human identity. To suppress expression is to reject the basic human desire for recognition and affront the individual's worth and dignity. Procunier v. Martinez, 416 U.S. 396, 427 (1974). In defense of this free, open and creative self-expression, the First Amendment protects speech in any medium that either informs or entertains. Winters v. New York, 333 U.S. 507, 510 (1948). This includes books, motion pictures, radio, television programs, live entertainment, poetry, painting, music, dramatic works, comics and commercials. See National Endowment for the Arts v. Finley 524 U.S. 569, 602 (1998); Hustler Magazine v. Falwell, 485 U.S. 46 (1988); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557 (1980). Even obscenity is protected if it has "serious literary, artistic, political, or scientific value." Miller v. California, 413 U.S. 15, 26 (1973). People have been describing, defining and commenting on the world around them through two-dimensional art since the beginning of human civilization. Comic books are a recent extension of this form of self-expression. Often controversial, they have been described as "the mass-market, pulp-paper bad boys of publishing." John M. McGuire, Laughing Matters?, St. Louis Post-Dispatch at 1E, January 18, 1990. First appearing in 1911, by the end of the 1930's comic books were a popular form of entertainment.(FN11) But with their popularity, came virulent criticism. Id. Described as violent, "injected with sex," and even an avenue of communistic ideas, by the late 1940's they were being banned all across America and even publicly burned. Time Magazine, Dec. 20, 1948; Bill Smith, Comic book code dying a slow death, St. Louis Post-Dispatch, July 16, 1993. In the 1955 Senate Subcommittee Report, Comic Books and Juvenile Delinquency, the crime and horror comic books of the era were described as "short courses in murder, mayhem, robbery, rape, cannibalism, carnage, necrophilia, sex, sadism, masochism, and virtually every other form of crime, degeneracy, bestiality, and horror." Comic Books and Juvenile Delinquency, Interim Report of the Committee on the Judiciary, 84th Congress, 1st Session, S. Rep. No. 62 at 9 (1955). Despite this, the Subcommittee rejected any resort to governmental censorship as "totally out of keeping with our basic American concepts of a free press operating in a free land for a free people." Id. at 23. Comic books continue to be a legitimate and important part of the American artistic and literary landscape. Their combination of pictures and words often help young readers to learn. Their characters and imagery form a powerful subtext to American culture and imagination and for that reason are the bases of many Hollywood movies. Though often criticized as "low brow" or "literature for the illiterate," nothing prevents this art form from rising to the most sublime levels, as in Art Spiegelman's Maus, a stunning comic book version of the Holocaust, which won the Pulitzer Prize in 1992.
We therefore conclude that the comic book is an important expressive medium entitled to the full protections of the First Amendment. Another, and even less likely, medium of expression that has also found First Amendment protection is the parody baseball card. In Cardtoons the Tenth Circuit held that they too are protected because they entertain and provide social commentary on the wealth of professional athletes, an issue of contemporary interest. 95 F.3d at 962 & 976. We are informed by the Cardtoons court's balancing of the interests that protect both the right of publicity and the First Amendment. Identifying several justifications for protecting a celebrity's proprietary interest in their identity that court observed: The right is thought to further economic goals such as stimulating athletic and artistic achievement, promoting the efficient allocation of resources, and protecting consumers. In addition, the right of publicity is said to protect various non-economic interests, such as safeguarding natural rights, securing the fruits of celebrity labors, preventing unjust enrichment, and averting emotional harm. Id. at 973. The Cardtoons court did not find these interests compelling, however, when balanced against First Amendment principles. The court rejected the argument that the right of publicity provides athletes an incentive to perform because, unlike a performer such as Zacchini, the commercial value of a sports star's identity is a by-product of their performance, not their performance itself. Id. The court also rejected the unjust enrichment argument, concluding that it has little application when the use of the celebrity's identity is not in an advertisement. Id. at 975. An interesting distinction between Cardtoons and the present case is that in the former the subject of parody was fully developed by the parties. Here, McFarlane does not claim in his testimony or argument that the Twist character in Spawn is a parody or any other kind of literary comment on Twist or violence in sports.(FN12) Nor does Twist claim the character is a parody of himself. Still, the cases are similar in that they involve the use of sports stars' names, and the products invoke or "call up" the identities of those stars in the minds of those who purchase them. Insofar as readers might view the use of Twist's name for the Mafia "enforcer" as a comment on Twist, the cases are on a par. The ability to use Twist's name for a Mafioso character in Spawn, like the ability to make parody baseball cards, is important in a society such as ours, where so much of social life and discourse revolves around celebrities. One commentator has described celebrities as "common points of reference for millions of individuals who may never interact with one another, but who share, by virtue of their participation in a mediated culture, a common experience and a collective memory."(FN13) Another says that celebrities are "the chief agents of moral change in the United States."(FN14) The California Supreme Court, expounding on this in their recent decision in Comedy III Productions, Inc.
v. Gary Saderup, Inc., emphasized that the importance of being able to speak freely about and creatively use celebrities' identities: Entertainment and sports celebrities are the leading players in our Public Drama. We tell tales, both tall and cautionary, about them. We monitor their comings and goings, their missteps and heartbreaks. We copy their mannerisms, their styles and their modes of conversation and consumption. Whether or not celebrities are 'the chief agents of moral change in the United States' they certainly are widely used -- far more than are institutionally anchored elites -- to symbolize individual aspirations, group identities, and cultural values. Their images are thus important expressive and communicative resources: the peculiar, yet familiar idiom in which we conduct a fair portion of our cultural business and everyday conversation. 21 P.3d 797, 803 (Cal. 2001). To extend the right of publicity to allow a celebrity to control the use of his or her identity in a work of fiction would grant them power to suppress ideas associated with that identity, placing off--limits a useful and expressive tool. This, in turn, would effectively revoke the poetic license of those engaged in the creative process. To proscribe their right to use certain names, words, thoughts and ideas would ultimately apply to the rest of us, impeding our ability to express ourselves.(FN15) In a line of cases, from New York Times v. Sullivan, 376 U.S. 254 (1964) to Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Supreme Court held that speech about "public officials" and "public figures" is so important that it is protected unless the plaintiff can prove by "clear and convincing evidence" that the defendant published the statements with "actual malice," knowledge that the statements are false or in reckless disregard of their truth. 376 U.S. at 279-280; 388 U.S. at 155. This protection has been found regardless of the name the public official or public figure gives to his cause of action. In New York Times and Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), the plaintiffs alleged libel. In Time, Inc. v. Hill, 385 U.S. 374, 388 (1967) the plaintiff filed suit under the New York "privacy" or "misappropriation of name" statute. In Hustler the plaintiff sued for intentional infliction of emotional distress. In each case the Court unequivocally ruled that the plaintiff must prove by "clear and convincing evidence" that the defendant published statements "of and concerning" the plaintiff with knowledge that the statements are false or in reckless disregard of their truth. New York Times, 376 U.S. at 279-280; Curtis Publishing Co, 388 U.S. at 155; Time, 385 U.S. at 388; Hustler, 485 U.S. at 56. Hustler is particularly instructive because, as in this case, it involved a cartoon. There, Hustler Magazine, which features glossy nude photos of women in compromising positions, featured a cartoon about Jerry Falwell, an evangelical minister and the leader of a political-religious group known as the Moral Majority. In his opinion for a unanimous Court, Chief Justice Rehnquist recited the facts in that case as follows:
The inside front cover of the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled "Jerry Falwell talks about his first time." This parody was modeled after actual Campari ads that included interviews with various celebrities about their "first times." Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of "first times." Copying the form and layout of these Campari ads, Hustler's editors chose respondent as the featured celebrity and drafted an alleged "interview" with him in which he states that his "first time" was during a drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk. Hustler, 485 U.S. at 48. Falwell filed suit for invasion of privacy, defamation and intentional infliction of emotional distress. Id. at 47-48. The trial court directed a verdict on the invasion of privacy count on the ground that Falwell was a public figure, but submitted the other two claims to a jury. Id. at 48. Though the jury found in favor of the defendants on the defamation count, it awarded Falwell $100,000 in compensatory and $100,000 in punitive damages on the emotional distress claim. Id. at 49. The Fourth Circuit Court of Appeals affirmed. Id. The Supreme Court reversed. Characterizing the Hustler cartoon as a mere "distant cousin" of the honored political cartoons of the past, the court found that it was nonetheless fully protected by the First Amendment because there is no "principled standard to separate the one from the other . . .." Id. at 55. The Court held: We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. Id. at 56. Because the jury found the Hustler cartoon could not be understood as describing actual facts about Falwell, the Supreme Court reversed, holding the judgment entered against Hustler inconsistent with the First Amendment. Id. Twist points out that Hustler was an emotional distress claim, not a "right of publicity" or "misappropriation of name" claim. But the difference in the torts does not affect the protection afforded by the Constitution. A person cannot be defamed by or suffer emotional distress from a publication unless his identity is appropriated. In every case where a public figure raises a defamation or emotional distress claim against a publisher he can also bring a "misappropriation of name" or "right of publicity" claim. If Falwell, Twist or other public figures were permitted to prevail on a "right of publicity" or "misappropriation of name" without satisfying the New York Times test, our First Amendment protections would be an illusion. Every public figure, under the guise of "misappropriation" or "right of publicity," could circumvent the First Amendment and prevent all speech about them that they do not like. This is clearly not the law.(FN16)
As a work of fiction, Spawn is fully protected by the First Amendment. It does not lose that protection because it is published for profit. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976). Before Twist can recover on his right of publicity claim he must, therefore, satisfy the New York Times "actual malice" standard, knowledge that the statements are false or in reckless disregard of their truth. Prerequisite to satisfying this "actual malice" standard is that the publication be "of and concerning" the plaintiff. See, e.g., McCarthy, supra at 8-108; Hicks v. Casablanca Records, 464 F. Supp. 426, 432 (U.S. Dist. N.Y. 1978). It is not enough that the publication invokes the plaintiff's identity or is in some sense "about" the plaintiff. A reader must reasonably believe that the depiction is meant to portray, "in actual fact, the plaintiff acting as described." Bindrim v. Mitchell, 92 Cal. App. 3d 61, 78, cert. denied, 444 U.S. 984 (1979) (emphasis added). The application of the "of and concerning" requirement to a fictional publication is a threshold question. Here, the trial court applied that requirement when dismissing the plaintiff's defamation claim, finding no reasonable person could believe that the events portrayed in Spawn are "of and concerning" the plaintiff. But the court refused to apply the First Amendment, including that requirement, when addressing the misappropriation claim, finding only that "Plaintiff's petition explicitly pleads the elements of a wrongful appropriation claim." The court again reached the "of and concerning" issue when the McFarlane defendants sought summary judgment on the misappropriation claim. But, when addressing the misappropriation claim, it found the degree of similarity between the plaintiff and defendant's comic book character to be a question of fact and, for that reason, denied the motion for summary judgment on that claim. Finding the First Amendment inapplicable, the court essentially adopted Twist's reading of Zacchini. It is this ruling that made necessary a trial on the "merits" on the misappropriation claim. After trial, the court granted the judgment notwithstanding the verdict, continuing to ignore the "of and concerning" requirement and the applicability of the First Amendment. The court reasoned instead that the Missouri misappropriation tort requires a specific intent to benefit the defendant or to harm the plaintiff and because no such proof was offered the motion for judgment notwithstanding the verdict must be granted. While we reject the trial court's reasoning for granting the motion for JNOV, we will affirm it if it is sustainable for any reason. We therefore treat the "of and concerning" requirement of the First Amendment before treatment of any alleged defects in the submission of a state tort claim. Accordingly, we must determine if a reasonable reading of Spawn can lead to the conclusion that the Twist comic book character is meant to portray, in actual fact, Twist the hockey player acting as described. Twist's entire argument focuses on avoiding such an application because of his familiarity with the depiction of the
Tony Twist character in Spawn. Even the most cursory examination of the comic book reveals that no intelligent person could believe that the fictional Tony Twist's actions are those of the plaintiff. First, Spawn is a comic book about a man who has come back from the dead with superhuman powers. The character bearing the plaintiff's name has an entirely different history and bears no physical resemblance to the plaintiff. Even the plaintiff admits that no one could believe that the actions of the fictional Tony Twist are his actions. We conclude that a reader could not reasonably believe that the Twist comic book character is meant to portray, in actual fact, Twist the hockey player, acting as described. Accordingly, and consistent with the decisions reached in similar cases in other jurisdictions,(FN17) we find that Spawn is not "of and concerning" the plaintiff, and he cannot therefore maintain his claim for either misappropriation of name or violation of his right of publicity.(FN18) The First Amendment Protects McFarlane's Truthful Identification of Twist as the Inspiration for a Fictional Character Having held the use of Twist's identity in a work of fiction is protected by the First Amendment, we next treat Twist's theory that he can recover because McFarlane identified him as the inspiration for the fictional character. He is identified as that inspiration both in the back of the comic book and in McFarlane's interview in the Wizard publication. Twist alleges that this identification constitutes a commercial exploitation of his fame to sell more comic books. Twist correctly concludes that, if his name and identity are used in an advertisement to encourage a reader to buy the comic book, he is entitled to his share of profits from that sale. We must therefore determine if Twist's name as a symbol of his identity was used to persuade readers to buy a copy of the comic book. In that pursuit we must determine if the content of McFarlane's responses to the fan letters and his interview with Wizard invoke Tony Twist's identity and propose a commercial transaction. In his September letter McFarlane says: The great thing about writing and drawing your own book is you get to have as much fun with it as you want . . . Whenever I choose a name I try to have a little bit of play on it . . . I am a big hockey fan, and a lot of my characters have been named after current NHL hockey players. For example, Antonio Twistelli, a/k/a Tony Twist, is actually the name of a hockey player of the Quebec Nordiques. In his interview with Wizard he is reported to have said: It's easier to come up with the names of people sitting next to you . . .. And for the most part, if I don't put my friends and family in my books, I guarantee that nobody at Marvel is going to do it for me. I do it just because I can. I've got that freedom. It's one of the great things about controlling your own book. As can be seen, neither in McFarlane's responses to the fan mail nor in his Wizard interview does he request that
the readers purchase anything or propose any other commercial transaction. In order to characterize them as "advertising," we would have to adopt the view that all speech that contributes to sales is, in the end, merely commercial speech. But under such a standard even core political speech in newspapers would be commercial because the paper's reporting and commentary contribute to sales. No reasonable reading of the fan mail responses could lead to a conclusion that McFarlane is proposing a commercial transaction. He is simply expressing his opinion and relating information that a reader of his comic books might find interesting. The fan mail section of the comic book is "news" to Spawn's readers. While some may not find that type of news to be very important in the scheme of things, it is not for them to judge, but for you and every individual reader. First Amendment principles require us to be extremely cautious of declaring any information unnewsworthy and outside the protections of the First Amendment. Harper & Row Publishers, 471 U.S. at 561. That caution has led courts to find the following "newsworthy" and protected from assertions of privacy and publicity rights: the latest fashions, tips on grooming, the latest romantic exploits of celebrities, places to find nude beaches, who is the favorite member of a rock group, what movies are being shown, who is in them, and more. See McCarthy, supra, section 8:52 (citing cases). McFarlane's statements, both in the back of Spawn and in his interview with the writer from Wizard, were truthful statements about a matter of legitimate public interest; namely, how a comic book writer names his characters. It would be strange indeed were the law to allow McFarlane to name his characters after celebrities, and then prevent him from admitting this. See Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979) (State officials may not constitutionally punish publication of protected information absent a need to further a state interest of the highest order.). McFarlane's public admission that Twist was the inspiration for his fictional mafia character Tony Twist is, therefore, protected by the First Amendment. The First Amendment and Cross-Marketing Protected Works of Fiction with Other Purely Commercial Enterprises Twist's final complaint is that McFarlane cross-marketed the comic book by packaging it with action figures and holding a "Spawn Night" at a minor league hockey game, arguing that this proves that McFarlane targeted hockey fans and thus used Twist's popularity to boost sales. The trial record reveals, however, that McFarlane packaged two Spawn action figures (Overt-Kill and Tremor) with a shortened version of a Spawn comic book. No toy resembling the Twist comic book character or the plaintiff was ever made. In both comics contained in the promotional packages the Tony Twist character appeared on only one page inside
each comic book. Neither the Twist character nor the name "Tony Twist" appeared on the package. Twist fails to direct us to any evidence that his name or identity was used either in marketing the toys or at the promotional Spawn night. Even if the appearance of the fictional Twist character inside the comics would qualify as an "incidental use" of Twist's name, it is nonetheless protected by the First Amendment. See Ruffin-Steinback v. Depasse, 267 F.3d 457, 462 (6th Cir. 2001) (holding that "the use of plaintiffs' fictionalized likenesses in a work protected by the First Amendment and the advertising [sic] incidental to such uses did not give rise to a claim for relief under the plaintiffs' rights of publicity"); Guglielmi, 603 P.2d at 462, (Bird, C.J., concurring) ("Since the use of [Rudolph] Valentino's name and likeness in the film was not an actionable infringement of Valentino's right of publicity, the use of his identity in advertisements for the film is similarly not actionable."). Because Twist presented no evidence of marketing that involves his identity or his name he cannot prevail on this point. Conclusion Finding that the Tony Twist character in Spawn is not a depiction "of and concerning" Tony Twist the retired hockey player, we conclude that the First Amendment is a bar to Twist's right of publicity claim. Because all of the legally operative facts necessary to a decision on that question were present and uncontested when the motion for summary judgment was heard, we conclude that this case should never have been tried on the merits. While a proud hallmark of our system of justice requires that we err on the side of trial on the merits, some trials that should never have taken place, while capable of serving a role in the orderly development of the law, can in fact do more damage to our system of values than others. This is especially true where First Amendment rights are at stake. The Supreme Court has addressed this problem and concluded that for free speech rights to be real they must have "breathing space" to prevent any "chilling effect" caused by uncertain legal rules governing what speech is protected by the First Amendment. Caroll v. President and Commissioners of Princess Anne, 393 U.S. 174 (1968). This breathing space is considerable when it comes to discussion about "public officials," "public figures" and even private persons involved in "matters of public interest." The Supreme Court has said: Fear of large verdicts in damage suits for innocent or merely negligent misstatement, even fear of the expense involved in their defense, must inevitably cause publishers to steer wider of the unlawful zone, and thus create the danger that the legitimate utterance will be penalized. Time, Inc. v. Hill, 385 U.S. 374, 389 (1967) (internal citations and quotation omitted). This $24.5 million verdict makes real the chilling effect the Supreme Court references in Time v. Hill. And so how
are we to understand such a large verdict if we are still to conclude that plaintiff failed to make a submissible case? We understand it to be a product of the jury following the verdict directing instruction as given. They were told they must compensate a public figure for the use of his name in a presumptively protected work of fiction. But they were never instructed to apply the "of and concerning" test, which would require them to determine if a reader could believe that the Spawn character was meant to depict the plaintiff actually carrying out the acts described in the comic book. An affirmative answer to this threshold question is essential. For if the publication is not "of and concerning" the plaintiff, it is unnecessary to inquire further into the elements of a First Amendment defense. It is equally unnecessary to treat the elements of a state tort claim. While rights of publicity and misappropriation of name torts are important protection for real and significant property rights, they cannot, in the order of things, prevail over principles of free expression that are at the center of our system of laws. Our ruling today should not, however, be read as an approval of the ethics of McFarlane's practice of naming characters, but leaves that to the readers and viewers of the Spawn story. We hold today that the First Amendment protects the defendants' comic books, animated series and the truthful identification of the plaintiff as the inspiration for the name of the fictional character. Given this, there can be no legal ground to enjoin the McFarlane defendants from these lawful activities. The judgment notwithstanding the verdict is affirmed because this comic book and the derivative mediums utilized to communicate the Spawn story as conceived and created are protected by the First Amendment of the United States Constitution. Footnotes: FN1.The remaining defendants, Todd McFarlane, Todd McFarlane Productions, Inc., TMP International, Inc. Todd McFarlane Entertainment, Inc. and Image Comics will be referred to throughout this opinion as the McFarlane defendants. FN2.The role of an "enforcer" in hockey is to protect goal scorers from physical assaults by opponents. Describing Twist, a Sports Illustrated article said: "It takes a special talent to stand on skates and beat someone senseless, and no one does it better than the St. Louis Blues left winger." The article goes on to quote Twist to say "I want to hurt them. I want to end the fight as soon as possible and I want the guy to remember it." Austin Murphy, Fighting For A Living: St. Louis Blues Enforcer Tony Twist, Whose Pugilistic Talents Appear To Run In The Family, Doesn't Pull Any Punches On The Job, Sports Illustrated, Mar. 16, 1998, at 42, available at 1998 WL 8979450. FN3.The Twist character appears 166 times in 31,000 panels, approximately one-half of one percent of the total panels. FN4.Wizard settled with the plaintiff prior to verdict and is not a party to this appeal. FN5.Plaintiff's second amended petition listed the following defendants: TCI Cablevision of Missouri, Inc., Todd McFarlane, Todd McFarlane Productions, Inc., TMP International, Inc. (d/b/a/ McFarlane Toys, TMP Apparel, Todd Toys, TMP Entertainment, TMP Cards, TMP Toys, McFarlane Design Group, McFarlane Entertainment, TMP Ventures, and McFarlane Toys Collector's Club), Image Comics, Inc., Gareb Shamus Enterprises, Inc. (d/b/a/ Wizard Press, Inc.), Titan
Books & Comics, Inc., Grupo Editorial, Inc., Time Warner Entertainment Company, L.P., Home Box Office, Inc., Blockbuster Entertainment, Inc., Hollywood Entertainment Corp. (d/b/a/ Hollywood Video), Video Update, Inc., Diamond Comic Distributors, Inc., Legends, Comics & Cards, Inc., and any and all unknown persons, corporations, limited liability companies, partnerships, or other entities of any other named defendant. FN6.The trial court dismissed Twist's claims against the following defendants because they were mere "passive distributors" of the comic books and related items: TCI Cablevision of Missouri, Inc., Titan Books & Comics, Inc., Grupo Editorial, Inc., Home Box Office, Inc., Blockbuster Entertainment, Inc., Hollywood Entertainment Corp., Video Update, Inc., Legends, Comics & Cards, Inc., FN7.The verdict directors were the same for every defendant; only the name of the defendant changed. FN8.Instruction No. 16, the damage instruction, submitted to the jury read as follows: "If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe he sustained and is reasonably certain to sustain in the future as a direct result of the defendants' use or publication of his name." FN9.See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 196 (1890). FN10.See, e.g., Nebb v. Bell Syndicate, 41 F. Supp 929 (DC NY 1941)(Privacy claim under New York statute dismissed where the only similarity between the plaintiffs and the defendant's syndicated comic strip characters "Mr. and Mrs. Rudy Nebb" was the name); Costanza v. Seinfeld, 279 A.D.2d 255 (NY App. 2001)(court properly dismissed misappropriation case brought by Costanza against comedian Jerry Seinfeld based upon use of same last name); T. J. Hooker v. Columbia Pictures Indus., 551 F. Supp. 1060 (ND Ill. 1982)(no right of publicity or Lanham Act violation for coincidental use of the name of woodcarver T. J. Hooker as the name of a character and title of TV series "T. J. Hooker"); DeClemente v. Columbia Pictures Indus., Inc., 860 F. Supp. 30 (E.D.N.Y. 1994)(plaintiff karate teacher known locally as the "Karate Kid" could not prove violation of right of publicity claim for use of the name of "Karate Kid" for a character and a title of movie); Newton v. Thomason, 22 F.3d 1455 (9th Cir. 1994)(affirming summary judgment where singer Wood Newton alleged that his name was appropriated for a character in the television show "Evening Shade"); Allen v. Gordon, 446 N.Y.S.2d 48 (N.Y. App. Div. 1982)(Dr. Allen could not prove misappropriation based on name-sameness of fictional psychiatrist because name-sameness is insufficient to prove the book was "of and concerning" the plaintiff). FN11.Kevin W. Saunders, Media Self-Regulation of Depictions of Violence: A Last Opportunity, 47 Okla. L. Rev. 445, 448 (1994). FN12.McFarlane does, however, attribute a motive to Twist for avoiding the issue of parody, claiming that he does so to avoid the holdings in Falwell v. Hustler and N.Y. Times v. Sullivan, discussed infra. FN13.John B. Thompson, Ideology and Modern Culture: Critical Social Theory in the Era of Mass Communication 163 (1990). FN14.Richard Schickel, Intimate Strangers: The Culture Of Celebrity 29 (1985). FN15.See Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Cal. L. Rev. 125, 138 (1993). FN16.It is true that in Hustler the Supreme Court said that Zacchini stands for the proposition that "the 'actual malice' standard does not apply to the tort of appropriation of a right of publicity . . .." Hustler, 485 U.S. at 52. But that statement must be read in context. The "right of publicity" the Zacchini court addressed was the appropriation of a performer's "entire act," not the use of his name or persona in a work of fiction. The New York Times test cannot be applied when what is appropriated is a person's "entire act" because it is logically impossible for an accurate rebroadcast of an entire performance to be false. FN17.See e.g., Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 522-24 (4th Cir. 1999)(First Amendment precludes award of publication damages for non-reputational tort claims unless plaintiff satisfies the proof standard of New York Times); Meeropol v. Nizer, 560 F.2d 1061, 1066 (2nd Cir. 1977)("The same standards of constitutional protection apply to an invasion of privacy as to libel claims"); Matthews v. Wozencraft, 15 F.3d 432, 439 (5th Cir. 1994)("Courts long ago recognized that a celebrity's right of publicity does not preclude others from incorporating a
person's name, features or biography in a literary work, motion picture, news or entertainment story."); Ruffin-Steinback v. Depasse, 82 F. Supp. 2d 723 (E.D. Mich. 2000) (appropriation of names and likenesses of singing group in TV "docu- drama" non-actionable); Seale v. Gramercy Pictures, 949 F. Supp. 331, 335 (E.D. Pa. 1996) later proceedings at 964 F. Supp. 918, 923 (E.D. Pa. 1997) aff'd 156 F.3d 1225 (3rd Cir. 1998) (dismissing right of publicity, privacy and false endorsement claims of former Black Panther leader Bobby Seale for use of his name and image in a movie, accompanying book, home video and sound track CD); Polydoros v. Twentieth Century Fox Film Corp., 67 Cal.Rptr. 2d 305, 307-08 (Cal.App. 1997)(fictionalized motion picture which used the plaintiff's name and childhood identity was privileged under the First Amendment); Rosemont Enterprises, Inc. v. McGraw-Hill Book Co., 380 N.Y.S.2d 839, 844 (1975) ("it should go without saying that a person need not get the consent of a celebrity to write a fictional piece about that person, so long as it is made clear that the creative work is fictional."). FN18.See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)("the Bresler-Letter Carriers-Falwell line of cases provides protection for statements that cannot 'reasonably [be] interpreted as stating actual facts' about an individual. This provides assurance that public debate will not suffer for lack of 'imaginative expression' or the 'rhetorical hyperbole' which has traditionally added much to the discourse of our Nation."). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.