Summary In the article by McKelvey,S. (2005 Fall) ,Sport celebrities and the right of publicity take a new 'twist.' Sports Marketing Quarterly14(3), 188-190, introduces a new third test to determining a Celebrity Athlete's right of publicity vs. the First Amendment of the Unites States. Previously there were one of two tests applied by judges... the "related use test or the "transformative use" test. These tests were applied to determine whether someone is trying to use another's identity, without consent, in order to gain a commercial advantage.
In 1993 the comicbook Spawn introduced characture Antonio Carlo Twistelli nicknamed "Tony Twist". In 1997, former NHL player Tony Twist filed suit for misappropriation of name against the comic book Spawn and creator/owner Todd McFarlane. Twist lost the case and appealed to the Missouri Court Of Appeals where he lost and appealed again. The case went on to the Missouri Supreme Court, where the fact that McFarlane had admittedley based characture Antonio Carlo Twistelli nicknamed "Tony Twist", on the actual NHL player Tony Twist.
The Missouri Supreme Court, in John Doe, a/k/a/ Tony Twist v. TCI Communications, 2004, was the first to apply the "predominant purpose" test and and ordered a new trial. After a new trial in July of 2004 a jury awarded Twist a $15 million judgement. There is no federal law on the books to protect people from commercial violations of their right to publicity and the First Ammenndment, only the opinions of various courts, representing numerous senarios and numerous jurisdictions (State and Federal), throughout the States. In the future, courts may choose to use or disregard this test as they wish.
The article, "Sport Celebrities and the Right of Publicity take a new 'Twist'", caught my eye originally because of Tony Twist. I am a comic book collector as well as an avid hockey fan. I have read and collected Spawn since it's creation and am familiar with both Tony Twists'. This article enlightened me about the one of the legal battles celebrity athlete's deal with... protecting their names and persona from those who would exploit them, for profit to themselves. The article outlined the issue and the decisions to date, from the loss of trial at the Missouri State District Court, denied appeal in the Missouri Court of Appeals, a reversal and order for a new trial, by the Missouri State Supreme Court, and ultimately a $15 million judgement awarded by jury in District Court.
I always thought that the Spawn character Tony Twist was Tony Twist. The creator, Mike Mcfarlane, said he based the character on the real Tony Twist. The court ruled by using a "predominate purpose" test, and reasoned that the use of Twist's name was predominatly to sell comic books and related items. Up to this case courts around the U.S. state and fedaral have generally approached the right to publicity with one of two tests. First a related use test and second, a transformative use test. Now the Missouri Court has introduced the predominate purpose test. To date no laws are on the U.S. books to deal with this issue. Under U.S. law court decisions are not binding on any court unless it is in the same circuit, state, or a majority decision by the Supreme Court, in which case, it is then considered law of the land. This case is just another alley lawyers can use for the protection of their celebrity athlete clientel.
Until laws are passed federally, there will be no clear cut way to deal with right to publicity issues in America. These type cases will continue to be decided according to their unique situations and now, maybe by one of three tests, to determine whether one is being harmed commercially or not. The years to come will most certainly bring more "tests" and precident setting decisions from courts around the states. My only hope is that someday I can be some type of celebrity with this problem and a clear to have cut way of dealing with it.