Originally published August 11, 2000, in Comics Buyer’s Guide #1395
When last we left our hero, Todd McFarlane, he was fretting outside a St. Louis courtroom after a St. Louis jury had awarded $24.5 million to former hockey player Tony Twist after McFarlane appropriated Twist’s name for a thuggish mobster in the pages of Spawn. “I thought that ‘law’ was sort of short for ‘logic,’” said Todd. “That just got blown out of the water.”
Understandably so. “Law,” according to my dictionary, derives from an Old Norse word, “log,” that means, “Something set down.” You know, like, “Captain’s Log.” “Logic,” derived from the word “logos” is something else entirely. So when the jury (described by McFarlane devotee Erik Larsen as a “pack of stupid hicks”) dropped a log on Todd, he was completely unprepared for it. Indeed, according to St. Louis columnist Bill McClellan, Todd was already contemplating his next “victim.” Wrote McClellan, “If the jury decides he can just use somebody’s name without authorization, I think I know the identity of one of his future characters. Every now and then, the cartoonist casts a wistful glance at Twist’s attorney. His name is Bob Blitz.”
Ðámņ, that is a good name for a lawyer, isn’t it. Much less entertaining is the name of the Image lawyer, Michael Kahn, who according to reports, “noted that an appeal was certain. ‘To use a hockey metaphor, this is Game One,’ Kahn said.”
I have no doubt. Just as I have no doubt that the $24.5 million award will not stand. The figure was arrived at due to the testimony of a St. Louis University marketing expert, Brian Till, who opined that Twist should receive 20 percent of the total Spawn revenue of $120 million. However, the award comes across to me as punitive, and the judge specifically told the jury that they could not factor in punitive damages.
Nevertheless, Todd and his supporters are crying that Todd’s First Amendment rights are being violated, and that this will have a chilling effect on the creative community. I hope that the irony of Todd rolling out the First Amendment is not lost on anyone. Arguably the industry’s wealthiest talent, Todd McFarlane has never directly contributed so much as a single dime to the Comic Book Legal Defense Fund, the main means by which artists and entrepreneurs with considerably less money than McFarlane withstand assaults by assorted pressure groups who want to put them out of business… either for creating that which they find meaningful, or else selling same to perfectly willing buyers.
Granted McFarlane Toys has contributed assorted limited edition toys and such to the CBLDF in order to garner money at auctions, and that’s nice as far as it goes. But let’s face it, we’re talking about a guy who could wipe out the CBLDF’s current debt load with a stroke of a pen, and as an individual Todd has been rather silent on the issue of not being hassled while pursuing one’s muse… until now, of course.
Technically, the case was not a libel issue. It was about unauthorized appropriation of the name of Tony Twist, whose hockey-playing career was ended last August when a motorist allegedly drove into the path of Twist’s Harley-Davidson. But let’s not kid a kidder: Libel was the subtext that drove this boat. Part of McFarlane’s defense was that he names other characters in Spawn after real people. Yeah, sure. Except that the people he likes are heroes (long-time friend Al Simmons, for instance) while the people he dislikes are thugs and KKK members, so, y’know, pull the other one, Todd. Another part of his defense was to claim on the stand that, according to reports, “he may have named ‘Twist’ after a long-ago mob figure nicknamed ‘Kid Twist.’” Now hicks the St. Louis jury may or may not have been, but even hicks can read. And Todd stated flatly everywhere, from letters pages to Wizard magazine, that Twist was named after the hockey player. Lying during testimony in a civil case is generally frowned upon unless you’re the Commander-in-Chief and there’s sex involved. And giving the comic book Twist a bookkeeper named Joe Sakic, the name of a Quebec Nordique player and former teammate of the hockey player Twist, certainly didn’t help Todd’s newly revised story over Twist’s origins. Or was the jury to believe that there was an infamous accountant named Sakic lurking in the pages of crime history?
As I said earlier, although it wasn’t a libel case… it was. Because if Todd had named a heroic figure after Twist (say, a detective character who was called Tony Twist because he was capable of unraveling twisted mysteries) I doubt the real Twist would have had a case. He probably wouldn’t even have sued. But no, Todd had to name an obese villain (obesity and villainy go hand-in-hand in the Toddverse) Tony Twist, thereby providing the jury an opportunity to watch six straight episodes of the Spawn animated series with the evil Twist doing his dirty work. Just being forced to watch Todd’s intros to those, in which he comes across like the love child of Rod Serling and Taxi’s Reverend Jim, would be enough to drive any jury to find against him on aesthetic principles alone. But added to that was a videotaped deposition of Sean Phillips, vice president for a nutrition and dietary supplement outfit in Golden, Colorado. Phillips stated that the Spawn Twist prompted his company, Experimental and Applied Sciences, Inc., to withdraw a potentially lucrative endorsement offer to Twist. Granted, Twist had the hometown advantage, and some of the jurors got autographs for him after the trial, calling their bias (or lack thereof) into question. But star-struck jurors are an occupational hazard in such celebrity cases, and besides, Todd left an evidentiary trail the size of the Mekong Delta.
Sure, sure, technically it’s not a libel case. But this case involved reckless disregard for the truth… associating someone’s good name with criminal activities… smearing him or her to family and friends (Twist testified how he learned of the character’s existence from his distraught mother. Oy!) …and the work in question costing the plaintiff money. If it walks, talks and quacks like a duck, chances are if it’s not a duck, it’s dámņëd close. A letter writer to this column last week suggested it might go to the Supreme Court. I hope not, because if this thing gets reviewed by the Supreme Court while Mike Diana still struggles under the most onerous anti-First Amendment ruling in recent memory, then Todd is definitely right about one thing: There is no justice.
And the really sad thing is, Todd and his pals still don’t get it.
Erik Larsen—who just had to fire off some parting broadsides at Harlan Ellison and myself in his final issue of Aquaman—is helping to take McFarlane’s case to the public. Erik is sounding alarms that, if this decision stands, “all hëll will break loose” as he envisions scenarios in which O.J. Simpson can sue Mad magazine or the old friend after whom John Byrne is said to have named “Kitty Pryde” can go after Marvel. So quick, gang, let’s rally around Todd, Erik et al because otherwise we’re all doing down the chute. To which I can only respond with Tonto’s immortal words, “Whattaya mean ‘we,’ paleface?”
Send-ups of O.J. are easily defensible under parody and fair-use. The “real” Kitty Pryde gets to see her namesake portrayed heroically, and even gets bragging rights during one scene in the X-Men movie. Usurping someone’s name, turning them into a repulsive supporting character and thinking you can do so in perpetuity is something else again.
No matter what Todd, Erik and whoever else may think, this is not a First Amendment issue. This is a “You Shouldn’t Be a Peckerhead” issue. This is what happens when you’re a bully. Bullies challenge the nerdy guy to a fight (or a debate), or offer the smart British guy money to do their homework for them (or create characters) and then renege on the deal. Or they pick on people and pick on them and pick on them until the teacher or principal or the student council slaps them down, at which point they stand there, hands spread, shocked “Who me?” expressions on their faces as they say, “Wha–? Wha–? What did I do?”
“Even if you wish Todd ill—you don’t want this,” quoth Erik Larsen. You know what? I don’t wish Todd ill. A good-selling comic benefits everyone, as does a quality comic book film. And he does produce dámņëd good looking toys. I still believe the $24.5 million decision isn’t going to stand up, but if nothing else, it should serve as a deafening wake-up call to Todd that it’s time to leave the bully boy attitude behind, because what’s going to happen is exactly what did happen: You run into someone who’s an even bigger bully than you are, and you get your face tap danced on.
And sadly enough, I suspect he won’t get it. Not he, nor Larsen. It’ll be, “Oh, well, Peter David hates Image and us. Everyone knows that.” Except it’s not true. But ya know what, guys? If I ever do decide to hate you instead of just feel sorry for you…
I’ll know better than to name a couple of KKK members after you. Or a criminal. I mean… how dumb does one have to be to do that? Even a pack of stupid hicks would see right through that one.
(Peter David, writer of stuff, can be written to at Second Age, Inc., PO Box 239, Bayport, NY 11705.)
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Oh, did he ever get it overturned? Must admit I’ve loved reading about this. Really funny that he thought he could do that to you and Byrne and then gets slapped down when he tries to do the same with a sports player. Hah! Very ironic! Justice is served eh? 😉
You comment about not hating Larsen reminds of the scene in Casablanca where Signor Ugarte (played by Peter Lorre) says to Borgart’s Rick, “You despise me, don’t you?” Bogart looks thoughtful and replies, “I suppose I would if I gave you any thought at all.”
It’s one of my favorite spots in the movie, perhaps because so many of the great moments it has not become so iconic as to seem a cliche.
Peter David: “Except that the people he likes are heroes (long-time friend Al Simmons, for instance) while the people he dislikes are thugs and KKK members…”
Luigi Novi: You’re saying Todd harbored a dislike of Twist the hockey player? Why?
Also, Peter, how do your thoughts about naming a character after a real-life person square with your stated decision to name a character in (IIRC) New Frontier after a young man who broke one of your daughters’ hearts, and then torture that character by dumping into a warp core, where he was killed? What criteria did you observe that you feel would’ve precluded a lawsuit by him?
Actually, IIRC, it wasn’t his daughter who dated the yutz who broke her heart…it was his sister Ronni Beth.
And I’ll say it…”A long absence and *this* was the thing he wanted to comment on?”
I have to go back and look it up, but did he use both first and last names?
I wouldn’t think much could ever come of it anyhow. The guy would have serious trouble proving lost revenue, and that was a part of the initial deal with the Twist jury. I mean, if Peter and Glenn ever looked back and realized how much bandwidth Mulligan, Scullion, Micha, and I wasted talking about zombies in dead threads years ago, he could easily use our surnames to make us a team of comic book villains that die embarrassingly horrible deaths in about two panels. What the hëll could we show that we lost out on over it to a jury?
I hereby and with all due (legal mumbo jumbo) fortwith and henceforth absolve Peter David from any liability should he create a character with my name and kill him in the most horrible way possible. Molten glass furnace, perfect example.
Completely different situation. The guy who I tortured in NF was a guy who had dated my sister (not daughter) and he begged to be put into New Frontier. He wanted me to invent a character with his name who would date my sister (who was already a character; someone in engineering) in the book. And I WARNED him going in that if he broke her heart, I would then horribly kill the character. And he said, “Fine! I’m great with that!” So I did AS HE ASKED and when he later broke her heart, did as I promised.
PAD
Luigi,
I’m not familiar with the book in question, but my guess is PAD gave the character the same first name– presumably a very common one– and a different last name. And, of course, he probably didn’t depict this character as breaking some other character’s heart. PAD’s daughter would have recognized “George” as a stand-in for the one who did her wrong (assuming he didn’t just tell her), but the real “George” wouldn’t have had any basis to complain, because there wouldn’t have been any concrete link pointing to him.
That seems the most probable answer.
Rick
For those who were wondering, I checked the outcome on Wikipedia: http://en.wikipedia.org/wiki/Todd_MacFarlane#Legal_issues
$5M, settled out of court.
What I find more interesting, however, is that after Al Simmons (the employee) left, and dared to suggest that the character was based on him (as it was widely acknowledged it was), Todd sued him. Ouch.
Chris
I remember when Todd was going on ad nauseum about how Spawn was going to be a household word, on par with Superman in terms of popularity.
I think it’s fairly apparent how well THAT worked out.
Well…for a time it was…but then when Todd decided he preferred (legal) briefs to tights…That’s where it went downhill.
“Well…for a time it was…but then when Todd decided he preferred (legal) briefs to tights…That’s where it went downhill.”
Not even close.
Maybe in the comic book community, and primarily the young, comic shop going community at that, for about a cup of coffee, but Spawn was never close to being “a household word, on par with Superman” or, hëll, even on par with Aquaman.
Spawn was huge with the younger, direct market crowd, but, even at Spawn’s biggest point of popularity and success, when I talked to family and friends who weren’t comic book readers they had no clue. For that matter, older fans who never, or rarely, did the specialty shop thing knew of</I. Spawn without really knowing Spawn.
Even the Spawn movie was at best a blip with much of the general public. When Superman returns was being teased, just that one trailer that ends with him in orbit hearing an alarm or something and zooming back to Earth, the natural buzz was huge. It was covered on TV show after TV show, magazine after magazine, and net article after net article. I knew people who never bought a comic book in their lives and rarely read them who were geeking out for a new Superman film.
If Todd ever gets his wish and gets a Spawn movie reboot off of the ground? Most people will have no idea who Spawn is, and it would take a massive PR campaign to get the level of buzz and anticipation that Superman got with one simple trailer.
Look, I kinda liked Spawn for a while there and don’t have anything against it, but it was never close to being as popular or well known of a household name as Superman; not even for a second.
I concede the point that my definition of household name is not on par with the Standard, Jerry. Yes, in the larger, General public sense, Spawn was NEVER a household name, despite what Todd wanted. He probably could achieved that if he had not had to fight lawsuits and deal with other issues that took away from Spawn.
But then again, as far as the comic community…Yeah that was probably what I was thinking of when I wrote that.
Of course, “Advance-Soliciting” as far ahead as Todd did didn’t help him either.
You know what though? I’m not even sure that is completely true. In the speculator market? Sure. In the collector market and the people that were primarily specialty shop regulars? Yeah. But out of all of the people that considered themselves comic book fans at that time? Spawn had a hëll of a direct sales and collector market hype machine behind it, but I honestly don’t think it really broke big anywhere else.
We run in geek circles. We do conventions, we get the literature, we watch the documentaries and whatever else that focus on our stuff. It’s easy to see geek things as the biggest thing ever since the wheel and forget that, especially in the 80s and 90s, geeks are not the majority of pop culture. That’s changing in a big way, but we ain’t there yet.
When I was around people who did the collector thing, read Wizard, CBG, and Hero Illustrated regularly, shopped at the specialty stores, and were always neck deep in geek, and happy to let their geek flag fly? Yeah, Spawn was big for a few years.
But whenever I stepped away from that crowd? Crickets.
Spawn was huge over with a select target audience, but that target audience was a small group of all of the people who considered themselves actual fans and readers of comic books, and even that group was just a fraction of the pop culture followers in this country.
Todd was talking it up like Spawn and some of the other Image creations were going to be right up there with Superman, Batman, and Spider-Man on the pop culture, comic book Mount Rushmore. That’s what he meant. And that’s not a bad thing. Every industry needs its hype artists and P. T. Barnums. Hëll, Stan Lee used to hype to the nth degree so often that his hyperbole sometimes made Todd’s later hyperbole look like modest observations. But just like P. T. Barnum’s unicorn was not in fact a real unicorn, and Stan Lee’s next issue of the Incredible Hulk was not the greatest story ever since Will Shakespeare first put quill to parchment… Spawn was never the name or the recognizable figure that Superman was.
I’ll give Todd all the credit he deserves for coming up with something that did get as big as it got and that has lasted as long as it has, but Spawn has never been “Superman” big outside of in new book sales, and we all know now how much some books were then being bought in multiple copies as/for “investments” by collectors who later found out that anybody that actually wanted the things had so many copies themselves that they couldn’t unload them. Spawn was as big or bigger than Superman for a while by that one measure, but that one measure was artificially inflated by the hype machine and the collectors market.