Originally published August 4, 2000, in Comics Buyer’s Guide #1394
“Must… control… fist of death…”
–“Dilbert”
Several years back I got an angry phone call from John Byrne, and for a refreshing change of pace, he wasn’t angry at me.
“Did you read Spawn #30?” he asked.
In Spawn #30, there were two members of the Ku Klux Klan, and their names were Peter and Johnny. Byrne was convinced that Todd McFarlane, Spawn creator, writer and erstwhile penciler, had dubbed the characters thusly for the purpose of taking a direct swipe at us. After all, Byrne and I had not marched in the preferred lockstep of approval for all things Image that the founders seemed to desire of the comic pro community. Byrne felt that it was nothing less than character assassination, was contemplating taking direct legal action, and wanted to know if I would be interested in joining him in such an endeavor.
I demurred, citing the following reasons. First, since it was only our first names, it couldn’t be proven absolutely that it was intended to be us. Second, although associating us with the KKK was distasteful, there was nothing illegal about belonging to that notorious organization, and if you wanted to be rock solid for getting damages in a libel action, the person you were accusing had to have accused you of criminal activity. Third, there was no way we were going to prove damages, because there was no way we were going to get a witness on a stand who was going to state that Todd’s juvenile jab had cost Byrne or I employment. And fourth… it’s Todd McFarlane, fer cryin’ out loud. Who cares what he thinks?
It’s entirely possible that an attorney would have (or did, for that matter) tell John Byrne the same thing I did. In any event, the proposed lawsuit never went forward to my knowledge.
However, McFarlane was gracious enough, in a subsequent Spawn “tribute” issue published by Wizard, to attend to one of the weaknesses in going after him legally. There was a “cast list” for Spawn as part of the book, and one of them read: “Johnny and Peter. Real-life Persona: John Byrne and Peter David. Relation: Close friends and synchronized swimming partners (um, actually McFarlane has been feuding with these guys for quite some time.) These two, McFarlane says with a bit of sarcasm, are named for his two ‘good pals’ John Byrne and Peter David. McFarlane takes shots at them at any time he can, and this is one of those times where he can.”
In the same publication, there was another listing as well… one that Todd would, in later years, suddenly feel less than boastful or sarcastic about:
“Tony Twist. Real-life Persona: Tony Twist. Relation: NHL St. Louis Blues right winger. The Mafia don that has made life exceedingly rough for Al Simmons and his loved ones, in addition to putting out an ill-advised contract on the Violator, is named for former Quebec Nordiques hockey player Tony Twist, now a renowned enforcer (i.e., ‘goon’) for the St. Louis Blues of the National Hockey League.”
Apparently Todd felt that, as with Byrne and I, this was one of those times where he could do whatever he wanted.
It’s not entirely surprising, and certainly reflective of the mentality of a number of Image creators when the company first started up. There was much posturing and strutting, chest thumping and declaring—like so many James Camerons—that they were king of the world, like a bunch of eight hundred pound gorillas (no slight to the new imprint intended) who could do what they wanted, where they wanted, whenever they wanted (the “whenever” part apparently applying to shipping of books, a problem that—despite the nigh-heroic efforts of director and creative piston Jim Valentino, dogs them to this day and ties up retailer capital every single month as high-priced reprint volumes or early issues of series never hit the stands or are incessantly resolicited.)
Well… McFarlane learned otherwise.
At first I wasn’t even going to address the entire Tony Twist lawsuit that recently wrapped up, leaving Todd—manufacturer of a pretty sharp line of toys, and owner of home run baseballs—with a $24 million judgment over his head and his (base)balls in a sling. But dámņ, y’know, I started hearing from everybody. Phone calls, email. Just to make sure that I had all the info on hand, Mr. Mark R. Leonard, a CPA in Troy, Illinois, sent me the newspaper coverage of the trial with a cover letter. Leonard (a man with two first names, and let us remember the words of Steve Allen who said, you can never trust a man with two first names) said, that he would love to see me devote “a column (or two) to the thoughts which arise following the McFarlane/Twist lawsuit,” and went on to write:
I’ve followed this story with great interest, as it crossed over many of my interests. I am a comic fan, a hockey fan (St. Louis Blues in particular), and a May 2000 graduate of St. Louis University School of Law.
This case is interesting from many standpoints, not just what it does to writers and the care they must now take in their choosing of names, but also to the balancing of the First Amendment rights versus the rights an individual as in their name and reputation.
The size of the award is certainly interesting. No evidence was presented of any commercial damage to Twist (the hockey player) of any amount near this magnitude, so the award must be more for ‘public humiliation’ and personal suffering. Given the size of the award, it will also be interesting to see its effect upon McFarlane’s business operations and any chilling effect upon future publishing…
I also wonder how the reputation of Twist (the hockey player) in this community affected the jury’s deliberations. Twist is much loved in this town, not just for his spirited play on the ice, but maybe even more for his tireless efforts with underprivileged children and other similar charitable interests. While the jury probably was not aware of McFarlane’s possible ‘bad-boy’ image (no pun intended!), they were certainly aware of Twist’s outstanding reputation. I am sure the latter, when juxtaposed with the reputation of Twist the Spawn character created quite a contrast for the jury and weighed heavily in their decision.
Please do not misunderstand my motive in sending this. I know you have too much class to find satisfaction in McFarlane’s situation. I find this case to be interesting for the chilling effect it could have on that aspect of all literary endeavors, as I am sure you have probably similarly concluded. I concur with McFarlane’s prediction that this could wind up with the Supreme Court. I could even see them agreeing to hear the case, given its far-reaching implications.
Interesting implications indeed. Which we shall ponder, in our best uninformed layman’s style next week. Although I think we can take a brief moment to debate whether I, in fact, have too much class to find satisfaction with McFarlane’s situation. Hmm. Let me consider it a moment. I must consider the distasteful and unworthy notion of kicking a man when he’s down. I must… must consider Todd’s feelings. Must consider… the incredible irony… of a guy who boasted about comparing me to a KKK member… getting financially pantsed by a St. Louis jury… must… maintain personal integrity… must… think about… big picture… remember devotion to First Amendment absolutism… must… suppress… fit of giggles… must… must control… fist of death… must… must….
BWAAAHAAAAHAHAHAA…
Whew. That was close. Okay. I’m better now…
(Peter David, writer of stuff, can be written to at Second Age, Inc., PO Box 239, Bayport, NY 11705.)
• 
As I recall, there were a lot of “Tony has Todd by the balls” jokes going around the comics Internet during this case.
I didn’t know about that bit in the back of the comic. How dumb can one person be?
Personally, I always thought that naming an Italian mobster “Twistelli” was a rather tortured way of justifying a nickname, especially given that there’s no “w” in the Italian alphabet.
My understanding was that Twist won on a “right to publicity” argument, and not on any kind of slander/libel argument. According to the court, that, combined with McFarlane’s use of Twist’s likeness primarily to sell comics, overrode McFarlane’s First Amendment rights.
Is this case still viewed as having a chilling effect on character naming? I always got the impression that straight-out naming a character after an actual person was a bad idea.
There’s a reason why you still see those disclaimers in movies proclaiming that any similarities to persons living, or dead is purely coincidental, even when the movies are obviously based on real people and events.
It was merely reflective of McFarlane’s inability to think of a name. Even the protagonist of his comic was named for his old college roommate, Al Simmons (a nice guy – he gave my then-fiancee some swag at one SDCC when she was too short to catch the eye of the swag-thrower. Still have no idea why Todd would send him to Hëll like that).
No, I think it’s easy to create names. Any fool can pick up a phone book, open it to two random pages, and get themselves a randomly generated name.
It’s just a trait with some personality types. Hëll, Harlan Ellison is a freaking genius. He admits to using the names of old school bullies for some of the villains in some of his works.