My esteemed colleague, Monsieur Evanier, on his website takes to task those in the industry whom he feels displayed excessive joy (although he used a fancy shmancy German word for it) over another’s misfortune when Todd McFarlane initially was on the receiving end of a multi-million dollar judgment against him. Seems TMcF thought it would be funny to name a gangster character after real life hockey player Tony Twist in the SPAWN comic and TV show. Twist didn’t think it was funny, sued him, and brought in testimony stating he’d lost $100,000 in endorsements because of it. Jury awarded him a ludicrous amount of money. The judge subsequently tossed out the jury verdict, and the appeals court just supported the judge. Mark believes this to be a Good Thing and a triumph for the First Amendment.
Mark, of course, has this luxury. He, after all, wasn’t portrayed as a member of the Ku Klux Klan, as I was in an issue of SPAWN. To me, it was never a First Amendment issue. It was a “Todd’s being a jerk” issue. Yes, the First Amendment defends Todd’s right to be a jerk, but not at someone else’s monetary expense. The courts felt “no reasonable person” could confuse Twist with the comic book character. Oddly, to my mind, no reasonable person could confuse a soap opera actress with her character, yet actresses portraying bad girls get slapped in public by irate soap fans. No reasonable person could think “Harry Potter” can lead a child to witchcraft, yet the book is banned from some school systems and libraries. No reasonable person could find OJ Simpson innocent, yet he’s out playing golf. No reasonable person could think that a comic book store selling adult comics to adults presents a danger to the town, yet stores are shuttered, store managers arrested and lives disrupted.
We do not live in a reasonable society. And the question is whether Todd McFarlane, now having hidden behind the skirts of the First Amendment, will take greater efforts to support the Comic Book Legal Defense Fund…or will just see this as a vindication and empowerment to screw over other people, such as Neil Gaiman.
I think we all know the answer to that.
PAD
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One thing I’ve been incredibly confused about: How can Todd McFarlane claim AT ALL that he has the rights to a character that Alan Moore created and Neil Gaiman owns, when none of this happened in the vicinity of Todd McFarlane?
Can someone explain to me the actual lawsuit, and what it’s ACTUALLY, TRULY about?
Thanks.
Todd McFarlane’s involvement in the Miracle Man stuff comes from Todd acquiring the rights to properties once held by Eclipse Comics, who published Miracle Man over here.
That’s the basics of how he got involved. It’s not nearly that simple, obviously.
I have to disagree with PAD on this one. No, we don’t live in a ‘reasonable’ society, and I think a large part of that is owed to the twin demons of ‘political correctness’ and senseless litigation. I’d much rather have McFarlane win – or not lose – rather than have the award of a ‘ludicrous amount of money’ support the continuing divergence of common-sense from the law, or have what we can-or-cannot-say continue to be curtailed by the politically-correct super-sensitive.
(Easy for me to say, since I’m not the public figure being insulted! But in this situation I just can’t approve of a ‘ludicrous amount of money’ being awarded to a (rich?) hockey player. Let balance and common-sense be restored to the courts, please!)
Brad
I have to agree with PAD. This isn’t even a first amendment issue, you know. McFarlane admitted that he used Twist’s name, intentionally, without permission. He stated outright that he named the character after the hockey player.
While I don’t believe Twist should get tons of money from McFarlane, I do believe that he’s owed an apology, in print, by McFarlane for the unauthorized use of his name in a manner that Twist found degrading.
That’s just common sense.
It’s a shame that the courts see it differently. I suppose any writer can take the name of any public figure now, without altering it at all, and turn them into an evil character… while admitting that the character is named after the public figure. That’s not even parody. It’s just insults.
Technically, they should’ve awarded Tony Twist what he lost/what he would’ve gotten.
To many people are hiding behind the first amendment.
This wasn’t Fair Use, as noted, Todd admitted that he named the character on Twist in the pages of Spawn, then later said he didn’t.
I always thought the $25 million amount would be reduced, but I was amazed that the judge overturned it. And I’m sorry that the appeals court upheld it.
-Joe
” The courts felt “no reasonable person” could confuse Twist with the comic book character. Oddly, to my mind, no reasonable person could confuse a soap opera actress with her character, yet actresses portraying bad girls get slapped in public by irate soap fans. “
The problem is, Soap Operas are pretty popular and are watched by a million more people than people who read comic books. Same is true with Harry Potter. How many million people saw that? How many people watch CNN? If I get your name defamed in any of those places, well I’d be really pìššëd and sue big time.
But comic books? Who reads the dámņëd things anyway? How many copies of Spawn sells in a month? 80 thou? 70 thou? More? Less? How in the world would Twist think that having his name defamed in something nobody really patronizes be hurtful to his already finished career?
That doesn’t justify what Todd has done, but Twist giving making such a big deal out of this is far more ridiculous.
My hope is that the Toddler never graces St. Louis, because having seen Tony Twist up close…well, Toddy might end up short a few balls if Twister gets hold of him outside the courts.
My other hope is that Gaiman cleans the idiot out of house, home and baseballs.
JSM
>>The problem is, Soap Operas are pretty popular and are watched by a million more people than people who read comic books. Same is true with Harry Potter. How many million people saw that? How many people watch CNN? If I get your name defamed in any of those places, well I’d be really pìššëd and sue big time.
But comic books? Who reads the dámņëd things anyway? How many copies of Spawn sells in a month? 80 thou? 70 thou? More? Less? How in the world would Twist think that having his name defamed in something nobody really patronizes be hurtful to his already finished career?<<
Perhaps you’re not aware that the Twist character was featured on the HBO “Spawn” TV series, viewed by the millions of people you’re citing as more than enough reason to “be really pìššëd and sue big time.”
PAD
Personally, I thought that naming a mobster Tony Twistelli (Tony Twist’s “real” name in the comic) was just another example of Todd’s flimsy intellect and shoddy attitude towards researching subject matter and authenticity when writing.
There’s no “W” in the Italian alphabet.
Duh.
Almost as dumb as trying to make a fictional Italian name by taking the word “disguise” and sticking the letter “y” on it, as Dana Carvey
PAD,
Given your obvious disdain for Toddy, how in the world did they convince you to moderate his panel in San Diego?
Lee
And it’s intersting that the HBO thing was Twist’s biggest complaint, and HBO came to a settlement with him.
-Joe
The following article was reprinted on Neil Gaiman’s website, and I’m reprinting it here, because it’s one reason I agree with Mark Evanier on this issue. My comments come afterwards:
Kraft Wins Preliminary Injunction Against Helm
CBLDF defendant Stu Helm has lost the first round in his battle against corporate censorship. Magistrate Judge Arlander Keys handed down a 32 page decision granting Kraft’s request for preliminary injunction against Helm’s use of the nickname “King VelVeeda.” The injunction prohibits Helm from using the name on his Website or in any commercial context. The decision freezes Helm’s ability to sell original art created before the injunction unless he physically removes the nickname from the piece, effectively defacing each original image. It also blocks the sale of “Singles and Seconds,” a collection of single page erotic vignettes.
The Magistrate’s decision further orders Helm to remove the nickname from all Web pages, metatags, and search engines. Helm has spent the weeks since the decision painstakingly obliterating all references to the name from his site. His next court date is July 29 where he will demonstrate full compliance with the Judge’s orders.
The CBLDF’s legal team has filed an appeal to the Magistrate’s decision. Presently we are awaiting a decision on the appeal, following which a trial date will be set. However, the decision on the appeal may take months to come through. Meanwhile, the Fund is nearing the five figure mark in case expenses and needs to build funds to fight the next round.
“They already took my name,” Stu Helm says, “and in court I could be fighting for my life.” Part of the terms of Kraft’s suit is that if Helm loses he may have to pay Kraft’s legal fees plus punitive damages. The Fund’s legal team estimates Kraft’s expenses are nearing six figures. The longer the case is delayed, the sharper their fees escalate, and the more urgent Stu’s plight becomes.
CBLDF Director Charles Brownstein explains, “We leapt onto this case when it was already in motion with all our legal guns. Unfortunately the judge felt that the balance of harms favored Kraft’s commercial speech over Helm’s artistic speech, but that doesn’t mean that Stu’s case has been weakened. The preliminary injunction needed to show Kraft having a fair shot at prevailing in the trial, it doesn’t mean that they’re right, and it certainly doesn’t mean that they’ll win. It’s still early in the process, and we intend to keep fighting.”
“With trademark and copyright laws in a state of flux, it’s important to fight these instances of corporate censorship,” explains Fund Board Member Louise Nemschoff. “If Kraft prevails, the precedent could be damaging not only to comic book creators poking fun at corporate culture, but to musicians, filmmakers, and other artists making use of puns or homonyms of corporate marks.”
“This case is about what is protected as free speech,” says CBLDF legal counsel Ken Levinson. “We would be remiss in our duties if we didn’t protect a comic book artist like Stu while that battle is being waged in the higher courts. Comics are a place where precedents are set in entertainment law, and we have to fight to ensure that a bad precedent isn’t set here.” To Support the CBLDF’s continuing defense of Stu Helm and other casework make a donation on CBLDF.com
Yes, Todd McFarlane’s a jerk (and the ocean is wet and bears are furry), but limiting his ability to make cheap, harmless jokes may eventually limit other people’s ability to use other kinds of speech.
I also can’t take seriously the idea that someone said, “They showed on that cartoon that Tony Twist is a mobster, so it must be true. I’m not gonna buy his products anymore.” That’s not any more likely than someone saying, “Wow, Kraft makes processed cheese AND erotic alternative comics? What a great company!”
I’m sure that somewhere in the world there are people like that, but enough to cause a significant loss of revenue? Come on.
We may not live in a reasonable world, but if we let morons dictate what we’re allowed to say, so that rich people can get even richer, it becomes that much more unreasonable. The best response to an unreasonable world is to work harder to bring in some shred of reason, not roll over and let the idiots win–even if an arrogant cartoonist calls you names.
–Daniel
“They showed on that cartoon that Tony Twist is a mobster, so it must be true. I’m not gonna buy his products anymore!”
“Wow, Kraft makes processed cheese AND erotic alternative comics? What a great company!”
Using an obvious parody of a product (“King VelVeeda”) and using someone’s actual name and ADMITTING that you named the character after that person are two completely different issues.
Again, I don’t think Twist deserves tons of money, but he is certainly owed an apology in print. Using someone’s name without their permission in a manner they find degrading is wrong.
Parody is recognized as parody, thus Helm should win his case. Todd, however, should get a serious slap on the wrist (at the very least).
Didn’t something like this effectively ruin Harlan Ellison’s early 70’s TV screentwriting career?
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