Twist vs. McFarlane, Part 2

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.”

Damn, 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 damned 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 hell 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 damned 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.)