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The Right of Publicity, the First Amendment, Comic Books, and Hockey Players:

The Missouri Court of Appeals has upheld the $15 million damages award against comic book author (Spawn and more) Todd MacFarlane, who named a character after hockey player Tony Twist. The award was based simply on MacFarlane's use of Twist's name in the comic books -- a supposed infringement of the right of publicity -- and not on any alleged defamation.

When the Missouri Supreme Court allowed the case to go forward, I filed an amicus brief on behalf of writers Michael Crichton, Larry David, Jeremiah Healy, Elmore Leonard, Harry Shearer, Ron Shelton, Scott Turow, Paul Weitz, and The Authors Guild, Inc. supporting the petition for U.S. Supreme Court review. The Justices declined to hear the case, but I hope it was because there wasn't yet a final decision, since the Missouri Supreme Court had sent the case back down for a new trial. (The lack of a final verdict, especially in a case coming from state courts, is recognized as a very serious, though not insuperable, procedural obstacle to U.S. Supreme Court review.)

If MacFarlane asks the Missouri Supreme Court to review the case, and the Missouri Supreme Court either refuses to review the case or affirms the verdict, then there will be a final judgment, and the case will be procedurally ripe for U.S. Supreme Court review. And I think the U.S. Supreme Court then ought to take it, especially given the inconsistency between this case and a California Supreme Court case also involving the right of publicity, the First Amendment, comic books, and characters named after semi-famous figure (though there two singers rather than a hockey player). Mind you, I don't say "will take it," but "ought to take it."

There's a good deal more to say about the case, and the brief I wrote (with the help of my coblogger and actual Supreme Court Bar member Erik Jaffe) says some of it. But here, I just wanted to repeat one observation from the brief, which I think might be illuminating for some other "It's speech! No, it's commerce!" debates.

The Missouri Supreme Court, which upheld Twist's general legal theory, faced a potential obstacle to its ruling: Fiction writers in fact often name characters after famous people, for a variety of reasons. Sometimes they include those people as characters, as in the movies Forrest Gump and Zelig, or in Steve Martin's play Picasso at the Lapin Agile (which has as its lead characters Pablo Picasso and Albert Einstein). Sometimes writers just refer to those people in passing, or name characters after them -- consider Yogi Bear; the characters Bernard Marx, Lenina Crowne, and Benito Hoover in Aldous Huxley's Brave New World; characters nicknamed after Ginger Rogers and Fred Astaire, in Federico Fellini's Fred & Ginger; and the reference to Joe DiMaggio in Paul Simon's Mrs. Robinson. The list could go on.

The Missouri Supreme Court tried to deal with by creating a distinction between (a) speech that is said "with the intent to obtain a commercial advantage" -- speech that is "predominantly a ploy to sell comic books" -- and (b) "artistic or literary expression." But this distinction just can't work.

Most successful creators intend both to obtain a commercial advantage and to express themselves. By expressing yourself in a way that readers want to read, you make money. By making money, you get the free time needed to express yourself. The prospect of making more money gives you an incentive to produce more works, and to make your works better.

That is a basic aspect of the free market (see Adam Smith). And it's also the view embodied in the Constitution's Copyright and Patent Clause. As the U.S. Supreme Court has said, "[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."

And of course from the reader's and the public's perspective, creative works add to public debate, to the "marketplace of ideas," or just to the stock of entertainment regardless of the speaker's motive. A biography is valuable whether the biographer is motivated predominantly by "commercial advantage," by a desire for "literary expression," or by both. Likewise for a comedy routine that mentions a famous person, or a story or novel (whether purely textual or graphic) that does the same.

Trying to distinguish "artistic" or "literary" expression sold for money from "commercial" expression that consists of art and literature thus makes no sense. (I set aside here commercial advertising, which is a separate First Amendment category; MacFarlane's comic books don't fit within that category.) People are often tempted by this distinction, because of many people's sense that commerce is "low" and art is "high." That is a temptation that must be resisted.

Related Posts (on one page):

  1. Why Missouri Right of Publicity Law Matters:
  2. The Right of Publicity, the First Amendment, Comic Books, and Hockey Players:
John Armstrong (mail):
As an aside, how does this work in the other direction? Say I'm a really big fan of Trout Fishing in America...
6.22.2006 5:11am
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6.22.2006 5:16am
The Voice of Reason (mail):
Let me start by expressing my gratitude for the great post. Next, let me agree that the Copyright and Patent Clause promotes economic enterprise in accordance to free market principles that are well-limned in the work of Adam Smith. We can leave aside whether the Framers specifically intended to incorporate the precise contours of Adam Smith's formulation of free market principles (or, if, instead, we should inject Herbert Spencer's). [Note: This is a Lochner joke; forgive me.] Instead, I would focus on the fact that the free market principles embedded in that clause -- whatever their contours -- do not substantially differ from one part to the next.

It is true that Government has an interest in promoting science and technology and artistic expression to further self-governance. We could look to John Stuart Mill as much as Adam Smith for this basic truth. There is no doubt that free expression is an aid to liberty. There is even less doubt that a marketplace of ideas -- a literal marketplace with economic inventive to produce ideas, is an aid to liberty. And it does not take a utilitarian, or a libertarian, to recognize that bad intent (i.e., purely selfish motive) can produce good things (i.e., goods and services that improve consumers' lives). The common example is the philanthropist who gives to charity to sate his own ego. Con: "That vain jerk!" Pro: "Yes, but the orphans now have an orphanage." It should be clear that I agree the temptation should be resisted to distinguish high art from low art.

Yet, the economic incentive that drives the marketplace of ideas -- which, perhaps is clearer in the patent context than that of copyright -- must also include the right to exclude others from using your creations without permission. The time that you spend to develop your art, whether high or low, must be recouped. Patents and copyrights exist at the federal level to ensure that you can exclude anyone in the country from profiting from your labor without bargaining for it, much as the apple-picker in the works of John Locke: "It's my apple, I climbed the tree to grasp it." Making profit to live off of and create your works is part of the story, but excluding others from laying claim to your work is what enables you to make profit. Two basic truths of property rights, in the Anglo-American tradition, are that he who discovers it owns it and he who is first in time to capture gets to keep it. Stealing would seem to violate basic property rights norms; stealers are second in time; if stealing is privileged, then everyone will steal. If the court is claiming that Todd McFarlane stole, then its decision makes sense. No court wants its decision to send us down a slippery slope to We The Kleptomaniacs.
6.22.2006 5:25am
The Voice of Reason (mail):
I would also note that this scenario sounds very much like a court crafting a decisional rule to determine how to apply the content/meaning of a constitutional provision. Whereas you, Volokh, seem to be asking the Court to apply the full content of the Copyright and Patents Clause, like a klieg light on spot, Missouri's courts are crafting doctrine that mediates and varies the Copyright and Patent Clause's application in certain sets of cases. Is their decisional rule unworkable, or judicially unmanageable? If the "predominantly a ploy" test is an inquiry in to whether there was an intent to steal, it seems no more judicially unmanageable than the inquiry for "willfulness" in patent infringement cases.

(Truth be told, I have no idea whether that inquiry is unmanageable, but I do know it exists. Its existence seems to suggest that the costs of keeping it around are exceeded by the costs of removing it. The same would be true of striking down a "predominantly a ploy" test.)

While the argument that the "predominantly a ploy" decisional rule is a part of the constitutional meaning of the Copyright and Patents Clause seems suspect (I gather Roderick Hills, Jr. would argue this), the argument that decisional rules provide for flexible applications that correspond to outcomes that mirror evolving societal consensus (I gather Kermit Roosevelt would make this move) seems suspect also to the extent it would permit contratextualism or majoritarianism that is tyrannical. That said, arguing that the original free market principles the Framers placed into the Constitution (and are still respected by the Court today) makes sense. The only problem is that those same principles can be reasoned in the opposite direction (see my post above).

It seems, to me, that a "predominantly a ploy" test is probably judicially workable and probably justified so long as its purpose is to prevent the kind of stealing the Framers intended to bar, i.e., to enforce the Copyrights and Patents Clause. That said, since when was a right to publicize your own name materially equivalent to an injunction on the artistic creations of others? Can celebrities enjoin gossip columnists for printing their names?
6.22.2006 6:02am
The Voice of Reason (mail):
Apologies. Make that:


That said, arguing *from* the original free market principles the Framers placed into the Constitution (and are still respected by the Court today) makes sense.
6.22.2006 6:05am
Medis:
TVOR,

I think Professor Volokh's reference to copyrights was just for the purposes of illustrating that an economic motive is not incompatible with literary expression.

And obviously, as you note, famous people do not ordinarily have a copyright in their name, and it would make little sense to treat a famous person's name as a work of art that they had to be motivated to create through a state-enforced monopoly. Rather, famous people usually had some independent motive to do something (eg, to become an NHL hockey player), which in turn made them famous. So, while being famous in turn creates the possibility that use of their name will have value, that value was not the sole or even primary motive for them doing whatever it is that made them famous in the first place.

And in that sense, I think strong "publicity rights" (rights for famous people to control the use of their own name and likeness) can easily be intellectual property overkill. In a nutshell, all intellectual property rights are a balance between the benefits of providing incentives to the creative and the harms of state-enforced monopolies. So, insofar as famous people did not need this additional incentive to become famous, there is little justification for creating the harms of giving them a state-enforced monopoly.

Anyway, back on Professor Volokh's point: this does seem to me to be a very odd line to draw. Indeed, one part of the distinction focuses on the speaker's motive (were they trying to sell comic books for personal profit?), and the other part focuses on the speaker's act (was [the particular part of the comic book] an expression with literary value?). So, starting with such an ill-conceived comparison unsurprisingly leads to the result that something can qualify under both inquiries. And I think Professor Volokh's point, which is absolutely correct, is that there is nothing wrong with people doing something literary with an economic purpose in mind.

And I do hope that some Supreme Court (Missouri or federal) eventually grants cert and reverses this decision. I think this is ultimately a value-destroying decision, and one with federal ramifications, as Professor Volokh notes. So, it really is quite important.
6.22.2006 8:39am
Medis:
By the way, to anyone interested in the general "intellectual property" balancing act debate, and for some critical thoughts on the very idea of calling this "property" (I, of course, favor the term "state-enforced monopoly"), I highly recommend:

Tom Bell's "Author's Welfare: Copyright as a Statutory Mechanism for Redistributing Rights"; and

Mark Lemley's "Property, Intellectual Property, and Free Riding".
6.22.2006 9:18am
Al Maviva (mail) (www):
Yet another reason why we lawyers get a bad name. There is a practical side to this case. Do any of you know anything about Tony Twist? He's one of maybe 10 guys who have played within the last decade whom you really, really truly do not want to screw with. He's in the category of "Zoo visitors please don't stick your arm into the lion's cage." Nice enough guy, to all intents and purposes, but if you're involved in the settlement negotiations and he throws his pen and a pair of gloves on the floor, you may want to get out of there, or perhaps hold up Stan Lee as a human shield. Based on that fact alone, I'd probably decline representation of the comic book writers...

On the merits, I disagree with Prof Volokh's statement, "Trying to distinguish "artistic" or "literary" expression sold for money from "commercial" expression that consists of art and literature thus makes no sense. I'm not so sure about that. Judge Woolsey did a pretty fair job of it in United States v. One Book Called Ulysses.
6.22.2006 9:40am
dw (mail):
We now know that Aristophanes (whose comedies were both popular and artistic successes, and frequently included fictionalized living persons) could not have made a career in Missouri.
6.22.2006 10:17am
Bruce:
Eugene, "Mrs. Robinson" is a Simon &Garfunkel song. I heard an interview with Paul Simon in which, IIRC, he mentioned that he had heard that DiMaggio was puzzled and annoyed by the reference: "I didn't go anywhere." Maybe he should have sued, like Twist.

Anyway, the distinction the Mo. SC attempted to draw seems to fly in the face of the one carved out by numerous courts for newspapers -- using a name or likeness in a news article is not inherently "commercial" just because the newspaper carries advertisements or is sold at retail. There must be a more direct connection between the reference and the commerce involved -- e.g., use of a name or likeness in the advertisement itself. (I'm not sure I entirely agree with those cases, e.g. the girl used to illustrate an article on drug use, but they are legion.) How did the court get around that?
6.22.2006 11:44am
Bruce:
Whoops, I meant to fact-check before posting, looks like Simon wrote the lyrics.
6.22.2006 12:03pm
Thorley Winston (mail) (www):
I think you may be omitting a rather key fact. MacFarlane wasn't just using Tony Twist's name to sell comic books, apparently it was also being used without Twist's permission to sell hockey merchandise.
6.22.2006 12:34pm
Hattio (mail):
Regarding Trout Fishing in America, there is a band named after the book. Here's a question, do folks think you have a right to keep people from naming their characters after your own literary creations (if it's obviously a different use, ie., a band named Trout Fishing in America rather than another book). If so, would the band have rights to sue Mr. America that Richard Brautigan (sp?) doesn't?
6.22.2006 12:36pm
Medis:
Al Maviva,

Of course, it was a very different intent at stake in "United States v. One Book Called Ulysses". There the issue was "pornographic intent", not something like commercial intent, and obviously one cannot suggest that there is almost always a pornographic intent intertwined with the artistic or literary purposes behind public works of art and literature (as one could instead argue with respect to commercial or economic purposes).

That said, within the limited realm of erotic art and literature, I think the same argument would in fact apply: it is pretty nonsensical to attempt to distinguish "pornographic intent" from artistic and literary purposes, because typically they will be intertwined. In that sense, the first prong of the Miller test for obscenity (whether the material "appeals to prurient interest") is arguably both useless and ill-conceived, and we should rely (if at all--the obscenity distinction may not be well-conceived in the first place) on the second two prongs.
6.22.2006 12:44pm
David Matthews (mail):
"apparently it was also being used without Twist's permission to sell hockey merchandise."

I'm not a lawyer, but I don't believe that hockey merchandise is free speech. The real Tony Twist should at least be entitled to some compensation for this, wouldn't you think? I mean, if I make up a new Hulk-like super hero cartoon character named "Shaquille O'Neal" and then start selling basketball jerseys featuring "my" Shaq's likeness, I'd think the real Shaq could sue me big time -- or just come over and step on me.

As I think about it, I'd expect he could sue me over just the comic book, especially if the character could stomp everything in sight, but can't hit the broad side of a barn from 14 feet (distance from free throw line to center of net in NBA -- I've always heard it called "15 feet" but that's the distance to the backboard -- gotta love the internet.)
6.22.2006 1:08pm
David Matthews (mail):
Correction, 13 ft, 9 inches. Forgot to subtract the distance from the back of the hoop to the backboard.
6.22.2006 1:11pm
Houston Lawyer:
How does this differ from an unauthorized biography?
6.22.2006 1:50pm
Medis:
David Matthews,

The cross-promotional part is indeed tricky. I read the 2003 case quickly, and I don't think they were directly using the Tony Twist character to promote hockey equipment. But according to the court: "At trial, Twist introduced evidence that respondents marketed their products directly to hockey fans. For example, respondents produced and distributed Spawn hockey jerseys and pucks and sponsored a 'Spawn Night' at a minor league hockey game where other Spawn products were distributed, including products featuring the character 'Tony Twist.'"

But I'm not sure why any of this is really a problem as long as hockey fans know the difference between Tony Twist the actual person and Tony Twist the Spawn character. In general, the fact that the person and the character might be "competing" in the marketplace is actually a good thing as far as I am concerned.
6.22.2006 1:54pm
Thorley Winston (mail) (www):
How does this differ from an unauthorized biography?


I guess because a professional athlete would suffer real financial harm if people are able to expropriate their name and/or likeness to put on merchandise related to their sport without their consent (as was this case) because it impairs their ability to charge others for the privilege. Why pay a hockey-player for using his name to sell hockey-related merchandise if you can simply claim a "First Amendment" privilege to use it?
6.22.2006 1:59pm
Medis:
Thorley,

Of course, it is not "expropriation" if they didn't have a property right to begin with.
6.22.2006 2:26pm
cmn (mail) (www):
My understanding is that the hockey merchandise was being given away to hockey fans to promote the comic book. It's usually the rule that if a form of speech is protected, thus allowing you to distribute it commercially, you can also use excerpts from that speech to advertise your publication. For example, there is a case about Joe Montana in which a newspaper sold posters of a photo of him in action. Since the photo was newsworthy and had appeared in the newspaper, the newspaper was allowed to do this as an ad for their publication.

Remember also that the Spawn character (which you can see here) looks nothing like the hockey player. All they have in common apart from the nickname is that they are both tough-guy "enforcers." McFarland is open about the fact that he is a hockey fan and named the character after the player. In distributing the hockey merchandise he was certainly trying to use the player's fame among those consumers to generate interest in his comic book, but why is this any worse than using a celebrity's picture on a tabloid?

What if, instead of simply naming the character after the hockey player, McFarland had written it so that the character himself was a hockey fan who chose his nickname in homage to his hero? Would that transform the use of the name into a predominantly artistic rather than commercial use?

I'd like to hear whether Eugene thinks the California "trasformative" test gets it right. It's clearly better than the Missouri test, but the California Supreme Court's discussion of the Warhol Marilyn in Saderup shows that whether a work is "transformative" or not can be pretty fuzzy as well.
6.22.2006 3:26pm
agog:
So, if you're an artist here's another reason not to live in Missouri. Terrible decision.
6.22.2006 3:45pm
Eugene Volokh (www):
cmn: I think the California transformative test is much better than the Missouri test, but is still flawed; I discuss the matter in this article.
6.22.2006 4:20pm
raj (mail):
From the post:

But here, I just wanted to repeat one observation from the brief, which I think might be illuminating for some other "It's speech! No, it's commerce!" debates.

I haven't followed the "right to publicity" doctrine that closely, but from what I could tell when I first ran across it something over 20 year ago was that it was very similar to a trademark.

Speech? Commerce? Yes to both. So are trademarks.

There are--or at least were--a few details that deviated somewhat from trademark doctrine, but not by much.
6.22.2006 5:56pm
Swordsmith (mail) (www):

"do folks think you have a right to keep people from naming their characters after your own literary creations (if it's obviously a different use, ie., a band named Trout Fishing in America rather than another book)."

Speaking as a writer (of 9 published books) and longtime editor who's run across these issues a few times:

1) You can't copyright a book title. If a band wants to name itself after a Brautigan novel (and one of my favorite books), more power to them. If you want to name your next book Hamlet, or The Bible, you are free to do so.

2) Characters are covered under copyright, but the level of protection depends to a certain extent on the quality of the writing. (There's an assumption in the case law I've read that anyone can create a wooden character). There's no particular protection for character names - any more than there's any protection against you naming your next child Tony Twist - which is one especially puzzling aspect of this case. Occasionally, a character name will be trademarked, but that's still rare in fiction (though fairly common in other media). The character of Tarzan has been trademarked by the litigious Edgar Rice Burroughs estate, for instance, which makes republishing the early Tarzan books a dicy proposition even though they are within the public domain.

There's much less of a high/low art distinction among most commercial writers than you might think. I'm proud of the literary quality of my books, but I absolutely write with the intent to make money. By the same token, Shakespeare wrote to make money - and when he had all the money he wanted he built a big house and never wrote another word. No one sees that as diminishing Shakespeare's work.
6.22.2006 6:53pm
Steve Brady (mail) (www):
Why bother with the first amendment? Why not just overrule White v. Samsung Electronics America, Inc. and say that the right of publicity law is preempted?
6.22.2006 7:17pm
cmn (mail) (www):
Thanks for the article, Eugene.

To respond to raj: If ROP were really like trademark--i.e., it only applied where the use created a likelihood of confusion as to whether or not the celebrity actually endorses a particular product--then it would be far less objectionable. But it has been held to apply far beyond that, so that the celebrity has a cause of action anytime their "identity" is called to mind in the process of selling something. Like naming a portable toilet "Here's Johnny," or showing a robot doing Vanna White's job in the year 2010. Personally, I think the best opinion in this area so far is the one the 10th Circuit gave in the Cardtoons case, where they recognized that celebrity identities become part of the cultural vocabulary and can be used as vehicles for commentary on society.
6.22.2006 7:25pm
The Voice of Reason (mail):
Medis:

In future postings, I would appreciate if you not use the abbreviation TVOR. "Voice," "Reason," "Voice of Reason" — pick one. But TVOR I find personally offensive.

Medis wrote: "I think Professor Volokh's point, which is absolutely correct, is that there is nothing wrong with people doing something literary with an economic purpose in mind." One could easily agree that there is nothing wrong with doing something literary with an economic purpose in mind, unless, of course, it is stealing. Stealing, like any crime, requires both a mens rea and an actus reus. That an inquiry into stealing would contain both an analysis of an act and the intent to commit that act does not render it judicially unworkable; all criminal laws in the Anglo-American tradition are so bifurcated. Of course literary works are compatible with the economic incentive provided by the Copyright and Patent Clause; for that reason, the reference to the Copyright and Patent Clause is not in passing, or for rhetorical flourish (!!); it is directly on point: Volokh's amicus cites to Eldridge v. Ashcroft.

The point is that the Copyright and Patent Clause does not serve to promote stealing, it serves to promotes originality and invention. While you clearly have a distaste for state grants of monopoly power, let's hope you do not similarly hate originality and invention; in the context of copyrights and patents the grant of monopoly power for a fixed term is compensation for the research and development costs of bringing the product, literary or not, to market. You get to exclude others because, as I mentioned above, exclusion is what enables you to generate all the profit you rightfully deserve. After all, in a world of infinite piracy, few, if any, have the economic incentive to invent in the first place, to our society's loss. So it is quite significant to determine whether Todd McFarlane is engaged in invention or stealing.

Let's say that Professor Volokh loses on the first question — Did Todd McFarlane steal?; Volokh can still "win" by arguing there is no precedent for the damages award, because Tony Twist's claimed right to publicity of his name is a virtually non-existent right that has little, if any, value (i.e., TT did not invent his own name). In principle, however, that is a loss. It is one thing to say you have not stolen; it is another to say your theft is so de minimis the courts should ignore it because the costs of adjudicating claims like it outweigh the benefits of adjudicating them in the long-run (which is not even a clear winner here, given that courts perform iniquiries of this sort quite often and unoriginal expression is not privileged under the Copyright and Patents Clause). So, I do not think you have reconstructed Professor Volokh's argument very well; if anything, you have conceded the weakness of his position.

Before Professor Volokh posted his article, I would have said "if you were to make a First Amendment argument that this ruling somehow unnecessarily chills speech, I might be amenable to that," but now I have changed my mind. The facts of this situation do make it seem like commercial advertising, which receives the least First Amendment protection against government regulation/suppression of speech. But we also are talking about two private parties here, Tony Twist vs. Todd McFarlane. Todd McFarlane isn't suing a legislature for passing a "right to publicity" law; Tony Twist is suing Todd McFarlane for stealing. I suppose one could argue that the judge-made decisional rule is state action, but that is a weak argument. You just won't persuade anyone that this is a case involving racially restrictive covenants. So, you have an established right that Tony Twist is asserting, a really weak argument for state action, and even if the First Amendment does apply, you have Todd McFarlane asserting the weakest of First Amendment rights possible as a defense against a party who is not the cause of the alleged deprivation. I'm just not buying Todd's argument, even as well as Prof. Volokh pleads the case.

If one is truly interested in the economic structure of intelletcual property law, instead of reading a hackjob written by special-interests, try The Economic Structure of Intellectual Property Law, by Richard Posner and William Landes. It was just cited to favorably here: http://wid.ap.org/scotus/pdf/04-607P.ZD.pdf.
6.22.2006 11:20pm
logicnazi (mail) (www):
Huh, was that a joke about TVOR? Does it have some meaning I'm not aware of? I did a search on the internet and the only results I found were for some guy who calls himself the voice of reason (you?) using the abbreviation and omnidirectional radio.

If you don't mind could you explain why it is offensive.
6.23.2006 1:12am
Eugene Volokh (www):
TVOR: I do hope you're joking about your being offended by being called TVOR.
6.23.2006 1:29am
The Voice of Reason (mail):
Well, I mean, it's my name. ;)
6.23.2006 1:33am
cmn (mail) (www):
A few points, Voice:

1) The Copyright and Patent Clause is irrelevant to the Twist case, which involves neither. Congress has never enacted any protection for the "right of publicity." Ten states have done so, and eighteen (including Missouri) have recognized some form of it as a matter of common law. While the right has taken the form of a quasi intellectual property right, it actually evolved out of cases applying the privacy doctrine launched by Warren and Brandeis's landmark article in 1890.

2) It is highly debatable whether the economic incentive rationales for IP (such as those of P&L) could justify the right to publicity, which does not depend on one's having created anything useful. In most jurisdictions it applies whether or not one is famous, and even where predicated on "celebrity" status, it takes no account of the reasons for one's fame. Moreover, even if you wish to regard the cultivation of personal fame as something akin to "progress of science and the useful arts," I think it is difficult to argue that without this doctrine people would lack the incentive to seek fame. Rather, you need to explain why we should see to it that once someone is famous, he is the exclusive beneficiary of any commercial value stemming from the fact of his familiarity to the public.

3) In its original and most defensible form, the right to publicity prohibits only the use of someone's name or image to advertise goods or services without consent. I'm not sure that "stealing" is quite the right word here, but I do think there is a strong moral intuition shared by most people that such acts are wrongful, at least where (as in all the early cases) the use suggests falsely that the person in question has chosen to associate him or herself with the product in question. This is the quasi-tradmark rationale for ROP, and arguably we'd be better off scrapping ROP and simply amending the Lanham Act so that individuals would have standing to bring 43(a) claims under this theory.

4) I don't think the facts of the Twist case fall clearly into the above category at all. IF McFarlane had simply started selling "TOny Twist" hockey pucks, your position would be much stronger. But McFarlane did not create Spawn in order to capitalize on Twist, nor did his character Tony Twist constitute a straightforward appropriation of the hockey player's persona. Go to this link and read about the character. It is not just an excuse to throw Twist's name around, but a full-fledged literary creation that has nothing in common with the real person but the name and the "enforcer" image.

5) There are several cases holding (rightly) that the mere use of a name is not a violation of the right to publicity unless you are thereby invoking the person's identity. E.g., the carver of duck decoys by the name of T.J. Hooker who sued over the TV show lost, because Shatner's character had nothing to do with him. Nobody owns a name, and it is not "stealing" to use one--otherwise every parent would have to invent new words to attach to their offspring.

6) This is a closer case than T.J. Hooker, because McFarlane admittedly was referencing the hockey player in his choice of name. Just like parents who name their kids after famous people whom they admire. But I don't think McFarlane was appropriating Twist's identity. There has to be a distinction between referencing and appropriating, and if you recognize that distinction, I think the Spawn character clearly falls on the former side of it. To fall on the latter side, I think you have to give the impression that the individual is actually involved in your use--such as when they made a Fritos commercial with someone impersonating Tom Waits' voice so well that people thought he had actually sung for it.

7) The use of the hockey mrketing paraphernalia is another factor that brings this case closer to the line. But McFarlane wasn't in the business of selling hockey goods. He used the hockey goods merely to draw attention to his literary work. The initial use of the name was not for purposes of commercial advertising, and the other uses were solely to advertise the literary use. As I noted in an entry above, such uses are usually protected.
6.23.2006 2:43am
The Voice of Reason (mail):
1. "The Copyright and Patent Clause is irrelevant to the Twist case." Hmm, I don't think they're irrelevant. You can focus on the right of publicity of Tony Twist. You can focus on the background norms that suggest it shouldn't be there -- e.g., it cuts into Todd McFarlane's copyright protection for his character. I never stated that the right to publicity emanates from the CP Clause: that's just a straight-up wild and nutty distortion of my argument.

2. "I'm not sure that "stealing" is quite the right word here, but I do think there is a strong moral intuition shared by most people that such acts are wrongful, at least where (as in all the early cases) the use suggests falsely that the person in question has chosen to associate him or herself with the product in question." Expropriation is stealing. Piracy is stealing. I recognize this is not a criminal case. That doesn't mean stealing isn't the right word, i.e., expresses the relevant concept best. Everyone groks what I mean. (I'll note that I only referenced crimes to discuss judicial workability).

3. "Nobody owns a name, and it is not "stealing" to use one--otherwise every parent would have to invent new words to attach to their offspring." I never made this argument, except in the joke I just made to Prof. Volokh. I think it's disingenous to take that joke and pretend I ever seriously made that argument. I didn't.

4. "To fall on the latter side, I think you have to give the impression that the individual is actually involved in your use--such as when they made a Fritos commercial with someone impersonating Tom Waits' voice so well that people thought he had actually sung for it." Given all the product placements in comics, I think there's an argument to be made the average kid reading Spawn would think there's a tie-in.

5. "But McFarlane wasn't in the business of selling hockey goods." He doesn't need to be.

6. "But McFarlane did not create Spawn in order to capitalize on Twist, nor did his character Tony Twist constitute a straightforward appropriation of the hockey player's persona." That's a fact question. That doesn't mean the test developed by the Missouri Courts is invalid or that its legal foundations are unsound. And, went to the link. I disagree with you. I'm even more convinced of my position now.
6.23.2006 2:56am
The Voice of Reason (mail):
Oh, and please just call me God from now on.
6.23.2006 3:34am
Medis:
God,

I apologize for "TVOR", although I am also unclear as to why you would find that offensive (and it is somewhat of a convention around here to shorten multiple-word screen names into acronyms).

Anyway, I can't add much to cmn's thoughtful analysis. I'd just reiterate a general point: it isn't "expropriation" or "stealing" unless the person had a property right to begin with. And what many of us are suggesting is that it is far from clear that there is a sufficient justification for giving famous people expansive property rights over their names, likenesses, and so on.

As an important sidenote, the mere fact that the famous person could profit if they did have such expansive property rights does not show that they should have such expansive property rights. As the articles I suggested above explain, the conditions that make such profits possible are generally harmful. In that sense, not liking state-enforced monopolies is not just a matter of taste on my part: there are demonstrable anti-competitive harms in the form of deadweight losses, and other losses as well.

As you observed, though, we do sometimes think that these harms are an acceptable price to pay, insofar as the resulting profits to the individual with the monopoly are necessary to spur investment in creation and invention (although I would note there are some problems with this theory as well, which tends to ignore the problem of overinvestment). But insofar as these profits are not necessary to incentivize investment in this sense--as they almost surely are not when it comes to people investing in becoming famous--then there is no such justification for giving people this property right.

And that is again part of the point of the articles that I suggested. The economic rationale for "intellectual property" rights is limited, and so we should be limiting such property rights to those cases where the rationale actually applies. But the rhetoric of property rights seems to be leading people to expand "intellectual property" rights beyond those limits, at least insofar as people make intuitive arguments based on the desire to avoid "stealing" (which, again, overlooks the need to justify the "stolen" property right in the first place).

So, I do think it makes sense to change our rhetoric, in order to avoid this assumption of a property right when the rationale may not apply. Whether you want to call it "author's welfare" (Bell's term), or "state-enforced monopolies" (my preferred term), or something else, it might be helpful to stop calling it "intellectual property". Similarly, to help us keep in mind the limited rationale for these property rights, it might be best to avoid "stealing" as the term for interference with this scheme, and stick with something like "infringement"--or, even more neutrally, simply "competition".
6.23.2006 8:28am
Eugene Volokh (www):
Medis: No need to apologize for using the abbreviation TVOR; I'm pretty sure he's joking.

If he's not, there's still no need to apologize, for the reasons made clear (intentionally or not) by TVOR's "please just call me God" post. If I want you to call me "The All-Seeing and All-Wise," that doesn't mean that you have any obligation to do so.
6.23.2006 11:16am
cmn (mail) (www):
On point 4, I think there's something of a circularity problem with our baseline expectations. IOW, whether consumers assume that a given reference to a celebrity implies that celebrity's endorsement depends on whether they think that use would be legally allowed to take place without the celebrity's consent. Note though, that this problem usually doesn't exist when the use in question parodies, criticizes, or otherwise disparages the celebrity, because most people don't assume that the celebrity gave consent to this. I doubt anyone is scratching their head wondering whether Tom Cruise agreed to appear in the Scientology episode of South Park, for example. This fact too then, militates against Voice's take on the Twist case. If you regard the mafia character as predominantly an appropriation of Twist's identity (a characterization I still find difficult to credit), it is such a negative portrayal of him that one would not assume him to have consented to it.
6.23.2006 11:40am
Medis:
Professor Volokh (AKA "The All-Seeing and All-Wise"),

I also suspect that there is some odd joke going on here that I don't really get. But--and although I don't think this sentiment is in any way binding on anyone else--I somewhat feel that as an "anonymous" commentator myself, I should provide people the courtesy of calling them by whatever name they want to be called by (barring something truly outrageous or burdensome). And frankly, it doesn't exactly reflect well on someone if they demand to be called "God", so I see no harm in playing along.

But perhaps the "joke" is actually on me, for being accomodating in this fashion. Fortunately, I can take a joke.

cmn,

That is an excellent point. Frankly, I sometimes wonder if we could take care of the endorsement problem just on a fraud/misrepresentation theory. In other words, it seems like we could simply have a rule that people can't lie about whether a public figure actually endorsed their product.
6.23.2006 12:59pm
The Voice of Reason (mail):
Medis: In other words, it seems like we could simply have a rule that people can't lie about whether a public figure actually endorsed their product.

Or, we could simply deny full copyright protection to those who steal by allowing suits for right of publicity.
6.25.2006 6:10pm
The Voice of Reason (mail):
If you regard the mafia character as predominantly an appropriation of Twist's identity (a characterization I still find difficult to credit), it is such a negative portrayal of him that one would not assume him to have consented to it.

That isn't true at all. Shaq agreed to appear in Kazaam. Celebrities make bad career moves all the time.
6.25.2006 6:13pm
The Voice of Reason (mail):
Medis: And what many of us are suggesting is that it is far from clear that there is a sufficient justification for giving famous people expansive property rights over their names, likenesses, and so on.

But the fact is that the right of publicity exists, and what I have made clear is that Todd McFarlane doesn't have much of a legal argument for eliminating the right of publicity. The harder argument to make is yours, and you haven't made it yet!
6.25.2006 6:16pm
The Voice of Reason (mail):
But the rhetoric of property rights seems to be leading people to expand "intellectual property" rights beyond those limits, at least insofar as people make intuitive arguments based on the desire to avoid "stealing" (which, again, overlooks the need to justify the "stolen" property right in the first place).

No, this distorts my claim. My point is that Todd McFarlane receives copyright protection for his character. Because he is doing something that doesn't fit with the economic incentives for awarding copyright protection, i.e., to promote invention and originality, the argument is it's justified to give him less copyright protection than someone whose activities fully fit with the economic incentives behind the copyright clause, i.e., inventing original stuff.

If the right to publicity is simply a carve-out from McFarlane's copyright protection on that basis, then McFarlane needs to justify why he should be given as much copyright protection as someone who invents original material. Hence, the "predominantly a ploy" test.

Stealing is the best term for what McFarlane is doing, because it prevents us from commiting your error of trying to shift the burden to the wrong party. The point is not that Twist has property rights; the point is that McFarlane has less copyright protection than the ordinary recipient of copyright protection.
6.25.2006 6:26pm
The Voice of Reason (mail):
Just to clarify, the states are free to regulate where the federal government has not regulated, so if there is a gap in McFarlane's copyright protection, there is no reason the states cannot grant a right to publicity to Tony Twist where that gap exists. There reason there is a gap in McFarlane's copyright protection is because his character is not purely inventive.
6.25.2006 6:28pm
The Voice of Reason (mail):
That is, it was a predominantly a ploy to sell comics at Tony Twist's expense.
6.25.2006 6:34pm
The Voice of Reason (mail):
Let me make it simpler: why should Todd McFarlane have the right to exclude Tony Twist from profitable use of his own name (to endorse products, etc.)?
6.25.2006 7:04pm