Doe v. TCI Cablevision

Supreme Court of Missouri · 2003 · Torts

110 S.W.3d 363 (Mo. 2003)

Updated July 23, 2026

TortsRight of publicityMisappropriation of nameFirst Amendmentmisappropriationidentitycommercial advantageintent

Facts

Former NHL player Tony Twist discovered that Spawn included a fictional Mafia villain named "Anthony 'Tony Twist' Twistelli." Although the character did not physically resemble Twist, McFarlane publicly stated in Spawn and in Wizard magazine that the character's name was based on the real hockey player, and Twist and his mother were approached by fans who connected him to the character. Twist introduced evidence that respondents marketed Spawn products to hockey fans, including hockey-themed merchandise and "Spawn Night" promotions, and claimed his name's endorsement value was harmed. The jury awarded Twist damages, but the trial court later ruled he had failed to make a submissible case and entered JNOV.

Issue

Whether Twist made a submissible right-of-publicity case by showing that respondents used his name as a symbol of his identity without consent and with intent to obtain a commercial advantage, and whether the First Amendment nonetheless barred the claim. A further issue was whether the trial court properly granted a new trial because the verdict director misstated the commercial-advantage element.

Rule

A Missouri right of publicity claim requires proof that the defendant used the plaintiff's name as a symbol of the plaintiff's identity, without consent, and with the intent to obtain a commercial advantage. Not all uses of another's name are tortious; liability arises when the defendant pirates the plaintiff's identity for advantage, and incidental commercial benefit is not enough without intent. When speech has both expressive and commercial features, First Amendment protection yields if the predominant use is to exploit the commercial value of the person's identity rather than to make an expressive comment.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Chicago, graphic novelist Evan Shore created a crime comic featuring a brutal debt collector named "Milo Vark." A retired baseball enforcer named Milo Vark sued after Shore told readers in the comic's letters page that the character's name came from the former player and fans later asked the player to autograph cards depicting the villain.

Assuming the player did not consent, which is the strongest argument that he has satisfied the identity element of a right-of-publicity claim?

Explanation. The plaintiff must show the defendant used the plaintiff's name as a symbol of the plaintiff's identity, not merely as a name. The key question is whether the audience would understand the name as referring to the plaintiff. Creator admissions and evidence of actual public identification strongly support that element; physical resemblance and biographical similarity are helpful but not required. (Derived from Doe v. TCI Cablevision (2003).)