By Sam Levin
By Sam Levin
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By Timothy Lane
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By Dennis Brown
The trouble started in 1993, when McFarlane wrote the character of Antonio Twistelli into Spawn, once the number-one selling comic book in the nation. The character's nickname was Tony Twist. McFarlane, a self-avowed "arrogant psycho," later admitted Twistelli was named after the real Twist. A minor player in the series, Twistelli was depicted as an obese mob boss, a brutal and arrogant figure who orders the torture and death of the comics' main protagonist, a former CIA assassin named Al Simmons.
Twist says he first became aware of the Twistelli character after receiving a tearful call from his mother. "She was really upset, crying, asking me why I was a part of it. I said, 'Mom, I have no idea what you're talking about.'"
McFarlane named a number of his Spawncharacters after NHL players, including Twist's all-star Quebec Nordiques teammate, Joe Sakic. (Al Simmons played second base for the Kamploops ball club.) Only Twist pursued legal action, though, suing McFarlane in 1997 for misappropriation of his name and defamation of character. The latter charge was soon dropped. He also sued HBO which had televised an animated version of Spawnthat featured the Twistelli character and the two parties settled out of court in 2001 for an undisclosed amount.
At the first McFarlane-Twist trial in 2000, Twist's lawyers argued that McFarlane used Twist's "persona" without permission, and that the Twistelli character caused him to lose endorsements, as well as public-speaking and broadcasting gigs.
McFarlane's lawyers argued that the character was insignificant and that Twist himself was not famous enough to suffer financially from the comics. The Twist team benefited from the vice president of a nutrition-supplement company in Colorado, who testified that the firm reneged on a deal to make Twist their pitch man after learning about the way his namesake character was portrayed.
The jury awarded Twist $24.5 million dollars, the sum of the past, present and future damages they believed had been inflicted. When the trial ended, a jubilant Twist signed autographs for the jurors.
The Missouri Supreme Court, however, determined that the jury had been given incorrect instructions and ordered a new trial, where Twist would prevail in 2004, receiving a judgment of $15 million.
The 2004 decision was upheld by the court of appeals this year. McFarlane's defense team has since petitioned the Missouri Supreme Court to review the case. If it won't, they vow to take it to the U.S. Supreme Court.
"This thing is like the Energizer bunny," says Twist. "It keeps going and going and going."
Twist's Clayton attorney, Robert Blitz, is confident that the court will reject McFarlane's petition, and says the next six months could well bring final judgment $15 million, plus 9 percent interest accrued since the second jury returned the verdict in 2004. Jocelyn would be entitled to half of the award.
Blitz gives Twist much of the credit for the legal victory.
"Tony is obviously an imposing figure, but he's a very gregarious guy, and he's one of the most naturally bright people you'll meet," says Blitz. "And because of that combination, he made a wonderful witness in this case. I would think the jurors were immediately attracted to Tony. He understood the material, understood the case. No lawyer came close to even laying a glove on him."
In 2005 Todd McFarlane Productions, the comic-book arm of McFarlane Companies, filed for Chapter 11 bankruptcy. Efforts to reach McFarlane at his office in Phoenix were unsuccessful.
Though Twist says the suit has "always been about principle" and not money, many Spawnfans and armchair legal critics were astonished to learn that a player who garnered modest-paying endorsements in his playing days actually won $15 million.
"Twist should be honored that anyone chose to loosely name a character after a nothing hockey player like himself," wrote one furious blogger. "And, secondly, even if he was defamed, is this 2nd-rate goon's character worth $15-mil?"
McFarlane's lawyer, Michael Kahn, says the case has "triggered a surprising amount of First Amendment alarms from legal experts around the country."
"That's the 'Chicken Little' defense," replies Blitz, adding that "right of publicity" the ability to market one's own name and image is at issue in the case, not the First Amendment.
Should the big check finally arrive, Twist has no plans to retire. "The devil finds work for idle hands, and I don't need the idle."
Lover-Boy TonyOn a recent evening, Tony Twist decides to take in some Soulard action. And that can spell trouble. Whenever he's out on the town, men try to fight him and women try to sleep with him. Says April Twist: "Some drunk punk comes up to him and says, 'Oh, I'll take your bar, Twister, hit me.' I'm like, 'Tony, remember where we're at.' And Tony just looks at them and laughs."
As to the women vying for Twist's attention, she adds, "I'm very secure in my relationship, and if all of these blue-collar people paid his salary for all of those years, I'm not going to be a jealous wife. That girl probably had season tickets to the Blues and made him what he is today. I look at them and I'm like, 'Those women really, truly, are in love with my husband.'"
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