Nature of the Case
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Facts
During his hockey career, P became the League's preeminent 'enforcer,' a player whose chief responsibility was to protect goal scorers from physical assaults by opponents. P was notorious for his violent tactics on the ice and immensely popular with the hometown fans. He endorsed products, appeared on radio and television, hosted the 'Tony Twist' television talk show for two years, and became actively involved with several children's charities. P engaged in these activities to foster a positive image of himself in the community and to prepare for a career after hockey as a sports commentator and product endorser. McFarlane created Spawn in 1992. In 1993, a fictional character named 'Anthony 'Tony Twist' Twistelli' was added to the storyline. The fictional and real Tony Twist bear no physical resemblance to each other and, aside from the common nickname, are similar only in that each can be characterized as having an 'enforcer' or tough-guy persona. McFarlane admitted that some of the Spawn characters were named after professional hockey players, including the 'Tony Twist' character: 'Antonio Twistelli, a/k/a Tony Twist, is actually the name of a hockey player of the Quebec Nordiques.' McFarlane stated that the name of the fictional character was based on Twist, a real hockey player, and further promised the readers that they 'will continue to see current and past hockey players' names in my books.' = McFarlane is quoted as saying that he uses the names of real-life people to create the identities of the characters. It was clearly linked that Tony Twist was the entire basis for the comic character. In 1997, P became aware of the character when he was asked to sign a copy of the Wizard article in which McFarlane was interviewed, and Twist's hockey trading card was pictured. P sued McFarlane (D) and various companies seeking an injunction and damages for, misappropriation of name and defamation, the latter claim being dismissed. Ds filed motions for summary judgment asserting First Amendment protection from a prosecution of the misappropriation of name claim. Those motions were overruled. D denied everything but P introduced evidence suggesting that in marketing Spawn products, Ds directly targeted hockey fans - Twist's primary fan base - by producing and licensing Spawn logo hockey pucks, hockey jerseys, and toy Zambonis. P introduced evidence that his association with the Spawn character resulted in a diminution in the commercial value of his name as an endorser of products. One company withdrew a $100,000 offer to Twist to serve as the company's product endorser after they learned that Twist's name was associated with the evil Mafia don in the Spawn comic book. P got the verdict in the amount of $24,500,000. The circuit court overturned the verdict finding that Twist had failed to make a submissible case on the misappropriation of name count. This appeal resulted.
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