Monday, November 11, 2013

Doe a/k/a Twist v. TCI Cablevision case brief

Doe a/k/a Twist v. TCI Cablevision case brief summary
110 S.W.3d 363 (Mo. 2003)

Plaintiff, a former professional athlete, brought misappropriation of name claims against defendants, the creators, publishers, and marketers of a comic book (creators). The Circuit Court of St. Louis, Missouri, found in favor of the athlete, but granted the creators' motion for judgment not withstanding the verdict (JNOV) and, in the alternative, ordered a new trial in the event the JNOV was overturned on appeal. The athlete appealed.


The athlete sought to recover the amount of the fair market value the creators should have paid to use his name in connection with the comic book and its related promotional products. On review, the supreme court determined that the athlete's case was more precisely labeled a right of publicity action. Although the comic book character was not about the athlete, he maintained that the sharing of the same name and the common persona of a tough-guy "enforcer" created an unmistakable correlation between himself and the comic book character, which established that the creators used his name and identity.


  • The supreme court agreed, holding that the athlete presented sufficient evidence to prove his name was used as a symbol of his identity. 
  • The evidence was also sufficient to establish the creators' intent to gain a commercial advantage by using the athlete's name to attract consumer attention to the comic book and related products. 
  • Under the predominant use test, because the use and identity of the athlete's name became predominantly a ploy to sell comic books and related products rather than an artistic or literary expression, the comic book was not protected by the First Amendment.

The JNOV was reversed, the judgment granting a new trial was affirmed, the judgment denying injunctive relief was affirmed, and the case was remanded.

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