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If a product is being sold that predominantly exploits the commercial value of an individual's identity, that product should be held to violate the right of publicity and not be protected by the First Amendment, even if there is some "expressive" content in it that might qualify as "speech" in other circumstances. If, on the other hand, the predominant purpose of the product is to make an expressive comment on or about a celebrity, the expressive values can be given greater weight.
Appellant Anthony Twist was a former professional hockey player in the National Hockey League. After learning of the existence of a comic book that contained a villainous character sharing his name, appellant brought misappropriation of name and defamation claims against respondents, the creators, publishers and marketers of the comic book and related promotional products. Respondents defended on First Amendment grounds. The circuit court dismissed the defamation count, but allowed the misappropriation of name count to go to trial, which resulted in a jury verdict in favor of the appellant in the amount of $24,500.00. The circuit court, however, granted respondents' motion for judgment notwithstanding the verdict and, in the alternative, ordered a new trial in the event that its judgment notwithstanding the verdict was overturned on appeal. A request for injunctive relief was also denied. The present appeal followed.
Could the respondents validly use the First Amendment as a defense against the appellant’s action?
On review, the supreme court determined that the appellant’s case was more precisely labeled a right of publicity action. Although the comic book character was not about the appellant, 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 appellant 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 appellant’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 appellant’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.