South-Western Legal Studies in Business

Misappropriation-of-Name Tort Not Same as Right-of-Publicity Tort
Description Missouri high court held that when the name and likeness of a well-known person is used for commercial purposes, the tort is right-of publicity, which is misuse of name for commercial purposes, not misappropriation-of-name, which involves misuse of name that violates personal dignity.
Topic Intellectual Property
Key Words Misappropriation; Right of Publicity
C A S E   S U M M A R Y
Facts Tony Twist played professional hockey in the NHL for 11 years. A comic book, titled Spawn, had a villain in it with the same name. Twist sued the creators, publishers and marketers of Spawn for misappropriation of his name. The jury awarded Twist $24.5 million. The judge granted defendants' motion for judgment notwithstanding the verdict. Twist appealed.

Reversed in part. Twist's action to recover the fair market value that the comic book creators should have paid to use his name in connection with their products and for damage done to the commercial value of his name is a right-of-publicity tort, not a misappropriation-of-name tort. The "name tort" protects against intrusion upon an individual's private self-esteem and dignity, while the "publicity tort" protects against commercial loss caused by appropriation of an identity for commercial exploitation. While the name tort may involve damages for emotional distress, that is not the case in the publicity tort, where the damage is the pecuniary loss to the plaintiff or the unjust pecuniary gain to the defendant. Twist's case may proceed on that basis.

Citation Doe v. TCI Cablevision, --- S.W.3d --- (2003 WL 21783708, Sup. Ct., Mo., 2003)

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