Here's a message I received from Glenn Adams…
I very much enjoy your blog. I just have to see if you have an opinion on McFarlane's problems and The Aviator.
What Glenn's referring to vis-a-vis "McFarlane's problems" is that Todd McFarlane, comic book artist and creator of Spawn, has just filed for Chapter 11 bankruptcy protection. You can get the details by clicking here or here. I suspect that, even if he has to pay the full $15 million plus all his court costs, Todd will be far from "bankrupt" in the sense that laymen use that word. This Chapter 11 filing is probably a strategic move to protect certain assets and to pressure Twist to accept a lesser amount in settlement.
In any case, as I've said here all along, I think Todd is more in the right than in the wrong on this. The infringement seems slight to me, the dollar amount seems excessive, and the net effect will be to broaden the way in which a Public Figure will seem immune from parody and criticism.
It's odd that you mention The Aviator in the same query. I haven't seen it yet but I'm very interested in Howard Hughes, and I even see a connection here. Hughes hated to have anything written about him — accurate, inaccurate, flattering, libelous…it didn't matter to him. He recoiled at the sheer act of anyone publishing anything that referred in any way to him, and he told his lawyers to spare no expense to prevent it. Throughout the fifties and into the early seventies, they were remarkably successful. Many authors set out to write books about Hughes and only a few, insignificant paperbacks made it into print. In some cases, would-be biographers and reporters were bought off with cold cash, which I suppose is not a threat to Free Speech. In other cases, the Hughes lawyers threatened very costly litigation (costly for the person being sued, natch) based on what they called "The Joe DiMaggio Bat Theory."
Their theory was that if you wanted to manufacture a baseball bat with Joe DiMaggio's name on it, you had to go to Joe DiMaggio, get his permission and pay him a fee. Hughes's attorneys were prepared to go to court to argue that the same principle applied if you wanted to make money off a book about Howard R. Hughes. Needless to say, their assertion was never tested in any court…but books and magazine pieces were actually cancelled by cautious publishers. They were afraid that some jury would get steam-rollered into ruling for Hughes, or that the billionaire would expend sufficient funds to keep the thing going for a long, expensive time. (Before you think that's unlikely, remember how far Jerry Falwell got with a lawsuit that argued he was entitled to damages because a parody by Larry Flynt had caused him "emotional distress." It cost Flynt an awful lot of money and stress to win that case.)
The analogy to the McFarlane case is, admittedly, not exact. Still, if the Twist judgment stands, it's going to scare a lot of authors and artists off from doing things that might prompt some public figure to sue, claiming an infringement on his or her right to merchandise his or her name or likeness. I'm usually skeptical of "slippery slope" arguments but this one seems more slippery than most. I don't like seeing Todd lose this one and I have the feeling that if he does, this case is going to be the keystone precedent in several that will be less arguable in terms of eroding the First Amendment.