About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

Listen to the weekly audio edition on IT Conversations:
The Importance Of ... Law and IT.

Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T

Amazon Honor System Click Here to Pay Learn More

In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

The Importance of...

« On Walden | Main | Digital Millennium Competition Avoidance (DMCA) »

July 12, 2004

Comic Book Free Expression

Posted by Ernest Miller

One might not think it, but comic books have not only become a major cultural force through movies, but have led to some extremely interesting intellectual property and free expression cases. Anymore cases and comics will soon have to have their own chapter in the lawschool textbooks right next to the chapter on Scientology.

In the last few years, there have been a number of obscenity charges against comic books (see, Comic Book Legal Defense Fund: Casefiles). There have also been some extremely interesting intellectual property cases. For example, there was the Winter Brothers case, in which the famous blues musicians sued a comic book publisher and its artists for their portrayal in a comic book as half-worm/half-man creatures (citing right of publicity issues among others) (California Supreme Court Rules Jonah Hex Comic Entitled to First Amendment Protection).

Comic book artist turned cultural entrepreneur Todd McFarlane is most famous for his creation of the multimedia character Spawn. He is also famous for his additions to the comic book lawsuit canon. Earlier this year an important decision regarding the ownership of comic book characters was decided against him. Interesting issues include the statute of limitations for copyright and copyright for a joint creation. Scrivener's Error has a good summary (Character Defects).

The second case of interest is hockey player Tony Twist's lawsuit against McFarlane for using Twist's name for a comic book mafia boss. The case was thrown out twice, by a Missouri district court and the state appeals court, but was reinstated by Missouri's Supreme Court. An appeal to the US Supreme Court was denied.

The case raises important First Amendment issues regarding the use of the names of public figures in works of art, so it is unfortunate that the St. Louis Post-Dispatch reports the second jury trial goes against McFarlane (Tony Twist wins $15 million verdict). The AP also has wirestory regarding the decision (Tony Twist wins battle over name). Of course, the case isn't over yet, as McFarlane intends to continue to appeal.

via How Appealing

UPDATE Prof. Eugene Volokh, who wrote an amicus in the case, has some informative comments (Naming a character after a famous person costs writer $15 million).

Comments (3) + TrackBacks (0) | Category: Freedom of Expression


1. Seth Finkelstein on July 12, 2004 04:47 AM writes...

"extremely interesting intellectual property cases"

There's a HUGE number. Just offhand:

Superman vs. Captain Marvel, for copyright infringement

Superboy as derivative work of Superman

The "all-right-sold" status for the creators of Superman (one of them really did end up working for a while as a messenger-boy in the building of the corporation which owns the character).

The ownership rights of legendary Marvel Comics creator Jack Kirby

The ownership rights over "reversion" for Captain America

The who-owns-what saga that is Alan Moore's "MiracleMan"

By the way, many of these cases seem to have the general theme of "artist gets nothing from megaprofitable creation, corporation takes it all".

Permalink to Comment

2. Rolo Timassie on July 13, 2004 02:52 PM writes...

Don't forget the Superman v. Greatest American Hero case, in which the ABC television show's scripts had to be reviewed each week to make sure that the hero was sufficiently bumbling not to be confused with Superman.

Permalink to Comment

3. Ernest Miller on July 13, 2004 03:21 PM writes...

Forgot about that one. Good point.

Permalink to Comment


Email this entry to:

Your email address:

Message (optional):

Kitchen Academy - Course II - Day 23
Kitchen Academy - Course II - Day 22
Kitchen Academy - Course II - Day 21
Kitchen Academy - The Hollywood Cookbook and Guest Chef Michael Montilla - March 18th
Kitchen Academy - Course II - Day 20
Kitchen Academy - Course II - Day 19
Kitchen Academy - Course II - Day 18
Salsa Verde