January 14, 2004

• I think if your name is a brand or if there could be any confusion if the fictional character is you or not, then people shouldn't be able to use it. This hockey player has a weak case, but his name could be considered a brand. I think it would probably be best and err on the side of caution if there's any doubt.
• I would have thought the issue was one of defamation. Were intellectual property arguments made in this case? I assume it was never suggested that copyright law (per se) was applicable.
• The comic book character, Antonio Twistelli (aka Tony Twist), is a mafia-type bad guy. The hockey player Tony Twist racked up all of 10 goals in his pro hockey career while amassing 1121 penalty minutes. I think Twist's good name is more damaged by reality than by sharing a moniker with a comic villain. Has something like this ever come up before? Has a movie/TV show/novel ever created a character with a "famous" name? What would be the legality of a fictional work featuring a pedophile named "Michael Jackson" or a bumbling idiot named "George W. Bush"?
• Bloody Todd McFarlane spends all his time in appeal courts. Is anyone else following the appeal against Neil Gaiman for Medieval Spawn?
• rocket88, I believe that if you can prove in those cases that it's "satire", then it's called Fair Use. That applies for written works and possibly music, I believe. But in that case I also imagine Jackson would win a defamation lawsuit, if he was willing to get up and prove that the pedophile MJ was meant to be him.
• Tracicle, I agree that fair use exists for satire, but what if the Michael Jackson character was a 60 year-old white schoolteacher from Minnesota? i.e. What if there's no indication that it's meant to be "the" Michael Jackson, but just shares the same name. That's more like the Tony Twist case. McFarlane has even admitted that he named the character after the hockey player, but that doesn't mean he based the character on him. Maybe he just liked the name.
• Michael Jackson is a common enough name that it would be hard to prove that a fictional character was indeed meant to be "the" Michael. (My roommate's boyfriend at college was a tall white guy called Michael Jackson, incidentally.) Tony Twist has the benefit of a) having a somewhat unusual name that people may well associate with an NHL hockey player (albeit an average one) and b) having McFarlane admit naming the character after him. The problem is that most, if not all writers draw some of their ideas from real people and events. Just because one guy admits to it doesn't mean he should suffer more than another writer.
• In the US, the general caution for screenwriters is to make sure any full name used (ie, both first and last name) has at least five or more people listed in "the phone book." Where this mythical phone book is remains a mystery to me, but the precaution is simple. The thought is, if, in your script, you have an evil crime lord named John Smith, no one John Smith can really be sue you for libel because they would have a near insurmountable time proving that you, the screenwriter, had malicious intent to defame that particular John Smith. (to qualify for libel, the action or art or whatnot must be deemed malicious and meant to defame said libelled person). Now, If your surly crime boss was John Higgenbottom III and there is only one John Higgenbottom III to be found through an easy search, then the real Higgenbottom might be right to be miffed as you're defaming the great Higgenbottom name. So, instead, you change your script and change John Higgenbottom to Joe Schmuckatelli, and luckily, you find there's 12 Joe or Joseph Schmuckatellis in the tri-state area alone. As long as you're not actually basing this insidious character on them (at least, in such a way that they could make a case for it), you're good to go. You'll note that films based on actual events have carefully worded disclaimers and have gone through some hoops in some cases to get key permissions so they can say a hearty "up yours" to potential lawsuits.