$24.5 million dollars. The trial court entered a judgment notwithstanding the verdict on the grounds that Twist had not made a submissible case. On appeal, the Missouri Supreme Court concluded that Twist had in fact made a submissible case. The court, however, remanded the matter based on an instructional error. Upon retrial, the jury awarded Twist $15 million dollars. The defendants filed an appeal asserting, among other things, that their use of Twist's name was protected speech under the First Amendment. The Missouri Court of Appeals, Eastern District affirmed the judgment of the trial court. Doe v. McFarlane, 2006 WL 1677856, - S.W.3d -(Mo.Ct.App.2006). 9 . Use of a plaintiff's name, however, must be more than ''incidental” to violate the right of publicity. TCI, 110 S.W.3d at 375 (<HOLDING>). The court in Henley, 46 F.Supp.2d at 594 n.
recognizing protection against appropriation for the defendants advantage of the plaintiffs name or likeness holding that when regulations are intended to have different purposes and are not dependent on each other they are not intertwined holding that the right of publicity is descendible holding that rules of contract construction are to be applied where the language used is ambiguous holding that when a plaintiffs name and identity are used without intent to obtain a commercial advantage but where they are used for some other purpose the use is incidental and does not violate the right of publicity