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Comic book caricatures protected by First Amendment

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Comic book caricatures protected by First Amendment

  • The state Supreme Court ruled in favor of DC Comics in a case brought by two musicians under California’s right of publicity law.

June 3, 2003 — The California Supreme Court yesterday rejected on First Amendment grounds a claim brought by two musicians who were caricatured in comic books published by DC Comics. The court said the entertainers, brothers Johnny and Edgar Winter, could not claim that publication of the “villainous half-worm, half-human” characters in the drawings violated their publicity rights under California law.

The caricature characters, Johnny and Edgar Autumn, appeared in three DC Comics books in 1995. The worm-like bad guys had long white hair and albino features and were eventually killed in the story by comic hero Jonah Hex.

The real-life musicians are albino and had features similar to those in the books, according to the court.

The Winter brothers, described by the court as “well-known performing and recording musicians originally from Texas,” sued under a California statute that protects celebrities’ rights of publicity. Under that law, a famous person can collect damages from anyone who, without consent, uses the celebrity’s name or image for the purpose of advertising or selling products or services.

The Winter brothers claimed the comic books portrayed them as “vile, depraved, stupid, cowardly, subhuman individuals who engage in wanton acts of violence, murder and bestiality for pleasure and who should be killed,” according to the court’s opinion.

In a unanimous decision, the court said the Winters’ claim regarding the comic book drawings could not proceed.

The decision was based largely on the court’s 2001 opinion in another case over sales of t-shirts bearing a depiction of The Three Stooges.

In that case, Comedy III Productions v. Gary Saderup Inc., the court found that a work that has creative, transformative elements — presenting more than merely an image or name of a celebrity — is protected by the First Amendment. The image of the Stooges was almost identical to a popular photograph of the trio, and the use of their images was not allowed.

The court said that in the Winters’ case, it was easy to ascertain that the drawings at issue “are not just conventional depictions of plaintiffs but contain significant expressive content other than plaintiffs’ mere likenesses.”

“Although the fictional characters Johnny and Edgar Autumn are less-than-subtle evocations of Johnny and Edgar Winter, the books do not depict plaintiffs literally,” the court wrote in its opinion. “Instead, plaintiffs are merely part of the raw materials from which the comic books were synthesized. To the extent the drawings of the Autumn brothers resemble plaintiffs at all, they are distorted for purposes of lampoon, parody or caricature … The characters and their portrayals do not greatly threaten plaintiffs’ right of publicity.”

The court did not decide whether advertising for the comic books, which may have implied that the Winters endorsed the product, violated the musicians’ publicity rights. That issue will go back to the Court of Appeal.

(Winter v. DC Comics) WT

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