Metropolitan News-Enterprise


Thursday, September 12, 2002


Page 3


State Supreme Court to Decide Whether Rock Stars Can Sue Over Comic Book


By KENNETH OFGANG, Staff Writer/Appellate Courts


The state Supreme Court yesterday voted unanimously to review a June 19 Court of Appeal ruling that allows Texas-born rock stars Edgar and Johnny Winter to sue a comic book publisher for the alleged improper use of their likenesses and personalities.

DC Comics asked the justices to determine whether the Winters’ statutory and common-law misappropriation claims are viable under a recent California Supreme Court decision dealing with “transformative” works of art.

The Winter brothers, who first achieved public acclaim in the late 1960s, are well-known in part because they are albinos—persons born with a genetic condition resulting in lack of pigmentation.

They were the inspiration for the half-worm, half-human Edgar and Johnny Autumn in the DC Comics mini-series “Jonah Hex: Riders of the Worm and Such,” which led to the lawsuit.

The late Los Angeles Superior Court Judge Ronald Cappai granted summary judgment in favor of DC Comics, concluding that the comic series was a protected parody. The Court of Appeal panel originally agreed, but changed its mind after the state high court sent the case back for reconsideration in light of Comedy III Productions, Inc. v. Saderup (2001) 25 Cal.4th 387.

The Comedy III court upheld a judgment in favor of the company that holds licensing rights for the Three Stooges. It held that while the First Amendment protects a work that is transformative—one that adds a new message to the original work, like Andy Warhol’s famous works depicting celebrities such as Marilyn Monroe, Elizabeth Taylor and Elvis Presley—it does not guarantee the right to make commercial use of “a mere celebrity likeness or imitation.”

The court ruled while artist Gary Saderup’s charcoal drawing of the Stooges was protected, the reproduction of the drawing on other items, such as T-shirts, was not.

Div. Four Justice J. Gary Hastings wrote in June’s  Winter ruling that the plaintiffs had produced sufficient evidence to go forward on their claim that the DC Comics series was not transformative or a mere parody.

He noted that the rockers were mentioned by name in promotional material for the comic book, suggesting that DC was “trading on appellants’ likenesses and reputations to generate interest in the upcoming releases and to garner sales,” rather than poking fun at the Winters or their music.

In another case considered at yesterday’s conference, the justices rejected a new trial bid by a San Diego man who smothered his wife of 29 years with a pillow, then quietly married another woman. They denied George Wenzel’s petition to review a Fourth District Court of Appeal ruling, affirming his conviction of second-degree murder.

 San Diego Superior Court Judge William Mudd sentenced Wenzel to 15 years to life in prison, saying he didn’t believe the defendant’s claim that Lyn Wenzel wanted him to end her life because she was in constant pain.

The appeals court’s Div. One affirmed the conviction in an unpublished opinion June 7, holding, among other things, that Mudd was correct in ruling there wasn’t enough evidence to support a manslaughter/heat-of-passion instruction. Only Justice Joyce L. Kennard voted yesterday to grant review.

Wenzel walked into the downtown San Diego police station on July 20, 1999, asked to speak to a homicide detective, and, when greeted by a police sergeant, handed him a note.

The note said that he and his wife “have had a pack [sic] that we would help each other end [our] life when the time had come.” After she “took many [sleeping] pills with dinner,” the note said, she went to sleep and Wenzel “went up and stopped the breathing.”

Wenzel added:

“I did this because she is the love of my life and I wanted to stop the pain and suffering. I have no regrets because this is what she wanted. My pain and suffering will start now and last the rest of my life. Her body is in bed upstairs at 4072 Loma Riviera Circle.”

Prosecutors vigorously attacked the “mercy killing” claim. They presented witnesses who insisted that despite her ailments, 57-year-old Lyn Wenzel continued to work, planned a vacation, looked forward to retirement, and otherwise maintained an active life, swimming in the condominium complex pool just hours before she died.

No one testified that either George of Lyn Wenzel had ever spoken to them of a suicide pact, the prosecution emphasized as it pounded away at the fact of Wenzel’s remarriage within three months of her death and his efforts to conceal it.

In upholding Mudd’s decision not to instruct jurors on a heat-of-passion theory, the appellate court said the argument was inconsistent with Wenzel’s claim of a suicide pact.

The defendant, Justice Gilbert Nares wrote, “cannot show that Lyn did anything that was sufficient to provoke a reasonable person toward lethal passion.”

He rejected the defense contention that the cumulative effect of his own mental stat his wife’s poor health and her alleged desire for assistance in ending her own life was sufficient to place the issue before the jury.

“A provocation that is of so little consequence that it would not impair an ordinarily reasonable person’s ability to form malice is not sufficient to reduce a killing from murder to manslaughter,” Nares wrote.


Copyright 2002, Metropolitan News Company