S.C. Tosses Rock Stars’ Suit Over Depiction in Comic Book

Tuesday, June 3, 2003

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S.C. Tosses Rock Stars’ Suit Over Depiction in Comic Book

By KENNETH OFGANG, Staff Writer/Appellate Courts

The California Supreme Court, citing the First Amendment, yesterday tossed out a suit by Texas-born rock stars Edgar and Johnny Winter, who claim their likenesses and personalities were improperly utilized by a comic book publisher.

The justices, in a unanimous decision, held that DC Comics would be deprived of its free speech rights if it could be held liable for a parody “depicting fanciful, creative characters” incorporating some elements of the musicians’ personae.

In doing so, the justices—in an opinion by Justice Ming Chin—overruled Div. Four of this district’s Court of Appeal and distinguished their earlier decision in 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 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.

Balancing Test

But the Winters’ suit against DC Comics falls on the other side of the balancing test, Chin said. “We conclude that, in contrast to a drawing of The Three Stooges, the comic books do contain significant creative elements that transform them into something more than mere celebrity likenesses” and are entitled to constitutional protection, Chin said.

The comics mini-series “Jonah Hex: Riders of the Worm and Such” attributed a number of villainous deeds to the half-worm, half-human Edgar and Johnny Autumn, leading the Winter brothers to sue not only for misappropriation of their personalities, but also for defamation.

The late Los Angeles Superior Court Judge Ronald Cappai granted summary judgment in favor of DC Comics. The Court of Appeal, in its first decision in the case, affirmed in an unpublished opinion by Justice J. Gary Hastings.

The justice said the series was protected as parody, citing Hustler Magazine v. Falwell (1988) 485 U.S. 46. In that case, the Supreme Court applied First Amendment protection to a magazine piece which used a play on a well-known series of liquor ads to suggest that activist Jerry Falwell had engaged in incest with his mother.

The high court granted review, however, and sent the case back to the Court of Appeal for reconsideration in light of Comedy III.

Defamation Claim Rejected

On remand, the Court of Appeal again threw out the defamation claim, saying no reasonable person would treat the comics as a reflection on the real-life activities of the Winter brothers. But a jury might believe that the brothers’ personalities had been exploited for commercial gain, like the Three Stooges images, Hastings concluded.

The Winters, 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. The Autumn brothers are depicted with long, white hair—a trademark of the Winters—and the series brought protests from the National Organization for Albinism and Hypopigmentation, which filed an amicus brief supporting the Winters.

But Chin said the case was an easy one under the Comedy III test.

“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 justice wrote. “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. And the Autumn brothers are but cartoon characters—half-human and half-worm—in a larger story, which is itself quite expressive.”

Chin continued:

“The characters and their portrayals do not greatly threaten plaintiffs’ right of publicity. Plaintiffs’ fans who want to purchase pictures of them would find the drawings of the Autumn brothers unsatisfactory as a substitute for conventional depictions. The comic books are similar to the trading cards caricaturing and parodying prominent baseball players [known as Cardtoons] that have received First Amendment protection.”

The justice rejected as “irrelevant” the charge that by mentioning the rockers by name in promotional material for the comic book, DC was trading on their accomplishments for its own commercial gain, rather than poking fun at the Winters or their music, as would normally result in protection for parody.

“The question is whether the work is transformative, not how it is marketed,” Chin wrote.

The case was argued before the Supreme Court by Vincent H. Chieffo of Greenberg Traurig for the Winters and by Michael Bergman of Weissman, Wolff, Bergman, Coleman, Grodin & Evall for DC Comics.

The case is Winter v. DC Comics, 03 S.O.S. 2750.