Thursday, June 20, 2002
C.A. Revives Rock Stars’ Suit Over Use of Their Personae
By a MetNews Staff Writer
This district’s Court of Appeal yesterday reinstated 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.
Div. Four, which had tossed the suit out once before, concluded yesterday that the Winters’ statutory and common-law misappropriation claims against DC Comics are viable under a recent California Supreme Court decision dealing with “transformative” works of art.
The court did, however, reiterate its previous ruling in throwing out the brothers’ defamation claims.
No reasonable person would have understood the villainous deeds attributed to the half-worm, half-human Edgar and Johnny Autumn in the DC Comics mini-series “Jonah Hex: Riders of the Worm and Such” to be a reflection on the real-life activities of the Winter brothers, Justice J. Gary Hastings wrote for Div. Four.
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.
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 The Court of Appeal, in its first decision two years ago, affirmed in an unpublished opinion by Hastings.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 Winters asked for review by the state Supreme Court, which granted it pending the ruling in Comedy III Productions, Inc. v. Saderup (2001) 25 Cal.4th 387. After that case was decided, the high court sent the Winter case back to the Court of Appeal for reconsideration.
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.
The Winters, Hastings wrote yesterday, produced sufficient evidence 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.
Attorneys on appeal were Julia L. Ross, Corey J. Spivey and Vincent H. Chieffo of Gipson, Hoffman & Pancione for the Winters and Anajani Mandavia, Julie B. Waldman and Michael Bergman of Weissman, Wolff, Bergman, Coleman & Silverman for DC Comics.
The case is Winter v. DC Comics, B121021.
Copyright 2002, Metropolitan News Company