Litigation
Jun. 25, 2002
Panel Remands Brothers' Comic Book Case for Trial
LOS ANGELES - Musician brothers Johnny and Edgar Winter were unhappy about being portrayed as menacing, tentacled, wormlike cowboys in an early 1990s comic book series called "Jonah Hex: Riders of the Worm and Such."
The last three issues of the "Jonah Hex" series feature characters called "Johnny and Edgar Autumn," children of a giant, underground-dwelling worm mother who sport green tentacles, lobotomies and a sexual preference for pigs.
The Winter brothers, who are albino, sued for defamation, invasion of privacy and misappropriation of likeness, among other things. Winter v. DC Comics, BC145670 (Los Angeles Super. Ct., filed March 3, 1996). But the court dismissed all of their claims. So the brothers appealed.
On Wednesday, the 2nd District Court of Appeal decided to send the brothers back to trial court on the misappropriation of likeness claim. Winter v. D.C. Comics, 2002 DJDAR 6911 (Cal. App. 2nd Dist. June 21, 2002).
Citing the state Supreme Court's 2001 Comedy III opinion, the 2nd District ruled that the Winters should have a chance to try to prove that DC Comics profited on the "Jonah Hex" series not from the talents of its authors but from the Winter Brothers' appearance in the comic book - albeit an appearance in altered form. Comedy III Productions v. Saderup, 25 Cal.4th 387 (Cal. 2001).
The comic book was written by Joe Landsdale and illustrated by Timothy Truman.
In Comedy III, the California Supreme Court set a standard for "transformative use," in an attempt to define the difference between a product that just uses a celebrity name or likeness and a product that changes the name or likeness in a way that deserves First Amendment protection. In its DC Comics, opinion, the 2nd District cited the transformative use issue.
"We conclude that triable issues of fact exist whether or not the use of appellant's likenesses in the comic books qualifies as 'transformative use' and that the judgment must be reversed and the matter remanded to the trial court," Judge J. Gary Hastings wrote.
Julia L. Ross and Corey J. Spivey at Gipson Hoffman & Pancione represented the Winter Brothers.
Vincent Chieffo, who has been working on the case since 1995 and has since left Gipson Hoffman for the Santa Monica office of Greenberg Traurig, said that the comic authors' references to the Winter brothers in promotional interviews for the Jonah Hex series disqualifies them for First Amendment protection.
"In advertising the books, they say Johnny and Edgar are in this one ... and our view is that is pure commercial advertising use without their consent," Chieffo said. "There should be no First Amendment protection whatsoever."
Lawyers for New York-based DC Comics at Weissman, Wolff, Bergman, Coleman & Silverman forwarded calls to the company's general counsel, Lillian Laserson, who declined to comment.
The opinion is an example of how California courts interpret the Comedy III decision, which has been viewed as a milestone for the state's right of publicity and trademark law.
Robert Benjamin, counsel for Comedy III Productions in its Supreme Court case, says the issue of transformative use comes down to "what is the public buying?"
"In the few areas where it's gray, that's where you have a trier of fact. That's where, in this case, it's going to be up to a jury to determine if there's been a transformative use," Benjamin said.
But Katten Muchin Zavis & Rosenman entertainment attorney David Halberstadter said transformative use rulings can leave artists confused about what they're allowed to do with celebrity likenesses in a work.
"How do you know what's going to ultimately sell the thing? And if you don't know, do you have to think twice before you do it? And if you have to think twice before you do it, aren't you chilling First Amendment speech?" Halberstadter said.
Edgar Winter said he felt relieved and vindicated by the court's review.
"I feel that they're parodizing me not as a public figure but as an albino," Winter said.
He said he was looking forward to going to trial.
"It's obvious that our names and likenesses have been used to their benefit, whatever they've sold," Winter said.
Edgar Winter may be best known for the songs "Frankenstein" and "Free Ride." He has worked on soundtracks for films including 1997's "Wag the Dog." Johnny Winter, who played with bluesman Muddy Waters in the late 1970s, has had two albums nominated for Grammy awards.
Victoria Vaught and Steven Springer filed amicus briefs for the Winter brothers on behalf of the National Organization for Albinism and Hypopigmentation.
Katherine Gaidos
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