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Winter v. DC Comics - 30 Cal. 4th 881, 134 Cal. Rptr. 2d 634, 69 P.3d 473 (2003)


The right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity's image by censoring disagreeable portrayals. Once the celebrity thrusts himself or herself forward into the limelight, the First Amendment dictates that the right to comment on, parody, lampoon, and make other expressive uses of the celebrity image must be given broad scope. The necessary implication of this observation is that the right of publicity is essentially an economic right. What the right of publicity holder possesses is not a right of censorship, but a right to prevent others from misappropriating the economic value generated by the celebrity's fame through the merchandising of the 'name, voice, signature, photograph, or likeness' of the celebrity. In determining whether the work is transformative, courts are not to be concerned with the quality of the artistic contribution-vulgar forms of expression fully qualify for First Amendment protection. On the other hand, a literal depiction of a celebrity, even if accomplished with great skill, may still be subject to a right of publicity challenge. The inquiry is in a sense more quantitative than qualitative, asking whether the literal and imitative or the creative elements predominate in the work.


In the 1990's, DC Comics published a five-volume comic miniseries featuring “Jonah Hex,” a fictional comic book “anti-hero.” The series contains an outlandish plot, involving giant worm-like creatures, singing cowboys, and the “Wilde West Ranch and Music and Culture Emporium,” named for and patterned after the life of Oscar Wilde. The third volume ends with a reference to two new characters, the “Autumn brothers,” named Johnny and Edgar Autumn. The characters were depicted as villainous half-worm, half-human offspring born from the rape of their mother. Plaintiffs, Johnny and Edgar Winter, well-known performing and recording musicians originally from Texas, sued defendants DC Comics and others alleging, among others, appropriation of their names and likenesses under Cal Civ. Code section 3344. They alleged that defendants selected the names Johnny and Edgar Autumn to signal readers the Winter brothers were being portrayed. Defendants moved for summary judgment, partly relying on the First Amendment. The trial court granted summary judgment on all causes of action and entered judgment in defendants' favor. The state appellate court reversed, as regards the misappropriation cause of action, holding that triable issues of fact exist whether or not the comic books were entitled to protection. Defendants sought further appellate review.


Were the comic books entitled to First Amendment protection?




The Supreme Court of California held that the Court of Appeal erred in finding the existence of triable issues of fact. According to the Court, the comic books contained significant creative elements that transformed them into something more than mere celebrity likenesses, and accordingly, the comic books were entitled to protection under U.S. Const., 1st Amend. The comic books were not just conventional depictions of plaintiffs, but contained significant expressive content other than plaintiffs' mere likenesses. The Court averred that the books did not depict plaintiffs literally. Instead, plaintiffs were merely part of the raw materials from which the comic books were synthesized. To the extent the drawings of plaintiff resembled plaintiffs at all, they were distorted for purposes of lampoon parody, or caricature. The characters and their portrayals did not greatly threaten plaintiffs' right of publicity. Defendants essentially sold, and the buyers purchased, comic books depicting fanciful, creative characters, not pictures of plaintiffs.

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