Edgar Winter v DC Comics
From Personality Rights Database
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| United States |
Contents |
[edit] 1 Edgar Winter et al. v. DC Comics et al.
Case Name: Edgar Winter et al. v. DC Comics et al.
Key words: Comics,Look-alikes, advertising, First Amendment
Country: U.S.A.
Citation: 30 Cal. 4th 881
Court : Supreme Court of California; George C.J., Chin, Kennard, Baxter, Werdegar, Brown, Moreno, JJ.
Date: 02.06.2003
Case N°: S108751
Importance: Significant creative elements can transform illustrations into something more than mere celebrity likenesses.
Facts: In the 1990's, DC Comics published a five-volume comic miniseries featuring “Jonah Hex”, a fictional comic book “anti-hero.” The fourth volume, entitled “Autumns of Our Discontent”, features the “Autumn brother” characters, Johnny and Edgar Autumn, depicted as villainous half-worm, half-human with pale faces and long white hair. In the volume 5, Jonah Hex shoots and kills the Autumn brothers in an underground gun battle. Plaintiffs, Johnny and Edgar Winter, well-known musicians sued DC Comics and others alleging several causes of action including appropriation of their names and likenesses under Civil Code section 3344. They alleged that the defendants selected the names Johnny and Edgar Autumn to signal readers the Winter brothers were being portrayed; that the Autumn brothers were drawn with long white hair and albino features similar to plaintiffs'; that the Johnny Autumn character was depicted as wearing a tall black top hat similar to the one Johnny Winter often wore; and that the title of volume 4, Autumns of Our Discontent, refers to the famous Shakespearian phrase, “the winter of our discontent.” They also alleged that the comics falsely portrayed them as “vile, depraved, stupid, cowardly, subhuman individuals.”
[edit] 2 Decision and Reasoning
Chin J. delivered the opinion of the court.
[edit] 2.1 The tension between the right of publicity and the First Amendment
Civil Code section 3344 provides that “(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof”. Celebrities therefore have a statutory right of publicity with which they can prohibit others from using or exploiting their likeness. In Comedy III, the Court was fully aware that because the use of a celebrity’s name or picture might be necessary for the public debate, this right of publicity threatened two purposes of the First Amendment:
- preserving an uninhibited marketplace of ideas; and
- furthering the individual right of self-expression.
Therefore, some situations had to justify the use of likeness or name, and be given some protection under the First Amendment. For example, Chin J. recalled that “the right of publicity derived from public prominence does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment.” The right of publicity holder must on the one hand be entitled to enforce his monopoly right and benefit from the exploitation and production of conventional images of the celebrity. But on the other hand, when the celebrity has been the mere inspirational point of a work which featured other significant creative elements, this work is “less likely to interfere with the economic interest protected by the right of publicity”, and may be awarded protection under the First Amendment.
[edit] 2.2 The Comedy III test followed
Chin J. followed the test laid down in the Comedy III case to determine whether a work merely appropriates a celebrity's economic value, and thus is not entitled to First Amendment protection, or has been transformed into a creative product that the First Amendment protects and which seems to particularly be of relevance here. The question to consider is whether the celebrity is a mere “raw material” in a process which will later give raise to a new original work, or on the contrary if the celebrity represents the very substance of this work. If creative elements have been added to transform the likeness or celebrity’s image, in a way which is more than “merely trivial”, protection will be awarded under the First Amendment. It is independent from the artistic quality of the transformation, so long as it is substantial. That is so even if the result is found disagreeable to the celebrity: “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”.
[edit] 2.2.1 The parody context
In the light of this test, Chin J. concluded that the comic books were not mere depictions of the plaintiffs but included substantial transformative elements.
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 physical aspect of the plaintiff clearly represented the raw material of the work, but the resemblance between the Automn brothers and the plaintiff were distorted in a satirical way. Even if they provide nothing more than a humorous commentary, the comic books deserve protection. The defendant nonetheless argued that the comic books can not be considered as a parody and therefore do not fit into the First Amendment protection. But Chin J. stated that the distinction between parody and other forms of literary expression is irrelevant to the Comedy III transformative test. “It does not matter what precise literary category the work falls into.” What matters is only whether the work is transformative, not whether it is parody or satire or caricature or any other specific form of expression.
[edit] 2.2.2 The way of marketing the product
The Court of Appeal had found that the defendants were trading on plaintiffs' likenesses and reputations to generate interest in the comic book series and increase sales. However, Chin J. clearly stated that the way the product is marketed is also irrelevant for the transformative test. So long as the work is sufficiently transformative to receive legal protection, “it is of no moment that the advertisements may have increased the profitability of the work.” Besides, he went further on and said that if a work is recognized as sufficiently transformed, the way it was advertised can not be used to make non-transformative.
[edit] 2.3 Result
There was enough creative and transformative elements. The defendants sold, and the buyers purchased, DC Comics depicting fanciful, creative characters, not pictures of the Winter brothers. The comic books were therefore entitled to First Amendment protection.
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