In a decision that clarifies the line between the First Amendment and the right of publicity, the California Supreme Court held that a DC Comics series featuring two characters named Johnny and Edgar Autumn did not violate the rights of publicity of well-known musicians Johnny and Edgar Winter.
Hailing the decision, Michael Bergman of Weissmann, Wolff, Bergman, Coleman, Grodin & Evall, who represented DC Comics, said, “The Supreme Court made it clear that not only parody but any work with significant creative expression will be protected” in a right of publicity case.
In the comicbook, as in real life, the brothers have pale faces and long white hair. One brother sports a stovepipe hat and the second has red eyes. Completely departing from reality, they are depicted as villainous half-worm, half-human offspring born from the rape of their mother by a supernatural worm creature .
In its decision, the court distinguished the Winter case from its earlier decision in the Three Stooges case, involving an artist who sold lithographs and T-shirts with a drawing of the trio that the artist had made. In that case the court found that the right of publicity prevailed over the First Amendment because there was no transformative or creative contribution. The skill of the artist was simply used to create literal depictions of the Three Stooges and exploit their fame.
In contrast, Johnny and Edgar Winter were the raw material for the half-human, half-worm comicbook characters. In addition, the court ruled that the comic did not threaten the Winter brothers’ right of publicity because they would be unsatisfactory pictures for fans.
Laying down guidelines, the court held that the test is whether the work is transformative, not whether it is parody or satire or serious social commentary.
Winter brothers attorney Vince Chieffo said he was disappointed in the decision, but took heart in the fact that the Supreme Court sent their false advertising claim back to the Court of Appeal for decision.