Winter v. DC Comics
30 Cal. 4th 881, 134 Cal.Rptr.2d 634 (2003)
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Rule of Law:
An expressive work that uses a celebrity's likeness is protected by the First Amendment and does not violate the statutory right of publicity if the likeness is transformed into a new creative work, rather than being a mere literal depiction or imitation.
Facts:
- Johnny and Edgar Winter are well-known musicians with distinctive albino features and long white hair.
- DC Comics published a comic book miniseries, 'Jonah Hex', featuring an outlandish plot.
- The comic introduced two villainous characters named Johnny and Edgar Autumn, who were depicted with pale faces and long white hair.
- The Johnny Autumn character was depicted wearing a tall black top hat, similar to one often worn by Johnny Winter.
- The title of the comic book volume, 'Autumns of Our Discontent', is a play on the phrase 'the winter of our discontent,' referencing the Winters' surname.
- In the comic's narrative, the Autumn brothers are depicted as villainous half-worm, half-human creatures who are ultimately killed.
- The Winter brothers did not consent to the use of their likenesses in the comic books.
Procedural Posture:
- Johnny and Edgar Winter sued DC Comics and others in a California trial court for appropriation of likeness under Civil Code section 3344.
- The trial court granted summary judgment in favor of the defendants, DC Comics.
- The Winters, as appellants, appealed to the California Court of Appeal, which initially affirmed the trial court's judgment.
- The Supreme Court of California granted review and remanded the case back to the Court of Appeal for reconsideration in light of its recent decision in Comedy III.
- On remand, the Court of Appeal reversed the summary judgment on the misappropriation claim, finding that triable issues of fact existed under the Comedy III test.
- The Supreme Court of California then granted a petition for review filed by the defendants, DC Comics.
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Issue:
Does the First Amendment protect a comic book that depicts characters resembling real-life celebrities as part of a larger, fictional, and creative narrative from a statutory right of publicity claim?
Opinions:
Majority - Chin, J.
Yes. A work containing a celebrity's likeness is protected by the First Amendment when it is 'transformative,' meaning it adds significant creative elements so as to become something more than a mere celebrity likeness or imitation. The court applied the 'transformative use test' from Comedy III Productions, Inc. v. Gary Saderup, Inc., which balances the right of publicity against First Amendment protections. Here, the court found that the comic books did not simply depict the Winter brothers literally. Instead, their likenesses were merely 'raw materials' used to synthesize new, expressive characters—villainous, half-human, half-worm creatures within a larger, fanciful story. The court determined that the drawings were distorted for purposes of caricature and that the creative elements predominated over the imitative ones. This transformation makes the work the defendant's own expression, which is protected by the First Amendment. The court distinguished this from the non-transformative, literal depictions of The Three Stooges in Comedy III, noting that consumers were buying a creative story, not just a picture of the Winter brothers.
Analysis:
This case significantly clarifies the application of the 'transformative use' test in right of publicity law, extending its protection beyond simple parody to complex fictional narratives. The decision provides greater security for authors, artists, and publishers who incorporate celebrity likenesses into creative works, so long as the celebrity's image is a building block for a new expression rather than the work's primary substance. It solidifies the principle that the First Amendment protects even unflattering or bizarre portrayals if they are sufficiently transformative. The ruling also narrows the focus of the legal inquiry to the creative nature of the work itself, diminishing the relevance of the creator's commercial motives or marketing tactics.
