CBLDF Joins MPAA Brief In Jonah Hex Case

Wed, March 26th, 2003 at 12:00am PST

Comic Books
Jonah Weiland, Founder/Former Owner

Official Press Release

The Comic Book Legal Defense Fund has joined the Motion Picture

Association of America, Association of American Publishers, and six

other trade organizations in an Amicus Brief supporting the DC Comics

and the creators of "Jonah Hex: Riders of the Worm & Such" in

their First Amendment fight against the rock duo Johnny and Edgar

Winter. The new brief is filed in the Supreme Court of California,

where arguments in the case will be heard on April 1.

The brief is filed to challenge the California Appeal's court

decision that the Winters' rights of publicity were violated

under California Civil Code Section 3344. The Winter Appeal's

court cites Comedy III Productions vs. Saderup in that ruling. In

Saderup, the company holding the license for the Three Stooges sued

artist Gary Saderup and won because the court felt that

the artists' interpretations of the Three Stooges had moved from

expression into merchandising, and was not transformative of the

original subjects. The Court found that Saderup's image of the

Stooges, when reproduced on t-shirts and lithographs, was no longer

expressive art, but instead, commercial speech. As such, the First

Amendment doesn't apply to it as it does to expressive speech.

Applied to this case, the court concluded that triable issues of fact

exist whether or not the Winters' likenesses in the comic books

qualify as "transformative use," upholding their

misappropriation of

likeness claim.

At issue in the latest round of Winter v. DC is whether

California's Right to Publicity laws apply to creative speech,

and whether the comics in question are seen as commercial speech and

thereby afforded a lesser degree of First Amendment protection.

The Amici argue that the court misapplied section 3344 and contend

that "the Court of Appeal's misapplication of section 3344

and its misinterpretation of the `transformative use' test

… may result in a reduced level of constitutional protection for

traditionally protected expressive works by stripping away important

First Amendment protection historically accorded to such uses of

celebrity figures."

The CBLDF and Amici focus on four points in the MPAA brief: "1)

the appropriately high level of First Amendment protection afforded

to traditionally protected audio-visual, literary and dramatic works;

2) The Court of Appeal's disregard of California Civil Code

Section 3344's express definitional limitation to `products,

merchandise, or goods'; 3) The inapplicability of the

`transformative use' test to publicity rights claims based

upon traditionally protected expressive works; 4) The importance of

adopting a brighter line and more protective standard for publicity

rights claims arising from disputes involving such expressive


Citing Saderup as well as Twist and many other similar cases, the

MPAA Amici argue that a decision in favor of the plaintiffs would

have a chilling effect on First Amendment rights.

"Just as comics are at the forefront of entertainment, here we

see that they are also at the frontline of entertainment law,"

says CBLDF Director Charles Brownstein. "Should the California

Supreme Court uphold the lower court's view that the Winters'

right to publicity was violated, it will impose a chilling effect

upon the First Amendment rights of authors, cartoonists, filmmakers,

and other creators of expressive works when they use public figures

in the context of their work."

Brownstein adds, "This case matters not only in regard to

maintaining comics' right to full First Amendment protection, but

to how celebrity can be commented on in creative work. We are proud

to join the MPAA, AAP, Author's Guild, Dramatists Guild of

America, PEN American Center, American Booksellers Foundation for

Free Expression, and Freedom to Read Foundation in supporting DC

Comics and respondents in this important fight."

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