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
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
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."