Johnny and Edgar Winter Not Digging the Comix

This is a great time to be alive if you find copyright law fascinating. Now the right of publicity is in danger of being extended in California – this time I’m with the entertainment biz:

After more than 40 years in the business, Johnny and Edgar Winter are legendary Texas blues rockers whose long, white hair makes them striking figures on stage.

But a 1995 comic book series portrayed them in a less-than-flattering light.

Playing off the brothers’ albinism, the “Autumn brothers” appeared in a special comic series as villainous, gnarly half-worm, half-human creatures with green tentacles sprouting from their chests.

Outraged, the Winter brothers sued DC Comics, creator of the series, claiming the comic book giant had illegally exploited their image.

Now before the California Supreme Court — a decision is due any day — the case is an epic legal battle between the Winter brothers’ right to control their public images and the comic’s First Amendment protections.

Celebrities have an undeniable right to prevent their images from being used on mugs or merchandise. But legal experts say the Winter brothers’ case seeks to extend that right into new territory: the traditionally protected world of satire, fiction and entertainment.

….Since the early 1900s, famous people have enjoyed a “right to publicity” — meaning the right to control the revenues generated from their name or face. The laws were intended to prevent others from capitalizing on a celebrity’s fame on baseball cards or in advertisements and endorsements.

The California Supreme Court shifted the legal landscape in 2001 by ruling that a Southern California artist was barred from selling T-shirts and lithographs with the images of the Three Stooges.

Setting a new standard, the justices said the work must be more than a mere likeness and somehow “transform” the celebrity’s image by adding enough of the artist’s “significant creative elements.”

….A year after the Three Stooges decision, a state appeals court resurrected the Winters’ suit against DC Comics, suggesting the Winter brothers were added to the comic series for their commercial appeal because DC Comics mentioned the brothers in promotional interviews.

In asking the state Supreme Court to overturn the decision, entertainment lawyers say a celebrity’s exclusive right to publicity was intended to apply solely to advertisements and merchandise, not to literary works — no matter how vulgar or distasteful. [SF Chronicle]

So the question is this: were the Winters brothers’ likenesses used ismply to sell comic books, or is the grotesque parody of their images protected? WE do not need more copyright restrictions – we need to be able to pick and choose and comment upon the objects of popular culture, including celebrity images.

As Eugene Volokh, who teaches First Amendment law at UCLA, says:

if the court bars DC Comics from using the Winter brothers’ images, “it would be a very dangerous extension because it would equally apply to books, short stories and plays”