Winter v. DC Comics

Brief Fact Summary.

DC Comics published a fictional comic book featuring two villainous brothers that had the likeness of well-known musicians Johnny and Edgar Winter.

Synopsis of Rule of Law.

When an artist is faced with a right of publicity challenge to the artist’s work, the artist may raise an affirmative defense that the work is protected by the First Amendment if it contains significant transformative elements or the value of the work does not derive primarily from the celebrity’s fame.

Facts.

DC Comics published a fictional comic book featuring two villainous brothers with pale faces and long white hair. Johnny and Edgar Winter are well-known musicians who sued DC Comics for appropriation of their names and likenesses for the comic book, alleging that the characters were named Autumn and clothed similarly to signal to readers that they were being portrayed as vile, subhuman individuals who should be killed.

Issue.

Does First Amendment protection apply to a comic book that features cartoon characters based on celebrities?

Held.

Reversed and remanded.

Yes. The comic books are entitled to First Amendment protection because the drawings contain significant creative elements that transform them into something more than mere celebrity likenesses.

Discussion.

In Comedy III, the Court created a balancing test between the First Amendment and the right of publicity, which asked whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation. Significant creative elements can be parody, factual reporting, fictional portrayal, and heavy or soft criticism. The depiction must contribute something more than a merely trivial variation, but rather something recognizably the artist’s own creation.

There, the Court noted that the right of publicity threatens the free marketplace of ideas and individual right of self-expression protected under the First Amendment and therefore should not be viewed as a right to censor disagreeable or vulgar portrayals of a celebrity. The right of publicity is therefore not a censorship right, but rather an economic right to prevent others from misappropriating the economic value of the celebrity’s fame through merchandising the celebrity’s likeness.

Here, the comic books contain significant expressive content other than the Winters’ mere likenesses as part of a greater story. To the extent that the Autumn brothers resemble the Winters, they are distorted for purposes of parody or caricature. It is irrelevant that DC Comics was using the Winters’ likeness to generate interest in its comic book series and increase sales because the relevant inquiry is whether the work was transformative and not how it was marketed.