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<b>Decision of Note</b>California Further Defines Transformative Use

BY Schuyler M. Moore
September 13, 2003

The California Supreme Court has held that the First Amendment protected D.C. Comics against a right of publicity claim brought by Johnny and Edgar Winter, well-known musicians from Texas, based on a series of comic books that incorporated the Winter brothers as characters, albeit transformed into the 'Autumn Brothers' as villainous half-worms. Winter v. D.C. Comics, S108751 (Cal. Sp. Ct. 2003). In its ruling, the court relied heavily on and extended the rationale of its prior holding in Comedy III Productions Inc. v. Gary Saderup Inc., 25 Cal. 4th 387 (Cal. Sp. Ct. 2001).

Together, the Winter and D.C. Comics cases applied an entirely new analysis for resolving right of publicity claims against a First Amendment defense. Under the court's analysis, any transformative use of a plaintiff's name and likeness is protected by the

First Amendment. Importantly, a transformative use can take many forms, including:

  • Factual reports on matters of public interest
  • Fictionalized portrayals
  • Parodies
  • Art that involves some material variation to the likeness of a plaintiff, such as Andy Warhol's famous paintings of celebrities.

The Winter brothers lost because D.C. Comics' portrayal of the Winter brothers as half-worms was certainly transformative under this last category. The plaintiff successors-in-interest to the Three Stooges won in Comedy III because the depictions, although sketches, were exact replications of the Three Stooges.

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