Fame No Defense Against Cartoonists

Celebrities are not entitled to compensation from movie studios, publishers and artists when the likenesses of the famed are depicted creatively rather than literally, the California Supreme Court ruled unanimously Monday.

The decision permits authors of fictional works to create characters based in part on celebrities, as long as the portrayals differ from the real people. Celebrities will continue to be able to demand compensation when their actual faces or names are used on coffee cups or other commercial merchandise.

The state high court ruled against Johnny and Edgar Winter, well-known performing and recording musicians who sued a comic book company that portrayed the brothers as half-worm and half-human villains with tentacles protruding from their chests.

In a decision written by Justice Ming W. Chin, the court found the depictions of the Winter brothers “are distorted for purposes of lampoon, parody or caricature” and thus entitled to free-speech protection.

The ruling was a victory for the Motion Picture Assn. of America, which had filed arguments in the case. The studios had feared that a decision for the Winter brothers would end unauthorized drama-documentaries and celebrity spoofs. Studios often are confronted by claims that likenesses were used without compensation.

Particularly gratifying to free speech advocates was a finding by the court that trial judges can throw out such lawsuits by celebrities without trials. First Amendment lawyers said the prospect of expensive trials has in the past chilled free expression by studios and artists.

The court is telling “celebrities that, when the use is clearly transformative, that is they are changing your appearance or using it for either parody or satire, you are going to have a very hard time suing,” said David Welkowitz, professor of law and co-director of the Center for Intellectual Property Law at Whittier Law School.

The decision limited the potential scope of a ruling in an earlier case in which the court decided that the heirs of the Three Stooges should be compensated by an artist who had sold lithographs of their likenesses. In that case, the artist had portrayed the Stooges as they looked in life.

But in the Winter brothers’ case, the court stressed that celebrities may not use their ownership of their likenesses to suppress portraits they dislike.

“In contrast to a drawing of The Three Stooges,” Chin wrote, “the comic books do contain significant creative elements that transform them into something more than mere celebrity likenesses.”

The case stemmed from a five-volume comic miniseries published by DC Comics in the 1990s.

Characters in the volumes included Johnny and Edgar Autumn, who were drawn with long white hair and albino features similar to those of the Winter brothers.

The Winter brothers contended that DC Comics had illegally exploited their identity to sell comic books, and sued for misappropriation of their likenesses and defamation. Lower courts threw out the defamation complaint, but a Court of Appeal held that a jury should determine whether the comic books had adequately transformed the images of the Winter brothers.

The justices said a jury isn’t needed to determine whether the characters bore the literal likeness of the entertainers.

“We can readily ascertain that they are not just conventional depictions but contain significant expressive content other than plaintiffs’ mere likenesses,” Chin wrote in Winter vs. DC Comics, S108751.

The court acknowledged that the depictions are “less-than-subtle evocations of Johnny and Edgar Winters,” but stressed that the Autumn brothers were “fanciful, creative characters, not pictures of the Winter brothers.”

The decision means that “background uses of celebrity images, photographs or posters that might appear in stray scenes are no longer going to give rise to concerns about potential” lawsuits, said Douglas E. Mirell, who represented the Motion Picture Assn. of America in the case.

He said claims of unauthorized use of portraits often impede the development of projects.

“Our hope is that this will not only deter frivolous claims, but that it will result in the immediate disposition of all claims that are ultimately brought,” Mirell said.

Michael Bergman, who represented DC Comics in the case, said, “I think the creative community can draw a great deal of comfort from the decision.”

But Vincent H. Chieffo, who represented the Winter brothers, said they still have a claim against DC Comics for using their names in advertising for the comic books. The state Supreme Court left it to a Court of Appeal to determine whether DC Comics falsely implied that the Winter brothers endorsed the comics.