WINTER V. DC COMICS 30 Cal.4th 881 (2003) CASE BRIEF

WINTER V. DC COMICS

30 Cal.4th 881 (2003)

NATURE OF THE CASE: Winter (P), musicians, filed an action against DC Comic (D), comic book production company, and alleged appropriation of their names and likenesses pursuant to Cal. Civ. Code 3344. The Court of Appeal reversed the trial court's grant of summary judgment to the company and remanded for further proceedings on this cause of action. The court granted D's petition for review to decide if the comic books in question were protected.

FACTS: D published a comic miniseries featuring 'Jonah Hex,' a fictional comic book 'anti-hero.' The third volume ends with a reference to two new characters, the 'Autumn brothers,' and the teaser, 'NEXT: The Autumns of Our Discontent.' The cover of volume 4 depicts the Autumn brother characters, with pale faces and long white hair. One brother wears a stovepipe hat and red sunglasses, and holds a rifle. The second has red eyes and holds a pistol. This volume features brothers Johnny and Edgar Autumn, depicted as villainous half-worm, half-human offspring born from the rape of their mother by a supernatural worm creature that had escaped from a hole in the ground. At the end of volume 5, Jonah Hex and his companions shoot and kill the Autumn brothers in an underground gun battle. Johnny and Edgar Winter (P), well-known performing and recording musicians originally from Texas, D and others alleging several causes of action including, as relevant here, appropriation of their names and likenesses under Civil Code section 3344. They alleged that the defendants selected the names Johnny and Edgar Autumn to signal readers the Winter brothers were being portrayed; that the Autumn brothers were drawn with long white hair and albino features similar to plaintiffs'; that the Johnny Autumn character was depicted as wearing a tall black top hat similar to the one Johnny Winter often wore; and that the title of volume 4, Autumns of Our Discontent, refers to the famous Shakespearian phrase, 'the winter of our discontent.' They also alleged that the comics falsely portrayed them as 'vile, depraved, stupid, cowardly, subhuman individuals who engage in wanton acts of violence, murder and bestiality for pleasure and who should be killed.' D moved for summary judgment It was granted. Eventually the Court of Appeal affirmed the summary adjudication of all causes of action other than the one for misappropriation of likeness. On the misappropriation cause of action, the court concluded that triable issues of fact exist whether or not the comic books are entitled to protection under the test adopted in Comedy III. It reversed the judgment and remanded for further proceedings on that cause of action. D appealed.

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