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.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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