‘Winters’ And ‘Comedy III’ Still Leave Courts With Gray Area

The California Supreme Court issued a decision balancing a celebrity’s right of publicity against an author’s First Amendment rights. Winter v. DC Comics, 2003 DJDAR 5834 (Cal. June 3, 2003), involved claims by musician brothers Edgar and Johnny Winter that a series of comic books misappropriated their likenesses for villainous, half-worm, half-human characters named Edgar and Johnny Autumn.

In reaching the conclusion that the comic books were entitled to constitutional protection, the court did not establish any new legal principles for resolving the tension between the right of publicity and the First Amendment. It simply applied the test that it had previously created in Comedy III Productions Inc. v. Saderup Inc., 25 Cal.4th 387 (2001), to a different set of facts. But in doing so, the court firmly planted judges in the role of determining which works are merely commercial exploitations of a celebrity’s fame and which ones add enough independent expression to warrant First Amendment protection. The fact that judges might decide which works merit protection and which ones do not may chill the very artistic expression that the First Amendment is intended to protect.

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