Right of publicity and artistic free speech
The Winters of Our Discontent
Today I have the rare opportunity to blog on a subject that combines all three of my current professional occupations: fiction, music and law.
In my internet meandering, I notice this question is asked over and over: Can you use the likeness of a famous person in your creative work, and under what circumstances?
Today, we will look at the case of Edgar Winter et al v DC Comics, 30 Cal 4th 881 (2003), for an answer to that question.
As a teenage Rock & Roller, I was a huge fan of Johnny Winter and his brother, Edgar. I saw Johnny live in concert at least a half-dozen times, and his brother twice with him and once on his own with Rick Derringer (Rock & Roll Hootchie Koo, anyone?). One of the first LPs I owned was First Winter, featuring the incomparable Leland Mississippi Blues. I still have it (in a box somewhere in that drafty barn).
Johnny was one of the greatest guitar players ever (he is now a severely debilitated shadow of his former self), and Edgar one of the most brilliant songwriters (and a ridiculous saxophonist and keyboardist). But besides being extraordinary musicians, the Winter brothers are best know for their very unusual physical appearance: flowing white hair and pale skin (I always thought their being over 6’ tall and rail thin counted for something too). The Winter brothers’ albino condition gave them something of cult hero status, I believed then, and it seems that DC Comics agreed.
In the 1990’s, DC Comics published a five-volume comic miniseries featuring “Jonah Hex,” a fictional comic book “anti-hero.” The series contains an outlandish plot, involving giant worm-like creatures, singing cowboys, and the “Wilde West Ranch and Music and Culture Emporium,” named for and patterned after the life of Oscar Wilde.
The cover of volume 4, titled “The Autumns of Our Discontent,” features brothers Johnny and Edgar Autumn, 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. They are 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 sued DC Comics alleging several causes of action including appropriation of their names and likenesses. 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.”
So then, can the Winter brothers protect themselves from this sort of artistic free speech?
The California Supreme Court said no. Drawing on the test it had earlier developed in another celebrity case involving another beloved iconic group of the past – The Three Stooges – the Court outlined its distinction between economic theft of celebrity image and artistic free speech protected by the First Amendment.
“When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist….
“On the other hand, when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity. . . . [W]orks of parody or other distortions of the celebrity figure are not, from the celebrity fan’s viewpoint, good substitutes for conventional depictions of the celebrity and therefore do not generally threaten markets for celebrity memorabilia that the right of publicity is designed to protect.”
“Transformative elements,” then, are essential ingredients in artistic expression that uses the name or likeness of a public figure.
What are these “transformative elements” the court needs to see?
Were you hoping for a simple list that you can commit to memory? I hope not.
Borrowing somewhat from the federal courts’ infamously vague articulation of the considerations used in determining whether the fair use doctrine is properly invoked, The California Supreme Court articulated its own “test” (or riddle, of you will) in the Three Stooges Case.
Okay, so here’s the test.
…whether the new work merely ‘supersede[s] the objects’ of the original creation, [citations], or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message…
“Trading cards” caricaturing and parodying well-known major league baseball players (they “provide social commentary on public figures, major league baseball players, who are involved in a significant commercial enterprise, major league baseball.” Cardtoons v. Major League Baseball Players (10th Cir. 1996) 95 F.3d 959.
“Factual reporting” – (see, e.g., Rosemont Enterprises, Inc. v. Random House, Inc. (1968) 58 Misc.2d 1.
“Fictionalized portrayal” – Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal. 3d 860; Parks v. Laface Records (E.D.Mich. 1999) 76 F. Supp.2d 775 [use of civil rights figure Rosa Parks in song title is protected expression])
“Heavy-handed lampooning” – Hustler Magazine v. Falwell (1988) 485 U.S. 46
“Subtle social criticism” – Coplans et al., Andy Warhol (1970) pp. 50-52 [explaining Warhol’s celebrity portraits as a critique of the celebrity phenomenon].
But there’s also another inquiry that courts “may find useful.” (See why so many lawyers are rich?):
Does the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted? If this question is answered in the negative, then there would generally be no actionable right of publicity. When the value of the work comes principally from some source other than the fame of the celebrity–from the creativity, skill, and reputation of the artist–it may be presumed that sufficient transformative elements are present to warrant First Amendment protection.
Okay, then this is necessary? Ooerr…
“If the question is answered in the affirmative, however, it does not necessarily follow that the work is without First Amendment protection–it may still be a transformative work.”
Oh my. So much for a Bright Line.
Sometimes I get cynical and suspect that judges do this on purpose, just to perpetuate the legal profession.
I have my own rule of thumb. If I ever choose to portray someone famous, I’m going to lampoon the hell out of them. You seem to be perfectly safe if you stick to parody.
Just don’t lampoon a judge.
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Tags: andy warhol, dc comics, edgar winter, fair use, free speech, hustler magazine, jerry falwell, johnny winter, noah hex, three stooges