A look back at the Jonah Hex v. Winter brothers slugfest

Long before Josh Brolin played Jonah Hex on the big screen, the grisly bounty hunter graced the pages of DC Comics. In 1995, Hex appeared in Jonah Hex: Riders of the Worm and Such (Volumes #1-5). The third volume of the series ends with a reference to the Autumn brothers, with the teaser, “Next: The Autumns of Our Discontent.”

The Autumn brothers — pale-faced, half-worm, half-human villains named Johnny and Edgar — were gunned down in Volume #5. For them, the battle was lost, but for plaintiffs, Johnny and Edgar Winter (Winter brothers), it had just begun…

Miffed that DC Comics 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,” the Winter brothers sued DC and the creators of Jonah Hex: Riders of the Worm and Such for appropriation of their names and likenesses under CA Civil Code section 3344 (right of publicity), among others.

CA Code § 3344 states, in part:

(a)Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent [...] shall be liable for any damages sustained by the person or persons injured as a result thereof.

The suit careened around the courts, finally coming to rest in the Supreme Court of California — charged with the task of balancing the right of publicity against expression under the First Amendment. To that end, the court implemented a test based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.

While Johnny and Edgar Autumn were “less-than-subtle evocations of Johnny and Edgar Winter,” they were not literally depicted, and instead “merely part of the raw materials from which the comic books were synthesized.” The court noted:

To the extent the drawings of the Autumn brothers resemble plaintiffs at all, they are distorted for purposes of lampoon, parody, or caricature. And the Autumn brothers are but cartoon characters—half-human and halfworm—in a larger story, which is itself quite expressive.

In the end, the value of the expression in Jonah Hex outweighed the Winter bothers’ right of publicity based on the distorted caricatures. It’s important to note that parody was not the crux of the court’s reasoning, rather whether the offending work was sufficiently transformative so as to amount to “fanciful, creative characters,” not pictures of the
Winter brothers. As the CA Supreme Court said,

The distinction between parody and other forms of literary expression is irrelevant to the [] transformative test. It does not matter what precise literary category the work falls into. What matters is whether the work is transformative, not whether it is parody or satire or caricature or serious social commentary or any other specific form of expression.

Read the entire opinion here.