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. [Read more...]