Albino blues: the Winter of copyright discontent - Citings

Reason, August, 2003 by Tim Cavanaugh

"COME ON AND take a free ride," Edgar Winter urged us all in 1972. But when DC comics took the Texas rock legend at his word he sued.

A 1995 issue of the comic book Jonab Hex: Riders of the Worm and Such uses the image of Edgar and his fabled guitarist brother Johnny as models for the "Autumn Brothers," a pair of half-human, half-worm mutants who are eventually dispatched by the title character. The Winter brothers might not be burning up the pop charts these days, but they make a compelling pair of models for a comic, Both are albinos; both sport long, eloistyle hairdos; and the tattoo-rich Johnny is at least a contender for the title of Most Illustrated Man in the Lone Star State. DC also used the brothers' first names in some promotional material for the book.

This type of appropriation would seem to be covered under the satire and parody provisions of copyright law, and in fact the Winters' lawsuit was dismissed in 1998. Last year, however, the brothers' lawyers resurrected the suit, citing a subsequent court ruling--2001's Comedy III Productions v. Saderup. In that case, the California Supreme Court ruled that a merchant selling T-shirts of the Three Stooges had not added sufficient "creative elements" (the plaintiff had depicted the Stooges frowning) to "transform" a copyright-protected image.

Last June, an appellate court upheld the dismissal of the Winters' claims of defamation, invasion of privacy, and misappropriation of names and like-nesses. However, the court reinstated the rest of the lawsuit, on the grounds that DC's work was not sufficiently transformative. "It is hard to conceive of a use of a celebrity likeness that could be more transformative than the depiction of the Winters as the villainous half-worm, half-man Autumn brothers characters," DC attorney Michael Bergman wrote in his brief.

In the end, the state appeals court agreed, in a decision that extends parody protection to comic books. The Winters' lawyer still hopes to continue the case against DC'S use of the brothers' images in its advertising.