CBLDF Joins MPAA Amicus Brief in 'Jonah Hex' Case

The Comic Book Legal Defense Fund has joined the Motion Picture Association of America, Association of American Publishers, and six other trade organizations in an Amicus Brief supporting the DC Comics and the creators of “Jonah Hex: Riders of the Worm & Such” in their First Amendment fight against the rock duo Johnny and Edgar Winter. The new brief is filed in the Supreme Court of California, where arguments in the case will be heard on April 1.

The brief is filed to challenge the California Appeal’s court decision that the Winters’ rights of publicity were violated under California Civil Code Section 3344. The Winter Appeal’s court cites Comedy III Productions vs. Saderup in that ruling. In Saderup, the company holding the license for the Three Stooges sued artist Gary Saderup – and won – because the court felt that the artists’ interpretations of the Three Stooges had moved from expression into merchandising, and was not transformative of the original subjects. The Court found that Saderup’s image of the Stooges, when reproduced on t-shirts and lithographs, was no longer expressive art, but instead, commercial speech. As such, the First Amendment doesn’t apply to it as it does to expressive speech. Applied to this case, the court concluded that triable issues of fact exist whether or not the Winters’ likenesses in the comic books qualify as “transformative use,” upholding their misappropriation of likeness claim.

At issue in the latest round of Winter v. DC is whether California’s Right to Publicity Laws apply to creative speech, and whether the comics in question are seen as commercial speech and thereby afforded a lesser degree of First Amendment protection.

The Amici argue that the court misapplied section 3344 and contend that “the Court of Appeal’s misapplication of section 3344 and its misinterpretation of the ‘transformative use’ test … may result in a reduced level of constitutional protection for traditionally protected expressive works by stripping away important First Amendment protection historically accorded to such uses of celebrity figures.”

The CBLDF and Amici focus on four points in the MPAA brief: “1) the appropriately high level of First Amendment protection afforded to traditionally protected audio-visual, literary and dramatic works; 2) The Court of Appeal’s disregard of California Civil Code Section 3344’s express definitional limitation to ‘products, merchandise, or goods’; 3) The inapplicability of the ‘transformative use’ test to publicity rights claims based upon traditionally protected expressive works; 4) The importance of adopting a brighter line and more protective standard for publicity rights claims arising from disputes involving such expressive works.”

Citing Saderup as well as Twist and many other similar cases, the MPAA Amici argue that a decision in favor of the plaintiffs would have a chilling effect on First Amendment rights.

“Just as comics are at the forefront of entertainment, here we see that they are also at the frontline of entertainment law,” says CBLDF Director Charles Brownstein. “Should the California Supreme Court uphold the lower court’s view that the Winters’ right to publicity was violated, it will impose a chilling effect upon the First Amendment rights of authors, cartoonists, filmmakers, and other creators of expressive works when they use public figures in the context of their work.”

Brownstein adds, “This case matters not only in regard to maintaining comics’ right to full First Amendment protection, but to how celebrity can be commented on in creative work. We are proud to join the MPAA, AAP, Author’s Guild, Dramatists Guild of America, PEN American Center, American Booksellers Foundation for Free Expression, and Freedom to Read Foundation in supporting DC Comics and respondents in this important fight.”

Read the full text of the MPAA Amicus brief here (1MB file download; Requires Adobe Acrobat Reader).