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The California Supreme Court has agreed to review a lower court’s decision that DC Comics had publicity rights to depict rock musicians Johnny and Edgar Winter as half-worm, half-human characters in its comic books. The court will determine whether the matter should be sent back to the trial court for a trial. The singers filed suit against DC Comics for their depiction as the “Autumn brothers” in a series of comic books parodying the genre of singing Wild West cowboys. A trial court granted summary judgment in favor of DC Comics, a ruling that was upheld by an appellate court. The Winters appealed to the California Supreme Court, which withheld a decision pending the outcome of Comedy III Productions Inc. v. Saderup. In that case, the state high court ruled that a sketch artist’s claim to a free speech right to sell shirts with images of the Three Stooges was trumped by the rights of publicity of the comedians’ heirs. The Supreme Court subsequently sent the DC Comics case back to the appellate court, which reversed its grant of summary judgment on the rights of publicity claim. DC Comics asked the California Supreme Court to review the matter, arguing there would be a restraint of free speech before the case reaches its docket. The Winter brothers are represented by Vincent Chieffo, a partner at Greenberg Traurig’s office in Santa Monica, California. DC Comics is represented by Michael Bergman of Weissmann, Wolff, Bergman, Coleman, Grodin & Evall in Beverly Hills.

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