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Although aging rockers Edgar and Johnny Winter didn’t like being portrayed as lecherous half-human, half-worm monsters in a popular comic book series, there’s little they can do about it. On Monday, in one of its shortest rulings in memory, a unanimous California Supreme Court held that DC Comics’ outlandish portrayal of the Winters in 1995′s “Jonah Hex: Riders of the Worm and Such” is protected by the First Amendment. The depictions of the Winters as the evil “Johnny and Edgar Autumn” brothers, the court ruled, contain “significant creative elements” that transform them into more than mere celebrity likenesses. The ruling could make it tougher for celebrities to sue over unflattering portrayals. That comes as a relief to the Motion Picture Association of America and a host of publishing industry groups that weighed in on the side of the comic book company. “To the extent the drawings of the Autumn brothers resemble plaintiffs at all, they are distorted for purposes of lampoon, parody or caricature,” Justice Ming Chin wrote in an 11-page opinion. “And the Autumn brothers are but cartoon characters — half-human and half-worm — in a larger story, which is itself quite expressive.” The Autumns appeared in the final two editions of the five-book “Jonah Hex” series that had them fighting singing cowboys in the Old West. The spawn of a giant subterranean worm creature who had raped their mother, the Autumns — who had long hair and were albinos like the Winters — sprouted green tentacles from their chests, ripped the heads off livestock and ate the brains of pigs with which they fornicated. The Winters sued, claiming the depictions violated their rights to publicity under California law. In disagreeing, the high court said the depictions met the test it laid out in 2001 in Comedy III Productions Inc. v. Gary Saderup Inc., 25 Cal.4th 387, which held that unauthorized celebrity likenesses are protected by the First Amendment as long as sufficient creative elements have been added to transform them into more than an imitation. “Application of the test to this case is not difficult,” Justice Chin wrote in Winter v. DC Comics, 03 C.D.O.S. 4586. The justices reviewed the comic book, and “we can readily ascertain that they are not just conventional depictions of plaintiffs, but contain significant expressive content other than plaintiffs’ mere likenesses.” The Winters had also argued that the comic book characters did not technically qualify as parodies, but Chin said that did not matter. “What matters,” he wrote, “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.” Chin also rejected an argument that DC Comics traded on the Winters likenesses to increase sales. Again, he said, the question is whether the work is transformative, “not how it is marketed.” Chin gave the Winters one small window of opportunity by remanding the case to Los Angeles’ Second District Court of Appeal for a decision about whether DC Comics could be liable for the manner in which the comics were advertised. “I think actually the court has preserved the bulk of the Winters’ claim — that their names and identities have been used wrongfully to promote this comic book,” said Vincent Chieffo, a partner in the Santa Monica office of Miami’s Greenberg Traurig who represented the Winters. DC Comics’ lawyer, Michael Bergman, a partner at Beverly Hills’ Weissmann, Wolff, Bergman, Coleman, Grodin & Evall, couldn’t be reached for comment. Ironically, the Winters’ suit has ensured that the likenesses they hate so much will be etched into history. The Supreme Court’s ruling contains a reproduction of the comic book cover that features Jonah Hex and the snarling Autumn brothers — a reproduction that will now appear in the official California Reports.

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