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Comic-book villains modeled on brothers ruled protected speech

By The Associated Press

SAN FRANCISCO — Comic book characters Johnny and Edgar Autumn, modeled on the real-life musical brothers Johnny and Edgar Winter, are protected by the First Amendment, the state Supreme Court ruled yesterday, reversing an appeals court decision.

The Autumn brother characters appeared in three Jonah Hex comic books published in 1995 by New York-based DC Comics. The villains were half-human, half-worm creatures with green tentacles sprouting from their chests.

Johnny and Edgar Winter sued, claiming the comic book company had illegally exploited their images. A lower court judge tossed out the suit before it got to trial, but a state appeals court said the Winter brothers could sue the company for violating their publicity rights.

Celebrities have a right to prevent their images from being used commercially without their permission. But works of satire, fiction and entertainment have traditionally been protected on First Amendment grounds.

The high court extended that protection to the comic books.

“Although the fictional characters Johnny and Edgar Autumn are less-than-subtle evocations of Johnny and Edgar Winter, the books do not depict plaintiffs literally,” Justice Ming Chin wrote for the unanimous court. “They are distorted for purposes of lampoon, parody, or caricature.”

Edgar Winter, who now lives in California, is best known for his 1972 hits “Free Ride” and “Frankenstein,” both of which have turned up recently in national commercials for Buick and Burger King.

Johnny Winter, who lives in Connecticut, is a renowned blues guitarist.

Both brothers are albinos who wear their white-blonde hair long.

The Winter brothers’ suit accused DC Comics of portraying them as “vile, depraved, stupid, cowardly, subhuman individuals.”

“It was something I thought was done without the approval of both artists,” said Teddy Slatus, Johnny Winter’s manager. “It was picking fun at them for being albinos.”

Vincent Chieffo, lawyer for the Winter brothers, said the state’s high court left the issue of advertising unresolved.

Chieffo said DC Comics used an image of the Autumn brothers along with the wording: “Johnny and Edgar are the Autumn brothers” implying that Johnny and Edgar Winter appeared in the comic book.

Whether the advertising violated the musicians’ rights will likely be returned to the appeals court.

“If you’ve got a fictional book, you can’t use a real celebrity to advertise it,” Chieffo said.

But DC Comics argued the images were merely parodies of the Winter brothers and advertising was irrelevant.

“The comic books contain new expressive ideas,” said Michael Bergman, who represented the comics company in the case. “That is all that matters. Not how the work is marketed, not how it’s advertised, but whether it’s a new work by a fresh, creative mind on a theme.”

Lillian Laserson, a company spokeswoman, said the artist meant the characters as “a tip of the hat to the Winter brothers. He’s a big fan.”

The case is Edgar Winter et al v. DC Comics et al, S108751.


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