Opinion
B121021.
11-24-2003
EDGAR WINTER and JOHNNY WINTER, Plaintiffs and Appellants, v. DC COMICS, et al., Defendants and Respondents.
Greenberg & Traurig and Vincent H. Chieffo for Plaintiffs and Appellants. Weissman, Wolff, Bergman, Coleman, Grodin & Evall, Michael Bergman, Julie B. Waldman and Anjani Mandavia for Defendants and Respondents.
We revisit this matter involving claims by appellants, the Winter brothers, relating to publication of a series of comic books by respondents. In Winter v. DC Comics (2003) 30 Cal.4th 881, the Supreme Court remanded this matter to us "to decide whether [appellants] have preserved a cause of action based solely on the advertising and, if so, whether that cause of action is susceptible to summary adjudication." (Winter v. DC Comics , supra, 30 Cal.4th at p. 891, fn. 3.) We conclude appellants will not be able to prevail on any advertising claims and thus affirm the trial courts judgment against appellants.
FACTS
This case is before us for the third time. As we summarized in our first opinion, appellants sued DC Comics, Joe Lansdale, Timothy Truman, Sam Glanzman, Time Warner Entertainment Co., L.P., and Warner Communications, Inc. (respondents) because of a comic book miniseries entitled "Jonah Hex: Riders of the Worm and Such." The comic books were written by Lansdale, illustrated by Truman and Glanzman, and published by DC Comics, a partnership of the Warner companies. The series includes two villains, Johnny and Edgar Autumn, which respondents concede are at least partly based on appellants, noted musical performers.
The comics depict a fictionalized singing cowboys "Western" in which Jonah Hex and cowboys from the "Wilde West Ranch and Music and Culture Emporium" confront and do battle with worm-like creatures in their underground lair beneath the ranch. Johnny and Edgar Autumn are depicted as half-worm half-human creatures, the offspring from the rape of a ranchers wife by a supernatural worm creature. The human features of the Autumn brothers bear a close similarity to appellants.
Appellants sued respondents asserting the following nine causes of action: (1) defamation of a private figure; (2) defamation of a public figure; (3) negligent invasion of privacy; (4) invasion of privacy; (5) invasion of privacy, and appropriation of appellants names and likenesses under Civil Code section 3344; (6) invasion of privacy, and appropriation of appellants names and likenesses under common law; (7) violation of sections 50 and 51 of the New York Civil Rights Law; (8) negligence; and (9) intentional infliction of emotional distress.
Respondents successfully moved for summary adjudication of the first, second, third, fourth, eighth and ninth causes of action. Respondents subsequently moved for summary judgment or alternatively summary adjudication of the fifth, sixth and seventh causes of action. In response, appellants sought leave to file an amended complaint. The trial court denied appellants motion, granted respondents motion, and entered a judgment thereon.
We affirmed the trial court in our initial opinion. The Supreme Court granted a petition for review on the claims relating to appropriation of likeness and vacated our original opinion. The Supreme Court remanded the matter to us for reconsideration of the appropriation claims after it filed its opinion in Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387 (Comedy III). We did so, and we affirmed summary adjudication of all claims except the appropriation claims. Because Comedy III was decided after the original motion for summary judgment had been heard, and after our first opinion, we concluded that the matter should be remanded to the trial court for the parties to develop the facts relevant to consideration of the "transformative test" first adopted in Comedy III, supra, 25 Cal.4th at pages 406 through 407.
The Supreme Court again accepted review. This time it addressed whether or not the comics met the new transformative test to avoid the claims for appropriation of likeness. It so concluded and reversed our opinion. But, it did not address appellants advertising claims: "[Appellants] also claim that the way the comic books were advertised is itself actionable, for example, by falsely implying [appellants] endorsed the product. [Citation.] This question is beyond the scope of our grant of review and the Court of Appeals opinion, which focused on whether the comic books are constitutionally protected." (Winter v. DC Comics , supra, 30 Cal.4th at p. 891, fn. 3.) Thus, the matter has been remanded to us to determine if appellants should be allowed to proceed with the advertising claims.
DISCUSSION
Respondents contend their advertising and promotion activities are protected by the so-called incidental use privilege established in Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal.3d 860, 873, and Cher v. Forum Intern., Ltd. (9th Cir. 1982) 692 F.2d 634, 639, disapproved on another issue in McQuiston v. Marsh (9th Cir. 1986) 790 F.2d 798, 801. This privilege allows for use of a celebritys identity in advertising or promotion of a creative work where, as here, the use of the celebritys identity in the work is not actionable: "A similar result is compelled for the use of Valentinos name and likeness in advertisements for the film. That use was merely an adjunct to the exhibition of the film. It was not alleged that the advertisements promoted anything but the film. Having established that any interest in financial gain in producing the film did not affect the constitutional stature of respondents undertaking, it is of no moment that the advertisements may have increased the profitability of the film. It would be illogical to allow respondents to exhibit the film but effectively preclude any advance discussion or promotion of their lawful enterprise. Since the use of Valentinos name and likeness in the film was not an actionable infringement of Valentinos right of publicity, the use of his identity in advertisements for the film is similarly not actionable. [Citations.]" (Guglielmi v. Spelling-Goldberg Productions, supra, 25 Cal.3d at pp. 872-873, separate concurrence by Bird, C.J.)
Appellants contend there are triable issues of fact regarding application of the privilege which preclude summary adjudication of the issue at this stage. They argue that application of the privilege "depends upon a factual determination that Defendants advertisements claiming that the real Johnny and Edgar Winter would appear in the Hex Comics, and that Johnny and Edgar Winter `are the Autumn brothers, are factually accurate and not misleading or that they do not falsely imply the Winters endorsement of, or association with, the Hex Comics or Defendants entertainment message."
In reviewing this matter, we do so as we would review a grant of summary judgment or adjudication, de novo. (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 212, fn. 3.) If there is no triable issue of fact, we must then determine whether the facts support a legal conclusion that the privilege applies. (Transamerica Ins. Co. v. Superior Court (1994) 29 Cal.App.4th 1705, 1713-1714.) Only if we conclude in the affirmative will we need to determine whether appellants should be given a chance to amend their complaint.
We first look to the allegations of the fifth through seventh causes of action, which set up the claims at issue.
The fifth cause of action alleges that in violation of Civil Code section 3344, "defendants, knowingly and without Plaintiffs prior consent, misappropriated the commercial value of Plaintiffs names and likenesses by using, publishing, advertising and commercially distributing their names and likenesses in the Offending Product [i.e., the comic book series] and on the cover of the Offending Product." Further: "The appropriation by defendants was for their direct commercial advantage. Defendants use of Plaintiffs names and likenesses in the Offending Product and on the cover of the Offending Product was intended to solicit and induce, and did solicit and induce, customers to purchase the Offending Product and to increase the commercial value of the Offending Product. Additionally, the Offending Product and defendants falsely imply that Plaintiffs endorsed or otherwise associated themselves with the Offending Product or its defendants, and that Plaintiffs agreed to permit the use of their names and likenesses in and on the Offending Product and for advertising the Offending Product. [¶] . . . Defendants knowingly published, advertised and commercially distributed the Offending Product for the purpose of soliciting and inducing customers to purchase the Offending Product."
The sixth cause of action asserts a common law claim for misappropriation of the names and likenesses of appellants and is based on the same factual allegations as the fifth cause of action.
The seventh cause of action is a claim based upon New York law. It alleges that respondents "have used Plaintiffs names, portraits and likenesses within the State of New York and elsewhere for the purposes of trade without having obtained Plaintiffs written consent, in violation of Sections 50 and 51 of the Civil Rights Law of the State of New York and of similar statutes and/or common law principles in other jurisdictions in which defendants have engaged in such conduct."
As previously noted, the Supreme Court found the transformative test had been satisfied in this case and protected the use of appellants likenesses in the comic books. It stated: "Application of the test to this case is not difficult. We have reviewed the comic books and attach a copy of a representative page. We can readily ascertain that they are not just conventional depictions of [appellants] but contain significant expressive content other than [appellants] mere likenesses. Although the fictional characters Johnny and Edgar Autumn are less-than-subtle evocations of Johnny and Edgar Winter, the books do not depict [appellants] literally. Instead, [appellants] are merely part of the raw materials from which the comic books were synthesized. To the extent the drawings of the Autumn brothers resemble [appellants] at all, they are distorted for purposes of lampoon, parody, or caricature. And the Autumn brothers are but cartoon characters — half-human and half-worm — in a larger story, which is itself quite expressive. The characters and their portrayals do not greatly threaten [appellants] right of publicity. [Appellants] fans who want to purchase pictures of them would find the drawings of the Autumn brothers unsatisfactory as a substitute for conventional depictions." (Winter v. DC Comics, supra, 30 Cal.4th at p. 890.)
We turn to the advertising-related facts presented to the trial court in respondents separate statement of undisputed facts: 4 through 9, 13 through 18, and 22 through 27.
Facts 4, 13 and 22 state: "Other than as might be contained in the depiction of the Autumn brothers characters, no images of Johnny and/or Edgar Winter were contained in any of the advertising or promotional materials prepared or used by DC for the Work [i.e., the comic book series]." Appellants did not dispute these facts.
Facts 5, 14 and 23 state: "The only references to Johnny and Edgar Winters names in any promotional materials for the Work were in two interviews of Joe R. Lansdale (`Lansdale) and Timothy Truman (`Truman) — one which was commissioned and approved by DC (the `Curtin Interview), and one which was independently conducted (the `Fassbender Interview)." Appellants responded that catalog solicitation materials also referred to appellants and constituted "a clear appropriation of Plaintiffs identities." Additionally, appellants contended the Fassbender Interview was not independently conducted and was intended by Defendants to be used to advertise and solicit sales of the Hex Comic Series.
Facts 6, 15 and 24, undisputed by appellants, state: "The Curtin Interview (a 1,960 word article) appeared in the November, 1994 issue of PREVIEWS, the catalog for Diamond Comic Distributors, and in the January, 1995 issue of COMIC WORLD, a comic book newspaper published and distributed in the United Kingdom. It contains the following reference: `You get the idea, and if you want to discover other interesting things such as, oh, exactly how rockers Johnny and Edgar Winter sort of turn up in Riders of the Worm and Such, Youll just have to wait." (Italics added.)
Facts 7, 16 and 25, also undisputed by appellants, state: "The Fassbender Interview (a 2,014 word article) appeared in the January, 1995 issue of ADVANCE COMICS, Capital City Distributions catalog. It contains the following quotes attributed to Lansdale and Truman: [¶] `Truman: We have Johnny and Edgar Winter in this one, too. [¶] Lansdale: The Autumn Brothers. [¶] Truman: Theyre half-worms. Actually, you could say that theyre demi-planarians. [¶] Lansdale: They have sort of a humanoid shape, but theyre . . . wormish."
Facts 8, 16 and 26 state: "The only use of the names or images of the Autumn brothers characters in any of the advertising or promotional materials for the Work was the reproduction of the Issue No. 4 Cover in various catalogs and flyers, and on the cover of one comic book trade paper referencing that issue, and the use of the following description of Issue No. 4 in the catalogs and flyers: `Johnny and Edgar are the Autumn brothers: half man, half worm, and all mean. Theyre out to kill Hex, but Jonah and the singing cowboys aim to bring their battle straight to the mother worm herself." Appellants responded, "While Plaintiffs do not dispute that the names and/or images of Plaintiffs (i.e., the `Autumn brothers characters) do appear in the specified advertising and promotional materials, this was not the `only use. In fact, the Interviews referred to in Defendants Separate Statement Nos. 5, 6 and 7 also use their names and images, and were published and reproduced by Defendants and third parties in promoting the Hex Comic Series. The use of Plaintiffs[] images on the cover of Issue No. 4 was used as a cover of a comic book trade paper to advertise the entire 5-part Hex Comic Series, not just issue No. 4."
Finally, Facts 9, 18 and 27 state: "No other advertising or promotional materials prepared or authorized by DC mention or depict the Winters or the Autumns." Referring to their responses to Facts 5 and 8, 14 and 17, and 23 and 26, appellants disputed this factual allegation.
In support of the motion, respondents provided the declarations of Patricia Jeres, Manager of Marketing Communications for DC Comics, and Syndee Barwick, Manager of Marketing Services for DC Comics. Jeres declared that she was responsible for publicizing the subject comic book series. She declared that attached to her declaration were "true and correct copies of all the advertising, publicity, and promotional materials contained in DCs files and archives which mention Johnny and Edgar Winter, Johnny and Edgar Autumn, or contain the likenesses of the Winters or of the Autumn brothers characters."
Barwick declared that as DC Comics Manager of Marketing Services, Barwick was responsible for "generating point of purchase materials for the direct market retail stores, supervising the construction and placement of advertising for comic book trade magazines, and supervising the creation of direct market limited edition retail products. In that capacity, I was responsible for point of purchase materials and trade press advertising for `Jonah Hex: Riders of the Worm and Such (the `Work)." Barwick declared, "None of the advertising or promotional materials produced by my department mention or depict the Winters or the Autumn brothers characters in any way; instead, the advertising and promotional materials for the Work used a daguerreotype-like drawing of the seated Jonah Hex character, surrounded by fighting worms, with the following copy: `HEX IS BACK. AND THIS TIME . . . HES GOT WORMS."
In opposition to respondents motion, appellants provided a declaration of their attorney, Vincent Chieffo, which certified as true and correct copies of multiple documents. These included excerpts from the deposition transcripts of respondents Truman, Lansdale and Moore. Appellants also attached a copy of excerpts from the deposition of a Karen Berger, who testified about respondent DC Comics "legal clearance" procedures and the fact that Moore did not request legal clearance for the Autumn comic book characters.
None of the evidence referenced by either party can be reasonably understood to infer or suggest that respondents falsely implied that appellants endorsed or otherwise associated themselves with the subject comic book series. And appellants apparently concede this by not mounting an argument otherwise in their supplemental briefing. Thus, allegations relying on this theory are not supported.
There is no evidence that any actual likeness of the Winter brothers was used in connection with the advertising and promotion, only the transformative depictions of the Autumn brothers. The evidence does establish the Winter brothers were specifically referenced in the advertising and promotional efforts. The question then turns to whether use of the transformative depictions and the actual names of appellants may fall outside the incidental use privilege.
Among the cases cited by appellants to support their arguments is Eastwood v. Superior Court (1983) 149 Cal.App.3d 409. Eastwood held that "the unauthorized use of a celebritys name, . . . likeness on the cover of a publication and in related telecast advertisements, in connection with a published nondefamatory article, which is false but presented as true, constitutes an actionable infringement of that persons right of publicity under both the common law and Civil Code section 3344, subdivision (a)." (Eastwood v. Superior Court, supra, 149 Cal.App.3d at p. 413.) The court concluded that "such use constitutes commercial exploitation and is not privileged or protected by constitutional considerations or expressly exempted as a news account under Civil Code section 3344, subdivision (d)." (Ibid.)
Here, the advertising clearly identified the product, the Hex Comic Series, as a fictionalized work. Our affirmance of the defamation claims was based on a conclusion that no reader of the series could believe the story was intended to provide true facts relating to appellants. These facts distinguish this case from Eastwood.
Citing Solano v. Playgirl, Inc. (9th Cir. 2002) 292 F.3d 1078, appellants argue that it is up to a jury to decide whether respondents advertising falsely implied that appellants were in the subject comic book series. Plaintiff in Solano sued defendant-publisher, alleging that it intentionally created the false impression that plaintiff appeared nude in a photograph in defendants adult magazine. Plaintiff also alleged that defendant made it appear that plaintiff was willing to degrade himself and endorse the magazine. Plaintiff asserted invasion of privacy through his portrayal in a false light and through misappropriation of his likeness in violation of California statutory and common law. The cover of the subject issue of the magazine depicted plaintiff shirtless and wearing red lifeguard trunks, the attire he wore in a syndicated television program called "Baywatch." The heading of the cover read, "TV Guys. PRIMETIMES SEXY YOUNG STARS EXPOSED." (Id. at p. 1080.) The appellate court overturned a grant of summary judgment concluding that triable issues of fact existed for the jury to decide. (Id. at p. 1081.)
Significantly, there was conflicting evidence presented regarding plaintiffs misappropriation and false advertising claims in Solano. In contrast, the case before us contains no conflicting evidence on material facts. As we have concluded, adult readers of comic books, which is the audience aimed at in the advertising and promotional materials of the subject comic book series, would not reasonably expect actual individuals to be accurately portrayed in the blatantly fictional comic book series.
Appellants also cite Downing v. Abercrombie & Fitch (9th Cir. 2001) 265 F.3d 994 as legal authority to avoid summary adjudication of their misappropriation claims. The plaintiffs in Downing are former competitors. They sued defendant-retailer for publishing an actual photograph of plaintiffs in defendants subscription catalog for defendants benefit without plaintiffs consent. The district court granted summary judgment to defendant but the Circuit court reversed and remanded for trial. (Id. at pp. 999-1000.) It determined that while the theme of the subject catalog is "a matter of public interest," the relationship between plaintiffs photograph and the theme was "tenuous." (Id. at p. 1002.) The distinction here is that no actual likeness of appellants was used in promotion of the Jonah Hex series, only the protected transformative depiction of the Autumn brothers.
Appellants argue that if we accept respondents arguments, "a celebritys name and identity could be susceptible to unfettered advertising use for any work that contained a fictional character illustrated to look something like the celebrity, or had a name something like the celebrity, or, were merely `inspired by the celebrity." Appellants ask, "If an author wrote a fantasy novel with a fictional, African-American character called `Michael Jackstone, should the publishers of that novel be allowed, as matter of law, to advertise the novel by stating that `we have Michael Jackson in our novel — as Michael Jackstone? Should the creators of the next animated `Cinderella film that includes a character called `Leonardo Charming drawn to resemble `somewhat Leonardo DiCaprio be able, as a matter of law, to advertise that film by tantalizing the public with the `come on `see how Leonardo DiCaprio sort of shows up as Cinderella? While there may exist a constitutional privilege to transform either Michael Jacksons or Leonardo DiCaprios celebrity image or name into fictional characters in a creative, fictional work, there is simply no public policy, no constitutional basis, and no other legal reason, why they should also be allowed, as matter of law, to misappropriate the commercial value of Michael Jackson and Leonardo DiCaprios identity to advertise those works that are unrelated to those celebrities."
While there is no constitutional protection for false advertising which is more likely to deceive the public than to inform it, the advertising here cannot be said to be false. Respondents Truman and Lansdale, the creators of the subject comic book series, testified in their depositions that the Autumn villains in their comic book series were partly based on appellants stage personae. The characters were also based in part on a fictional villain in a movie. At the same time, Truman and Lansdale testified that the Autumn villains were intended to be fictional. Lansdale testified that "it was made very clear that these were fictional characters, and they were not meant to be taken literally." As we have previously concluded, the comic book characters are drawn and portrayed in such an "over the top" way that no one could mistake them for appellants. But the characters portrayed do contain a likeness of appellants, and their use was intentional. And that intentional use is protected. (Winter v. DC Comics, supra, 30 Cal.4th at p. 890.) When read as whole, the materials represent that DC Comics was giving a "tip of the hat" to the Winter brothers in using their likeness and a name similar to theirs in connection with the fictional villains portrayed in the comics. Thus reference to the actual Winter brothers in the promotion of the series was a comment addressing the artistic relevance of their likeness to the characters in the series and explains how they "sort of" show up in the series. As in Guglielmi, it would be illogical to allow publication of the comic books "but effectively preclude any advance discussion or promotion of their lawful enterprise." (Guglielmi v. Spelling-Goldberg Productions , supra, 25 Cal.3d at p. 873.)
We conclude as a matter of law that use of appellants names and likenesses in the advertising and promotion did not go beyond what is allowed in promotion and advertising of a protected product.
Appellants entire argument about why this matter should be remanded for leave to amend is stated in the following two paragraphs of their supplemental brief:
"As argued above, the so-called `incidental use privilege does not grant [respondents], as a matter of law, an absolute privilege to use the real names of Johnny and Edgar Winter to inaccurately and unfairly describe the contents of the Hex Comics.
"In these circumstances this Court should either reverse the trial courts denial of leave to file the amended complaint, or as it did in its June 19, 2002 Decision, simply remand the case to the trial court for further amendments, motions, and proceedings with respect to the issue of [respondents] liability for the express use of [appellants] true names and identifies in the advertising for the Hex Comics."
In light of our conclusion that use of appellants actual names in connection with the advertising and promotion does fall within the incidental use privilege, and given no other suggestions for amendment, further remand would be futile.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
We concur: VOGEL (C.S.), P.J., CURRY, J.
We summarize those facts in our prior opinions that are relevant to the issues at hand, elaborating on some facts in the Discussion section of our opinion.