In addition to the principles of free speech and right of publicity, an importantissue that the courts have been batting back and forth for seven years throughvarious judgments and appeals of the lawsuit filed by rock stars Johnny and EdgarWinter against DC Comics is the question of whether comic books are an art formor just a commercial product.

It may be a sign of how far comics have not come in the eyes of society that thecourts seem to still be having trouble figuring this out. In cases from WaltDisney v. the Air Pirates to Starbucks v. Kieron Dwyer to Kraft v. Stuart Helm,the courts have been treating comics as little more than commercial iconography.But a ruling June 2 by the California Supreme Court in Los Angeles affirmingdismissal of the defamation suit against the publisher and creators of the JonahHex miniseries Riders of the Worm and Such suggests that comics may be finallygetting a little respect.

The Winter brothers sued DC, as well as writer Joe Lansdale and artists TimTruman and Sam Glanzman, on the basis of two unsavory characters introduced intothe Jonah Hex storyline as the Autumn brothers, which the Winters arguedconstituted a defamatory representation and a misappropriation of the musicians'likenesses. Like the Winters, the Autumn brothers were albinos from the Southnamed Johnny and Edgar. The fourth issue of the miniseries was entitled "TheAutumns of Our Discontent," replacing "Autumns" for "Winter" in the famous phrasefrom the first line of Shakespeare's Richard III. Though singing cowboys figuredin the story, the Autumn brothers were anti-singing. They were also dim-witted,murdering, pig-humping, inbred offspring of raped humans and supernatural worms.

Despite Lansdale's contention that he had referenced the Winters as a "tip of thehat," the musicians filed suit in March of 1996, shortly after the comicsappeared, charging defamation, invasion of privacy, appropriation of name andlikeness, negligence and intentional infliction of emotional distress.

As the suit proceeded up and down (and up and down) the judicial ladder, eachside was joined by sympathetic groups who filed amicus briefs in support of theparty which most reflected their respective interests. The Winters were cheeredon by the National Organization for Albinism and Hypopigmentation, the members ofwhich did not like to see albinos linked publicly with worm people. DC had on itsside the Motion Picture Association of America, the Comic Book Legal DefenseFund, the APP, the Authors Guild, the Dramatists Guild of America, the P.E.N.American Center, the American Booksellers Foundation for Free Expression and theFreedom to Read Foundation.

Writing on behalf of the Supreme Court, Justice Ming Chin said, "Application ofthe test to this case was not difficult.... We can readily ascertain that [thecomics] are not just conventional depictions of plaintiffs but containsignificant expressive content other than plaintiffs' mere likenesses.... Andthe Autumn brothers are but cartoon characters -- half-human and half-worm -- in alarger story, which is itself quite expressive."

In response to the Appeals Court's critique that the Hex comics did nottechnically constitute a parody of the Winters, the Supreme Court quoted from itsComedy III ruling, saying, "These 'transformative elements or creativecontributions that require First Amendment protection are not confined to parodyand can take many forms, from factual reporting to fictionalized portrayal, fromheavyhanded lampooning to subtle social criticism.' ...The distinction betweenparody and other forms of literary expression is irrelevant to the Comedy IIItransformative test. It does not matter what precise literary category the workfalls into. What matters is whether the work is transformative, not whether it isparody or satire or caricature or serious social commentary or any other specificform of expression."

On a related issue, however, the court hedged. And this was the one bright spotin the ruling for the Winters: "Plaintiffs also claim that the way the comicbooks were advertised is itself actionable, for example, by falsely implyingplaintiffs endorsed the product. This question is beyond the scope of our grantof review and the Court of Appeal's opinion, which focused on whether the comicbooks are constitutionally protected. We leave it to the Court of Appeal onremand to decide whether plaintiffs have preserved a cause of action based solelyon the advertising and, if so, whether that cause of action is susceptible tosummary adjudication."

This issue leaves an opening for the Winters, and Winter brothers attorneyVincent Chieffo told the Journal they mean to pursue it. Chieffo argued that theuse of the Winter brothers' names in promotional interviews and advertisingblurbs clearly indicates an intent to use the Winters' celebrity to attractconsumers, a use which he said was especially egregious given the content of thestory which, to say the least, negatively depicts two albino figures. Chieffosaid the Winters are strongly opposed to cultural images that would negativelyrepresent albinos, and were offended that promotions for Riders of the Worm andSuch would imply the Winters' association with or endorsement of the miniseries."The law gives us the right to speak and the right not to speak," he told theJournal. "You can't make us say something we don't agree with, and [the Winters]were not happy with the way people with albinism are depicted in the comic. Pickany other group and think of what people would say about [a depiction like this].They don't agree with this comic book, but their names are being used to spreadits message further."

Comic Book Legal Defense Fund Executive Director Charles Brownstein also feelsthe most important issue in the case has already been decided by the SupremeCourt. "It has taken 50 years for the courts to recognize that comics areexpressive speech," he told the Journal, "but comics are starting to definitelymake some headway here. We now have legal [precedents] that comics areFirst-Amendment-protected."

DC attorney Lillian Laserson attached less significance to that aspect of thecase. "There have been a number of cases that make clear that comics are entitledto First Amendment protection," she said. "I don't think the medium was an issuehere." Laserson pointed out that even the T-shirts in the Comedy III case mighthave been found to be entitled to protection under the First Amendment if theimages of the Stooges had been used to make a statement beyond "Buy this shirtwith The Three Stooges on it."

When the Journal commented that Kieron Dwyer and Stuart Helm had found littleprotection from litigation under the First Amendment, Laserson attributed that tothe fact that those were cases involving questions of trademark dilution -- anarea of the law in which DC has taken less embracing positions with respect tothe First Amendment.

In any case, before getting too excited about society learning to respect comics,it's worth noting that the California high court's acknowledgment that a comicbook was an instance of literary expression, didn't mean the court wasacknowledging the comic was good literary expression: "In determining whether thework is transformative, courts are not to be concerned with the quality of theartistic contribution - vulgar forms of expression fully qualify for FirstAmendment protection." The Appeals Court had given the miniseries a decidelymixed review, squeamishly commenting, "While it is true that many of the gags anddepictions [in Riders of the Worm and Such] are violent, gross and in bad taste,that is apparently the nature of this type of genre."

[To read the rest of this article, please see The ComicsJournal #254.]

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