The Winter Brothers v. DC Comics: Parody and Monsters
Censorship of printed material just keeps on coming. Even as “Sex and Design,” Print’s February issue that included my 12-page feature about banning comic books, was at the printer Apple Inc. was rejecting Image Comics’ acclaimed Sex Criminals from in-app purchase. This brought the computer giant’s 2013 list of forbidden comics to nearly 60. It also hurt digital sales. And since the corporation provided hardly any explanation Image, and the creators Matt Fraction and Chip Zdarsky, were left baffled and confused.
The comic book in question is Jonah Hex, a horror-western that stars a disfigured bounty hunter. The series was first popularized in the 1970s by writer Michael Fleisher. It was “twisted, lunatic and bugfuck,” to adapt some of the words bad boy author Harlan Ellison used to describe Fleisher in a 1979 Comics Journal interview. In response, Fleisher claimed Ellison had damaged his reputation, and he brought a $2 million libel suit against him, the magazine and publisher Gary Groth. And he lost. The Winter Brothers v. DC Comics continues the “legal defamation” theme. It began in 1996, with a pair of well-known musicians as the plaintiffs and parody as the defense (Hex‘s narratives remain twisted: This particular storyline also includes Oscar Wilde starting a barroom brawl in Austin, TX. And worm monsters). Here’s Greenberg with the case, which begins with an obscure legal doctrine which allows famous people to control their image and concludes with another ruling that had a surprising effect on the outcome.
Jonah Hex is a comic book series about a former Civil War soldier and is published by DC Comics. In 1995, as part of a five-issue story arc titled “Riders of the Worm and Such,” the team of Joe R. Lansdale, Timothy Truman and Sam Glanzman introduced an evil duo named Johnny and Edgar Autumn. The Autumn brothers were described as “villainous half-worm, half-human” characters. The Winter brothers sued DC, arguing that this caricature of them was in violation of their right of publicity. They also argued that this caricature was further damaging to their reputation because the characters in the book portrayed them as “vile, depraved, stupid, cowardly, subhuman individuals who engage in wanton acts of violence, murder, and bestiality for pleasure and who should be killed.”
After eight long and expensive years of litigation, the California Supreme Court brought the case to its conclusion: it found in favor of DC on First Amendment grounds. The Court found that the Autumn brothers were protected free speech because DC had added transformative elements in the portrayal, presenting more than just a copy of the Winter brothers’ images. The Court concluded:
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,” the court wrote in its opinion. “Instead, plaintiffs are merely part of the raw materials from which the comic books were synthesized. To the extent the drawings of the Autumn brothers resemble plaintiffs at all, they are distorted for purposes of lampoon, parody or caricature… The characters and their portrayals do not greatly threaten plaintiffs’ right of publicity.
While some comic books feature versions of popular television shows such as Battlestar Galactica and Star Wars, as well as adaptations of motion pictures, the publishers of those books generally obtain a license from the content owner to create the adaptation. The Winters case is a rare instance in which the failure to obtain a license didn’t result in censoring the comic, due to the relatively recent doctrine of transformativeness as a First Amendment defense being applied.