Stooges Ruling Sends Rockers' Likeness Suit Back to Lower Court

Staff Reporter

It was a split decision for classic rock stars Edgar and Johnny Winter in their suit against DC Comics for defamation and misappropriation of likeness for commercial gain.

A June 19 ruling by a Superior Court judge in the 2nd District Court of Appeal found the comic book publisher, a unit of AOL Time Warner Inc. may have used the likenesses of the albino brothers in comics featuring Wild West character Jonah Hex.

In sending the case back to trial court, Judge Ronald Cappai ruled DC Comics had not defamed the Winter brothers but that the claim of misappropriation might be valid.

"From the promotional material, it is reasonable to infer that respondents were trading on appellants' likeness and reputations to generate interest in the upcoming releases and to garner sales," Cappai said in his ruling.

DC Comics General Counsel Lillian Laserson declined to comment.

Cappai's ruling is largely based on a 2001 California Supreme Court decision involving the unauthorized reproduction of images of the Three Stooges on tee shirts.

The decision came in a six-year-old suit in which the Winter brothers sued DC and two other AOL Time Warner units, as well as the two creators of the "Jonah Hex" books.

Jonah Hex is a DC Comics character from the 1970s that was revived in two comic books series in the early 1990s. In three of the five-part comic book miniseries known as "Jonah Hex: Riders of the Worm and Such," the "anti-hero" Jonah Hex fights two half-worm and half-human creatures with pale complexions and long white hair. The creatures are known as the Autumn brothers.

The Winter brothers claim the Autumn brothers were a depiction of them, "especially because the characters were drawn with white hair and albino features similar to appellants," according to court filings.

Vincent Chieffo, a partner at Greenberg Traurig LLP in L.A. who represents the Winter brothers, said he expects the Winter brothers to win their claim for misappropriation of likeness this time, given the Three Stooges ruling.

"I think when a jury takes a look at what these guys did and how they used these images, a jury will see it in favor of Johnny and Edgar." Chieffo said.

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