CALIFORNIA SUPREME COURT DECLARES COMICS PROTECTED BY FIRST AMENDMENT

October 7, 2003
In this newsletter:
UPCOMING LECTURES: HAMPTONS FILM FESTIVAL

On Oct. 23 at 1PM, Mark will be participating in a panel discussion at the Hamptons Film Festival. He and other industry professionals will discuss the differences between traditional and alternative financing models, domestic tax incentives, European tax incentives, and financing options for digital vs. celluloid filmmaking. To order tickets for the panel, entitled “Foregoing the Frustrations of Film Financing,” visit www.ticketweb.com/user/?region=ny&query=detail&event=463058 The official Hamptons Film Festival site is http://www.hamptonsfilmfest.org/2003/

NEW YORK VOLUNTEER LAWYERS FOR THE ARTS

On Nov. 8 at the Lower Manhattan Cultural Council, Mark will conduct a comprehensive seminar that explores how independent films are financed and distributed. During this Volunteer Lawyers for the Arts seminar, Mark will review include financing via pre-sales, debt and limited partnerships, negotiating tactics, typical contract terms, cross-collaterization and creative accounting. He will address how producers and filmmakers can protect themselves by watering down warranties, getting added to the E & O policy, using lab access letters to retain possession of the negative, utilizing termination and arbitration clauses. The seminar includes a handout with a distribution contract, articles, a self-defense checklist and other materials. Other topics include criteria for selecting a distributor; what is negotiable and what is not; compliance with state and federal laws when seeking investors; retaining an attorney or producer’s rep; confirming arbitration awards in Superior Court; and, enforcing judgments. To register, please call Jonathan Tominar, VLA Office Administrator, at 212-319-ARTS (2787) ext. 10.

CALIFORNIA SUPREME COURT DECLARES COMICS PROTECTED BY FIRST AMENDMENT
By Chrys Wu, Paralegal to Mark Litwak

In an opinion hailed as preserving First Amendment rights, the California Supreme Court has reversed and remanded a case pitting celebrities’ right of publicity against the First Amendment. DC Comics created a series of stories featuring the characters “Johnny and Edgar Autumn.” These characters were portrayed as vulgar, distasteful villains. Real-life musicians Johnny and Edgar Winter sued DC Comics alleging, among other causes of action, that DC Comics had misappropriated their names and likenesses in a series of comic books featuring characters named “Johnny and Edgar Autumn.” The California high court agreed to review the case, applying a balancing test the court established in the case Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 396. In creating the balancing test, the court wrote that while celebrities had a right to protect the economic value of their names and likenesses, the right of publicity “does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment.” Therefore, First Amendment protections could apply to some uses of celebrity likeness. The court applied its test to determine if DC Comics had appropriated the Winter brothers’ likenesses merely for economic gain, which the First Amendment does not protect; or if the publisher had significantly transformed the likenesses into a creative product, which the First Amendment does protect. The court found that while the characters portrayed in the comic book were “less-than-subtle evocations” of the Winter brothers, they were just cartoon characters in a larger, expressive story. Ultimately, the court wrote, DC Comics had created and sold, and buyers bought, comic books featuring “fanciful, creative characters, not pictures of the Winter brothers.” The comics books are therefore protected by the First Amendment. The case has been reversed and remanded to the Court of Appeal. Winter v. DC Comics, 30 Cal.4th 881, 134 Cal.Rptr.2d 634, 69 P.3d 473, 2003 Cal.LEXIS 3492 (Cal. 2003)