Depicting real people can lead to real problems

Imagining and developing new and compelling characters is often at the heart of a creator’s work, whether in comics, video games, toys, or stories. Occasionally, real people can serve as inspiration for a character. A creator may wish to parody, lampoon, or make a social or political comment by referring to a celebrity, politician, or athlete in the work. However, depicting real people can lead to problems and it can be very difficult to predict the outcome when the rights of the person depicted clash with the free speech of the creator. In fact, when the matter gets to the point of litigation, the outcome may vary from state to state. Let’s take a look at some cases that led to very different results and how the courts reached their conclusions.

A good place to start is Winter v. DC Comics, where musician brothers Johnny and Edgar Winter sued DC Comics, the writer, the artist, and others, for misappropriation of the Winters’ names and likenesses. The claim arose from a Jonah Hex comic that included characters named the “Autumn Brothers” who the Supreme Court of California described as being “drawn with long white hair and albino features similar to plaintiffs’ . . . the Johnny Autumn character was depicted as wearing a tall black top hat similar to the one Johnny Winter often wore.” Additionally, the story was entitled “Autumns of our Discontent” (referring to the Shakespearean phrase “the winter of our discontent”) and depicted the characters as “villainous half-worm half-human offspring born from the rape of their mother by a supernatural worm creature.”

The Supreme Court of California in Winter noted that “[b]ecause celebrities take on public meaning, the appropriation of their likenesses may have important uses in uninhibited debate on public issues . . . [or] can be an important avenue of individual expression” and therefore some uses of celebrity likenesses are entitled to First Amendment protection (the court did not address the use of non-celebrities’ likenesses). The uses protected by the First Amendment are those that are transformative – where the celebrity likeness is a building block for the work and transformed so that it becomes the defendant’s own expression of something other than the celebrity’s likeness, without regard for the quality of the artistic contribution or how the work is marketed. The Winter Court held that the Jonah Hex comic was sufficiently transformative and therefore protected by the First Amendment. A word of warning – even under the creator-friendly transformative use test, the literal depiction of a celebrity without more (for example, prints depicting Margot Robbie as Harley Quinn) could lead to liability.

Less than two months later, the Supreme Court of Missouri faced a similar issue in Doe v. TCI Cable. In that case, former NHL hockey player Tony Twist sued creator Todd McFarlane and others, claiming that the mafia don character Anthony “Tony Twist” Twistelli in the comic Spawn misappropriated his identity. After finding that there was sufficient evidence that the defendants used the plaintiff’s name as a symbol of his identity and for commercial advantage, the court rejected the transformative test in favor of a test determining if the “predominant use” is to exploit of the commercial value of the plaintiff’s identity (even if there is some expressive content) or to make an expressive comment about the celebrity. Thus, the court compared the expressive value to the the commercial value. The result was that the predominant use was found to be commercial exploitation and a $15 million verdict was entered against McFarlane and the other defendants.

These issues have also arisen in other contexts such as documentaries and video games. For example, the transformative use test was applied but found not to be met in a case involving college football players and video game publisher Electronic Arts, Inc. for the NCAA Football line of games.  In March, 2018, a court held that a depiction of actress Olivia de Havilland in a docudrama was sufficiently transformative to warrant First Amendment protection. Another 2018 case involved Linsdsay Lohan and the makers of the Grand Theft Auto V video game, where the New York court never reached the First Amendment question but instead found that the depiction that Lohan claimed was her was instead “a generic artistic depiction of a ‘twenty something’ woman without any identifying physical characteristics.” Sometimes, the literal depiction of a celebrity can be the creator’s intended purpose – for example, in a graphic novel biography. In those situations, the First Amendment analysis and the potential pitfalls (such as defamation) are different. We’ll address those issues in a future article.

Because the outcomes of these cases depend not only on the jurisdiction in which the cases arises, but are also fact-specific, it is advisable to seek professional legal counsel before depicting a real person in a creative work.