Winter

Celebrities have a statutory right of publicity by which they can prohibit others from using their likeness. (Civ. Code, § 3344.) An obvious tension exists between this right of publicity and the First Amendment to the United States Constitution. (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 396 [ 106 Cal.Rptr.2d 126 , 21 P.3d 797 ] (Comedy III).) In Comedy III, we considered when constitutional free speech rights may trump the statutory right of publicity. We formulated “what is essentially a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.” (Id. at p. 391.) In that case, we concluded that lithographs and T-shirts bearing the likeness of The Three Stooges were not sufficiently transformative to receive First Amendment protection.

In this case, we apply the same balancing test to comic books containing characters that evoke musician brothers Johnny and Edgar Winter. We conclude that, in contrast to a drawing of The Three Stooges, the comic books do contain…