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Posted by James Grimmelmann on Wednesday, June 04 @ 11:45:01 EDT Trademark
A 1995 DC Comics series turned musicians Johnny and Edgar Winters into "Johnny and Edgar Autumn," and cast them as half-human, half-worm characters. The Winters sued on right of publicity grounds, but the California Supreme Court ruled for DC Comics.

In essence, the court follows a "transformative use" test: does the challenged work contain "expressive" elements that go beyond "conventional depictions" of the people who are upset at having their likeness used. In a case such as this, in which the very thing upsetting the Winters was the absurdity of the scenario in which "they" were placed, finding such elements wasn't at all hard.

This article at Law.com has a good summary of the case, including the following priceless description of the Autumns:

The spawn of a giant subterranean worm creature who had raped their mother, the Autumns -- who had long hair and were albinos like the Winters -- sprouted green tentacles from their chests, ripped the heads off livestock and ate the brains of pigs with which they fornicated.
I wonder whether the Winters' encore will be to sue the makers of The Matrix Reloaded over the Merovingian's bodyguards -- also a pair of albinos with long hair.
 
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