Filed 11/24/03 Winter v. DC Comics CA2/4 Opinion on remand from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR EDGAR WINTER and JOHNNY WINTER, B121021 Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. BC145670) v. DC COMICS, et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald E. Cappai, Judge. Affirmed. Greenberg & Traurig and Vincent H. Chieffo for Plaintiffs and Appellants. Weissman, Wolff, Bergman, Coleman, Grodin & Evall, Michael Bergman, Julie B. Waldman and Anjani Mandavia for Defendants and Respondents. We revisit this matter involving claims by appellants, the Winter brothers, relating to publication of a series of comic books by respondents. In Winter v. DC Comics (2003) 30 Cal.4th 881, the Supreme Court remanded this matter to us “to decide whether [appellants] have preserved a cause of action based solely on the advertising and, if so, whether that cause of action is susceptible to summary adjudication.” (Winter v. DC Comics, supra, 30 Cal.4th at p. 891, fn. 3.) We conclude appellants will not be able to prevail on any advertising claims and thus affirm the trial court’s judgment against appellants. 1 FACTS This case is before us for the third time. As we summarized in our first opinion, appellants sued DC Comics, Joe Lansdale, Timothy Truman, Sam Glanzman, Time Warner Entertainment Co., L.P., and Warner Communications, Inc. (respondents) because of a comic book miniseries entitled “Jonah Hex: Riders of the Worm and Such.” The comic books were written by Lansdale, illustrated by Truman and Glanzman, and published by DC Comics, a partnership of the Warner companies. The series includes two villains, Johnny and Edgar Autumn, which respondents concede are at least partly based on appellants, noted musical performers. The comics depict a fictionalized singing cowboys “Western” in which Jonah Hex and cowboys from the “Wilde West Ranch and Music and Culture Emporium” confront and do battle with worm-like creatures in their underground lair beneath the ranch. Johnny and Edgar Autumn are depicted as half-worm half-human creatures, the offspring from the rape of a rancher’s wife by 1 We summarize those facts in our prior opinions that are relevant to the issues at hand, elaborating on some facts in the Discussion section of our opinion. 2 a supernatural worm creature. The human features of the Autumn brothers bear a close similarity to appellants. Appellants sued respondents asserting the following nine causes of action: (1) defamation of a private figure; (2) defamation of a public figure; (3) negligent invasion of privacy; (4) invasion of privacy; (5) invasion of privacy, and appropriation of appellants’ names and likenesses under Civil Code section 3344; (6) invasion of privacy, and appropriation of appellants’ names and likenesses under common law; (7) violation of sections 50 and 51 of the New York Civil Rights Law; (8) negligence; and (9) intentional infliction of emotional distress. Respondents successfully moved for summary adjudication of the first, second, third, fourth, eighth and ninth causes of action. Respondents subsequently moved for summary judgment or alternatively summary adjudication of the fifth, sixth and seventh causes of action. In response, appellants sought leave to file an amended complaint. The trial court denied appellants’ motion, granted respondents’ motion, and entered a judgment thereon. We affirmed the trial court in our initial opinion. The Supreme Court granted a petition for review on the claims relating to appropriation of likeness and vacated our original opinion. The Supreme Court remanded the matter to us for reconsideration of the appropriation claims after it filed its opinion in Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387 (Comedy III). We did so, and we affirmed summary adjudication of all claims except the appropriation claims. Because Comedy III was decided after the original motion for summary judgment had been heard, and after our first opinion, we concluded that the matter should be remanded to the trial court for the parties to develop the facts relevant to consideration of the “transformative test” first adopted in Comedy III, supra, 25 Cal.4th at pages 406 through 407. 3 The Supreme Court again accepted review. This time it addressed whether or not the comics met the new transformative test to avoid the claims for appropriation of likeness. It so concluded and reversed our opinion. But, it did not address appellants advertising claims: “[Appellants] also claim that the way the comic books were advertised is itself actionable, for example, by falsely implying [appellants] endorsed the product. [Citation.] This question is beyond the scope of our grant of review and the Court of Appeal’s opinion, which focused on whether the comic books are constitutionally protected.” (Winter v. DC Comics, supra, 30 Cal.4th at p. 891, fn. 3.) Thus, the matter has been remanded to us to determine if appellants should be allowed to proceed with the advertising claims. DISCUSSION Respondents contend their advertising and promotion activities are protected by the so-called incidental use privilege established in Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal.3d 860, 873, and Cher v. Forum Intern., Ltd. (9th Cir. 1982) 692 F.2d 634, 639, disapproved on another issue in McQuiston v. Marsh (9th Cir. 1986) 790 F.2d 798, 801. This privilege allows for use of a celebrity’s identity in advertising or promotion of a creative work where, as here, the use of the celebrity’s identity in the work is not actionable: “A similar result is compelled for the use of Valentino’s name and likeness in advertisements for the film. That use was merely an adjunct to the exhibition of the film. It was not alleged that the advertisements promoted anything but the film. Having established that any interest in financial gain in producing the film did not affect the constitutional stature of respondents’ undertaking, it is of no moment that the advertisements may have increased the profitability of the film. It would be illogical to allow respondents to exhibit the film but effectively preclude any advance discussion or promotion of their lawful enterprise. Since the use of 4 Valentino’s name and likeness in the film was not an actionable infringement of Valentino’s right of publicity, the use of his identity in advertisements for the film is similarly not actionable. [Citations.]” (Guglielmi v. Spelling-Goldberg Productions, supra, 25 Cal.3d at pp. 872-873, separate concurrence by Bird, C.J.) Appellants contend there are triable issues of fact regarding application of the privilege which preclude summary adjudication of the issue at this stage. They argue that application of the privilege “depends upon a factual determination that Defendants’ advertisements claiming that the real Johnny and Edgar Winter would appear in the Hex Comics, and that Johnny and Edgar Winter ‘are the Autumn brothers,’ are factually accurate and not misleading or that they do not falsely imply the Winters’ endorsement of, or association with, the Hex Comics or Defendants’ entertainment message.” In reviewing this matter, we do so as we would review a grant of summary judgment or adjudication, de novo. (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 212, fn. 3.) If there is no triable issue of fact, we must then determine whether the facts support a legal conclusion that the privilege applies. (Transamerica Ins. Co. v. Superior Court (1994) 29 Cal.App.4th 1705, 1713-1714.) Only if we conclude in the affirmative will we need to determine whether appellants should be given a chance to amend their complaint. We first look to the allegations of the fifth through seventh causes of action, which set up the claims at issue. The fifth cause of action alleges that in violation of Civil Code section 3344, “defendants, knowingly and without Plaintiffs’ prior consent, misappropriated the commercial value of Plaintiffs’ names and likenesses by using, publishing, advertising and commercially distributing their names and likenesses in the Offending Product [i.e., the comic book series] and on the cover of the Offending Product.” Further: “The appropriation by defendants was for their 5 direct commercial advantage. Defendants’ use of Plaintiffs’ names and likenesses in the Offending Product and on the cover of the Offending Product was intended to solicit and induce, and did solicit and induce, customers to purchase the Offending Product and to increase the commercial value of the Offending Product. Additionally, the Offending Product and defendants falsely imply that Plaintiffs endorsed or otherwise associated themselves with the Offending Product or its defendants, and that Plaintiffs agreed to permit the use of their names and likenesses in and on the Offending Product and for advertising the Offending Product. [¶] . Defendants knowingly published, advertised and commercially distributed the Offending Product for the purpose of soliciting and inducing customers to purchase the Offending Product.” The sixth cause of action asserts a common law