Although, the court held that these slight details do not qualify as transformative elements because they are still an exact depiction of the No Doubt band performing songs, which is what they do in real life and what they are known for as celebrities (192 Cal. App. 4th pg. 1018). Unlike Activisionʻs portrayal of the No Doubt band, Segaʻs portrayal of Kirby was altered significantly and recreated as an entirely different character. Despite the similarities between Kirby and the Ulala character, Ulala can be identified separately from Kirby. Ulala does not physically resemble Kirby, she does not wear the exact outfits that Kirby does, she is not marketed as a replica of Kirby, her dance moves differ significantly from Kirbyʻs, her profession
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DC Comics. In this case, two brothers who are musicians, Johnny and Edgar Winter, argued that DC Comics appropriated their identity in the “Jonah Hex” comic book series. They argue that the two characters in the series, Johnny and Edgar Autumn, have specific characteristics that would lead others to identify the characters as themselves. One similarity that the Winter brothers argued were the names of the two brothers, Johnny and Edgar, which they felt DC Comics used to reference them specifically (30 Cal. 4th 881, pg. 886). Another similarity mentioned is that the two characters resemble the brothersʻ physical appearance. For example, the Autumn brothers are depicted as albino with long white hair, just like the Winter Brothers (30 Cal. 4th 881, pg. 886). The Johnny Autumn character is also drawn wearing a tall black top hat, similar to one that Johnny Winter wore frequently (30 Cal. 4th 881, pg. 886). Lastly, the Winter brothers argued that the title of the fourth volume of the series, Autumns of Our Discontent, is an allusion to Shakespeareʻs expression “the winter of our discontent” (30 Cal. 4th 881, pg. 886). Although, when the court applied the transformative test to the work, they decided that the other creative aspects of the characters satisfied the testʻs …show more content…
Winter v. DC Comics states that in cases involving the tension between the right of publicity and First Amendment protection, the court can reach a decision by solely examining the depiction of the celebrity and evaluating itʻs similarities to the celebrityʻs likeness (30 Cal. App. 4th 881 pg. 884). This is exactly what the court did in deciding the case. Since the transformative test was the main deciding factor in the case, the court decided that the plaintiffʻs evidence showing that the defendantʻs intended to profit off their likeness was irrelevant (30 Cal. App. 4th 881 pg. 891). By contrast, the defendantʻs intentions in using Twistʻs identity to generate profit was assessed extensively through multiple forms of evidence, including fan mail, a magazine article, a television series, and two expert opinions. The defendant in Winters v. DC Comics presents a more compelling argument because the work in DC Comics met the standards of the test that the court applied to it. Similar to these two cases, the Guglielmi v. Spelling Goldberg Productions case also involves the balancing of free speech and a celebrityʻs right to
DC Comics. In this case, two brothers who are musicians, Johnny and Edgar Winter, argued that DC Comics appropriated their identity in the “Jonah Hex” comic book series. They argue that the two characters in the series, Johnny and Edgar Autumn, have specific characteristics that would lead others to identify the characters as themselves. One similarity that the Winter brothers argued were the names of the two brothers, Johnny and Edgar, which they felt DC Comics used to reference them specifically (30 Cal. 4th 881, pg. 886). Another similarity mentioned is that the two characters resemble the brothersʻ physical appearance. For example, the Autumn brothers are depicted as albino with long white hair, just like the Winter Brothers (30 Cal. 4th 881, pg. 886). The Johnny Autumn character is also drawn wearing a tall black top hat, similar to one that Johnny Winter wore frequently (30 Cal. 4th 881, pg. 886). Lastly, the Winter brothers argued that the title of the fourth volume of the series, Autumns of Our Discontent, is an allusion to Shakespeareʻs expression “the winter of our discontent” (30 Cal. 4th 881, pg. 886). Although, when the court applied the transformative test to the work, they decided that the other creative aspects of the characters satisfied the testʻs …show more content…
Winter v. DC Comics states that in cases involving the tension between the right of publicity and First Amendment protection, the court can reach a decision by solely examining the depiction of the celebrity and evaluating itʻs similarities to the celebrityʻs likeness (30 Cal. App. 4th 881 pg. 884). This is exactly what the court did in deciding the case. Since the transformative test was the main deciding factor in the case, the court decided that the plaintiffʻs evidence showing that the defendantʻs intended to profit off their likeness was irrelevant (30 Cal. App. 4th 881 pg. 891). By contrast, the defendantʻs intentions in using Twistʻs identity to generate profit was assessed extensively through multiple forms of evidence, including fan mail, a magazine article, a television series, and two expert opinions. The defendant in Winters v. DC Comics presents a more compelling argument because the work in DC Comics met the standards of the test that the court applied to it. Similar to these two cases, the Guglielmi v. Spelling Goldberg Productions case also involves the balancing of free speech and a celebrityʻs right to