McFarlane’s Lament: If Only I Had Lived in California
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McFarlane’s Lament: If Only I Had Lived in California… Expressive versus Commercial references as applied to the right of publicity in comic book characters and why sometimes you should just keep your mouth shut.
If a comic book publisher created a character called “Puma Woods,” a golf superstar who discovers he can literally charm the pants off women with his fantastical (and clearly fictional) ability to mentally control the desires of all females - except his own wife! - and becomes a superheroic love-making lothario, it wouldn’t take much analysis to figure out which public figure was being referenced. How about another comic where an avenging anti-hero fights the machinations of a villainous and violent pimp, named “Tiger Woods?” Clearly, both reference the real-life Tiger Woods, whose recent public affairs surely showed the world he can cast a metaphorical spell over some women, but has never insinuated any involvement with organized prostitution or violence. But which one is more likely to be deigned “free speech” and which is more likely to cost its creators millions in damages? Would it make a difference if “Puma Woods” is black, fit, and constantly decked in “Fike” and “Fatorade” gear while “Tiger the Pimp” is white, corpulent, and has never been shown golfing or even talking about golf?
The comics above are hypothetical – no comic publisher has yet had the gall to take on the rich and powerful Woods – but the issues behind their legality are very real. First Amendment free speech as it pertains to referencing and naming real-life people in fiction is an extremely thorny area, mixing constitutional and common law with hurt feelings and injured reputations. Both hypothetical comics are based in reality. The “Puma Woo...
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...n protected. Then, court says there is still an expressive element to use of name as metaphorical reference to tough-guy enforcers. But, M agreed the use was not parody or other expressive comment or a fictionalized account of T (probably to avoid defamation suit). That takes the bite out of everything! M is an idiot because he not only said he based the name on T, but then he said there was no expressive comment.
Jonah Hex is a fictitious cowboy owned by DC Comics. Hex is a facially disfigured gunslinger who has traveled through time more than once in his storied career. In the 1995 comic miniseries, “Jonah Hex: Riders of the Worm and Such,” the Autumn brothers are introduced and “depicted as villainous half-worm, half-human offspring born from the rape of their mother by a supernatural worm creature that had escaped from a hole in the ground.” (Winter p 886).