Tag Archives: Cherry

I’ll See You in Court!

9 Comics That Generated Lawsuits or Threats of Lawsuits Over Parodies That Someone Didn’t Find Amusing  


1. Winter Brothers v. Autumn Brothers
Like any business, the comics business has seen its share of lawsuits, from creators suing publishers over rights and payment issues, to breach of contract suits, to copyright owners suing people using unauthorized reproductions of their IP. Add to the court docket another group of cases: the ones where people sue comic creators for using their likenesses or intellectual property without permission.

In 1995, DC published Jonah Hex: Riders of the Worm and Such, a five-issue mini-series by writer Joe Lansdale and artists Tim Truman and Sam Glanzman. Lansdale’s work has been known to go to weird places with real-life historical figures (see also: Elvis and JFK battling an evil mummy in a nursing home), while Truman is a musician with an appreciation for uniquely American styles of music. So no one should have been surprised when their offbeat Western tale became, as Lansdale later said, a “vehicle for satire and parody of musical genres, Texas music in particular, as well as old radio shows, movie serials and the like.”

Not appreciating the satire were Johnny and Edgar Winter, two brothers from Beaumont, TX, who had both enjoyed long careers as rock/blues musicians by the time the mini-series came out. According to court papers filed in Los Angeles County Superior Court on March 6, 1996, the Winters’ suit alleged defamation, invasion of privacy and related claims on two characters, the Autumn brothers, created for the mini-series by Lansdale and Truman. They claimed the comics falsely portrayed them as “vile, depraved, stupid, cowardly, subhuman individuals who engage in wanton acts of violence, murder and bestiality for pleasure and who should be killed.” Two years later, the courts sided with DC and the creative team citing First Amendment protections. In an e-mail to the Comic Book League Defence Fund, Truman called it “a victory not only for us, but for any cartoonist who comments upon, or pays tribute to, the legacy of any public figure.”


2. Tony Twist v. Tony Twist
In 1992, Spawn creator Todd McFarlane introduced a corpulent mob boss named Antonio “Tony Twist” Twistelli in the sixth issue of his anti-hero’s Image comic. The real-life Tony Twist sued McFarlane in 1998 when he heard McFarlane had said he named the character after the professional hockey player, who at the time played for the Quebec Nordiques.

Rather than seeing it as a friendly shout-out from a fellow Canadian, Twist claimed the use of his name without his permission cost him endorsements due in part to the unsavory nature of the fictional character. A St. Louis jury agreed (Twist played for the St. Louis Blues at the time) and awarded him $24.5 million in damages, but the judge who presided over the case threw out the judgment, stating the case lacked “credible evidence that McFarlane at any time intended to injure Twist’s marketability, to capitalize on the market recognition of the name Tony Twist, or in fact derived any… benefit whatsoever.”

After numerous appeals and even a request for the U.S. Supreme Court to weigh in on the free-speech issues surrounding the use of celebrity names (SCOTUS: “No”), the suit was finally settled out of court in 2007 for $5 million. By that time, Twist’s NHL career had been over for eight years because of a 1999 motorcycle accident that broke his pelvis. (He later found fame as a radio personality in St. Louis.)

Did Mr. Twist have a credible case? Not being a lawyer or knowing what evidence was shown to the jury, I’m hesitant to say. It does seem extremely unlikely, though, that any pro athlete with a high enough profile to rake in endorsements would have to worry about sharing a name with an exceptionally minor villain from a comic book. If anything, I would have thought an NHL enforcer like Twist would benefit from the public knowing he was tough enough to inspire a comic-book villain. In any case, I don’t expect to see either the mob boss or former NHLer make an appearance in that Spawn reboot I keep hearing about.

3. Amy Grant v. Dr. Strange
In 1990, an issue of the Marvel comic starring Earth’s Sorcerer Supreme featured the return of Morgana Blessing, a former girlfriend of the good doctor. It only made sense, then, to put her face on the cover… except it happened to be someone else’s face. Anyone familiar with Christian/pop singer Amy Grant’s 1986 album The Collection could see that artist Jackson Guice clearly used Grant’s face to represent Morgana on the cover — and Grant’s management team wasn’t thrilled when they found out.

Grant couldn’t file a copyright infringement case, since the copyright was held by the photographer who took the photo for the cover. But in court papers filed in Tennessee, Grant’s managers said the unauthorized use of Grant’s likeness might give her Christian fans the impression that Grant endorsed the themes explored in the comic book. From the complaint: “Many fans of Christian music consider interest in witchcraft and the occult to be antithetical to their Christian beliefs and to the message of Christian music in general. Therefore, an association of Amy Grant or her likeness [with Doctor Strange]… is likely to cause irreparable injury to Grant’s reputation and good will.”

The case was settled out of court in early 1991, with a consent decree that Marvel did not admit to any liability or wrongdoing. In the end, none of it mattered much to Grant’s career; that same year, she released Heart in Motion, an album that sold selling five million copies in the U.S. and produced her second No. 1 pop single, “Baby Baby.” Her reign as the queen of Christian pop continues to this day.

     
4. Starbucks v. Lowest Common Denominator
After establishing his reputation in the late ’80s and early ’90s on books like Captain America and Action Comics, in 1999 artist Kieron Dwyer self-published his satirical LCD: Lowest Common Denominator. Though it only ran for four issues, that was long enough for the subversive series to capture the attention of Starbucks, which sued Dwyer in 2000 over his parody of the coffee shop chain’s famous logo.

Before Dwyer published the issue with the parody logo, an intellectual property lawyer told him the logo was social satire — similar to an editorial cartoon — which meant it was considered protected speech under the First Amendment. Perhaps Starbucks would send a cease-and-desist letter, perhaps not. Neither LCD’s small print run nor the low  numbers of merchandise Dwyer made bearing his parody logo gave him reason to expect trouble. But Starbucks filed a motion demanding Dwyer surrender all items bearing his parody logo and the removal of the logo from his website — on top of all legal costs and all revenue generated from LCD. As Dwyer’s lawyer put it: “It’s like carpet-bombing an anthill. Clearly, they expected Kieron to roll over and play dead.”

While Dwyer successfully argued his logo was a parody and therefore protected speech, he was less successful in convincing the judge it wasn’t trademark infringement. Even though Dwyer clearly wasn’t in the coffee business and was in no way a competitor of Starbucks, the judge still found that Dwyer’s parody logo was too “confusingly similar” to the Starbucks logo; worse, the use of the phrase “Consumer Whore” in Dwyer’s logo could be considered offensive and as such tarnished the Starbucks trademark.

Recognizing how far Starbucks was willing to go to fight, Dwyer decided to settle out of court. In the end, he was allowed to continue displaying his logo but only under very narrow restrictions: the logo could not appear on any comic books, T-shirts or stickers created by him, and while Dwyer could post the image online he was not permitted to use it on his website or link his website to other sites that might display the parody logo. As the Comic Book League Defense Fund put it: “In short, Dwyer is permitted to use the logo as long as Starbucks can be confident that no one will see it.”


5. Kellogg’s Inc. v. Cherry Poptart
In 1982, underground cartoonist Larry Welz published the first issue of Cherry Poptart. Starring a sexually adventurous 18-year-old woman and her friends, it was a pornographic spoof of the more wholesome teen humor comics on the spinner racks — especially the Archie line, whose artists Welz clearly emulated. “Puerile” is the word we’re looking for here, but to be fair the book also inserted some social commentary in between the cartoon boink sessions.

While the comic garnered enough fans to make it one of the best-selling underground titles, it’s safe to assume executives at Kellogg’s Inc. weren’t among those fans. After all, when you’re in the business of selling brightly colored toaster pastries for kids, having your product share a name with a comic-book nymphomaniac is going to present a few marketing challenges. Online sources differ on whether the packaged-food giant followed through on suing Welz for trademark infringement or merely threatened to, and I can’t find any court documents proving they did. Either way, the result is the same; by the third issue, the book was renamed Cherry and its lead character’s name changed to Cherry Popstar.

Side note: the first printing of Cherry Popstar #1 also featured a story by Larry Todd titled “Vampironica” that was even more clearly spoofing the Archie gang than Cherry and her friends, right down to a character named “Junkhead” with a familiar-looking hat (the lead character was also named “Veronica Towers,” an obvious play on the original Veronica’s building-themed surname). That story was pulled from subsequent printings to avoid potential lawsuits from Archie Comics, even though these days they seem pretty chill about salacious depictions of their wholesome cast (see also: Riverdale).


6. Charles Atlas v. Flex Mentallo
Debuting in 1987, DC’s relaunched Doom Patrol was a fairly run-of-the-mill superhero title, but that all changed when writer Grant Morrison came on board with the 19th issue. Things soon got weird — I mean, really weird — and before long the new team lived up to its Silver Age tagline “The world’s strangest heroes.” Thrown into the mad mix was Flex Mentallo, a “man of muscle mystery” who could affect reality by flexing his muscles. In 1991’s Doom Patrol #42, it’s revealed that Flex’s secret origin involved getting bullied at the beach, learning the secrets of “muscle mystery” from a bodybuilding manual, and returning to that same beach to exact his revenge on his bully — right before pushing aside the woman who ridiculed his former scrawny state (“That’s right! I am a real man and I don’t need a tramp like you anymore!”).

If any of that sounds familiar, it’s because the character and his origin story were both parodies of Charles Atlas ads, particularly the famous “Insult That Made a Man Out of Mac” ad the Charles Atlas company ran for decades in comic books. That particular ad was said to be based on an actual event experienced by the real Charles Atlas, a bodybuilder who died in 1972 — and while Atlas was no longer around to see the comic, Jeffrey Hogue, the man heading his company at the time, failed to see the humor in the absurdist homage to the company’s founder. In his 1999 trademark violation lawsuit brought against DC Comics, he argued the story (and the subsequent four-issue Flex Mentallo mini-series in 1996) tarnished the goodwill of his company’s longtime trademark.

The judge, however, was having none of that. In her 2000 decision, Judge Naomi Reice Buchwald, a southern district court judge in New York, said it came down to a matter of free speech: “The ad’s reflection in subsequent iterations of the Flex Mentallo character served to identify and focus further commentary on the comic book industry through the vehicle of this absurdist take on the familiar character,” she wrote in her brief. “This is precisely the type of expression of ideas that the First Amendment is designed to protect.”

On a more technical level, time was also a factor in the judge’s decision. According to a Reuters report at the time, there is a six-year statute of limitations for filing a lawsuit in these types of situations and Charles Atlas — for whatever reason — filed the suit more than eight years after the character’s first appearance.

Hogue was not pleased with the decision, making it clear his main objection was with Flex Mentallo knocking the woman to the ground. “There has to be a limit to how far you can let someone ridicule your trademark,” he said after the decision. “They took that character and made him into something that was not an Atlas man. We’ve always stood up for the underdog. If anyone was beating a woman, we’d be the one stopping it.”

7. Juan Carlos I v. Magneto
Fun fact: Spain has a king. Right now, that position is filled by Felipe VI; he took over in 2014 following the abdication of his father Juan Carlos I, who started his reign in 1975. In all that time as king, Juan Carlos no doubt saw some weird stuff, but probably nothing as strange as seeing himself transformed into a genocidal mutant terrorist in a comic book.

In 2005, Marvel drew the displeasure of Spain and its royal family when the official portrait of Juan Carlos — right down to the sash, medals and wallpaper pattern in the background — was used as the basis of an alternate-reality image of Magneto by artist Mike Mayhew for the company’s House of M event. Rumblings of legal action were quickly followed by an apology from Marvel and a new cover.

About six years after that, apparently because no one at Marvel believes in learning from their mistakes, Spain’s royal house went on the legal warpath again over the exact same issue. This time, Magneto’s Juan Carlos-inspired uniform appeared as a downloadable skin for the Ultimate Marvel vs. Capcom 3 video game — causing the monarchy to ask the Spanish distributor of the game, Koch Media, to remove the skin.

While Koch said it’s not explicitly stated in the game that the uniform is based on that of Juan Carlos, representatives for the royal family said their concern was the same as before: to prevent the misuse of the figure of the king and his Spanish military uniform. Seeking to avoid legal challenges, the game makers pushed back the launch of the downloadable content with the offending content and replaced Magneto’s costume with something less distinctive.


8. Hooters v. Cabbage Comics 
The Hooters restaurant chain is no stranger to the legal system; since its founding in 1983, the chain best known for its skimpily clad waitresses has defended itself against several suits alleging workplace harassment and sexual/racial discrimination (you can also look up “toy Yoda contest” online if you want a good laugh and/or groan). But the company was on the other side of the courtroom in 1998 when it sued the founders of Cabbage Comics over their one and only comic book, Halle the Hooters Girl #1.

In her origin story, our heroine is an average Hooters server when a fateful collision with a truck carrying toxic waste turns her into a super-powered Hooters Girl, AKA “trouble in a tank top!” (The firefighters who show up to pull her from the wreckage use their hoses to turn the rescue into an impromptu wet T-shirt contest, so… pretty much what you would expect from a Hooters-themed comic.)

According to a 1998 news article in Restaurant News, Halle the Hooters Girl was conceived by Cabbage Comics (“cabbage” being Hooters lingo for “money,” or so the article says) as a promotional tool for the chain. Cabbage said at the time it had an agreement with Hooters Inc. that granted it exclusive rights to create, publish and distribute the comic book and to sell merchandise associated with the character, but that claim was contradicted by the lawsuit filed by Hooters.

Complicating matters was the fact that the Hooters trademark at the time was shared between two companies — the business encompassing the original Florida restaurant and the larger franchise organization that oversaw the chain’s national and international expansion (the companies merged in 2011). So even if the makers of the comic had gotten approval from the smaller, original Hooters business, they still needed the other company’s sign-off if they wanted to distribute the comic in that company’s markets.

The plan had been to use a nationwide tour of Hooters models to promote the ongoing series, but after only one stop in San Antonio the comic was recalled and the promised series never materialized. With an original print run of only a few thousand, that first issue has since become a kitsch collectable, and online sellers often ask hundreds of dollars for copies signed by Hooters models.


9. Walt Disney v. Air Pirates Funnies
To hear Dan O’Neill tell the story, they had to practically throw copies of Air Pirates Funnies in the faces of Disney executives to get a response. When the first issue of the underground comic hit the streets in 1971, O’Neill and his cohorts expected Disney to send in the stormtroopers. But Disney lawyers didn’t make a habit of hanging out in head shops, and so it was up to a friend of O’Neill’s — a friend whose father worked for Disney in San Francisco, where Air Pirates Funnies was based — to get the ball rolling. “He took a whole bunch of our comic books and slipped them around their boardroom,” O’Neill told The Comics Journal. “They had no knowledge of us until we stuffed it in their face.”

Disney — famous for how zealously it protected its properties — responded all right, giving O’Neill more than he expected. “We figured they’d sue us for $400,000 and they hit us for $870,000. We were wild in our success. Every time a comic strip character appeared in one of the panels, they would say, ‘$5,000 for this one, $5,000 for that one.'”

So why did the Air Pirates Funnies gang want to get sued for publishing comics of Mickey and Minnie taking drugs and having sex? They targeted Disney because it was big and they knew it would fight back. But what they really wanted was a case that would settle once and for all a cartoonist’s right to parody.  When the case went to U.S. District Court in 1972, O’Neill argued fair use and that there was no conflict between his comic and Disney’s, as Disney was out to entertain and make money while the Air Pirates were seeking to criticize through satire and parody, and made no money from it. (“We had seven bucks,” O’Neill said. “Our crime was drawing Donald Duck. We paid our lawyers by drawing more pictures of Donald Duck and selling them.”)

The judge found for the plaintiffs, and O’Neill appealed, lost and appealed again, and kept right on appealing. In 1975, Disney won a $200,000 preliminary judgement and another restraining order, which O’Neill defied by continuing to draw Disney parodies. Finally, in 1978 the Ninth Circuit ruled against the Air Pirates for copyright infringement, although they dismissed the trademark infringement claims; the U.S. Supreme Court refused to hear an appeal. In 1980, weighing the unrecoverable $190,000 in damages and $2,000,000 in legal fees against O’Neill’s continuing disregard for the court’s decisions, Disney settled the case, dropping the contempt charges and promising not to enforce the judgment as long as the Pirates no longer infringed Disney’s copyrights.

O’Neill lost, though he still took it as a win: “It was rough. But it was the right thing to do. When you’re in the business of being a writer, every now and then you get your tail in a sling over the copyright sling. If you just roll over, the new artist down the road is going to get it. Mickey Mouse was just the tip of the iceberg. He represented all those things that we couldn’t say or use that were being used on us. People always burn the flag, and they never burn the right one.”