DC Comics has agreed to defend Joe Lansdale, Tim Truman, and Sam Glanzman against the lawsuit filed against them, DC Comics, and DC's parent corporation, Time Warner, by blues musicians Johnny and Edgar Winter. The suit alleges that DC Comic's five-part series, Jonah Hex: Riders of the Worm and Such, contains a malicious and defamatory portrayal of the Winter brothers that misappropriates the commercial value of the pair's likenesses and depicts them in a false light.
DC recently concluded that the three creators would be covered by the company's insurance carrier and will be defended by lawyers paid by the insurance company. When the lawsuit was filed on March 6 in the Los Angeles Superior Court, the three creators feared that DC would attempt to recoup any losses the company sustained from the lawsuit direcly from the creators because their contract with DC included a clause indemnifying the company from losses incurred by such a lawsuit. Those concerns have been assuared now that DC has agreed to defend them, and the trio is no longer in need of assistance from the Comic Book Legal Defense Fund.
Truman and Lansdale, who drew and wrote the series that Glanzman inked, both told the Journal that DC originally refrained from discussing the suit with them, and appeared to be disassociating themselves from the creators. Lansdale said that DC editor Karen Berger told him that DC would not be supporting them in the matter, and went so far as to deny that the three could even be considered DC employees.
After hiring a lawyer on their own, the three applied for and received the support of the CBLDF; it was the first time that the organization agreed to take on a civil case rather than a criminal one. Shortly thereafter, DC made it clear to the creators that their defense would be covered by the company's insurance carrier.
Troman and Lansdale have both maintained that their intent in creating Riders of the Worm and Such was to satirize a host of Texas blues and rock musicians rather than to convey a factual depiction of Johnny and Edgar Winter.
"I don't think DC knew how to categorize the work at first," Truman said, but after discussing the case with DC's lawyers, they agreed with the creators that the series was clearly protected under the First Amendment. He did note that "I wish we'd have been able to talk to them a long time ago...it would have saved me a lot of hair-pulling."
He added that the news had eliminated any possible feelings of ill will between the creators and DC. "Their original standpoint was in many ways understandable, but in many ways it was unfortunate...I was really in limbo through the whole thing; I couldn't understand why we weren't getting more of a response from DC," Truman said, but added that it was probably a case of "everyone trying to cover their own butts. Once we learned the score, and I think once DC realized that the creative community was behind us," they saw it in a different light.
DC confirmed their official support of the creators by sending them copies of a letter dated June 6, 1996, from Patricia A. Horton-a senior claims analyst at CNA Excess & Select-to Lillian Laserson, DC's vice president and general consul. After noting that the three had requested that DC Comics "provide them with a defense and indemnification in this matter," she cited a section from the Insuring Agreement that defined an Indemnified Party as "any author involved with works first published and contracted during the policy, involved in creating works which are original with and/or under the editorial control of the Named Insured, including but not limited to illustrators." As a result, she concluded, all three of the creators were covered under the insurance policy.
DC's Laserson refused to answer questions about the lawsuit posed over the phone and agreed to respond only to questions in writing, electing to answer some questions and ignore others. In response to the faxed questions, Laserson stated that although DC does not comment on the substance of pending litigation, she would answer as many of the Journal's questions "as are appropriate for me to answer." She stated that DC "is very pleased that our insurance carrier agreed to cover the defense of Sam Glanzman, Tim Truman, and Joe R. Lansdale. We understand our freelancers' stress at being named defendant's in a lawsuit and regret that the process did take some time." She added that neither DC or Continental Casualty Company-Time Warner's insurance carrier-were influenced "by any publicity" regarding the lawsuit, "which, by the way, has been depressingly inaccurate."
Laserson went on to state that "contrary to much of what has been published, DC and the creative talent have always taken the same position vis a vis the Winter Brothers claims," presumably referring to "depresingly inaccurate" reportage by the Journal in which the creators told the Journal that DC had not discussed the suit with them before replying to the Winter's lawyers and had generally been incommunicative. As reported in TCJ #186, Lansdale specifically stated: "I'm saying the problem is that they didn't consult us-there were some attitudes and things that we could have given them to let them know where we stood" and that "it's been obvious from the start that they've [DC] been trying to reserve the right to throw us to the wolves." Laserson refuted Lansdale's statement by telling the Journal that "of course we solicited and incorporated their input in out response to the Winter brothers."
Michael Bergman, a lawyer in Beverly Hills who DC hired to represent all of the defendants, supported Laserson's position that "it was inderstood from the very outset that DC as the publisher would be carrying the ball," and from his perspective, there was never "a point where there was any conflict between these parties." He did acknowledge that "there may have been some confusion at the outset" regarding whether or not the creators would be supported by DC.
Lansdale flatly disagreed with Laserson and Bergman's interpretation of the developments. Reiterating his previous position, he said that "if it had been understood from the beginning [that DC would defend the suit], we wouldn't have [approached the CBLDF]...All I know is that DC wasn't going to protect us, and I asked people there point blank if they were and the answer was no." He added that in his opinion, the main reasons why the creators were being supported now were the support from the CBLDF and the publicity given to the case by Andrew Vachss and the Journal. (Laserson did not answer the Journal's query as to whether the involvement of the CBLDF played any role in DC's decision to defend the creators, nor did she say who was ultimately responsible for making the final determination of whether or not the trio would be covered).
As for the current activity on the suit, Bergman said that no motions had been filed yet, and the main activity to this point has been responses to discoverys from both camps. A legal discovery is a request by one side for information; for example, Bergman has asked for any sort of evidence or information from the Winters about anyone who had encountered the Jonah Hex comic and belived it to be a factual representation of the musicians.
Most of the questions directed to the Winter brothers in what is called the discovery process of the lawsuit is related to their status as public figures, which designation places a higher burden of proof on the plaintiff. The disignation is a key aspect of the Winters' claim: if they are not legally considered public figures, as their lawyer claims, they are not required to show that Truman and Lansdale acted with malice towards the Winters in the way the characters of Johnny and Edgar Autumn are depicted in the Jonah Hex seris. Because Bergman just granted the plaintiffs additional time to produce some information, he said that it would be at least a month before any depositions are filed.