Is all “art” protected by the First Amendment, or are there instances where it is subject to the right of publicity? In Comedy III Productions v. Saderup, the court examined that issue pitting an artist against The Three Stooges.
Brothers Jerome “Curly” Howard and Moe Howard teamed up with Larry Fein to form The Three Stooges. Together they acted in over 100 films.
Gary Saderup is an artist specializing in the creation of charcoal drawings of celebrities. His subjects have included Lucile Ball, Humphrey Bogart and Marilyn Monroe. Saderup created a charcoal drawing of Curly, Moe and Larry and put the drawing on lithographs and t-shirts. He did not obtain Comedy III’s permission before he sold the lithographs and t-shirts, and it was this charcoal drawing of The Three Stooges that drew the attention of Comedy III Productions, the owner of the Stooges’ names, images and likenesses.
When Comedy III learned of the lithographs and t-shirts, it did what you’d expect it to do – it sued Saderup for appropriating the Stooges’ identity.
Saderup raised two defenses. First, he claimed that he was only selling a work of art that he created and therefore the First Amendment protected the art. Next he argued that California’s right of publicity statute only applies when someone uses a name, image or likeness in advertising.
The California Supreme Court quickly dispensed the advertising argument. The right of publicity extends beyond just advertising.
The First Amendment issue received significantly more attention from the Court. Works of art are generally protected by the First Amendment even when they appear on a t-shirt (“fuck the draft” in Cohen v. California appeared on a t-shirt).
Further, the right of publicity does not permit a celebrity to censor disagreeable portraits. It does, however, provide celebrities with a mechanism to prevent others from misappropriating the economic value generated by the celebrity’s fame through the merchandising of the name, image or likeness of that celebrity.
So, where is the line between art and the misappropriation of a celebrity’s image?
The issue is whether the work is “transformative.” The court held that “When a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity.”
The test is “whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.”
As a general rule, single works of fine art are protected by the First Amendment; Saderup’s mistake was to try to sell his drawing of the Stooges on lithographs and t-shirts.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.