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Supreme Court rules Three Stooges T-shirts are not protected art

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  1. Libel and Privacy

    NMU         CALIFORNIA         Privacy         May 2, 2001    

Supreme Court rules Three Stooges T-shirts are not protected art

  • Images of the comedians were not sufficiently transformative to justify protection from the descendants’ claims of violation of their rights of publicity.

T-shirts bearing drawings of The Three Stooges are not sufficiently artistic to warrant their own First Amendment protection, the California Supreme Court ruled on April 30. The court upheld a lower state court ruling against the T-shirt artist.

The case was a battle between a celebrity lithographer, Gary Saderup, and the holder of The Three Stooges’ “deceased’s right of publicity.” The deceased’s right of publicity is a California intellectual property right created by state statute. But speech advocates saw the suit as an infringement on the lithographer’s First Amendment rights.

“What the right of publicity holder possesses is not a right of censorship, but a right to prevent others from misappropriating the economic value generated by the celebrity’s fame through the merchandising of the name, voice, signature, photograph or likeness of the celebrity,” Judge Stanley Mosk, said in the opinion.

The Supreme Court stepped into an odd — and likely controversial — role: art critic. It noted that other artistic reproductions of celebrities, such as Andy Warhol’s silkscreens of Marilyn Monroe, Elizabeth Taylor and Elvis Presley would be protected, but that Saderup’s Three Stooges would not. The difference, the court said, was that Warhol’s works “went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself.”

Saderup has been drawing charcoal sketches of celebrities for 25 years. He uses the drawings to create lithographic and silkscreen masters, which are used to produce lithographic prints and T-shirts.

After Saderup began selling Stooges prints and T-shirts, Comedy III Productions, which owns the Stooges’ right of publicity, brought the lawsuit, seeking damages under the California deceased person’s publicity law. That law provides that anyone who uses a deceased person’s name, voice, signature, photograph or likeness in “products, merchandise, or goods, or for purposes of advertising or selling” without prior consent shall be liable for damages. The right can be sold during the celebrity’s life or may descend as part of an inheritance.

After a trial on stipulated facts, the trial court ruled in favor of Comedy III for $225,000 and granted an injunction against Saderup. Saderup appealed, and the appellate court upheld the award of damages but struck the injunction because, it said, the injunction was so broad it “could extend to matters and conduct protected by the First Amendment.”

The state Supreme Court said it acknowledged the intersection of First Amendment and publicity rights. The court said it was concerned with keeping open a free marketplace and repelling efforts to curb “uninhibited, robust and wide-open debate.”

The court noted that the Saderup creations were not less protected because they entertain, rather than inform. The court also stated that visual speech is not outside the ambit of the First Amendment. Works of art are protected even if they present no discernible message, the court said.

The Supreme Court was unpersuaded that putting art on a T-shirt somehow robbed it of First Amendment protection. “First Amendment doctrine does not disfavor nontraditional media of expression.”

The court adopted a balancing test that it gleaned from other free speech and publicity cases, although the court itself acknowledged that it was “not a simple matter to develop a test that will unerringly distinguish between forms of artistic expression protected by the First Amendment and those that must give way to the right of publicity.”

The court rejected a suggestion to incorporate copyright law’s fair use doctrine as a balancing test, but adopted one element from the fair use test as its guideline here. The court looked to whether the new work was “transformative” of the old. If a work “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message,” then it is sufficiently transformative to garner its own protection. The key question, the court determined, was “does the work derive primarily from the fame of the celebrity depicted?”

The court held that Saderup’s skill and talent were subordinated to the overall goal of creating a portrait of the Stooges, and therefore his free speech rights lost to the right of publicity.

(Comedy III Productions v. Gary Saderup, Inc.) DB

© 2001 The Reporters Committee for Freedom of the Press

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