Supreme Court of California
COMEDY III PRODUCTIONS, INC., Plaintiff and Respondent,
v.
GARY SADERUP, INC., et al., Defendants and Appellants.
No. S076061.
April 30, 2001.
MOSK,
J. - A California statute grants the right of publicity to specified
successors in interest of deceased celebrities, prohibiting any other person
from using a celebrity's name, voice, signature, photograph, or likeness for
commercial purposes without the consent of such successors. . . . The United
States Constitution prohibits the states from abridging, among other fundamental
rights, freedom of speech. . . . In the case at bar we resolve a conflict
between these two provisions. . . .We formulate . . . what is essentially a
balancing test between the First Amendment and the right of publicity based on
whether the work in question adds significant creative elements so as to be
transformed into something more than a mere celebrity likeness or imitation.
Applying this test to the present case, we conclude that there are no such
creative elements here and that the right of publicity prevails. On this basis,
we will affirm the judgment of the Court of Appeal.
I. The Statute
In this state the right of publicity is both a statutory and a common law right. . . .
II. Facts
. . . Comedy
III is the registered owner of all rights to the former comedy act known as The
Three Stooges, who are deceased personalities within the meaning of the statute.
Saderup is an artist with over 25 years' experience in making charcoal drawings
of celebrities. These drawings are used to create lithographic and silkscreen
masters, which in turn are used to produce multiple reproductions in the form,
respectively, of lithographic prints and silkscreened images on T-shirts.
Saderup creates the original drawings and is actively involved in the ensuing
lithographic and silkscreening processes.
Without securing Comedy III's consent, Saderup sold lithographs and T-shirts
bearing a likeness of The Three Stooges reproduced from a charcoal drawing he
had made. These lithographs and T-shirts did not constitute an advertisement,
endorsement, or sponsorship of any product. . . .
III. Discussion
. . . The tension between the right of publicity and the First Amendment is highlighted by recalling the two distinct, commonly acknowledged purposes of the latter. First, " 'to preserve an uninhibited marketplace of ideas' and to repel efforts to limit the ' "uninhibited, robust and wide-open" debate on public issues.” . . . Second, to foster a "fundamental respect for individual development and self-realization. The right to self-expression is inherent in any political system which respects individual dignity. Each speaker must be free of government restraint regardless of the nature or manner of the views expressed unless there is a compelling reason to the contrary. . .
Although surprisingly few courts have considered in any depth the means of reconciling the right of publicity and the First Amendment, we follow those that have in concluding that depictions of celebrities amounting to little more than the appropriation of the celebrity's economic value are not protected expression under the First Amendment. We begin with Zacchini v. Scripps- Howard Broadcasting Co. (1977) 433 U.S. 562, 576, 97 S.Ct. 2849, 53 L.Ed.2d 965 (Zacchini), the only United States Supreme Court case to directly address the right of publicity. Zacchini, the performer of a human cannonball act, sued a television station that had videotaped and broadcast his entire performance without his consent. The court held the First Amendment did not protect the television station against a right of publicity claim under Ohio common law. In explaining why the enforcement of the right of publicity in this case would not violate the First Amendment, the court stated: " '[T]he rationale for [protecting the right of publicity] is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.' " . . . The court also rejected the notion that federal copyright or patent law preempted this type of state law protection of intellectual property: "[Copyright and patent] laws perhaps regard the 'reward to the owner [as] a secondary consideration,' [citation], but they were 'intended definitely to grant valuable, enforceable rights' in order to afford greater encouragement to the production of works of benefit to the public. [Citation.] The Constitution does not prevent. Ohio from making a similar choice here in deciding to protect the entertainer's incentive in order to encourage the production of this type of work." . . .
. . . In Estate of Presley v. Russen (D.N.J.1981) 513 F.Supp. 1339 (Russen), the court considered a New Jersey common law right of publicity claim by Elvis Presley's heirs against an impersonator who performed The Big El Show. The court implicitly used a balancing test similar to the one proposed in Guglielmi. Acknowledging that the First Amendment protects entertainment speech, the court nonetheless rejected that constitutional defense. "[E]ntertainment that is merely a copy or imitation, even if skillfully and accurately carried out, does not really have its own creative component and does not have a significant value as pure entertainment. As one authority has emphasized: 'The public interest in entertainment will support . . . the sporadic, occasional and good-faith imitation of a famous person to achieve humor, to effect criticism or to season a particular episode, but it does not give a privilege to appropriate another's valuable attributes on a continuing basis as one's own without the consent of the other.' " . . . Acknowledging also that the show had some informational value, preserving a live Elvis Presley act for posterity, the court nonetheless stated: "This recognition that defendant's production has some value does not diminish our conclusion that the primary purpose of defendant's activity is to appropriate the commercial value of the likeness of Elvis Presley. . .
We conclude
that a wholesale importation of the fair use doctrine into right of publicity
law would not be advisable. At least two of the factors employed in the fair use
test, "the nature of the copyrighted work" and "the amount and substantiality of
the portion used" (17
U.S.C. § 107(2), (3)),
seem particularly designed to be applied to the partial copying of works of
authorship "fixed in [a] tangible medium of expression" (17
U.S.C. § 102);
it is difficult to understand why these factors would be especially useful for
determining whether the depiction of a celebrity likeness is protected by the
First Amendment. Nonetheless, the first fair use factor--"the purpose and
character of the use" (17
U.S.C. § 107(1))--does
seem particularly pertinent to the task of reconciling the rights of free
expression and publicity. As the Supreme Court has stated, the central purpose
of the inquiry into this fair use factor "is to see, in Justice Story's words,
whether the new work merely 'supersede[s] the objects' of the original creation
[citations], or instead adds something new, with a further purpose or different
character, altering the first with new expression, meaning, or message; it asks,
in other words, whether and to what extent the new work is 'transformative.'
[Citation.] Although such transformative use is not absolutely necessary for a
finding of fair use, [citation] the goal of copyright, to promote science and
the arts, is generally furthered by the creation of transformative works."
(Campbell v. Acuff-Rose
Music, Inc. (1994) 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500,
fn. omitted.)
. . .
Turning to Saderup's work, we can discern no significant transformative or creative contribution. His undeniable skill is manifestly subordinated to the overall goal of creating literal, conventional depictions of The Three Stooges so as to exploit their fame. Indeed, were we to decide that Saderup's depictions were protected by the First Amendment, we cannot perceive how the right of publicity would remain a viable right other than in cases of falsified celebrity endorsements.
Moreover, the marketability and economic value of Saderup's work derives primarily from the fame of the celebrities depicted. While that fact alone does not necessarily mean the work receives no First Amendment protection, we can perceive no transformative elements in Saderup's works that would require such protection.
Saderup argues that it would be incongruous and unjust to protect parodies and other distortions of celebrity figures but not wholesome, reverential portraits of such celebrities. The test we articulate today, however, does not express a value judgment or preference for one type of depiction over another. Rather, it reflects a recognition that the Legislature has granted to the heirs and assigns of celebrities the property right to exploit the celebrities' images, and that certain forms of expressive activity protected by the First Amendment fall outside the boundaries of that right. Stated another way, we are concerned not with whether conventional celebrity images should be produced but with who produces them and, more pertinently, who appropriates the value from their production. Thus . . . if Saderup wishes to continue to depict The Three Stooges as he has done, he may do so only with the consent of the right of publicity holder.
