Exercise Caution With Celebrity Images

Art Business News, Sept, 2001 by Joshua Kaufman

SPECIAL REPORT--A recent case in California has pitted the Three Stooges against artist Gary Saderup. Saderup, who has made a career of creating charcoal drawings of celebrities, was sued for damages and injunctive relief by the Three Stooges' agent, Comedy III Productions Inc. under California's Right of Publicity Law, for selling lithographs and tee-shirts based on the artist's charcoal drawings bearing the likeness of the Three Stooges. The problem is Saderup did so without securing Comedy III's permission. (Comedy III is the registered owner of all their rights.)

The artist ultimately lost on the facts, but an artistic exception to the Rights of Publicity for celebrities was carved out in California. The Right of Publicity applies to living people and, in most jurisdictions, to the deceased as well. In California, the law makes liable a person who uses a personality's name, voice, photograph or likeness in any manner or in products, merchandise or goods or for the purpose of advertising, selling or soliciting purchases without consent.

Applying the statute to the facts before it, the Supreme Court of California held that Saderup violated the rights of the Three Stooges. It held the lithographic prints of the Three Stooges are personal property consisting of paper and ink made as products to be sold an displayed on walls like graphic art. The tee-shirts were likewise tangible personal property consisting of fabric and ink made as products to be sold and worn as regular garments. Thus, by producing and selling lithographs and tee-shirts, Saderup used the likeness of the Three Stooges "on products, merchandise and goods" within the meaning of the California law.

Saderup argued he had a First Amendment right, since the portraits were expressive works and not advertisements or endorsements. Simply because he was selling the images, he argued, they should not loose their Constitutional protected right under the First Amendment.

The court acknowledged there is a tension between the Right of Publicity and the First Amendment. The court recognized that the Right of Publicity can frustrate the purposes of the First Amendment, because celebrity images can take on a public meaning and the use of their images can have an important impact in debates on public issues, particularly with regard to culture and values. Because of the role celebrities play in our society, the creative appropriation of celebrity images can also be an important avenue for individual expression. The courts held that celebrities' mannerisms, styles and mode of conversation are chief agents of the moral change in the United States. Therefore, their images are an important expressive and communicative resource and should be part of the cultural debate. The court acknowledged the Right of Publicity has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are iconoclastic, irreverent and otherwise attempt to refine the celebrity's meaning. The court said that, "The Right of Publicity derived from public prominence does not confer a shield to ward off caricature, parodies and satire. Rather, prominence invites creative comment."

In examining the artwork, the court stated the artist's works do not lose their Constitutional protection because they are for purposes of entertaining rather than informing. The courts stated, "Our courts have often observed that entertainment is entitled to the same Constitutional protection as the expression of ideas." The court recognized that expression takes non-verbal forms such as visual arts. It stated the fact that the art appeared in large part on less conventional avenues of communication, e.g., tee-shirts, should not reduce the First Amendment protection. In an earlier case, the court held that tee-shirts were no less the vehicle of communications of ideas and opinions than The New York Times.

After the court expressed its concerns for the artist's First Amendment rights, it turned and looked at the other side of the equation: the rights of the celebrity where "often considerable money, time and energy are needed to develop one's prominence in a particular field. Years of labor may be required before one's skill, reputation, notoriety or virtues are sufficiently developed to permit an economic return through some medium of commercial promotion." The court then went through the Three Stooges' history and how many years they toiled in obscurity until finally they were able to reach prominence and have value in their celebrity.

The court commented on the lack of case law balancing the Rights of Publicity and the First Amendment. After extensive review of the cases that were on point or could provide additional guidance, the Court looked to the fair use test in the copyright law and decided to reject it as not being apt. It did, however, find some basis for guidance in that analysis, specifically the transformative uses that the fair use doctrine undertakes.

The Court found that when artistic expression takes the form of literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the Rights of Publicity without adding significant expression beyond that trespass, the state law in protecting the fruits of the celebrities' labor outweighs the expression of the imitative art. On the other hand, when a work contains significant transformative elements, it is not only worthy of First Amendment protection, but it also is less likely to interfere with the economic interest protected by the Right of Publicity. Therefore, if the celebrity's likeness is merely the raw material from which an original work is created, where the product containing the celebrity's likeness is so transformed that it has become primarily the artist's own expression rather than the celebrity's likeness, then there is no violation of the Right of Publicity. The Court recognized that an artist does have the right to use the image of a celebrity in their artwork, but they may not simply copy the celebrity's image if the resulting product's value is basically found in the celebrity's image. This would be a violation of the Right of Publicity.