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Not-So-Public Figures
New ruling could compromise livelihood of photojournalists and fans

The California Supreme Court has changed the rules for balancing an artist's First Amendment rights in his artwork against the subject's ability to control his publicity. The case in point is Comedy III Productions, Inc. (Three Stooges) v. Gary Saderup, Inc. (April 30, 2001) 01 CDOS 3380. The case is significant because it imports the need to evaluate the quality of the 'art' when analyzing the First Amendment's guarantee of free speech.

In short, the court must now determine whether an artist has added something of 'his own' to a portrait of a celebrity, or whether the depiction is unembellished. The latter would receive no First Amendment protection. The Three Stooges case places artists and photographers at risk of civil liability when their artwork accurately portrays a celebrity.

The decision tips the scales against the First Amendment and has the potential to chill artistic expression in portraiture and photography of celebrities. Indeed, a photographer who did nothing more than capture a snapshot of a celebrity may now be unable to sell copies of that photograph without running afoul of the statute. The case has broad implications for the Internet as well, and unofficial fan Web sites are particularly at risk.

The Right of Publicity

One of the lesser-known intellectual property rights is the right of publicity. An outgrowth of the right of privacy at common law, the right of publicity allows a person to control the exploitation of his or her name, likeness, or image, for publicity and profit.

Many states have right of publicity laws. For example, nearly 100 years ago, New York adopted its first statute, which punished the unauthorized use of the name, portrait, or picture of any living person in advertising or trade, without consent. See, N.Y.Civ. Rights Law ??50-51. In California, the Legislature enacted two statutes concerning the right of publicity. See, Cal. Civ. Code ?3344 and ?3344.1. For a brief history of the development of the right of publicity, see Russell J. Frackman and Tammy C. Bloomfield, The Right of Publicity: Going to the Dogs? (1996). Until very recently, these laws have given way when challenged on First Amendment grounds.

The Three Stooges v. Saderup

In Comedy III v. Saderup, Gary Saderup, drew a picture of Moe Howard, Curly Howard and Larry Fein, better known as the Three Stooges. No one questioned his artistic talents. Indeed, it is precisely because of his skill and accuracy in portraying his subjects that he ended up before the California Supreme Court. (In fact, it's entirely possible that a less literal depiction may have given him the First Amendment protection he thought he had.)

After drawing the Stooges with charcoal on canvass, Saderup developed lithographs and T-shirts ('wearable art') bearing his creation. According to Comedy III, his artwork violated their right to control Three Stooges publicity.

Saderup defended his actions based upon principles of free speech. His talent and his artwork is what he claimed to sell. He argued that since art has long been considered protected speech, wouldn't it be ironic if parody and satire were protected by the First Amendment but serious, quality artwork was not?

Ironic or not, he lost in the trial court. He lost in the court of appeal. And on April 30, 2001, Saderup lost in the California Supreme Court. But, unlike the prior court decisions, the Tate Supreme Court held that Saderup's art did not deserve First Amendment protection because it was insufficiently 'transformative.' In the Court's opinion, Saderup's artwork created a 'conventional portrait' and was not protected by the right of free speech.

So, if the artwork accurately depicts a celebrity, the artist cannot develop and exploit it. Tell that to all of the professional photographers who earn their livelihoods photographing celebrities.

Worse, the new 'transformative' test puts judges in the position of evaluating the quality of the artwork for themselves. If they decide the portrait is too precise, accurate, or realistic, the artist loses. In this respect, the art of a three-year old is given greater First Amendment protection than a professional artist.

In sum, Saderup's charcoal 'portraits' do not deserve First Amendment protection because they accurately depict what he set out to draw. If history teaches us anything, we really don't want the judiciary telling us what 'art' is.

Implications for Web Sites

The number of fans who run Web sites that showcase their favorite celebrities is unknown. They make pictures, drawings, trivia, and memorabilia available to anyone sharing their devotion. The right of publicity can be a blunt instrument to combat unlicensed images and photographs posted on the Web.

In CMG Worldwide, Inc. v. American Legends (No. 49D109607 (Indiana, Marion County, filed July 17, 1996), Curtis Management Group, alleged ownership of memorabilia depicting actor James Dean that appeared on the American Legends Web site. CMG sued. Although the case was eventually settled, the American Legends Web site chronicles many of the substantive events in the dispute. For a critical view of the lawsuit, see Cristina Fernandez, The Right of Publicity on the Internet(1998).

Similarly, in Louder v. CompuServe, Inc. (Los Angeles Superior Court Case No. BC 153274, filed July 5, 1996), the plaintiffs launched a right of publicity class-action suit when their photographs appeared on CompuServe.

Now, the Three Stooges decision provides considerably more leverage to celebrity managers and agents who want to control photographs and drawings of their clients; and, with good reason: licensing these images is big business. Undoubtedly, sites that feature photographs, drawings and images that accurately depict the celebrity will become easier targets for right of publicity challenges. Unfortunately, this does a disservice to fans, and ultimately, to the celebrities who rely upon those fans for their publicity.

While many of us believe that a celebrity (or anyone else for that matter) should be able to control the exploitation of his or her image, we must tread lightly when we deprive others of the rights secured by the Constitution. It can be argued that Comedy III is a narrow holding, applying only to one man's charcoal drawing and its reproduction on lithographs and T-shirts. On the other hand, allowing our free speech rights to be eroded in the name of image licensing is a slippery slope that we should avoid.