21 P.3d 797 (Cal. 2001)
Comedy III Productions, Inc., the registered owner of all rights to the former comedy act known as The Three Stooges, sued Gary Saderup and Gary Saderup, Inc. for violation of the right of publicity.1 Saderup is an artist with over twenty-five years' experience who creates charcoal drawings of celebrities that are used to produce lithographic prints and silkscreen images on T-shirts.2
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.3 These items did not constitute an advertisement, endorsement, or sponsorship of any product.4 Saderup's profits from the sale of the unlicensed items totaled seventy-five thousand dollars, and Comedy III's reasonable attorney fees were one hundred fifty thousand dollars.5
The parties waived the right to jury trial and submitted the case on stipulated facts.6 The trial court found for Comedy III and entered judgment awarding damages of seventy-five thousand dollars and attorney fees of one hundred fifty thousand dollars plus costs.7 The court also issued a permanent injunction restraining Saderup from violating the statute by use of any likeness of The Three Stooges in lithographs, T-shirts, or any other medium by which his art work may be sold or marketed, with the sole exception of the original charcoal drawing.8
Saderup appealed.9 The Court of Appeal modified the judgment by striking the injunction because Comedy III had not proved a likelihood of continued violation and the wording was overbroad.10 The Court of Appeal affirmed the judgment as modified, upholding the award of damages, attorney fees, and costs.11 The Supreme Court granted review.12
Whether Civil Code section 990 applies to the sale of lithographs and T-shirts bearing the likeness of a deceased personality when those items are not used for advertising purposes?13
The statute makes liable any person who, without consent, uses a deceased personality's name, voice, photograph, or likeness either (1) on or in products, merchandise, or goods or (2) for purposes of advertising or selling such items.14 The two categories of use are distinct.15 The plain language of the statute reaches the placement of the likeness directly on tangible goods sold to the public.16
Yes. Comedy III Productions, Inc. is the registered owner of all rights to The Three Stooges, who qualify as deceased personalities under the statute because their likenesses possessed commercial value at death.17 Saderup created a charcoal drawing of the Stooges and used it to produce lithographic prints and silkscreen images on T-shirts.18 These items are tangible personal property consisting of paper, fabric, and ink that were manufactured as products to be sold and displayed or worn.19
Although the stipulated facts establish that the lithographs and T-shirts did not constitute an advertisement, endorsement, or sponsorship of any product, the statute is violated because the likeness appears on or in the products themselves.20 The trial court awarded damages of seventy-five thousand dollars plus one hundred fifty thousand dollars in attorney fees on these facts, and the Court of Appeal affirmed the monetary judgment after striking only the overbroad injunction.21 The Supreme Court likewise applied the plain statutory text to the stipulated facts and held that selling the reproductions placed the likeness on products within the meaning of section 990.22
Civil Code section 990 applies to Saderup's unauthorized sales of the lithographs and T-shirts.23
Whether the First Amendment protects an artist's sale of reproductions of a celebrity likeness that lack significant transformative elements from a right of publicity claim?24
A work that literally depicts a celebrity is protected by the First Amendment only if it contains significant transformative elements that make the likeness one raw material among others in an original expression.25 Alternatively, the marketability of the work must derive primarily from something other than the celebrity's fame.26 When the artist's skill is subordinated to the goal of creating a conventional portrait that commercially exploits the celebrity's fame, the state interest in protecting the right of publicity prevails over the artist's expressive interest.27
No. The stipulated facts show that Saderup, an artist with more than twenty-five years' experience, produced a charcoal drawing of The Three Stooges and then created multiple lithographic prints and T-shirt images from that drawing for sale to the public.28 These reproductions are literal, conventional depictions in which Saderup's skill is manifestly subordinated to the goal of commercially exploiting the Stooges' fame.29
The marketability and economic value of the items derive primarily from the fame of the Three Stooges rather than from any new expression added by Saderup.30 The works contain no significant transformative elements such as parody, distortion, or social commentary that would alter the likeness into something more than a mere imitation.31 The trial court found that the enterprise was designed to generate profits solely from the use of the likeness.32 Both the Court of Appeal and the Supreme Court concluded that such conventional reproductions receive no First Amendment protection against the right of publicity claim.33 The Supreme Court therefore affirmed the judgment awarding damages and attorney fees while recognizing that truly transformative works, such as Andy Warhol's silkscreens, would receive protection.34
The First Amendment does not protect Saderup's sale of the non-transformative reproductions from the right of publicity claim.35