The First Amendment - Expression With Respect to Celebrities
In Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, the Court recognized that the right of publicity has a "potential for frustrating the fulfillment" of both purposes of the First Amendment: "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. ...' " (Comedy III, supra, 25 Cal.4th at pp. 396-397 .)
"Because celebrities take on public meaning, the appropriation of their likenesses may have important uses in uninhibited debate on public issues, particularly debates about culture and values. And because celebrities take on personal meanings to many individuals in the society, the creative appropriation of celebrity images can be an important avenue of individual expression. ... ... The very importance of celebrities in society means that the right of publicity has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are iconoclastic, irreverent, or otherwise attempt to redefine the celebrity's meaning." (Id. at p. 397.)
But, the court concluded, not all expression with respect to celebrities is insulated by the First Amendment. "The right of publicity, like copyright, protects a form of intellectual property that society deems to have some social utility. '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. For some, the investment may eventually create considerable commercial value in one's identity.' " (Comedy III, supra, 25 Cal.4th at p. 399.) "The state's interest in preventing the outright misappropriation of such intellectual property by others is not automatically trumped by the interest in free expression or dissemination of information ... ." (Id. at p. 401.)
The court in Comedy III articulated "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." (Comedy III, supra, 25 Cal.4th at p. 391.)
Thus, "when artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist." (Id. at p. 405, fn. omitted.) A celebrity may enforce "the right to monopolize the production of conventional, more or less fungible, images" of that celebrity. (Ibid.)
On the other hand, a work claimed to violate a celebrity's right of publicity is entitled to First Amendment protection where "added creative elements significantly transform the celebrity depiction ... ." (25 Cal.4th at p. 405, fn. 10.)
"Another way of stating the inquiry is whether the celebrity likeness is one of the 'raw materials' from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. We ask, in other words, whether a product containing a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness." (Id. at p. 406.) The inquiry boils down to "whether the literal and imitative or the creative elements predominate in the work." (Id. at p. 407.)
The court then applied its newly minted "transformative use" test to the facts before it. The plaintiff was the owner of the rights to the comedy act known as The Three Stooges. The defendant was an artist who sold lithographs and T-shirts bearing a likeness of The Three Stooges reproduced from a charcoal drawing the artist had created. (Comedy III, supra, 25 Cal.4th at p. 393.)
The owner sued for violation of the right of publicity under Civil Code section 3344.1, the companion statute to section 3344 that extends the right of publicity to the heirs and assignees of deceased personalities.
The court rejected the artist's contention that the plaintiff's claim was barred by the First Amendment. The court could "discern no significant transformative or creative contribution" in the artist's literal reproduction of the likenesses of The Three Stooges in its charcoal drawing. (Comedy III, supra, 25 Cal.4th at p. 409.) The artist's "undeniable skill is manifestly subordinated to the overall goal of creating literal, conventional depictions of The Three Stooges so as to exploit their fame." (Ibid.)
The court was careful to note that, in some circumstances, literal reproductions of celebrity portraits may be protected by the First Amendment.
The court used the example of silk screens created by artist Andy Warhol using images of celebrities such as Marilyn Monroe, Elizabeth Taylor, and Elvis Presley. "Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself." (Comedy III, supra, 25 Cal.4th at pp. 408-409.)