Is Commercial Speech Merely That Which Advertises a Product or Service for Business Purposes ?
In Cardtoons L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959 (10th Cir. 1996), the Tenth Circuit recognized that an "expressive work" protected by the First Amendment was not commercial speech because commercial speech is best understood as speech that merely advertises a product or service for business purposes. Id. at 970.
Similarly, in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 106 Cal. Rptr. 2d 126, 21 P.3d 797, 802 (Cal. 2001), the California Supreme Court held that an artist who sold lithographs and t-shirts bearing the image of the Three Stooges did not violate the plaintiffs' right of publicity because the case did not concern commercial speech.
"As the trial court found, [the defendant's] portraits of the Three Stooges are expressive works and not an advertisement for or endorsement of a product." Id.
Not only do these decisions demonstrate that the common usage of the term "commercial" in the commercial misappropriation and right of publicity context is indeed limited to the promotion of a product or service as the courts construing section 540.08 have concluded, but they also indicate that such works should be protected by the First Amendment.
Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995);
Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994);
Ruffin-Steinback v. dePasse, 82 F. Supp. 2d 723 (E.D. Mich. 2000);
Guglielmi v. Spelling-Goldberg Prods., 25 Cal. 3d 860, 603 P.2d 454, 461-62, 160 Cal. Rptr. 352 (Cal. 1979) (Bird, C.J., concurring, with majority of court joining her concurrence) ("While few courts have addressed the question of the parameters of the right of publicity in the context of expressive activities, their response has been consistent.Whether the publication involved was factual and biographical or fictional, the right of publicity has not been held to outweigh the value of free expression.").