SW Legal studies in Business

Nothing Funny About Drawing The Three Stooges
Description California's supreme court held that for an artist to draw The Three Stooges and sell T-shirts with that drawing on them, was a violation of the right of publicity to the Stooges that is owned by a company. There is no First Amendment protection for such likenesses, done without permission, in the case of commercial exploitation.
Topic Torts
Key Words Right of Publicity; Likeness; First Amendment
C A S E   S U M M A R Y
Facts Saderup, a commercial artist, did an original charcoal drawing of The Three Stooges and used that drawing on T-shirts he sold. He earned $75,000 in profits from the venture. He was sued by Comedy III, the owner of all rights to The Three Stooges comedy act, for violating its right of publicity to the Stooges. He contended he had a First Amendment right of freedom of expression. The trial court ordered Saderup to pay $75,000 in damages to Comedy III plus its $150,000 in attorney fees for his likeness of The Three Stooges in commercial reproductions. The court of appeals upheld the damages and attorney fees. Saderup appealed.

Affirmed. In California there is a statutory and a common law right of publicity. That right exists for living persons and for their heirs or assignees, which is Comedy III in this case. The state statute holds that "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise or goods ... without prior consent from the person ... shall be liable for any damages sustained...." Damages include "any profits from the unauthorized use." Since Saderup did not have permission to use The Three Stooges likeness on commercial T-shirts, he must pay damages. The First Amendment does not protect false and misleading commercial speech and the right of publicity often trumps the right of commercial users of celebrity figures. Saderup's original charcoal drawing is protected by the First Amendment as an expressive or transformative work. He may sell copies of that work. Commercial exploitation, such as by use on T-shirts, is not protected by the First Amendment; for that, he must obtain permission.

Citation Comedy III Productions, Inc. v. Saderup, 106 Cal.Rptr.2d 126 (Sup. Ct., Calif., 2001)

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