Compelling Copyright Issues No. 1
**Disclaimer - unlike most of my past and future blogs, this writing was drafted by Jodi Chall, Esq of the Law Office of Terri Mandel, P.C. (www.mandellawoffice.com) for informative purposes only. Unless you have a valid attorney-client relationship with the firm this shall not be construed as, or deemed, binding legal advice.
ART AND CELEBRITY
Many artists utilize the images of celebrities in their art that they then seek to license. Often artists presume because the celebrity is in the public eye, the artist is entitled to exploit their image. That presumption is wrong – particularly in states like
Rights of Publicity
Rights of Publicity give celebrities the right to exploit themselves. In general, Rights of Publicity in
But, Courts in
A. The First Amendment as a Defense.
Works of art and fiction are considered forms of expression and are akin to speech. Thus, they enjoy first amendment protection. Hurley v. Irish-American Gay Lesbian and Bisexual Group of Boston, Inc., (1995) 515 U.S. 557, 569 (“…narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a ‘particularized message,’ would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg or Jabberwocky verse of Lewis Carroll”). Thus, when an artist is faced with a right of publicity challenge to his or her work, he or she may raise as affirmative defense that the work is protected by the First Amendment to the extent that it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity’s fame. Comedy III Productions Inc. v. Gary Saderup, (2001) 25 Cal.4th 387. The pertinent inquiry is “whether the work in question adds a significant creative element so as to be transformed into something more than a mere celebrity likeness or imitation.”
The Court articulates this test as asking whether the marketability and economic value of the work comes primarily from the celebrity image or from the creativity, skill and reputation of the artist? In other words, an artist depicting a celebrity must create something recognizably his or her own in order to qualify for legal protection. The transformative elements or creative contributions that require protection are not confined to caricature, parody or satire and can take many forms. The court asks whether a product containing a celebrity's likeness is so transformed that it has become primarily the artist’s own expression rather than the celebrity's likeness. The inquiry is more quantitative than qualitative: do the literal and imitative or the creative elements predominate in the work? Id, citing Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal.3d 860, 868 (conc. opn. of Bird, C. J.)
Gary Saderup was a sketch artist who produced many drawings of famous people, including a black and white sketch of the Three Stooges and licensed the Stooges sketch for use on t-shirts. Comedy III Productions was the licensing agent for Three Stooges’ names and likenesses, as granted by the Stooges’ next of kin. They brought a lawsuit against Saderup alleging violations of, among other things, the California Right of Publicity. The Court first concluded that artwork was protected by the First Amendment and that the creation of artwork solely for the purpose of commercial sales and/or licensing was also protected by the First Amendment.
However, the Court ultimately concluded that Saderup was in violation of
The transformative element test comes from the test that the United States Supreme Court applies to guide the analysis as to whether the fair use defense under the first amendment applies. The Supreme Court looks at: “whether the new work merely 'supersede[s] the objects' of the original creation,…, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message…; it asks, in other words, whether and to what extent the new work is 'transformative.' Although such transformative use is not absolutely necessary for a finding of fair use,…, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” (
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. Courts ask 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. And when they use the word “expression,” they mean expression of something other than the likeness of the celebrity. For example, in the Saderup case, the Court cited Andy Warhol’s portraits of celebrities like Elizabeth Taylor and Elvis Presley as likely protected by the First Amendment defense (“Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images…)” Saderup, at 811.
In sum, when an artist is faced with a right of publicity challenge to his or her work, he or she may raise as affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity's fame.