Comedy III Productions, Inc. v. Gary Saderup, Inc.

Supreme Court of California · Property

PropertyRight of PublicityFirst Amendmentdeceased celebrityright of publicityFirst Amendmenttransformative elementscelebrity likeness

Facts

Comedy III owned all rights to The Three Stooges, who were deceased personalities within section 990. Saderup, an experienced artist, created a charcoal drawing of The Three Stooges and used it to produce and sell lithographic prints and silkscreened T-shirts without Comedy III's consent. The parties stipulated that the lithographs and T-shirts were not advertisements, endorsements, or sponsorships of any product. Saderup earned $75,000 in profits from these sales.

Issue

Does former Civil Code section 990 apply to the sale of lithographs and T-shirts bearing a deceased celebrity's likeness when the items are not advertisements or endorsements, and if so, does the First Amendment nonetheless protect the sale of those expressive works? More specifically, are Saderup's depictions sufficiently transformative to outweigh the right of publicity?

Rule

Section 990 applies to unauthorized use of a deceased personality's name, voice, signature, photograph, or likeness either on or in products, merchandise, or goods, or in advertising or selling them. When a right of publicity claim conflicts with the First Amendment, courts must ask whether the challenged work adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation; if the work is primarily the defendant's own expression rather than the celebrity's likeness, the First Amendment prevails, but if it is a literal or conventional depiction used to exploit the celebrity's fame, the right of publicity prevails. Reproductions are not categorically outside First Amendment protection; the inquiry is transformation, not originality.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, Maya Ortiz owns the registered publicity rights to deceased singer Leo Vale. Without permission, Cedar Street Prints sells coffee mugs and tote bags bearing a realistic image of Vale's face. The parties stipulate the items do not suggest Vale endorsed any product or business.

Under the majority's interpretation of the statute, is Cedar Street Prints' conduct within the statute's scope?

Explanation. The majority read the statute according to its plain text, which separately covers use of a deceased personality's likeness on or in products and use in advertising or selling products. Putting a realistic image on mugs and tote bags is a use on products, so liability does not depend on proving endorsement or advertisement.