Entertainment Law Spring 2021 Case Brief: Comedy III Productions, Inc. v. Gary Saderup, Inc PDF

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Case Brief and Relevant Laws related to Comedy III Productions, Inc. v. Gary Saderup, Inc...

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Entertainment Law Spring 2021 Chapter 2 Case: Comedy III Productions, Inc. v. Gary Saderup, Inc. Comedy III Productions, Inc. v. Gary Saderup, Inc. Rule: 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. Facts: Comedy III Productions, Inc. (Comedy III) (plaintiff) owned the rights to the comedy act “The Three Stooges” (Stooges), each of whom is deceased. Gary Saderup of Gary Saderup, Inc. (collectively, Saderup) (defendants) was an artist who created a charcoal drawing of the faces of the Stooges. Saderup used the drawing on lithographs and t-shirts that he sold. Comedy III brought suit for misappropriation of its right to publicity of the Stooges. The trial court found in favor of Comedy III and the court of appeal affirmed. Saderup appealed. Issue: Can an artist use the First Amendment as a defense to a right of publicity challenge to his or her work? Holding: Yes. Noncommercial speech about celebrities is afforded significant First Amendment protection. However, this protection is often at odds with a celebrity’s right to publicity. In resolving this conflict, the court holds that 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. This notion of transformativeness comes directly from fair use in copyright law. Specifically, an artist using a celebrity’s likeness must show that the use is actually the artist’s new expression, rather than just a literal recreation or a trivial variation of the celebrity’s likeness. In the case at bar, the court determines that although Saderup may attempt to use a fair use defense, Saderup’s charcoal drawing of the Stooges is not sufficiently transformative of the Stooges likenesses to be protected by the First

Amendment. Saderup seems merely to have recreated the Stooges’ faces and not added any of his own expression. Further, the economic value of Saderup’s drawing comes primarily from the Stooges’ brand, and not from any individual creativity of Saderup’s. As a result, Saderup is not permitted to continue to use his drawing of the Stooges without permission from Comedy III. The court of appeal is affirmed....