What Is Art? 3 Stooges Case to Help Decide

Artist Gary Saderup is offended that two courts consider his charcoal portrait of the Three Stooges to be merchandise, not art. So he has taken his beef to the California Supreme Court.

“If you drew the Three Stooges, I don’t know how many people would buy it,” he says.

Saderup’s legal foes are the Stooges’ heirs. They contend that his drawings--reproduced on T-shirts and lithographs--have sold not because of his talents with charcoal but because the comedy team has so many fans. Only the Stooges’ heirs have the right to make money from their mugs, they argue.

“The 1st Amendment is not a license to steal,” said Robert N. Benjamin, an heir and attorney who is representing other Stooges’ relatives in the fight with Saderup.

The case, which the state high court will decide within weeks, is the latest to focus a spotlight on a recurring legal issue: When do the property rights of celebrities and their heirs trump the 1st Amendment rights of artists? The answer often hinges on a court deciding what is art.

In recent years, Vanna White and the family of slain civil rights leader Martin Luther King Jr. have won court battles over the control of, and financial earnings from, famous images. Tiger Woods and the estate of Princess Diana have lost out to the right of free speech.

Such cases often center on such questions as: Does the picture have a message or is it mere commercial exploitation? Can a drawing be art in one form but not in another? What distinguishes a work of art from a mere copy of another’s likeness?

Fame Becomes a Trademark

The legal doctrine at issue is called “the right of publicity.” It gives entertainers and athletes the sole ability to cash in on their fame. Millions of dollars are often at stake through licensing agreements and endorsements.

The legal right is loosely akin to a trademark or a copyright, and more and more states are making it a commercial asset that can be inherited by a celebrity’s descendants.

“It is a troublesome area of the law, because the right came about as a way to keep your likeness from being used in advertising or on products,” said Loyola Law School professor F. Jay Dougherty. “It has been expanded in the second half of the 20th century to where the likeness itself is a property.”

If Saderup had drawn the Three Stooges in a way that sent a definite message, he might have been home free.

Saderup might have drawn the slap-happy Stooges with guns pointed at a school as a message about violence in children’s entertainment, the scholar said.

Such a picture would have made a statement that the 1st Amendment would protect. The law makes distinctions about which statements are protected and which are not, however.

Parody, which would include art that makes fun of a famous person, is protected speech, Dougherty said. For instance, courts have allowed the sale of trading cards that parodied famous baseball players.

But satire, in which a celebrity’s likeness is used to poke fun at something else, is not, he added.

Saderup, who grew up in Los Angeles, contends that his portraits convey a positive message. The drawing of the Stooges was meant to edify them, to capture their madcap spirit in a way that would make people smile, he said.

“I hope that our culture has not become so cynical, so jaded, that only negative and destructive commentary is protected,” he said.

In other disputes:

* Tiger Woods has challenged a sports artist who sold a limited number of prints taken from a painting he did of the golf pro. The trial judge ruled for the artist. The case is now before the 6th Circuit Court of Appeals.

* The estate of Princess Diana tried unsuccessfully to stop the sale in the United States of memorabilia bearing her likeness.

* The heirs of Martin Luther King Jr. were able to stop the sale of plastic busts of the slain civil rights leader. The Georgia Supreme Court ruled that King’s heirs owned his likeness.

* Vanna White of “Wheel of Fortune” fame challenged an advertisement that used a female-shaped robot with a blond wig turning a block letter on a game board. Although the robot looked nothing like White, the U.S. 9th Circuit Court of Appeals agreed that it was an illegal exploitation of her image.

Lower courts have intervened on behalf of celebrities and their heirs in cases of sound-alikes, look-alikes and the use of the celebrities’ image to endorse or sell merchandise without permission.

Elvis and Marx Brothers impersonators have been stopped, and the use of the phrase “Here’s Johnny,” from “The Tonight Show With Johnny Carson,” has been considered protected property, according to the American Intellectual Property Law Assn., a 10,000-member group consisting mostly of lawyers who practice patent, copyright, trademark and other intellectual property law.

At least 17 states, including California, have laws that specifically give celebrities legal control over their likenesses. The laws apply to every individual whose name, voice, signature, photograph or likeness has commercial value.

In California, heirs own the rights to the likeness for 70 years after the celebrity’s death. But the state’s law exempts original works of art, news publications, books, music, radio, television and movies.

The California Supreme Court let stand a lower court ruling in 1995 that said the San Jose Mercury News could lawfully sell posters of football giant Joe Montana playing in the Super Bowl. Montana had sued, arguing that the posters violated his right of publicity.

A state appellate court ruled that the newspaper could use its own photograph in the posters, because the picture was of a newsworthy event and the newspaper was advertising its own news coverage.

UC Berkeley law professor Stephen Barnett says that the dispute over the Three Stooges is “right on the line” of the legal debate. “Are T-shirts merely garments or are they means of expression?” he asked. The professor says they are means of expression.

University of San Francisco Law School professor J. Thomas McCarthy counters that the question is not even close. No court has allowed the reproduction of famous faces on T-shirts without the celebrities’ permission, he said.

Selling T-shirts bearing such images, he said, is a commercial use.

Several famous artists have depicted celebrities in their art. Andy Warhol painted Marilyn Monroe and did silk-screen images of her. Norman Rockwell painted Bob Hope.

In McCarthy’s view, the originals would be protected by free speech, but mass reproductions of posters would not without permission or licensing agreements.

“If it is produced in great bulk, I think the line has been crossed, and it has become merchandise,” he said.

Lawyers for Saderup contend in court papers that if lithographs and silk screens of original art cannot be sold without the celebrity’s permission, the court will have “put control of art exclusively in the hands of the wealthiest members of society.”

Scholars Call for Supreme Court Input

Legal scholars say that the U.S. Supreme Court must clarify the law. The court’s last ruling on the right of publicity came in 1977 in a dispute about a newscast of a carnival stunt.

A television station showed a “human cannonball” being shot out of a cannon. The performer sued, and the U.S. Supreme Court ruled that the station violated his right of publicity because the airing of his whole act might deprive him of making money from it.

In California, the heirs of the Three Stooges want Saderup to turn over to them $75,000 in profits he made on Three Stooges T-shirts and posters and to reimburse them for their legal costs.

The American Intellectual Property Law Assn., which sides with the Stooges’ heirs, contends that if they lose, California will have obliterated the exclusive rights of the famous to make money from their names and faces.

Saderup’s T-shirts and posters illegally compete with the sale of Three Stooges memorabilia sold by the heirs, the association argued in a brief to the court.

A Los Angeles Superior Court and the state Court of Appeal in Los Angeles sided with the Stooges’ heirs.

Comedy III Productions v. Saderup, S076061, may wind up before the U.S. Supreme Court.

“This guy is a very sophisticated businessman, and he is making a lot of money and it is not right,” said Benjamin, the stepson of Curly Joe Derita, who was the third replacement for the original Curly. “And he wants to do it off the backs of the people who own the rights.”

Saderup considers such comments demeaning. He attended Pasadena’s Art Center College of Design and argues that his depiction of the comic trio makes it different from a mere photographic copy.

Saderup has drawn more than 100 famous people during his career, including Albert Einstein and John F. Kennedy. His work is sold in kiosks at shopping centers and at art shows.

The artist said that he has agreed to pay royalties on occasion but that the heirs of some celebrities have demanded nothing. Some have even expressed gratitude for the way he portrayed their loved ones, he said.

His lithographs of the Stooges sell for $20 or, if signed, $250. His T-shirts, which he describes as “wearable art,” sell for $18 to $20.

“I do not censor others, and I should not be censored,” he said.

Many champions of the 1st Amendment worry that courts are going too far in requiring artists to pay royalties for the likenesses of people who have long been in the public eye.

Whether the creations are fine art or low art, the 1st Amendment should apply, argues UCLA constitutional law scholar Eugene Volokh.

“We shouldn’t have a world where the high artist or the low artist needs someone’s permission before they create art based upon them,” he said.