In 3 Stooges Case, Justices Take Role of Art Critics

The California Supreme Court ruled Monday that an artist is required to pay licensing fees to depict a celebrity unless the art contains “significant creative elements.”

The ruling, in a lawsuit filed by the heirs of the Three Stooges, sets up a novel legal test for determining when artwork is commercial exploitation and when it is protected by the 1st Amendment. Experts said the case is likely to influence courts across the nation and may force judges to become art critics.

In deciding what is truly art, a judge must determine whether it contains enough creativity to “be transformed into something more than a mere celebrity likeness or imitation,” the high court said.

The unanimous decision stemmed from a case brought by the Stooges’ heirs against a Los Angeles artist who reproduced charcoal drawings of the slapstick comics on lithographs and T-shirts.

The drawings by Gary Saderup are not protected by free speech rights because they are “a literal, conventional” depiction of Moe, Larry and Curly, the court said, and only their heirs have the right to sell the comics’ images.

The test established by the court represents an attempt to balance the free speech rights of artists against the rights of the famous to make money from their images. But several experts said the test may be difficult to apply.

“It forces the court to become an art critic,” said UC Berkeley law professor Stephen Barnett. “Andy Warhol makes it and Gary Saderup doesn’t.”

The test requires “a lot of very subjective line-drawing,” said Whittier Law School professor David S. Welkowitz, who wrote a brief on behalf of Saderup. “For example, suppose Mr. Saderup had used odd colors in the background to outline his figures. Would that have been significantly transformative?”

Monday’s decision gave both sides in the case some satisfaction. For the first time, the California high court has recognized the legitimacy of a 1984 state law that gave celebrities and their heirs ownership rights to their images for 70 years after death.

Saderup had argued that the law applied only to the use of celebrities’ images in advertising, endorsements and sponsorship. The court said the law can also cover artwork.

At the same time, the court said artwork depicting a celebrity is not subject to the law merely because it is mass-produced as posters or T-shirts or sold for profit.

Creations also do not automatically lose 1st Amendment protection because they are intended to entertain rather than inform or because they contain no discernible message.

Even poor artwork is protected by free speech rights, the court said, and celebrities can be lampooned and parodied.

“Because celebrities take on personal meanings to many individuals in the society,” Justice Stanley Mosk wrote for the court, “the creative appropriation of celebrity images can be an important avenue of individual expression.”

Though famous people have no right to censor disagreeable portrayals, they do have the ability “to prevent others from misappropriating the economic value generated by the celebrity’s fame through the merchandising of the ‘name, voice, signature, photograph or likeness,’ ” Mosk continued.

The justice admitted that it was not a simple matter to determine the often subtle distinction between what is and what is not protected by free speech rights.

A product that derives its value primarily from the celebrity’s fame is not protected, he wrote. When the value of the work stems principally from the artist’s skill, creativity and reputation, it is protected.

“We do not hold that all reproductions of celebrity portraits are unprotected by the 1st Amendment,” Mosk wrote. “The silk screens of Andy Warhol, for example, have as their subjects the images of such celebrities as Marilyn Monroe, Elizabeth Taylor and Elvis Presley.

“Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself.”

The court, describing Saderup’s portrait of the Stooges, said “his undeniable skill is manifestly subordinated to the overall goal of creating literal, conventional depictions of the Three Stooges so as to exploit their fame.”

Saderup said he has not yet decided whether to appeal the decision to the U.S. Supreme Court.

“It is unfortunate that an artist such as myself is labeled uncreative by the Supreme Court for skillfully capturing the spiritual essence of his subject,” Saderup said Monday. “This is what I have tried to do all my life.”

Saderup, who made about $75,000 from the sale of Stooges posters and T-shirts, said his rendition of the Stooges was not a mere photocopy of their likenesses.

Saderup attended Pasadena’s Art Center College of Design and sells his work in kiosks and shopping centers across the nation. He has sold drawings of more than 100 famous people, including Albert Einstein and John F. Kennedy.

Edward C. Wilde, who represented Saderup in the case, said the test established by the court will chill free speech.

“When determining the value of art is so difficult for ‘experts,’ we fail to see how judges will have the ability to know art ‘when they see it,’ ” Wilde said. “This portion of the decision should be of great concern to the public.”

Robert N. Benjamin, an attorney for the Stooges’ heirs, said the court’s new test will create a lot of litigation but “it’s something that heirs and celebrities and artists can live with.”

“We know that there are going to be opportunists who try to use the opinion to improperly use celebrity images,” he said. But all a court must do is determine whether a product was purchased because of the celebrity or because of the nature of the work, he said.

“If the consumer goes into the store and sees the product with the celebrity image, why does the consumer want to buy it?” Benjamin said. Consumer surveys and expert testimony can provide a court with the answer, he said.

He called the “transformative test” established in Comedy III vs. Saderup, S076061, “ a totally new creation” that will be cited in cases across the country.

“It is not something that I have ever seen before,” said Benjamin, an intellectual property rights lawyer and the stepson of Curly Joe Derita, who was the third replacement for the original Curly.

Unless Saderup appeals to the U.S. Supreme Court, he will have to turn over his profits from the Stooges work to the heirs and pay their legal fees.

The heirs, including Benjamin, operate a Web site that sells Stooges memorabilia, including charcoal portraits. Had Saderup approached the heirs for a license, he probably would have been given one, Benjamin said.

In such cases, the artist typically pays a royalty of 10% of sales, Benjamin said.

The legal doctrine at issue in the case is called the right of publicity. It is intended to protect entertainers, athletes and other famous people whose likenesses have a commercial value.

At least 17 states, including California, have laws that specifically give celebrities legal control over their likenesses. California’s law exempts original works of art, news publications, books, music, radio and television and movies.

Courts across the country have issued mixed rulings in right of publicity cases, although the trend has been to favor celebrities’ property rights.

In one case won by an artist, a federal trial judge ruled against Tiger Woods after he sued a painter who had sold a limited number of prints of the golf pro. That case is now before the 6th Circuit Court of Appeals, which covers portions of the Midwest.