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Comedy III Productions Inc. v. Gary Saderup Inc.

Artist's literal and conventional depiction of deceased celebrities on T-shirts and posters was not subject to First Amendment protection.

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The full case caption appears at the end of this opinion.

A California statute grants the right of publicity to specified successors in interest of deceased celebrities, prohibiting any other person from using a celebrity’ s name, voice, signature, photograph, or likeness for commercial purposes without the consent of such successors. (Former Civ. Code, � 990.) [FOOTNOTE 1] The United States Constitution prohibits the states from abridging, among other fundamental rights, freedom of speech. (U.S. Const., 1st and 14th Amends.) In the case at bar we resolve a conflict between these two provisions. The Court of Appeal concluded that the lithographs and silkscreened T-shirts in question here received no First Amendment protection simply because they were reproductions rather than original works of art. As will appear, this was error: reproductions are equally entitled to First Amendment protection. We formulate instead what is essentially a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation. Applying this test to the present case, we conclude that there are no such creative elements here and that the right of publicity prevails. On this basis, we will affirm the judgment of the Court of Appeal.

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