Metropolitan News-Enterprise


Tuesday, January 8, 2002


Page 1


U.S. High Court Won’t Review Ruling in Three Stooges Case Protecting Images of Deceased Celebrities


From Staff and Wire Service Reports


The U.S. Supreme Court yesterday declined to hear a challenge to California’s law which prevents the use of the images of deceased celebrities without the permission of their estates.

The court, without comment, denied a petition by portrait artist Gary Saderup. The order leaves intact a judgment for more than $225,000 in damages and attorney fees in favor of Comedy III Productions, Inc.—now called CIII Entertainment—which controls the licensing rights to the images and identities of Moe Howard, Larry Fine, and Jerome “Curly” Howard—the original Three Stooges.

CIII Entertainment attorney Robert N. Benjamin of Glendale’s Benjamin, Lugosi & Benjamin said “the heirs are delighted” by the outcome of the case.

The decision, Benjamin said, means “celebrities and celebrity heirs can prevent people from using their images on merchandise. And if they are used, they have to pay royalties.”

The stooges earned the rights that their heirs are now asserting, Benjamin said last spring.

“People love Moe, Larry and Curly,” he told the MetNews. “People don’t love Gary Saderup.”

Saderup’s attorney, Boalt Hall professor Stephen R. Barnett, argued in the petition that the California ruling “offends not only the proverb that ‘one picture is worth a thousand words,’ but also the First Amendment’s prohibition on legal monopolies over facts.”

Barnett said the court’s denial of review was unfortunate. “The claims of celebrities and dead celebrities like the Three Stooges are eating into the First Amendment while the court looks the other way.”

The California Supreme Court unanimously ruled April 30 that Civil Code Sec.  3344.1—under which a celebrity’s estate receives exclusive rights of publicity for 70 years following registration with the secretary of state—doesn’t abridge free speech rights of those who reproduce celebrity images unless a reproduction incorporates significant creative elements.

The state court said Saderup’s renditions of three unsmiling stooges, including two with their eyes open wide, were merchandise, not art

Under the statute, no one else may use the person’s name, image, identity, or persona for commercial purposes unless the estate or its successor consents or the use falls within a statutory exemption.

Exempt uses include “any news, public affairs, or sports broadcast or account, or any political campaign,” “a play, book, magazine, newspaper, musical composition, film, radio or television program,” work of “political or newsworthy value,” or “[s]ingle and original works of fine art.”

Comedy III, owned by the Howard and Fine heirs, sued after Saderup began selling lithographs and T-shirts featuring his charcoal drawing of the stooges  on the Internet and elsewhere. Besides the money, Comedy III was granted an injunction prohibiting Saderup  and his marketing company from using the Three Stooges’ images to sell any product other than the original drawing.

The late Supreme Court Justice Stanley Mosk, in his opinion for the state’s highest court, said Saderup’s rights were outweighed by the property interests served by the statute.

The First Amendment, Mosk concluded, protects a work that is “transformative”—one that adds a new message to the original work, like Andy Warhol’s famous works depicting celebrities such as Marilyn Monroe, Elizabeth Taylor and Elvis Presley—but not “a mere celebrity likeness or imitation,” like the reproductions of Saderup’s  drawing.

“The inquiry is in a sense more quantitative than qualitative, asking whether the literal and imitative or the creative elements predominate in the work,” the justice added.

 Comedy III’s position drew support from numerous amici, including The Autry Survivor’s Trust, ETW Corporation—the licensing arm of golfer Tiger Woods—The Diana, Princess of Wales Memorial Fund; Elvis Presley Enterprises, Inc., the Screen Actors Guild; the American Intellectual Property Law Association; and the licensing companies for the estates of numerous deceased celebrities, including John Wayne, Frank Sinatra, and Groucho Marx.

The Three Stooges began on the vaudeville stage in 1923, then moved on to feature films and shorts. Curly Howard died in 1952, and Larry Fine and Moe Howard died in 1975. Shemp Howard, Joe Besser and Curly Joe DeRita took Curly Howard’s place in some later ensembles.

Fine, Moe Howard and DeRita formed Comedy III in 1959 as a management company.

Saderup created a charcoal drawing of the original trio and sold lithographs for between $20 and $250 and shirts for about $20 out of a temporary booth in a suburban Los Angeles shopping mall.


Copyright 2002, Metropolitan News Company