THE COUNSELOR’S CORNER

The Three Stooges, that form of entertainment which seems to appeal to most men and few women, are back in the news. Early in the month of May, their representatives won a major victory from the California State Supreme Court in a decision that I think is a poor one. This case involved an artist named Gary Saderup who produced and sold tee shirts with the smiling faces of good old Larry, Moe and Curly. The case was about whether or not Mr. Saderup could use these smiling faces without the permission of the Stooges’ families.

The Justices decided that, in effect, if all you do is imitate the dead celebrity, you cannot use his likeness. If, however, you change it enough so that which you do is deemed “creative” rather than “imitative”, then it is okay. The State Supreme Court indicated that the smiling faces of the Stooges were, in effect, not original enough in that they were conventional depictions of the trio.

What the State Supreme Court has done is to create a new test, the goal of which is to balance free speech rights versus what is known as the right of publicity. The problem with this, however, is that this is a standard that will have to be applied on a case by case basis and will do nothing but lead to a tremendous amount of new litigation. In each case, a judge will have to look at a depiction of, let’s stay with the Three Stooges, and decide whether or not it merely looks just like them or whether the Stooges’ faces are drawn in a creative way. If it is creative, it is protected; if it merely imitates, it is not. As one commentator indicated, this is going to put judges in the role of art critics. I think the State Supreme Court had its heart or its mind in the right place in that it wanted to prevent people from making money off the fame of others; however, by creating such a subjective standard, I think this decision will end up being what is known as a “court clogger.”

The irony here is that if you wanted to do a pornographic distortion of the Stooges or other famous folk, that would be protected. If you wanted to do an ugly parody of the Stooges, that would also receive full First Amendment protection. However, if you just want to do a straight-up depiction of the Stooges and put them on a tee shirt, that is not protected. The Justices attempted to walk a fine line, permitting cartoonists, artists, and others to be able to use the faces and/or bodies of celebrities to make social comment by distorting images.

Another commentator indicated that this decision might help Tiger Woods, who is involved in litigation against an artist who sells montage likenesses of golfers who win the Masters Championship. The commentator indicated that this artist is now out of business unless he “puts a mustache on Tiger Woods.” The bottom line here is that social commentary is permitted, parodies are permitted, creativeness is rewarded, and, in effect, all change is encouraged in this type of situation.

I believe it is inappropriate for someone to benefit from the Stooges or any other deceased celebrities without receiving permission from the celebrity, as that individual, if he is alive, or his family if he is deceased, should have the right to the use of his or her likeness from a money-making standpoint. I also agree that it is important to protect the right and ability of commentators to do social commentary, and if it means using the Stooges’ faces, then so be it. I would, however, have suggested a more clear ruling. I would have distinguished between a social parody situation and an “I want to make some money” situation. If the Stooges are on a tee shirt with a mustache or not, I would not permit that, as the individual would still be making money from the Stooges’ likeness. If, alternatively, the Stooges’ faces were used in a cartoon to indicate where we are today as a society, then that would be fine. The distinction I would have drawn would be purely an economic one. If the likenesses are used to generate income for the individual, then he could not use them without the estate’s permission. If it is social commentary in a newspaper or something similar, and there is no money to be made, I would protect it. I believe the benefit of that type of distinction would be clarity. Many are predicting an absolute landslide of cases coming from this as judges review artwork on a case by case basis and decide whether or not there is enough change to deem the use of the visages appropriate.

I believe that society is better served by a decision that is more clear. It is important that when people read laws, they know what they can do and what they can’t do. If you are on a freeway and a sign says you can’t drive faster than fifty-five miles an hour, that is clear. If the speed limit were to be made more fuzzy, that would create difficulty on the freeways, as people would be put in a position where they would have to use their own judgment in order to determine how fast they could drive, only to later find out if a court agreed with them.