Assembly (Cybernetics of the Poor)



thing 001745 (The Three Stooges)

From 1922 until 1970, The Three Stooges were an American slapstick comedy team active in vaudeville theaters, feature films and television. The Stooges were often anti-heroic commentators of class divisions and economic hardships of the great depression in the United States. The main characters were Larry, Moe and Curly. Since 1958, the trio’s 190 short films by Columbia Pictures have often been aired on television. Comedy III Productions is the registered owner of all rights to the former comedy group known as The Three Stooges, whose last replacement actors died in 1998. In 1988 Gary Saderup, a California actor and artist, made a charcoal sketch of the Three Stooges actors entitled The Three Stooges His company Saderup Inc. sold prints and T-shirts based on his charcoal drawing. Since 1975 Saderup has made charcoal drawings of celebrities for their fans. These drawings are then used to make lithographs and silk screen reproductions for paper prints or on T-shirts. His company Saderup Inc. sells these lithographs and silk-screens.Comedy III Productions brought an action against Gary Saderup seeking damages and injunctive relief for violation of section 990 of publicity rights. On December 15, 1998, the court case Comedy III Productions v. Gary Saderup and Saderup Inc. took place at the Superior Court, Los Angeles County. Judge Carl West entered judgment awarding damages and injunctive relief to Comedy III Productions. The court in its oral decision held that Saderup was not protected by free speech and issued a permanent injunction, enjoining Saderup from violating publicity rights through the use of the likeness of the Three Stooges, either in lithographs, T-shirts or any other medium by which Gary Saderup’s art work may be sold or marketed. The sole exception to this broad prohibition was Saderup’s original charcoal drawing from which the reproductions at issue were made. Saderup appealed. On March 17, 1999, the court case Comedy III Productions v. Gary Saderup and Saderup Inc. took place at the Court of Appeal, Second District, Division 2, California. Judge Morio Fukuto held that:

1. Section 990. This case concerns the right of publicity, which involves the right to exploit one’s name and persona commercially, and to restrict their commercial appropriation or exploitation by others. [...] In 1984, the Legislature, by section 990, extended protection of the right of publicity to the heirs and assignees of “deceased personalities”. [...] 2. The Statutory Issues. [...] [Comedy III Productions] is the duly registered successor to the rights of the Three Stooges, who are deceased personalities, and [Saderup] used their likenesses on prints and T-shirts without [Comedy III Productions]’ consent. [...] [Saderup]’s T-shirts, decorated with likenesses of the Three Stooges, unquestionably fall within section 990, subdivision (a)’s broad reference to “products, merchandise, or goods”. The same is true for the lithographic prints. [...] [Saderup] also contend that their uses of the Three Stooges’ likenesses did not violate section 990 by reason of subdivision (n)(2), which provides that the statute shall not apply to use of a deceased personality’s name, likeness, etc., in “Material that is of political or newsworthy value”. [...] [S]ubdivision (n)(2) contemplates an exemption for uses of name and likeness in or in connection with newsworthy material, not an open-ended right to use the likenesses of newsworthy individuals. [...] 3. The Free Speech Issue. [Saderup] contend that their uses of the Three Stooges’ likenesses constitute a form of speech [...]. [...] In the present case, however, there is neither contention nor demonstration that [Saderup] sought to convey or sell a message of any type in or on their T-shirts, or for that matter their prints. [...] [Saderup] contend, however, that reproductions of their likenesses of the Three Stooges, based on Saderup’s charcoal sketch of the trio, must command full First Amendment protection, as art. [...] [T]o say that [Saderup]’s T-shirts and prints must be constitutionally considered art, because they reproduce a sketch, would in essence mean that the First Amendment would shield virtually any representation of likeness from coverage by section 990. [...] [Saderup] have not shown, and we cannot conclude, that this commercial appropriation constitutes protected speech. [...] 4. The Injunction. [Saderup]’s final contention is that [Comedy III Productions] did not establish entitlement to injunctive relief, and that the injunctive portions of the judgment are overbroad. With this contention we agree. [...] Accordingly, we shall modify the judgment to eliminate its injunctive provisions.

The court concluded that the lithographs and silkscreened T-shirts in question received no First Amendment protection simply because they were reproductions. Saderup appealed the decision. On April 30, 2001, the court case Comedy III Productions v. Gary Saderup and Saderup Inc. took place at the Supreme Court of California. Justice Stanley Mosk held that:

A California statute grants the right of publicity to specified successors in interest of deceased celebrities. [...] The United States Constitution prohibits the states from abridging, among other fundamental rights, freedom of speech. In the case at bar we resolve a conflict between these two provisions. [...] [R]eproductions 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.

The Supreme Court confirmed the judgment of the Court of Appeal but on different grounds. It decided that Saderup’s work was not transformative enough to be protected by free speech.