## Facts

- Comedy III Productions, Inc. owned successor rights in the deceased members of the Three Stooges under California’s post-mortem right of publicity statute.
- Gary Saderup created a highly realistic charcoal drawing depicting the Three Stooges’ faces.
- Saderup reproduced the drawing on lithographs and T-shirts and sold them without Comedy III’s consent.
- Comedy III sued under the statutory right of publicity (then Cal. Civ. Code § 990, now § 3344.1), seeking damages and injunctive relief.
- The trial court found liability, awarded damages and attorney’s fees, and issued a permanent injunction barring further sales.
- The Court of Appeal upheld liability and damages but removed the injunction; it reasoned the items received no First Amendment protection because they were reproductions rather than original works.
- The California Supreme Court granted review to address the interaction between the statute and the First Amendment.

## Issues

1. Whether Saderup’s unlicensed sale of lithographs and T-shirts bearing the Three Stooges’ likenesses violated California’s statutory post-mortem right of publicity.
2. Whether, and under what standard, the First Amendment limits enforcement of the statutory right of publicity against expressive works depicting celebrities.

## Decision

- The California Supreme Court held Saderup liable for violating the statutory right of publicity.
- The court rejected a categorical rule that reproductions (or mass-produced merchandise) lack First Amendment protection; reproductions can be protected expression.
- The court adopted a “transformative use” approach to balance the First Amendment and the right of publicity.
- Applying that test, the court concluded Saderup’s work was not sufficiently transformative because it was a conventional, literal depiction whose value derived primarily from the celebrities’ fame.
- The First Amendment therefore did not bar the statutory claim on these facts.

## Legal Principles

- California’s post-mortem right of publicity prohibits unauthorized commercial use of a deceased personality’s name, voice, signature, photograph, or likeness by persons other than specified successors.
- Expressive works do not lose First Amendment protection merely because they are sold, commercially exploited, mass-produced, or reproduced.
- In right-of-publicity cases involving expressive works, courts should ask whether the challenged work adds significant creative elements so that it becomes something more than a mere likeness or imitation (the “transformative use” test).
- If the depiction is literal or conventional and the work’s market value comes mainly from the celebrity’s fame rather than the creator’s added expression, the right of publicity generally prevails.
- Works using a celebrity’s identity as raw material for broader expression (such as commentary, parody, or other new expressive contexts) are more likely to receive First Amendment protection.

## Conclusion

The court reconciled California’s statutory post-mortem right of publicity with free speech by adopting a transformative-use test and held that realistic, conventional Three Stooges portraits sold on lithographs and T-shirts were not sufficiently transformed to defeat liability.


Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (Cal. 2001)