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Artist slapped for Three Stooges shtick

By The Associated Press

05.01.01

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Undated photo of The Three Stooges in 'The Clown Princess of Slapstick.'

SAN FRANCISCO — In a case pitting freedom of expression against property rights, the California Supreme Court ruled yesterday that an artist cannot use sketches of the Three Stooges on shirts and lithographs for commercial gain.

The court's unanimous decision in Comedy III Productions Inc. v. Gary Saderup Inc. — the state's first ruling of its kind — found that Los Angeles artist Gary Saderup's renditions of the slapstick comedians were merchandise, not art, which requires the marketing consent of the rights holders.

In seeking the state Supreme Court review, Saderup's lawyers had argued that an earlier appellate court decision, which found the work was not an artistic expression protected by the First Amendment, "censored speech based upon its content."

When balancing the First Amendment and property rights, Justice Stanley Mosk wrote in yesterday's ruling, courts must discern whether works add "significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation."

In this case, one that was closely followed by the licensing industry, Mosk wrote that Saderup's renditions, many of which were sold in cyberspace, did not contain "such creative elements."

In essence, the legal test rests on a judicial interpretation of the question: "What is art?"

And the answer is an esoteric one.

"The inquiry is in a sense more quantitative than qualitative, asking whether the literal and imitative or the creative elements predominate in the work," Mosk wrote.

The lawyer for Comedy III Productions Inc., which owns the Three Stooges' marketing rights, called the decision a victory for the licensing industry.

"If somebody wants to use our image, they have to prove they are not exploiting that image and depriving economic rights but are transforming that image into something new," said Los Angeles attorney Robert N. Benjamin. "That was not done in this case."

Saderup said he has not yet decided whether to appeal.

"It is unfortunate that an artist such as myself is labeled uncreative by the Supreme Court for skillfully capturing the spiritual essence of his subject," Saderup told the Los Angeles Times. "This is what I have tried to do all my life."

The legal doctrine before the court was the "right of publicity," similar to trademarks or copyrights, that grant celebrities or their heirs the sole right to market their names and images.

In California, the law allows the Three Stooges' heirs the rights to the likenesses, names, voices, signatures and photographs for 70 years. The law, however, exempts original works of art, news publications, books, music, radio, television and movies.

The high court used Andy Warhol as an example of an original work of art in which an artist transformed celebrity likenesses of Marilyn Monroe, Elizabeth Taylor and Elvis Presley — images protected by the First Amendment.

"Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself," Mosk wrote.

Saderup's lithographs of the Three Stooges sell for from $20 to $250. The shirts, which he calls "wearable art," go for $20.

The high court's decision upholds an appeals court's decision that the artist was liable for $75,000 in profit he made on Three Stooges' sales, plus $150,000 in attorneys' fees.

Update

Three Stooges' heirs get last laugh as high court refuses appeal
Los Angeles artist was seeking First Amendment protection for photographers, artists who specialize in celebrity images.  01.08.02

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