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Star Struck

March 31, 2010

The right of a famous person to control the use of their identity is a widely recognized state law right, but this right must be carefully limited so it does not wander into the realm of copyright protections. In catering to the stars, courts allow rights of publicity law (especially in California) to continually expand, increasingly crossing the boundaries set by federal copyright law. The continual expansion is not held back as it should be by federal copyright preemption, thus weakening the federal law.

In a case from the beginning of the decade: Comedy III Productions v. Saderup the California Supreme Court affirmed a judgment against a defendant artist who reproduced his charcoal drawing of the Three Stooges on T-shirts. This ruling has the extreme effect of making any reproduced image of a celebrity a prima facie right of publicity infringement.

This ruling allows the Three Stooges estate (Comedy III productions) to control the derivative use of their shows. However, this right should lie with the production studio that owns the copyright to the Three Stooges episodes. The defendant Saderup, for some reason, did not raise the preemption issue under 17 U.S.C. §301. Had he, it is likely that the outcome could have been different.

An artist’s rendition of a copyrighted character is a derivative work. Therefore, the charcoal images of the Three Stooges created by Saderup are derivative works of the copyrighted Three Stooges shows. Saderup may have infringed the Three Stooges copyright holder’s rights, but because Saderup’s actions violate rights within the scope of federal copyright law, the right of publicity claim should have been preempted by 17 U.S.C. §301.

The above is based on the law of Baltimore Orioles Inc. v. Major League Baseball Players Association, 805 F.2d 663; along with Judge Kozinski’s dissenting rationale in Wendt v. Host International, 197 F. 3d 1284.

Copyright law dictates that the right to control a derivative work based on another original copyrighted work lies with the original copyright holder. The Comedy III case inappropriately extends the right of publicity statute. It extends the law to a point where it interferes with federal copyright law, allowing celebrities to control derivative use of a copyrighted work they do not even control. The use of the right of publicity in this way should be preempted under 17 U.S.C. §301. Unfortunately the California Supreme Court did not even get the chance to address the issue.

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