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Star Struck Part 2: The Seven Stooges

April 3, 2010

“Bad Lawyering makes bad law.”

This concept is tough to grasp as a new law student because the case-law method of teaching leads one to believe that the courts are omniscient. After a while however, the concept becomes clear.

Case law that allows actors to control off-copyright public domain works that the actors are in would certainly be bad law, right? Wouldn’t such a law run so contrary to basic Constitutional policy that it would be untenable? Apparently not.

As noted in my earlier post, copyright law should have preempted the right of publicity claim in Comedy III Productions v. Saderup. To make matters worse, after some (very minor) digging around on the internet, it came to my attention that there are four Three Stooges episodes that passed into the public domain. Public domain works, by definition, are works that can be used freely by anyone.

The Three Stooges characters are fictional, and since certain episodes are now in the public domain, any derivative work based on these fictional characters should be permissible as long as it is based on the public domain work.

Saderup’s drawings were derivative works based on a public domain work. Therefore, there should be no federal copyright claim that could be brought against him for his drawings. Further, any state law claims, such as the rights of publicity claim at issue, should be preempted under 17 U.S.C. §301. Unfortunately, it seems that Saderup never raised this defense.

Had the defense raised been raised, the case should have been dismissed on summary judgment. Instead, the case went all the way up to the California Supreme Court. The result? An extremely broad ruling on rights of publicity, supported by a bogus test where the judges do exactly what the Supreme Court said they should not do: become “final judges of the worth of pictorial illustrations.” Blestein v. Donaldson Lithographic Co., 188 U.S. 239 (1903).

Tumbling further down the slippery slope created by this case, it becomes clear that the showing of any of the public domain Three Stooges works would technically need permission from Comedy III Productions. Presumably any public domain work with a famous person in it would be controlled by the celebrity, so long as there was a sale involved (tickets to a public showing, a DVD, etc.) In effect this ruling extends protection of copyrighted works, except that it transfers control from copyright holder to the actors/models etc who were featured in the work.

Such convoluted rules chill creativity. Allowing celebrities to recapture protection of public domain works by using the rights of publicity law is completely contrary to the Constitutional “limited times” provision, and upsets the concept of an open public domain.

The seven members of the California Supreme Court certainly did not need to raise copyright preemption or public domain issues on their own. However, they should have realized, at least to some degree, how broad their ruling was, and reigned themselves in a bit, instead of catering to the desires of celebrities.

Indeed, bad lawyering does make bad law.

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