I. Newsflash’s use of Schwarzenegger’s image and likeness will be protected under the fair use provision in California’s Right of Publicity because it does pass the transformative test for works of comment and criticism, but not under works of artistic expression.
The main legislation pertinent to this case is the California Civil Code § 3344 (a) and (d), which states:
(a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall …show more content…
See e.g., Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 at 395 (Comedy III recovered damages because Saderup added no expression beyond what The Three Stooges already represented when he placed their sketches on lithographs and T-shirts); Kirby v. Sega of America, Inc. 144 Cal. App. 4th 47 at 56 (Sega obviously was aware that parts of Kirby’s likeness were used in creating the character, Ulala, because they had asked her to endorse the game before its release, but Kirby still could not recover because the character has a unique body type and distinct dance moves than are normally not attributed to Kirby); see also Winter v. DC Comics, 30 Cal. 4th 881 at 889 (The characters, meant to be caricatures of Johnny and Edgar Winter, look very dissimilar to the Winter brothers and function as but one piece of an entire expressive comic book …show more content…
The effect of this analysis on the instant case is positive for our client. Newsflash used a literal depiction of Mr. Schwarzenegger’s image and likeness without his consent. No artistic ability was required in the final piece of merchandise; Saderup lost his case and he went one step beyond what Newsflash did in that he at least sketched the literal depiction of The Three Stooges himself. The images on the fronts of these T-Shirts do not show any considerable transformative evidence whatsoever; the words overlaying the top do not justifiably qualify it as an artistic expression. Thus, Newsflash’s potential fair use argument under the auspices of First Amendment’s protection of artistic expression will not
The main legislation pertinent to this case is the California Civil Code § 3344 (a) and (d), which states:
(a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall …show more content…
See e.g., Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 at 395 (Comedy III recovered damages because Saderup added no expression beyond what The Three Stooges already represented when he placed their sketches on lithographs and T-shirts); Kirby v. Sega of America, Inc. 144 Cal. App. 4th 47 at 56 (Sega obviously was aware that parts of Kirby’s likeness were used in creating the character, Ulala, because they had asked her to endorse the game before its release, but Kirby still could not recover because the character has a unique body type and distinct dance moves than are normally not attributed to Kirby); see also Winter v. DC Comics, 30 Cal. 4th 881 at 889 (The characters, meant to be caricatures of Johnny and Edgar Winter, look very dissimilar to the Winter brothers and function as but one piece of an entire expressive comic book …show more content…
The effect of this analysis on the instant case is positive for our client. Newsflash used a literal depiction of Mr. Schwarzenegger’s image and likeness without his consent. No artistic ability was required in the final piece of merchandise; Saderup lost his case and he went one step beyond what Newsflash did in that he at least sketched the literal depiction of The Three Stooges himself. The images on the fronts of these T-Shirts do not show any considerable transformative evidence whatsoever; the words overlaying the top do not justifiably qualify it as an artistic expression. Thus, Newsflash’s potential fair use argument under the auspices of First Amendment’s protection of artistic expression will not