How can Calif make laws about copyright when this is a Constitutionally
explicit Federal task?
In 3 Stooges Case, Justices Take Role of Art Critics
Law: Ruling upholds
license fees unless celebrity
depictions show
'significant' creativity. It may have
wide 1st Amendment
effects.
By MAURA DOLAN, Times
Legal Affairs Writer
SAN FRANCISCO--The
California Supreme
Court ruled Monday that an
artist is required to pay
licensing fees to depict a
celebrity unless the art
contains "significant
creative elements."
The ruling, in a
lawsuit filed by the heirs of the
Three Stooges, sets up a
novel legal test for
determining when artwork
is commercial exploitation
and when it is protected
by the 1st Amendment.
Experts said the case is
likely to influence courts
across the nation and may
force judges to become art
critics.
In deciding what is
truly art, a judge must determine
whether it contains enough
creativity to "be
transformed into something
more than a mere celebrity
likeness or imitation,"
the high court said.
The unanimous
decision stemmed from a case
brought by the Stooges'
heirs against a Los Angeles
artist who reproduced
charcoal drawings of the
slapstick comics on
lithographs and T-shirts.
The drawings by Gary
Saderup are not protected by
free speech rights because
they are "a literal,
conventional" depiction of
Moe, Larry and Curly, the
court said, and only their
heirs have the right to sell the
comics' images.
The test established
by the court represents an
attempt to balance the
free speech rights of artists
against the rights of the
famous to make money from
their images. But several
experts said the test may be
difficult to apply.
"It forces the court
to become an art critic," said UC
Berkeley law professor
Stephen Barnett. "Andy Warhol
makes it and Gary Saderup
doesn't."
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http://www.latimes.com/news/state/20010501/t000036691.html
