CACI 1805 Affirmative Defense to Use or Appropriation of Name or Likeness—First Amendment (Comedy III)

New September 2003; Revised October 2008

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This instruction assumes that the plaintiff is the celebrity whose likeness is the subject of the trial. This instruction will need to be modified if the plaintiff is not the actual celebrity.

•“In sum, when an artist is faced with a right of publicity challenge to his or her work, he or she may raise as affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity’s fame.” (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 407 [106 Cal.Rptr.2d 126, 21 P.3d 797].)

•“We have explained that ‘[o]nly if [a defendant] is entitled to the [transformative] defense as a matter of law can it prevail on its motion to strike,’ because the California Supreme Court ‘envisioned the application of the defense as a question of fact.’ As a result, [defendant] ‘is only entitled to the defense as a matter of law if no trier of fact could reasonably conclude that the [game] [i]s not transformative.’ ” (Keller v. Elec. Arts Inc. (In re NCAA Student-Athlete Name & Likeness Licensing Litig.) (9th Cir. 2013) 724 F.3d 1268, 1274, original italics.)

•“[C]ourts can often resolve the question as a matter of law simply by viewing the work in question and, if necessary, comparing it to an actual likeness of the person or persons portrayed. Because of these circumstances, an action presenting this issue is often properly resolved on summary judgment or, if the complaint includes the work in question, even demurrer.” (Winter v. DC Comics (2003) 30 Cal.4th 881, 891–892 [134 Cal.Rptr.2d 634, 69 P.3d 473], internal citation omitted.)

•“[T]he First Amendment … safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art, be it articles, books, movies, or plays.” (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 860 [230 Cal.Rptr.3d 625].)

•“Although surprisingly few courts have considered in any depth the means of reconciling the right of publicity and the First Amendment, we follow those that have in concluding that depictions of celebrities amounting to little more than the appropriation of the celebrity’s economic value are not protected expression under the First Amendment.” (Comedy III Productions, Inc., supra, 25 Cal.4th at p. 400.)

•“Furthermore, in determining whether a work is sufficiently transformative, courts may find useful a subsidiary inquiry, particularly in close cases: does the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted? If this question is answered in the negative, then there would generally be no actionable right of publicity. When the value of the work comes principally from some source other than the fame of the celebrity—from the creativity, skill, and reputation of the artist—it may be presumed that sufficient transformative elements are present to warrant First Amendment protection. If the question is answered in the affirmative, however, it does not necessarily follow that the work is without First Amendment protection—it may still be a transformative work.” (Comedy III Productions, Inc., supra, 25 Cal.4th at p. 407.)

•“As the Supreme Court has stated, the central purpose of the inquiry into this fair use factor ‘is to see … whether the new work merely “supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” ’ ” (Comedy III Productions, Inc., supra, 25 Cal.4th at p. 404, internal citations omitted.)

•“We emphasize that the transformative elements or creative contributions that require First Amendment protection are not confined to parody and can take many forms, from factual reporting to fictionalized portrayal, from heavy-handed lampooning to subtle social criticism.” (Comedy III Productions, Inc., supra, 25 Cal.4th at p. 406.)

•“[Defendant] contends the plaintiffs’ claims are barred by the transformative use defense formulated by the California Supreme Court in Comedy III … . ‘The defense is “a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.” ’ ” (Davis v. Elec. Arts, Inc. (9th Cir. 2015) 775 F.3d 1172, 1177, internal citation omitted.)

•“Simply stated, the transformative test looks at ‘whether the celebrity likeness is one of the “raw materials” from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. We ask, in other words, whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.’ This transformative test is the court’s primary inquiry when resolving a conflict between the right of publicity and the First Amendment.” (Ross v. Roberts (2013) 222 Cal.App.4th 677, 686 [166 Cal.Rptr.3d 359], internal citations omitted.)

•“Comedy III’s ‘transformative’ test makes sense when applied to products and merchandise—‘tangible personal property,’ in the Supreme Court’s words. Lower courts have struggled mightily, however, to figure out how to apply it to expressive works such as films, plays, and television programs.” (De Havilland, supra, 21 Cal.App.5th at p. 863, internal citation omitted.)

•“The First Amendment defense does not apply only to visual expressions, however. ‘The protections may extend to all forms of expression, including written and spoken words (fact or fiction), music, films, paintings, and entertainment, whether or not sold for a profit.’ ” (Ross, supra, 222 Cal.App.4th at p. 687.)

•“The distinction between parody and other forms of literary expression is irrelevant to the Comedy III transformative test. It does not matter what precise literary category the work falls into. What matters is whether the work is transformative, not whether it is parody or satire or caricature or serious social commentary or any other specific form of expression.” (Winter, supra, 30 Cal.4th at p. 891.)