“Simpsonized” Animated Character Held Transformative
Earlier this week, the California Court of Appeal gave a Valentine’s Day present to Twentieth Century Fox, by throwing out a right of publicity lawsuit brought by Frank Sivero. Sivero, a film actor, best known for his work playing mafiosos, objected to a recurring character in the animated television series, The Simpsons, that he claimed was based on his performance as a character in the movie Goodfellas.
The trial court threw out Sivero’s complaint on the ground that the use of his identity as a cartoon character was “transformative.” The California Supreme Court’s test for determining First Amendment defenses to right of publicity claims looks at whether the use transforms the underlying person’s identity or uses it as one of the raw materials to create a new work. Because Sivero’s appearance and name were radically “distorted for purposes of lampoon, parody, and caricature,” the trial court deemed the use transformative.
On Tuesday, the California Court of Appeal agreed with the trial court. The court held that the First Amendment protects the use of Sivero’s identity in The Simpsons because Sivero’s likeness was “Simpsonized” and not merely a literal depiction of Sivero.
The appellate court’s conclusion is undoubtedly correct, but aspects of its analysis highlight the current threat to realistic depictions of real people in biographical pictures, written biographies, documentaries and more. This is an issue that is currently on appeal with the very same court in the lawsuit brought by Olivia de Havilland against FX Networks. De Havilland has objected to the inclusion of a character based on her in the docudrama, Feud. The trial court concluded that because the depiction of her was realistic, it was not transformative, and therefore was not protected by the First Amendment. I have filed an amicus brief highlighting the dangers that such a conclusion poses. Oral arguments in the expedited appeal in that case are scheduled for March 20th.
Hopefully, the Court of Appeal will fix the wrong turn taken by the trial court in de Havilland, but some of the analysis in Sivero raises a concern that the precedents applying (and misapplying) California’s transformativeness test have left such realistic portraits of public figures in jeopardy.
This narrow understanding of transformativeness is not what the California Supreme Court had in mind when it adopted the test. References to real people and realistic depictions of them are essential to telling stories about true events. Biopics, docudramas, biographies, and documentaries have long been understood to be fully protected by the First Amendment.
One need not turn Martin Luther King Jr., Olivia de Havilland, or Mark Zuckerberg into half-worm, half-human creatures who live in outer space or Springfield, USA, for the First Amendment to protect uses of their names and likenesses in movies and miniseries like Selma, Feud, and The Social Network. True-to-life depictions of such prominent individuals are far more essential to our storytellers, biographers, and journalists than the fantastical twists on famous people that have been stealing the spotlight in recent years in right of publicity cases. These cases have been front and center not because they are the only types of uses that are allowed, but because no one thought until recently that claims arising out of realistic uses of famous people in expressive works stood a chance against the First Amendment. (Such claims also have been thought to fall outside both the statutory and common law rights in California.)
Hopefully, the California Court of Appeal in de Havilland will quickly clarify the possible misreading of California’s transformativeness test as being limited only to fantastical uses of names and likenesses. Regardless of any state-based transformativeness test, the First Amendment undoubtedly protects realistic depictions of public figures in biopics like Feud. The First Amendment does not require us to “Simpsonize” our history. Quite to the contrary, it preserves our right to tell it as it is.
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.