California Civil Jury Instructions (CACI)

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

[Name of defendant] claims that [he/she] has not violated [name of plaintiff]’s right of privacy because the [insert type of work, e.g., “picture”] is protected by the First Amendment’s guarantee of freedom of speech and expression. To succeed, [name of defendant] must prove either of the following:

1. That the [insert type of work, e.g., “picture”] adds something new to [name of plaintiff]’s likeness, giving it a new expression, meaning, or message; or

2. That the value of the [insert type of work, e.g., “picture”] does not result primarily from [name of plaintiff]’s fame.

New September 2003; Revised October 2008

Directions for Use

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.

Sources and Authority

  • “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].)
  • “[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.)
  • “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.)
  • “This ‘transformative use’ defense poses ‘what is essentially a balancing test between the First Amendment and the right of publicity.’ ” (Hilton v. Hallmark Cards (9th Cir. 2009) 580 F.3d 874, 889.)
  • “The application of the defense, which the California Supreme Court based loosely on the intersection of the First Amendment and copyright liability, depends upon ‘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.’ In other words, ‘[w]e ask . . . 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. And when we use the word “expression,” we mean expression of something other than the likeness of the celebrity.’ ‘[U]nder [this] test,’ yet another formulation cautions, ‘when an artist’s skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame, then the artist’s right of free expression is outweighed by the right of publicity.’ ” (Hilton, supra, 580 F.3d at p. 889, footnote and internal citations omitted.)
  • “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.)

Secondary Sources

37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36 (Matthew Bender)

18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy, § 184.38 (Matthew Bender)