CACI No. 1805. Affirmative Defense to Use or Appropriation of Name or Likeness - First Amendment (Comedy III)

Judicial Council of California Civil Jury Instructions (2023 edition)

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1805.Affirmative Defense to Use or Appropriation of Name or
Likeness - First Amendment (Comedy III)
[Name of defendant] claims that [he/she/nonbinary pronoun] 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].)
“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
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.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 788
Gaab & Reese, California Practice Guide: Civil Procedure Before Trial - Claims &
Defenses, Ch. 4(VII)-C, Harm to Reputation and Privacy Interests, 4:1385 et seq.
(The Rutter Group)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.36 (Matthew
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.38 (Matthew Bender)

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