Justices smack Three Stooges case

The heirs to the Three Stooges can "whoop, whoop, whoop" all the way to the bank as the U.S. Supreme Court upheld their right to profit from depictions of Moe, Larry and Curly.

By refusing to hear the case of Los Angeles artist Gary Saderup, the court declined to give free-speech protections to photographers and artists who specialize in depictions of celebrities. Saderup was sued by C3 Entertainment Inc., the company owned by the comedy team's heirs that holds the Stooges rights.

Saderup lost the case and an appeal to California Supreme Court last year. The California court ruled that Saderup violated the state's "right of publicity" law when he failed to get the consent of the heirs before putting a picture of the famous comedians on shirts and lithographs. Saderup must now pay the $75,000 he made from the products to the heirs and cover their legal fees.

Saderup's attorney, Stephen Barnett, in urging justices to accept the appeal, said the California ruling "offends not only the proverb that 'one picture is worth a thousand words,' but also the First Amendment's prohibition on legal monopolies over facts."

The heirs' attorney, Robert Benjamin, disagreed, saying the artist was trying to "twist the facts and the law in an attempt to make a constitutional issue where none exists."

California is one of 17 states that give heirs some right to control publicity. In that state, heirs have rights to the likenesses, names, voices, signatures and photographs for 70 years after the death.

Benjamin, C3's general counsel and stepson of Curly Joe DeRita, said the case validated California's right-of-publicity statute.

"It established that the right of publicity is constitutional," he told the media. "It's important not only to the Three Stooges but to celebrities' heirs and deceased celebrities' heirs across the country."

Benjamin said it was wrong to view the case as a situation where a bunch of famous people were attacking some starving artist.

"He had the support of a big insurance company," Benjamin said. "It's not like we were picking on some little artist at Venice Beach."

The Three Stooges began on the vaudeville stage in 1923, then moved on to feature films and shorts. Jerome (Curly) Howard died in 1952, and Larry Fine and Moe Howard died in 1975. Shemp Howard, Joe Besser and DeRita took Jerome Howard's place in some later ensembles.

Fine, Moe Howard and DeRita formed a management company in 1959 that owns rights to the Three Stooges. That company eventually became C3.

Saderup did a charcoal drawing of the original trio and sold lithographs for $20-$250 and shirts for about $20 out of a temporary booth in a suburban Los Angeles shopping mall. The state court said Saderup's renditions of three unsmiling stooges, including two with their eyes open wide, were merchandise, not art. The court ruled that Saderup's work was not "transformative" and relied solely on the fame of the Stooges.

"Their brand of physical humor -- the nimble, comically stylized violence, the 'nyuk-nyuks' and 'whoop-whoop-whoops,' eye-pokes, slaps and head conks ... created a distinct comedic trademark," the court wrote. "Through their talent and labor, they joined the relatively small group of actors who constructed identifiable, recurrent comic personalities that they brought to the many parts they were scripted to play."

Barnett said the transformation test turned "judges into art critics."

"The court said Andy Warhol's silk-screens of Marilyn Monroe and other celebrities are protected because they are art, but the sketches of Gary Saderup of his conception of the Three Stooges are not art in the court's elitist opinion," Barnett said.

Benjamin disagreed, saying the "transformative" test was a workable one.

"The test the California court came up with, it's a workable test," he said. "There was no evidence of that anyone cared a hoot about the charcoal drawing. Frankly, there was nothing that Saderup did that no competent graphic artist couldn't do. It wasn't a Warhol. If you want a Warhol, you want a Warhol, you don't necessarily care who it's about."