State appeals court holds that defendants’ alleged use of actor’s likeness as basis for cartoon character in “The Simpsons” was transformative and therefore protected by the First Amendment, affirming grant of special motion to strike right of publicity and misappropriation claims under anti-SLAPP statute.

Plaintiff Frank Sivero, an actor who portrayed mobsters in “Goodfellas” and “The Godfather Part II,” sued Twentieth Century Fox, alleging that the character Louie in the hit animated television series “The Simpsons” violated his right of publicity and misappropriated his name and likeness without his authorization and without compensating him. Sivero claimed that, in 1989, he lived next to two writers for “The Simpsons” who were aware that he was developing a mafia character for “Goodfellas.” While Louie initially appeared as a minor character in an October 1991 episode of the television program, he later appeared in additional episodes, a movie, and a video game.

In the trial court, Fox filed a special motion to strike the complaint under California’s anti-SLAPP statute, arguing that Sivero’s claims arose from protected activity and that Sivero could not show a probability of prevailing on his right of publicity and misappropriation claims. The trial court agreed and granted the motion. As to Sivero’s likelihood of prevailing, it found that Fox’s alleged use of Sivero’s likeness was transformative because it was used for purposes of “lampoon, parody, and caricature.” The California Court of Appeals affirmed the trial court’s grant of the motion to strike. Applying the same burden-shifting framework, it too found that Sivero’s claims arose from Fox’s right of free speech — namely creating and broadcasting a popular television show — and that Sivero could not satisfy his burden of establishing a probability of prevailing on his claims.

Specifically, the court found that Sivero failed to show that the alleged use of his likeness was not transformative. The court acknowledged the tension between free speech and the right of publicity, noting that “[b]ecause celebrities take on public meaning, the appropriation of their likenesses may have important uses in uninhibited debate on public issues.” A challenged work goes beyond “literal depiction or imitation of a celebrity for commercial gain,” the court noted, where “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.” The court proceeded to summarize the “continuum” of case law distinguishing transformative from non-transformative uses of celebrity likenesses. Distinguishing the facts before it from cases where plaintiffs’ likenesses were copied more literally, the court found that Louie’s yellow skin, large overbite, and distinctive high-pitched voice bore no resemblance to Sivero. Indeed, the court noted, Sivero himself had acknowledged that his likeness had been “Simpsonized,” highlighting the “very point” that the “creative elements predominate in the work.” According to the court, the cartoon’s “humorous depiction” of Louie, which parodied mobsters much like the ones Sivero portrayed in his films, further illustrated the transformative nature of the use.

Finally, although Sivero emphasized the financial success of “The Simpsons,” the court acknowledged its success had little to do with Sivero’s purported fame — but rather stemmed from its creators’ original input. “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.”