Supreme Court Refuses to Review Fight Over Three Stooges' Images

WASHINGTON – The Supreme Court gave a poke in the eye to an artist who profited from posthumous depictions of the Three Stooges.

Los Angeles artist Gary Saderup lost his appeal in a case seeking First Amendment protection for photographers and artists who specialize in celebrities. Justices refused Monday to hear the case.

Now Saderup must pay the $75,000 he made from depictions of Curly, Moe and Larry to some of their heirs and cover their legal fees.

The case, which originally teamed Shaquille O'Neal and the Stooges' heirs against Saderup, had been closely followed by the licensing industry.

"It's wonderful news for all celebrities and all celebrities' heirs," Robert N. Benjamin, the attorney for the Stooges' heirs, said Monday.

The California Supreme Court ruled last spring that Saderup violated a state law by not getting consent before putting a picture of the slapstick comedians on shirts and lithographs. O'Neal had already settled his claims out of court.

Saderup's attorney, Stephen R. Barnett, told the justices 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."

"It's too bad the court wasn't interested in it," Barnett said Monday. "The claims of celebrities and dead celebrities like the Three Stooges are eating into the First Amendment while the court looks the other way."

Benjamin said the California ruling will ensure celebrities' images are protected.

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

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 Curly Joe 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 is now controlled by some of the actors' heirs.

Saderup created a charcoal drawing of the original trio and sold lithographs for between $20 to $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 case is Gary Saderup v. Comedy III Productions Inc., 01-368.