"The right of publicity derived from public prominence does not confer a shield to ward off caricature, parody and satire. Rather, prominence invites creative comment." (Guglielmi, supra, 25 Cal. 3d at p. 869.)

Apparently the folks at CafePress don't understand the First Amendment... What do I do now? Is there another POD provider who sell cups, posters, greeting cards and magnets? I don't have the ability to buy the printer to make them myself... yet.

I can't help but think that the sole reason for this is because I've paid out of pocket for my CafePress store for the past 3 years and its sales haven't paid for the store in that entire time. They don't want to assume the risk, only because I'm not one of their "power sellers". I just pay them $7/mo to have a store with them. And now they won't let me sell my most popular work in the store I pay to maintain:



Unfortunately they have the right to refuse service for any reason. That means I don't have any legal recourse to force them to let me sell the material through them. They just happen to be refusing service for a reason they don't understand.

Here are the images they should be worried about: [link] [link]

As a side note, although mine can not, there are a lot of images on DeviantArt that could get the company in trouble over Right of Publicity. Like these:



And here are hundreds if not thousands of other people expressing their First Amendment rights in exactly the same way without incident: [link]

Or for that matter, Daryl Cagle's political cartoon index, which is endorsed by MSNBC. Note the one at the top from the Union-Tribune's Steve Breen which uses both Jackson's full name and his likeness. Breen was awarded a Pulitzer prize... not for this strip, but you get the idea. He's allowed to do that and nobody can (or will ever try to) stop him, because the strip is uniquely and recognizably his, not mistakable for official Michael Jackson memorabilia.

(P.s. you can follow me on twitter as @datafaucet.)

Here's the last message I received from CafePress earlier today.

===============
Dear ike,

Thank you for contacting CafePress.com!

At this time we are not inclined to assume the risk associated with your argument. We apologize for any inconvenience our actions may have caused you.

===============

EDIT: Zazzle also fails to understand the First Amendment. Here is Zazzle's response to my inquiry (and my reply):

> Thank you for your email.
>
> Michael Jackson and Billy Mays' name and likeness are protected by
> rights of celebrity/publicity and may not be used on Zazzle products
> without permission, regardless of who the original artist or
> photographer may be. You may review our policies here: [link]

Thank you for getting back to me. I had read the policies prior to
contacting you. This is not how Right of Publicity actually works --
neither of them are protected from parody -- otherwise Saturday Night
Live would have been long-since sued out of business. If your policy
covers *more than* the Right of Publicity, which it seems to, it might
be a good idea to express what your policy actually covers in the terms.

> Rights of celebrity extend to commercial use on sites such as Zazzle.
> In order to use the likeness of a celebrity in a commercial venture
> such as on Zazzle products, you will need to obtain permission.

Thanks for your reply however, as I mentioned before, this is
not how Right of Celebrity actually works. This addresses the who, not
the content in question, and in this case the content not protected by
Right of Celebrity because it is superseded by the First Amendment to
the Constitution (the right of free speech), and has been upheld as such
by the California Supreme Court. And again, if your policy covers *more
than* the Right of Celebrity as you've informed me twice now, you might
want to revise the policy on your website to indicate what your policy
actually covers, since it's more than Right of Celebrity.

===============

Here is the information that makes their decision incorrect.

========== Original Message ==========

Question: Hi Margene, thanks for getting back to me. I have to admit I was a bit surprised to hear that they were flagged for Right of Publicity. I thought for sure they were flagged for being "offensive". Anyway I don't believe these comic strips are infringements of Right of Publicity after a bit of research.

I believe this is the relevant case law.

Comedy III Productions v. Gary Saderup Inc
California Supreme Court, April 30, 2001

Comedy III held the Right of Publicity for the Three Stooges. Saderup
sold (and continues to sell) silk-screened t-shirts reproduced from
traditional black and white portraits of celebrities. You can see
examples of his work here.

The court ruled that he could not sell reproductions of his originals
without consent of Comedy III (although he could sell the originals)
because his work did not constitute a reasonably original work. If you
remove the celebrity from his works, nothing remains. My works are works
of parody, which are mentioned specifically in this case as being
protected by the First Amendment. Significant original content remains
if the celebrities are removed.

Satire is constitutionally protected free speech because of its nature
as social commentary, and also because it is not considered an
interchangeable substitute for memorabilia and therefore does not
threaten the profits of the right-of-publicity owner, it is not
considered a violation of a person's Right of Publicity. This is
mentioned in this case report on page 9 (cited below) where the free
speech rights of Cardtoons were upheld, allowing them to continue
selling trading cards featuring caricatures of Major League Baseball
players.

Here is a PDF of the court's report: [link]

And here are what I feel are the most relevant excerpts:

page 5

A majority of this court recognized
as much in Guglielmi [*19] : "The right of publicity
derived from public prominence does not confer a shield
to ward off caricature, parody and satire. Rather,
prominence invites creative comment." (Guglielmi,
supra, 25 Cal. 3d at p. 869.)

page 7

The purported heir of Rudolph Valentino filed suit
against the makers of a fictional film based on the latter's
life. Guglielmi concluded that the First Amendment
protection of entertainment superseded any right of
publicity. This was in contrast to the companion Lugosi
case, in which Chief Justice Bird concluded in her
dissenting opinion that there may be an enforceable right
of publicity that would prevent the merchandising of
Count Dracula using the likeness of Bela Lugosi, with
whom that role was identified. (Lugosi, supra, 25 Cal. 3d
at pp. 848-849.) [*29] Guglielmi proposed a balancing
test to distinguish protected from unprotected
appropriation of celebrity likenesses: "an action for
infringement of the right of publicity can be maintained
only if the proprietary interests at issue clearly outweigh
the value of free expression in this context." (Guglielmi,
supra, 25 Cal. 3d at p. 871.)

page 8

It is admittedly not a simple matter to develop a test
that will unerringly distinguish between forms of artistic
expression protected by the First Amendment and those
that must give way to the right of publicity. Certainly,
any such test must incorporate the principle that the right
of publicity cannot, consistent with the First
Amendment, be a right to control the celebrity's image
by censoring disagreeable portrayals. Once the celebrity
thrusts himself or herself forward into the limelight, the
First Amendment dictates that the right to comment on,
parody, lampoon, and make other expressive uses of the
celebrity image must be given broad scope. The
necessary implication of this observation is that the right
of publicity is essentially an economic right. What the
right of publicity holder possesses is not a right of
censorship, but a right to prevent others from
misappropriating the economic value generated by the
celebrity's fame through the merchandising of the "name,
voice, signature, photograph or likeness" of the celebrity.
(§ 990.)

page 9

Nonetheless, the first fair use factor -- "the purpose
and character of the use" (17 U.S.C. § 107(1)) -- does
seem particularly pertinent to the task of reconciling the
rights of free expression and publicity. As the Supreme
Court has stated, the central purpose of the inquiry into
this fair use factor "is to see, in Justice Story's words,
whether the new work merely 'supersedes the objects' of
the original creation [citations], 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.'
[Citation.] Although such transformative use is not
absolutely necessary for a finding of fair use, [citation]
the goal of copyright, to promote science and the arts, is
generally furthered [*36] by the creation of
transformative works." ( Campbell v. Acuff-Rose Music,
Inc. (1994) 510 U.S. 569, 579, 127 L. Ed. 2d 500, 114 S.
Ct. 1164, fn. omitted.)

This inquiry into whether a work is "transformative"
appears to us to be necessarily at the heart of any judicial
attempt to square the right of publicity with the First
Amendment. As the above quotation suggests, both the
First Amendment and copyright law have a common
goal of encouragement of free expression and creativity,
the former by protecting such expression from
government interference, the latter by protecting the
creative fruits of intellectual and artistic labor. (See
Nimmer on Copyright (2000 ed.) § 1.10, pp. 1-66.43 to
1-66.44 (Nimmer).) The right of publicity, at least
theoretically, shares this goal with copyright law. (1
McCarthy, supra, § 2.6, pp. 2-14 to 2-19.) When artistic
expression takes the form of a literal depiction or
imitation of a celebrity for commercial gain, n9 directly
trespassing on the right of publicity without adding
significant expression beyond that trespass, the state law
interest in protecting the fruits of artistic labor outweighs
the expressive interests of the imitative [*37] artist. (See
Zacchini, supra, 433 U.S. at pp. 575-576.)

...

On the other hand, when a work contains significant
transformative elements, it is not only especially worthy
of First Amendment protection, but it is also less likely
to interfere with the economic interest protected by the
right of publicity. As has been observed, works of parody
or other distortions of the celebrity [*38] figure are not,
from the celebrity fan's viewpoint, good substitutes for
conventional depictions of the celebrity and therefore do
not generally threaten markets for celebrity memorabilia
that the right of publicity is designed to protect. (See
Cardtoons, L.C. v. Major League Baseball Players
Association (10th Cir. 1996) 95 F.3d 959, 974
(Cardtoons).) Accordingly, First Amendment protection
of such works outweighs whatever interest the state may
have in enforcing the right of publicity. The right-ofpublicity
holder continues to enforce the right to
monopolize the production of conventional, more or less
fungible, images of the celebrity. n10

page 10

Cardtoons, supra, 95 F.3d 959, cited by Saderup, is
consistent with this "transformative" test. There, the
court held that the First Amendment protected a
company that produced trading cards caricaturing and
parodying well-known major league baseball players
against a claim brought under the Oklahoma right of
publicity statute. The court concluded that "the cards
provide social commentary on public figures, major
league baseball players, who are involved in a significant
commercial enterprise, major league baseball," and that
"the cards are no less protected because they provide
humorous rather than serious commentary." (Cardtoons,
at p. 969.) The Cardtoons court weighed these First
Amendment rights against what it concluded was the
less-than-compelling interests advanced by the right of
publicity outside the advertising context -- especially in
light of the reality that parody would not likely
substantially impact the economic interests of celebrities
-- and found the cards to be a form of protected
expression. (Cardtoons, at pp. 973-976.) While
Cardtoons contained dicta calling into question the social
value of the right of publicity, its conclusion [*40] that
works parodying and caricaturing celebrities are
protected by the First Amendment appears unassailable
in light of the test articulated above.

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 (see, e.g., Rosemont
Enterprises, Inc. v. Random House, Inc. (N.Y. Sup. Ct.
1968) 58 Misc. 2d 1, 294 N.Y.S.2d 122, 129, affd. mem.
(1969) 32 A.D.2d 892, 301 N.Y.S.2d 948) to fictionalized
portrayal (Guglielmi, supra, 25 Cal. 3d at pp. 871-872;
see also Parks v. Laface Records (E.D.Mich. 1999) 76 F.
Supp. 2d 775, 779-782 [use of civil rights figure Rosa
Parks in song title is protected expression]), from heavyhanded
lampooning (see Hustler Magazine v. Falwell
(1988) 485 U.S. 46, 99 L. Ed. 2d 41, 108 S. Ct. 876) to
subtle social criticism (see Coplans et al., Andy Warhol
(1970) pp. 50-52 [explaining Warhol's celebrity portraits
as a critique of the celebrity phenomenon]).

Another way of stating the inquiry is whether the
celebrity likeness is one of the "raw materials" from
which an original work [*41] 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. And when we use the word "expression," we
mean expression of something other than the likeness of
the celebrity.

We further emphasize that in determining whether
the work is transformative, courts are not to be
concerned with the quality of the artistic contribution --
vulgar forms of expression fully qualify for First
Amendment protection. (See, e.g., Hustler Magazine v.
Falwell, supra, 485 U.S. 46, 99 L. Ed. 2d 41, 108 S. Ct.
876; see also Campbell v. Acuff-Rose Music, Inc., supra,
510 U.S. at p. 582.) On the other hand, a literal depiction
of a celebrity, even if accomplished with great skill, may
still be subject to a right of publicity challenge. The
inquiry is in a sense more quantitative than qualitative,
asking whether the literal and imitative or the creative
elements predominate in the work. n11

page 11

Rather, the inquiry is into whether Saderup's work is
sufficiently transformative. Correctly anticipating this
inquiry, he argues that all portraiture involves creative
decisions, that therefore no portrait portrays a mere
literal likeness, and that accordingly all portraiture,
including reproductions, is protected by the First
Amendment. We reject any such categorical position.
Without denying that all portraiture involves the making
of artistic choices, we find it equally undeniable, [*45]
under the test formulated above, that 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. As is the case with fair use in the area of
copyright law, an artist depicting a celebrity must
contribute something more than a "'"merely trivial"
'variation, [but must create] something recognizably' "his
own"'" ( L. Batlin & Son, Inc. v. Snyder (2d Cir. 1976)
536 F.2d 486, 490), in order to qualify for legal
protection.

On the other hand, we do not hold that all
reproductions of celebrity portraits are unprotected by
the First Amendment. The silkscreens of Andy Warhol,
for example, have as their subjects the images of such
celebrities as Marilyn Monroe, Elizabeth Taylor, and
Elvis Presley. Through distortion and the careful
manipulation of context, Warhol was able to convey a
message that went beyond the commercial exploitation
of celebrity images and became a form of ironic social
comment on the dehumanization of celebrity itself. (See
Coplans et al., supra, [*46] at p. 52.) n12 Such
expression may well be entitled to First Amendment
protection. Although the distinction between protected
and unprotected expression will sometimes be subtle, it
is no more so than other distinctions triers of fact are
called on to make in First Amendment jurisprudence.
(See, e.g., Miller v. California (1973) 413 U.S. 15, 24, 37
L. Ed. 2d 419, 93 S. Ct. 2607 [requiring determination, in
the context of work alleged to be obscene, of "whether
the work, taken as a whole, lacks serious literary, artistic,
political or scientific value"].)