Filed 2/13/18 Sivero v. Twentieth Century Fox Film Corp. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
FRANK SIVERO,

B266469

Plaintiff and Appellant,

(Los Angeles County
Super. Ct. No. BC561200)

v.
TWENTIETH CENTURY FOX
FILM CORPORATION,
Defendant and Respondent.

APPEAL from an order of the Superior Court of Los
Angeles County, Rita Miller, Judge. Affirmed.
Hess, Hess & Herrera and Alejandro H. Herrera for
Plaintiff and Appellant.
Mitchell Silberberg & Knupp, Robert H. Rotstein, Aaron M.
Wais and Daniel A. Kohler for Defendant and Respondent.
___________________

 Frank Sivero, a film actor, sued Twentieth Century Fox
Film Corporation (Fox) for the misappropriation of his name and
likeness in the promotion of the hit television show The
Simpsons. Fox filed a special motion to strike under Code of Civil
Procedure1 section 425.16 contending Sivero’s claims arose from
protected activity and Sivero could not demonstrate a probability
of prevailing. The trial court agreed and granted the motion to
strike.
On appeal, Sivero argues the trial court erred (1) when it
found his causes of action arose from protected activity, and
(2) when it stuck his first two causes of action based upon the
application of the First Amendment’s transformative use
doctrine. We conclude Sivero has shown no error and affirm the
trial court’s order granting the special motion to strike.
FACTUAL AND PROCEDURAL BACKGROUND
A.

Factual Background
Sivero is a professional actor who is best known for playing
the roles of mafia figures in the films The Godfather Part II
(Paramount Pictures 1974) and Goodfellas (Warner Bros. 1990).
Fox is a film studio that produces films and television
shows, including The Simpsons. The Simpsons is an animated
situation comedy starring the fictional Simpson family who
resides in the fictional town of Springfield. In 1989, Sivero lived
in an apartment building in a unit next door to two of the writers

1

All undesignated statutory references are to the Code of
Civil Procedure.

2

 for The Simpsons. The writers were aware Sivero was developing
a mafia character for Goodfellas.
An episode of The Simpsons first broadcasted in October
1991 included as a minor character a mafia henchman known as
Louie who resembled Sivero’s character in Goodfellas. Louie was
one of two henchmen for a mafia boss known as Fat Tony. Louie
later appeared in 15 additional episodes of the television show
and in a movie and video games based on the show.
B.

Sivero’s Complaint
On October 21, 2014, Sivero filed a verified complaint
alleging causes of action for (1) common law infringement of right
of publicity; (2) misappropriation of name and likeness (Civ.
Code, § 3344); (3) misappropriation of ideas; (4) interference with
prospective economic advantage; and (5) unjust enrichment.2
Sivero alleges in his first two causes of action that Fox
misappropriated his name and likeness “in the promotion of THE
SIMPSONS franchise,” without his authorization and without
compensating him. Sivero alleges in his third cause of action
that Fox misappropriated the idea of the Goodfellas character on
whom Louie was based. In his fourth cause of action, Sivero
alleges that by misappropriating his name and likeness Fox
interfered with his ability to exploit his name and likeness. In
his fifth cause of action, Sivero alleges that Fox has been unjustly
enriched as a result of the misappropriation of his name and
2

Sivero named Fox Television Studios, Inc. and 21st
Century Fox America, Inc. as defendants. He later substituted
Twentieth Century Fox Film Corporation for a fictitious
defendant and dismissed the complaint against the two originally
named defendants.

3

 likeness. Sivero seeks compensatory and punitive damages and
injunctive relief.
C.

Fox’s Special Motion To Strike
On April 20, 2015, Fox filed a special motion to strike the
complaint. Fox argued the complaint arose from protected
activity under the anti-SLAPP statute and Sivero could not show
a probability of prevailing on any of his claims. Fox argued
among other things that Sivero could not show a probability of
prevailing on his first cause of action for common law
infringement of right of publicity and second cause of action for
misappropriation of name and likeness because any use of
Sivero’s likeness was transformative and therefore protected by
the First Amendment. Fox filed numerous exhibits in support of
its motion, including, but not limited to, a declaration by its
counsel; video recordings of 16 episodes of The Simpsons; several
movies including Goodfellas, The Godfather Part II, and The
Simpsons Movie; and a video game entitled The Simpsons: Hit
and Run.
Sivero opposed the special motion to strike and filed his
own declaration and the declaration of an animation expert.
Sivero also filed evidentiary objections. Sivero argued his causes
of action did not arise from protected activity under the antiSLAPP statute because Fox’s use of his likeness was not
transformative and therefore was not protected by the First
Amendment. Regarding his probability of prevailing on the
merits, Sivero argued the evidence supported each of his causes
of action.
On August 6, 2015, after a hearing on the special motion to
strike, the trial court entered an order granting the motion. The

4

 court found the complaint arose from an act in furtherance of
Fox’s right of petition or free speech within the meaning of the
anti-SLAPP statute. The court stated the facts alleged in this
case were similar to those in Tamkin v. CBS Broadcasting, Inc.
(2011) 193 Cal.App.4th 133 and No Doubt v. Activision
Publishing, Inc. (2011) 192 Cal.App.4th 1018 (No Doubt), which
held that causes of action involving the alleged unauthorized use
of the plaintiffs’ names or likenesses in a television show or a
video game arose from protected activity under the anti-SLAPP
statute.
The trial court concluded that Sivero had failed to establish
a probability of prevailing on any of his causes of action.
Regarding his first and second causes of action, the court stated
Sivero had submitted sufficient evidence to show Louie was based
at least in part on Sivero, and Fox had failed to show as a matter
of law that Louie was not based on Sivero.3 However, the court
found that Fox’s use of Sivero’s likeness was transformative
because Louie was only a minor character in the television series,
and Sivero’s likeness was distorted for purposes of lampoon,
parody, and caricature. The court concluded this established a
complete defense to the first and second causes of action, and, as
for the remaining causes of action, Sivero failed to present
sufficient facts to establish a probability of prevailing.
Sivero filed a timely notice of appeal from the order
granting the special motion to strike.4
3

The court rejected Fox’s argument that the Copyright Act
preempted Sivero’s claims.
4

An order granting or denying a special motion to strike is
appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).)

5

 CONTENTIONS
Sivero contends (1) his first four causes of action (common
law infringement of right of publicity, misappropriation of name
and likeness, misappropriation of ideas, and interference with
prospective economic advantage) do not arise from protected
activity under the anti-SLAPP statute; and (2) his first and
second causes of action are not precluded by the transformative
use doctrine.5
DISCUSSION
A.

Special Motion To Strike
A special motion to strike is a procedural remedy to dispose
of meritless lawsuits brought to chill the valid exercise of the
constitutional right of petition or free speech. (Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1055-1056; Fremont Reorganizing Corp.
v. Faigin (2011) 198 Cal.App.4th 1153, 1165.) A cause of action
arising from an act in furtherance of the defendant’s
5

Sivero does not challenge the trial court’s ruling that his
fifth cause of action for unjust enrichment arises from protected
activity or the ruling that he failed to establish a probability of
prevailing on his third, fourth, and fifth causes of action for
misappropriation of ideas, interference with prospective business
advantage, and unjust enrichment. He therefore forfeits any
claim of error regarding these rulings. (Oviedo v. Windsor Twelve
Properties, LLC (2012) 212 Cal.App.4th 97, 108 & fn. 9 [issues
not raised in the appellant’s opening brief are deemed waived];
Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202
Cal.App.4th 35, 41 [appellant forfeits any claim of error by failing
to raise the issue on appeal].)

6

 constitutional right of petition or free speech in connection with a
public issue is subject to a special motion to strike unless the
plaintiff demonstrates a probability of prevailing on the claim.
(§ 425.16, subd. (b)(1); Barry v. State Bar of California (2017) 2
Cal.5th 318, 321.) The defendant bears the initial burden of
showing that the cause of action arises from protected activity
(i.e., an “act in furtherance”). If the defendant satisfies this
burden, the burden shifts to the plaintiff to demonstrate a
probability of prevailing on the claim. (Barry, at p. 321.)
“Resolution of an anti-SLAPP motion involves two steps.
First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16. [Citation.] If the
defendant makes the required showing, the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a
probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
384.)
In the first step, an “‘act in furtherance of a person’s right
of petition or free speech under the United States or California
Constitution in connection with a public issue’ includes: (1) any
written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding
authorized by law, (2) any written or oral statement or writing
made in connection with an issue under consideration or review
by a legislative, executive, or judicial body, or any other official
proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in
connection with an issue of public interest, or (4) any other
conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of free speech in connection

7

 with a public issue or an issue of public interest.” (§ 425.16,
subd. (e).)
A cause of action “‘aris[es] from’” protected activity within
the meaning of the anti-SLAPP statute only if the defendant’s act
on which the cause of action is based was an act in furtherance of
the defendant’s right of petition or free speech in connection with
a public issue. (City of Cotati v. Cashman (2002) 29 Cal.4th 69,
78.) “[T]he focus is on determining what ‘the defendant’s activity
[is] that gives rise to his or her asserted liability—and whether
that activity constitutes protected speech or petitioning.’
[Citation.] ‘The only means specified in section 425.16 by which a
moving defendant can satisfy the [“arising from”] requirement is
to demonstrate that the defendant’s conduct by which [the]
plaintiff claims to have been injured falls within one of the four
categories described in subdivision (e) . . . .’ [Citation.] In short,
in ruling on an anti-SLAPP motion, courts should consider the
elements of the challenged claim and what actions by the
defendant supply those elements and consequently form the basis
for liability.” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1063.)
In the second step, a plaintiff establishes a probability of
prevailing on the claim by showing that the complaint is legally
sufficient and supported by a prima facie showing of facts that, if
proved at trial, would support a judgment in the plaintiff’s favor.
(Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
The court does not weigh the evidence, but determines as a
matter of law whether the evidence is sufficient to support a
judgment in the plaintiff’s favor. (Baral v. Schnitt, supra, 1
Cal.5th at pp. 384-385; Taus v. Loftus (2007) 40 Cal.4th 683,
714.) The defendant can defeat the plaintiff’s showing only by

8

 presenting evidence that establishes as a matter of law that the
plaintiff cannot prevail. (Baral, at pp. 384-385 [trial court
“accepts the plaintiff’s evidence as true, and evaluates the
defendant’s showing only to determine if it defeats the plaintiff’s
claim as a matter of law”]; Oasis, at p. 820.)
“Only a cause of action that satisfies both prongs of the
anti-SLAPP statute—i.e., that arises from protected speech or
petitioning and lacks even minimal merit—is a SLAPP, subject to
being stricken under the statute.” (Navellier v. Sletten (2002) 29
Cal.4th 82, 89.) On appeal, we independently review the trial
court’s determinations on both prongs. (Hall v. Time Warner,
Inc. (2007) 153 Cal.App.4th 1337, 1345-1346.)
B.

Step One: Sivero’s Causes of Action Arise from Protected
Activity
1.
The First and Second Causes of Action
Before the trial court, Sivero argued his first two causes of
action did not arise from protected activity because Fox’s use of
his likeness was not transformative and therefore was not
protected by the First Amendment. Sivero confused the
threshold question whether the causes of action arose from
protected activity with the question whether Sivero established a
probability of prevailing on the merits. (See Navellier v. Sletten,
supra, 29 Cal.4th at p. 94 [“Plaintiff’s argument ‘confuses the
threshold question of whether the SLAPP statute [potentially]
applies with the question whether [an opposing plaintiff] has
established a probability of success on the merits’”]; Hunter v.
CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1522 [the
plaintiff’s argument confused the threshold question whether the
defendant’s conduct arose from protected activity with the

9

 purported unlawful motive for the defendant’s conduct, which
was a second prong issue concerning the merits].)
On appeal, Sivero raises two new arguments. First, he
contends that because Fox could have commented on any public
issues addressed in The Simpsons without using his likeness, his
causes of action did not arise from protected activity. Explaining
this argument, Sivero posits that because his likeness was not
necessary for Fox’s public commentary, the use of his likeness
was not in furtherance of Fox’s right of free speech “‘in connection
with a public issue’” (§ 425.16, subd. (e)). Next, Sivero argues the
use of his likeness in video games and other merchandise “[does]
not exhibit the expressive elements protected by the First
Amendment,” and therefore his claims do not arise from
protected activity.6
A reviewing court generally will not consider arguments
made for the first time on appeal that could have been but were
not asserted in the trial court. (Hunter v. CBS Broadcasting Inc.,
supra, 221 Cal.App.4th at p. 1526 [refused to consider an
argument under the first prong of the anti-SLAPP statute
because the plaintiff did not present the argument to the trial
court].) Doing so would be unfair to both the trial court and the
opposing litigant. (DiCola v. White Brothers Performance
Products, Inc. (2008) 158 Cal.App.4th 666, 676 [rejected the
plaintiff’s new theory on appeal in opposition to defendant’s
summary judgment motion].) Sivero has provided no persuasive
argument why we should depart from this rule. His new
arguments are therefore forfeited. (Hunter, at p. 1526.) Without

6

Sivero fails to cite any authority in support of either
argument.

10

 any further challenge to the trial court’s ruling, the first and
second causes of action move on to the second step of the
analysis.
2.

Sivero Has Shown No Error in the Ruling That
His Third and Fourth Causes of Action Arise
from Protected Activity
Sivero argues his third cause of action for misappropriation
of ideas and fourth cause of action for interference with
prospective economic advantage do not arise from protected
activity because these causes of action are based on tortious
conduct and are not based on any constitutionally protected
speech. According to Sivero, “the defendant should be required to
prove the validity of its purported ‘protected activity’ in
evaluating an anti-SLAPP motion.” Sivero argues his third cause
of action does not arise from “speech,” but instead arises from
“the act of stealing [Sivero’s] idea and using it to [Fox’s] own
commercial advantage.” Sivero argues his fourth cause of action
does not arise from “the creation of Louie,” but instead arises
from Fox’s “use of Louie,” which “contributed to [Sivero’s] loss of
employment as well as the dilution of his ‘typecast’ mobster
persona.” Thus, Sivero argues tortious conduct cannot be
protected activity and characterizes his third and fourth causes of
action as arising from tortious conduct. Sivero misconstrues the
first prong requirement.
A defendant satisfies its threshold burden of showing that a
cause of action arises from protected activity by showing that the
act on which the cause of action is based fits one or more of the
four categories set forth in section 425.16, subdivision (e).
(Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) Subdivision (e)

11

 of section 425.16 does not distinguish between tortious and
nontortious conduct and does not exclude tortious conduct. A
plaintiff cannot avoid the application of the anti-SLAPP statute
simply by alleging a tort. Sivero cites no authority for such a
proposition, and the argument is contrary to the law. Torts arise
from protected activity when the basis for the claim is an act
described in section 425.16, subdivision (e). (See, e.g., Cross v.
Facebook, Inc. (2017) 14 Cal.App.5th 190, 196, 199-205 [claims
for negligent misrepresentation, negligent interference with
economic relations, breach of Civ. Code, § 3344, violation of
common law right of publicity, and unfair competition]; Jackson
v. Mayweather (2017) 10 Cal.App.5th 1240, 1255 [claims for
invasion of privacy, defamation, and intentional and negligent
infliction of emotional distress].)
Courts may not “read a separate proof-of-validity
requirement into the operative sections of the statute.
[Citations.] Rather, any ‘claimed illegitimacy of the defendant’s
acts is an issue which the plaintiff must raise and support in the
context of the discharge of the plaintiff’s [secondary] burden to
provide a prima facie showing of the merits of the plaintiff’s case.’
[Citation.]” (Navellier v. Sletten, supra, 29 Cal.4th at p. 94.)
Contrary to Sivero’s argument, the defendant need not establish
the validity of its conduct in order to show the cause of action
arises from protected activity, and the plaintiff cannot show that
a cause of action does not arise from protected activity simply by
characterizing the defendant’s alleged conduct as tortious.
Moreover, the trial court properly found Sivero’s third and
fourth causes of action arise from protected activity. An act in
furtherance of the defendant’s constitutional right of petition or
free speech includes “any . . . conduct in furtherance of the

12

 exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public
issue or an issue of public interest.” (§ 425.16, subd. (e)(4).) We
must construe this provision broadly in favor of protecting the
defendant’s continued participation in matters of public
significance. (Id., subd. (a); Brodeur v. Atlas Entertainment, Inc.
(2016) 248 Cal.App.4th 665, 674 [the term “public interest” in the
anti-SLAPP statute must be construed broadly].)
The basis for Sivero’s third cause of action for
misappropriation of ideas is Fox’s commercial exploitation of the
persona Sivero developed. The basis for Sivero’s fourth cause of
action for intentional interference with prospective economic
advantage is the same. These causes of action arise from
protected activity under the anti-SLAPP statute if Fox’s use of
Sivero’s likeness involved protected activity.
A television show is an expressive work protected by the
First Amendment right of free speech, so creating and
broadcasting a television show are acts in furtherance of the
constitutional right of free speech. (Hunter v. CBS Broadcasting
Inc., supra, 221 Cal.App.4th 1510, 1521 [the defendant’s selection
of television weather anchors was an act in furtherance of the
right of free speech]; Tamkin v. CBS Broadcasting, Inc., supra,
193 Cal.App.4th at p. 143 [the defendant’s use of the plaintiffs’
names in a popular television show was an act in furtherance of
the right of free speech].) The same is true of movies and video
games. (Brown v. Entertainment Merchants Assn. (2011) 564
U.S. 786, 790 [131 S.Ct. 2729, 180 L.Ed.2d 708] [video games are
protected by the First Amendment because they “communicate
ideas—and even social messages”]; No Doubt, supra, 192
Cal.App.4th at p. 1027 [“Video games generally are considered

13

 ‘expressive works’ subject to First Amendment protections”];
Polydoros v. Twentieth Century Fox Film Corp. (1997) 67
Cal.App.4th 318, 323-324 [“[f]ilm . . . whether exhibited in
theaters or on television, is protected by constitutional
guarantees of free expression”].)
Creating and broadcasting a popular television show,
movie, or video game constitutes conduct “in connection with an
issue of public interest” because “‘“an issue of public interest” . . .
is any issue in which the public is interested. In other words, the
issue need not be “significant” to be protected by the anti-SLAPP
statute—it is enough that it is one in which the public takes an
interest.’” (Tamkin v. CBS Broadcasting, Inc., supra, 193
Cal.App.4th at p. 143; accord, Brodeur v. Atlas Entertainment,
Inc., supra, 248 Cal.App.4th at p. 675; see also No Doubt, supra,
192 Cal.App.4th at p. 1027 [the defendant’s use of a band’s
likeness in a video game was a matter of public interest because
the band had achieved widespread fame]; Kronemyer v. Internet
Movie Database Inc. (2007) 150 Cal.App.4th 941, 949 [“the motion
picture My Big Fat Greek Wedding was a topic of widespread
public interest”].) In light of the widespread popularity of The
Simpsons, Sivero’s third and fourth causes of action arise from
conduct in furtherance of the exercise of the constitutional right
of free speech in connection with an issue of public interest.7

7

As discussed, Sivero does not challenge the trial court’s
finding that his fifth cause of action for unjust enrichment arises
from protected activity.

14

 C.

Step Two: Sivero Cannot Establish a Probability of
Prevailing on His First and Second Causes of Action
If the defendant shows the challenged causes of action arise
from protected activity, the burden shifts to the plaintiff to
establish a probability of prevailing on the claims. (Baral v.
Schnitt, supra, 1 Cal.5th at p. 384.) Sivero contends he
established a probability of prevailing on his first cause of action
for common law infringement of right of publicity and second
cause of action for misappropriation of name and likeness.8
1.
The Right of Publicity
“The right of publicity protects an individual’s right to
profit from the commercial value of his or her identity.
[Citations.] California recognizes both a common law and
statutory right of publicity. [Citation.]” (Ross v. Roberts (2013)
222 Cal.App.4th 677, 684.)
The elements of a common law cause of action for
infringement of the right of publicity are “‘“(1) the defendant’s use
of the plaintiff’s identity; (2) the appropriation of plaintiff’s name
or likeness to defendant’s advantage, commercially or otherwise;
(3) lack of consent; and (4) resulting injury. [Citations.]”
[Citation.]’ [Citation.]” (Maxwell v. Dolezal (2014) 231
Cal.App.4th 93, 97.)
Civil Code section 3344 establishes a statutory right of
publicity. (Winter v. DC Comics (2003) 30 Cal.4th 881, 885
(Winter).) The statute states, in relevant part, “Any person who

8

As discussed, Sivero does not challenge the trial court’s
ruling that he failed to establish a probability of prevailing on his
third, fourth, and fifth causes of action.

15

 knowingly uses another’s name, voice, signature, photograph, or
likeness, in any manner, on or in products, merchandise, or
goods, or for purposes of advertising or selling, or soliciting
purchases of, products, merchandise, goods or services, without
such person’s prior consent, or, in the case of a minor, the prior
consent of his parent or legal guardian, shall be liable for any
damages sustained by the person or persons injured as a result
thereof. . . .” (Civ. Code, § 3344, subd. (a).) The elements of a
statutory cause of action for misappropriation of right of publicity
include all of the common law elements plus two additional
elements: the defendant’s knowing use and a direct connection
between the defendant’s use and the commercial purpose. (Local
TV, LLC v. Superior Court (2016) 3 Cal.App.5th 1, 13.)
2.
The Transformative Use Defense
A tension exists between the right of publicity and the First
Amendment right of free speech and expression. (Winter, supra,
30 Cal.4th at p. 885; Comedy III Productions, Inc. v. Gary
Saderup, Inc. (2001) 25 Cal.4th 387, 396 (Comedy III).) “Because
celebrities take on public meaning, the appropriation of their
likenesses may have important uses in uninhibited debate on
public issues, particularly debates about culture and values. And
because celebrities take on personal meanings to many
individuals in the society, the creative appropriation of celebrity
images can be an important avenue of individual expression.”
(Comedy III, at p. 397; accord, Winter, at p. 887.) “[T]he very
importance of celebrities in society means that the right of
publicity has the potential of censoring significant expression by
suppressing alternative versions of celebrity images that are
iconoclastic, irreverent, or otherwise attempt to redefine the

16

 celebrity’s meaning.” (Comedy III, at p. 397; accord, Winter, at
p. 887.)
The California Supreme Court has developed a balancing
test between the First Amendment and the right of publicity to
determine whether the challenged work merely appropriates a
celebrity’s likeness and economic value, and therefore is not
entitled to First Amendment protection, or adds significant
creative elements so as to transform the work into the
defendant’s own expression. (Winter, supra, 30 Cal.4th at p. 888;
Comedy III, supra, 25 Cal.4th at p. 391.) “When artistic
expression takes the form of a literal depiction or imitation of a
celebrity for commercial gain, 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 artist.”
(Comedy III, at p. 405, fn. omitted.) On the other hand, when “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,” it is protected by the First Amendment.9
(Comedy III, at p. 406.) As the California Supreme Court stated
in Comedy III, “This inquiry into whether a work is
9

Comedy III, supra, 25 Cal.4th at page 406, stated:
“Another way of stating the inquiry is 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. And when we use the word ‘expression,’ we mean
expression of something other than the likeness of the celebrity.”

17

 ‘transformative’ appears to us to be necessarily at the heart of
any judicial attempt to square the right of publicity with the First
Amendment.” (Id. at p. 404.)
Thus, the First Amendment is an affirmative defense to a
cause of action based on the right of publicity to the extent that
the challenged work “contains significant transformative
elements or that the value of the work does not derive primarily
from the celebrity’s fame.” (Comedy III, supra, 25 Cal.4th at
p. 407.) This is known as the “transformative use” defense. (No
Doubt, supra, 192 Cal.App.4th at pp. 1031-1032.) “‘[B]ecause
unnecessarily protracted litigation would have a chilling effect
upon the exercise of First Amendment rights, speedy resolution of
cases involving free speech is desirable.’ [Citations.] As in
Comedy III . . . , courts 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, supra, 30 Cal.4th at pp. 891-892 [resolved the issue of
transformative use in reviewing an appeal from a summary
judgment]; see No Doubt, at pp. 1033-1035 [resolved the issue of
transformative use on appeal from the denial of an anti-SLAPP
motion].)
Since the California Supreme Court announced the
transformative use test in 2001, case law has developed along a
continuum with those cases finding the facts establish a
transformative use on one end and those finding a
nontransformative, literal depiction on the other. An

18

 examination of several cases demonstrates the relevant
distinctions and factors that differentiate the two ends.
Comedy III, supra, 25 Cal.4th 387, No Doubt, supra, 192
Cal.App.4th 1018, and In re NCAA Student-Athlete Name &
Likeness (9th Cir. 2013) 724 F.3d 1268 (NCAA) are three cases
finding the use of the celebrity’s likeness to be literal and not
transformative.
The California Supreme Court in Comedy III concluded as
a matter of law that lithographs and silkscreened T-shirts
bearing portraits of The Three Stooges were not transformative,
stating that the artist’s “undeniable skill [was] manifestly
subordinated to the overall goal of creating literal, conventional
depictions of The Three Stooges so as to exploit their fame.”
(Comedy III, supra, 25 Cal.4th at p. 409.) The court stated, “we
can discern no significant transformative or creative
contribution.” (Ibid.) The court stated further, “Moreover, the
marketability and economic value of [the artist’s] work derives
primarily from the fame of the celebrities depicted. While that
fact alone does not necessarily mean the work receives no First
Amendment protection, we can perceive no transformative
elements in [the artist’s] works that would require such
protection.” (Ibid.)
Comedy III stated that not all reproductions of celebrity
portraits were unprotected by the First Amendment, noting that
Andy Warhol’s silkscreens of celebrities involving “distortion and
the careful manipulation of context” conveyed “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.” (Comedy III, supra, 25 Cal.4th at pp. 408-409.)
Such expressions may be protected by the First Amendment, and

19

 “the distinction between protected and unprotected expression
will sometimes be subtle.” (Id. at p. 409.) In contrast, the court
found the defendant’s literal depictions of The Three Stooges
contained no transformative elements. (Ibid.)
No Doubt involved a video game in which players simulated
performing popular songs as members of a rock band. Players
could choose to perform as images of fictional characters or reallife rock stars. (No Doubt, supra, 192 Cal.App.4th at p. 1023.)
The court held the defendant’s use of likenesses of members of
the real-life rock band No Doubt was not transformative because
the images were “literal recreations of the band members” doing
“the same activity by which the band achieved and maintains its
fame.” (Id. at p. 1034.) The video game images were “computergenerated recreations of the real band members, painstakingly
designed to mimic their likenesses.” (Id. at p. 1033.) The court
stated that none of the variables afforded to the game player,
such as changing the venue of the performances, “transform[ed]
the avatars into anything other than exact depictions of No
Doubt’s members doing exactly what they do as celebrities.” (Id.
at p. 1034.)
NCAA involved a video game in which players simulated
playing football by controlling avatars representing actual college
football players. The college teams in the game included all of
the players from the real-life college teams with their actual
jersey numbers and virtually identical physical characteristics,
but without the players’ names on their jerseys. (NCAA, supra,
724 F.3d at p. 1271.) The plaintiff was one of the college football
players depicted in the video game. (Id. at p. 1272.) The Ninth
Circuit held the defendant’s use of the plaintiff’s likeness was not
transformative because the avatar was a literal depiction closely

20

 matching the plaintiff’s physical characteristics, and the video
game depicted the plaintiff performing the same activity for
which he was known in real life, that is, playing football. (Id. at
p. 1276.) The context in which the activity occurred was
similarly realistic because the video game depicted the plaintiff
playing football in realistic reproductions of actual football
stadiums. (Ibid.)
On the other end of the continuum are Winter, supra, 30
Cal.4th 881 and Kirby v. Sega of America, Inc. (2006) 144
Cal.App.4th 47, 58 (Kirby), in which the courts held the
transformative use defense applied and provided a complete
defense. In Winter, the California Supreme Court concluded as a
matter of law that comic books containing characters evoking two
well-known musicians were sufficiently transformative that they
were protected by the First Amendment, and therefore held that
the defendant was entitled to summary judgment. (Winter, at
p. 892.)
Winter, supra, 30 Cal.4th at page 890, stated: “We can
readily ascertain that [the comic books] are not just conventional
depictions of plaintiffs but contain significant expressive content
other than plaintiffs’ mere likenesses. Although the fictional
characters Johnny and Edgar Autumn are less-than-subtle
evocations of Johnny and Edgar Winter, the books do not depict
plaintiffs literally. Instead, plaintiffs are merely part of the raw
materials from which the comic books were synthesized. To the
extent the drawings of the Autumn brothers resemble plaintiffs
at all, they are distorted for purposes of lampoon, parody, or
caricature. And the Autumn brothers are but cartoon
characters—half-human and half-worm—in a larger story, which
is itself quite expressive. The characters and their portrayals do

21

 not greatly threaten plaintiffs’ right of publicity. Plaintiffs’ fans
who want to purchase pictures of them would find the drawings
of the Autumn brothers unsatisfactory as a substitute for
conventional depictions.”
In Kirby, supra, 144 Cal.App.4th 47, a video game featured
a news reporter in outer space in the 25th century. The reporter,
named Ulala, investigated an invasion of earth by aliens who
shot people with ray guns causing them to dance uncontrollably.
Players advanced in the game by causing Ulala to match the
dance moves of other characters. (Id. at p. 52.) The plaintiff,
Kierin Kirby, the lead singer of a band that was popular in the
early 1990’s, alleged the defendant had misappropriated her
name and likeness.10 (Id. at p. 53.) The court concluded there
was a triable issue of fact whether the defendant had
misappropriated the plaintiff’s likeness, but held the
transformative use doctrine, nonetheless, provided a complete
defense. (Id. at pp. 56-57, 59.)
Despite the similarities between Ulala and Kirby, there
were notable differences, including “Ulala’s extremely tall,
slender computer-generated physique,” based in part on the
Japanese “‘anime’” style; Ulala’s hairstyle and costume; the
game’s setting in outer space in the 25th century; and Ulala’s
distinctive dance moves. (Kirby, supra, 144 Cal.App.4th at p. 59.)
Those differences were creative elements making Ulala a new
10

The court recognized a resemblance between the visual
images of Kirby and Ulala, and noted that “Ulala’s name is a
phonetic variant of ‘ooh la la,’ a phrase often used by Kirby and
associated with Kirby.” (Kirby, supra, 144 Cal.App.4th at p. 56.)
“[B]oth Kirby and Ulala used the phrases ‘groove,’ ‘meow,’ ‘deelish,’ and ‘I won’t give up.’” (Ibid.)

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 expression rather than a mere imitation of Kirby. (Ibid.) The
court concluded the transformative use defense applied and
affirmed a summary judgment in favor of the defendant. (Id. at
p. 61.)
3.

Louie Is More Than a Mere Likeness or Literal
Depiction of Sivero; the Transformative Use Defense
Applies
In the present case, we agree with the trial court’s
conclusion that Fox’s use of Sivero’s likeness in the television
shows, movie, and a video game is transformative and therefore
is protected by the First Amendment.11 Even if Louie resembles
Sivero, the Louie character contains significant transformative
content other than Sivero’s likeness. (Comedy III, supra, 25
Cal.4th at p. 407.) Louie is not a literal likeness of Sivero as were
the images of The Three Stooges in Comedy III and the depictions
of rock band members in No Doubt, and college football players in
NCAA. Instead, Louie is a cartoon character with yellow skin, a
large overbite, no chin, and no eyebrows. Louie has a distinctive
high-pitched voice which, as the trial court pointed out, has “no
points of resemblance to [Sivero].”

11

Sivero argues the Louie character also appears in
merchandise offered for sale. Although Sivero alleges in his
complaint that The Simpsons “has created a market for various
products, including memorabilia, apparel, music, . . . toys, games,
and a variety of Simpsons related items . . . ,” Sivero presented no
evidence of any merchandise featuring the Louie character apart
from a video game and therefore has not shown a probability of
prevailing on any cause of action based on the use of his likeness
in any other merchandise.

23

 Sivero acknowledges his likeness has been “Simpsonized.”
To be “Simpsonized” is to be transformed by the creative and
artistic expressions distinctive to The Simpsons. This is precisely
what the California Supreme Court meant in Comedy III when it
said: “an artist depicting a celebrity must contribute something
more than a ‘“‘merely trivial’” variation, [but must create]
something recognizably “‘his own’”’ [citation], in order to qualify
for legal protection.” (Comedy III, supra, 25 Cal.4th at p. 408.)
Contrary to Sivero’s argument, the fact other cartoon characters
in The Simpsons share some of the same physical characteristics
does not detract from the point these physical characteristics are
transformative. Indeed, Sivero’s observation highlights the very
point that the “creative elements predominate in the work.” (Id.
at p. 407.)
The humorous depiction of Louie and other mafia
characters in The Simpsons is a parody of mafia mobsters
depicted in Hollywood films. Louie appears as one of two
henchmen to the fictional mob boss Fat Tony. Louie dresses and
acts in the style and manner associated with stereotypical
mobsters portrayed in Hollywood movies. Louie interacts with
other cartoon mobsters as a humorous lampoon of the style,
speech, and mannerisms of such movie characters. Because of
the cartoon distortions as well as the comedic portrayal of such
mafia characters, Louie is not a satisfactory substitute for a
conventional depiction of Sivero. And as a result, Louie does not
greatly threaten Sivero’s right of publicity. As the Supreme
Court observed in Comedy III, “works of parody or other
distortions of the celebrity 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

24

 celebrity memorabilia that the right of publicity is designed to
protect. [Citation.] Accordingly, First Amendment protection of
such works outweighs whatever interest the state may have in
enforcing the right of publicity.” (Comedy III, supra, 25 Cal.4th
at p. 405.)
While Sivero spends a substantial amount of time
discussing the financial success of The Simpsons, he misses the
point that if “the marketability and economic value of the
challenged work” do not derive primarily from the celebrity’s
fame, “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.” (Comedy III, supra, 25 Cal.4th at
p. 407.) Without question The Simpsons’s success “comes
principally from some source other than” Sivero’s fame. Louie is
a minor character in the overall constellation of Simpsons
characters. Because no credible argument can be made that the
success of The Simpsons derives primarily from Sivero’s fame, the
presumption applies that sufficient transformative elements
warrant First Amendment protection.
Considering the continuum of transformative use cases,
with Comedy III, No Doubt, and NCAA on one end finding
nontransformative, literal depictions, and Winter and Kirby on
the other end finding transformative uses, the present case is far
closer to Winter and Kirby. We conclude that, unlike the
likenesses of The Three Stooges on lithographs and T-shirts in
Comedy III, the literal depictions of band members in No Doubt,
and the literal depictions of college football players in NCAA,

25

 Louie is not a “literal, conventional depiction[]” of Sivero designed
to “exploit [his] fame.” (Comedy III, supra, 25 Cal.4th at p. 409.)
Instead, like the “Autumn brothers” comic book characters in
Winter and the futuristic news reporter Ulala in Kirby, Louie is
the product of significant creative elements that “transform [him]
into something more than [a] mere celebrity likeness[]” of Sivero.
(Winter, supra, 30 Cal.4th at p. 885.) The transformative use
defense is a complete defense to Sivero’s first cause of action for
infringement of the right of publicity and second cause of action
for misappropriation of name and likeness. The trial court
properly granted the special motion to strike.12
DISPOSITION
The order is affirmed. Fox is entitled to recover its costs on
appeal.

BENSINGER, J.*
We concur:

PERLUSS, P. J.

ZELON, J.

12

In light of our conclusion that the transformative use
defense applies, we need not decide whether the Copyright Act
preempts Sivero’s claims.
*

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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