3:47pm PT by Eriq Gardner
Appeals Court Won't Let 'Goodfellas' Actor Have Another Shot at 'Simpsons' Mob Character
Being somebody in a neighborhood full of nobodies is valuable, but not so extraordinary that Goodfellas and Godfather Part II actor Frank Sivero gets to renew his legal fight claiming he's owed something for a familiar mob character on The Simpsons. On Tuesday, a California appeals court affirmed dismissal of Sivero's lawsuit against Fox Television.
Sivero sued in 2014 and claimed that the Simpsons character of Louie misappropriated his likeness. Sivero alleged in his complaint that just as The Simpsons was getting off the ground in the late 1980s, he was living in an apartment complex in Sherman Oaks, California, right next to writers of the animated series.
"They knew he was developing the character he was to play in the movie Goodfellas," stated the complaint. "In fact, they were aware the entire character of 'Frankie Carbone' was created and developed by Sivero, who based this character on his own personality."
That didn't overcome Fox's SLAPP as the television studio argued Sivero had brought a frivolous lawsuit that impinged free speech rights. In August 2015, a Los Angeles Superior Court judge rejected the lawsuit along with Sivero's $250 million demand.
On Tuesday, a California appeals court accepts the state judge's reasoning as sound — which may come as welcome relief to other studios facing publicity right claims.
"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," writes California appellate justice Kerry Bensinger before applying the standards articulated in some landmark publicity right cases. "Even if Louie resembles Sivero, the Louie character contains significant transformative content other than Sivero’s likeness. 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].'”
Bensinger then nods to what Sivero has admitted.
"Sivero acknowledges his likeness has been 'Simpsonized,'" states the opinion. "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, in order to qualify for legal protection.' 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.”
Bensinger then adds that the humorous depiction of mafia characters is meant as a parody of mobsters depicted in Hollywood films. Not only does that bolster the case for a fair use of his supposed likeness, but the appeals court states that 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."
Fox's winning attorney is Robert Rotstein, who is currently on deck to argue another publicity rights case before the California appeals court. That would be Olivia de Havilland's lawsuit over the FX series Feud. In September, the 101-year-old actress survived Fox's anti-SLAPP motion over the way that Feud non-consensually featured her as a character played by Catherine Zeta-Jones. Last week, the appeals court scheduled an oral hearing for March 20 and thought so much of the case's educational value that arguments will take place at USC Law School.