Legal Question in Business Law in Mississippi

It would be in the artist's best interest to settle with the estate because the film might infringe on a statutory right of publicity in California that survives to the estate, the film might give rise to a claim of defamation, or a claim of unjust enrichment by theft of good will. Additionally, the artist would not want the matter to be enjoined from showing on a temporary or permanent basis while the parties wait for a decision by the court.

It appears that the artist believes the work would be protected by the First Amendment. When an artist is faced with a right of publicity challenge to his or her work, he or she may raise as affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity's fame. 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 California state law interest in protecting the right of publicity outweighs the expressive interests of the imitative artist. 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. Comedy III Productions, Inc. v. Gary Saderup, Inc., 106 Cal.Rptr.2d 126 (Cal. 2001). In Estate of Presley v. Russen 513 F.Supp. 1339 (D.N.J. 1981) the Court held that the First Amendment did not protect the artist from a right of publicity claim if the primary purpose is to appropriate the commercial value of the likeness of the Plaintiff.