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Appeals Court Affirms Dismissal Of Frank Sivero's Publicity Rights Suit Against 'The Simpsons'


You may recall that in 2014, bit-actor Frank Sivero of Goodfellas semi-fame sued Fox over a recurring character that appeared on The Simpsons. Sivero says several writers for the show were living next door to him just before Goodfellas began filming, at a time he says he was creating the character of Frankie Carbone. He then claims that the writers for The Simpsons were aware of this work and pilfered it to create the character Louie, who is one of Fat Tony's henchmen. Because of this, he claimed that the show had appropriated his likeness, the character he was creating, and decided he was owed $250 million from Fox for all of this. For its part, folks from The Simpsons claimed that Louie is an amalgam of stereotypical mobster characters and a clear parody of those characters.

In response, Fox asked a Los Angeles Superior Court to strike the complaint on anti-SLAPP grounds. In 2015, the court agreed, the ruling resulting from such memorable exchanges as:

"If I was a teenage girl and I had a crush on your client, would I be satisfied with a pin-up of the character Louie?" [Judge Rita Miller] asked.

"Probably," replied Sivero's attorney Alex Herrera. He argued the character's similarity to Sivero constituted a factual question fit for a jury. Judge Miller found her own evaluation of the character's similarity to Sivero relevant to whether the claims could withstand the SLAPP motion. She decided they could not.

Sivero and his legal team apparently didn't get the hint and appealed. This past week saw the California appeals court affirm the original ruling and rejecting the lawsuit on the same anti-SLAPP grounds. This ruling too includes memorable statements, such as the court specifically stating that being "Simponized" is transformative.

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, 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.

Between the transformative nature of the depiction, the clear differences between the character and Sivero, and the parody nature of the character in general, this was a case that was always doomed for failure. It should also serve as a welcome relief for the entertainment industry that has spent the past few years looking down the barrel of the publicity rights gun. For these kinds of depictions to violate anyone's publicity rights would serve as a detriment to the creative industries, particularly those that rely on humor and parody.

Thankfully, several courts have now seen through this clear attempt at a money-grab.

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