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Kirby v. Sega
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=== First Amendment Defense === Notwithstanding unresolved issues of fact, the appellate court affirmed the trial court’s ruling because the [[First Amendment]] and [http://www.leginfo.ca.gov/.const/.article_1 California Constitution, Article 1], provided a complete defense to the [[misappropriation claim]]s. The court found that [[videogame]]s, although [[commercial speech]], are creative, expressive works entitled to protection unless they are false or misleading. The court recognized that the free exchange of [[idea]]s can conflict with a celebrity’s right to protect its identity. To balance these conflicting interests, the court relied upon the transformative standard set out by the California Supreme Court in ''Comedy III Productions, Inc. v. Gary Saderup, Inc.,''<ref>25 Cal.4th 387, 406-09, 21 P.3d 797, 106 Cal.Rptr.2d 126 (2001) ([http://scholar.google.com/scholar_case?case=6376074772628774470&q=%2225+Cal.+4th+387&hl=en&as_sdt=2002 full-text]).</ref>; and ''Winter v. DC Comics,''<ref>30 Cal.4th 881, 890-92, 69 P.3d 473, 134 Cal.Rptr.2d 634 (2003) ([http://scholar.google.com/scholar_case?case=14339525426545866966&q=%2230+Cal.+4th+881&hl=en&as_sdt=2002 full-text]).</ref> Works where the celebrity’s image is an element of the [[likeness]], but that also contain distinct expressive elements, are not [[misappropriation]]. In ''Comedy III,'' an artist rendered line drawings of images of the Three Stooges on t-shirts, while ''Winter'' involved a series of comics with characters formed by combining the facial features of rock singers Edgar and Johnny Winter with the body of slugs. The line drawing in ''Comedy III'' was held not protected by the [[First Amendment]], as it was a very literal rendition of the Three Stooges. However, the defendant in ''Winter'' was protected as he added distinctive slug characteristics, thereby transforming the likeness of the Winters brothers. Based on this precedent, the appellate court upheld the defendant’s [[First Amendment]] defense. Though Kirby and Ulala shared many similar traits, sufficient differences — dress and dance moves in particular — existed to find that even if Sega's [[videogame]] creators had used Lady Kier as inspiration, they had also added their own unique and highly protected creative expression. The court further held that in order for something to be sufficiently [[transformative]] it only requires some new expression. Commentary, [[parody]] or [[satire]] is not also required.
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