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The California Court of Appeals rejected in the second instance the lawsuit brought by actor Frank Sivero who claimed that the popular animated series “The Simpsons,” produced by Twentieth Century Fox, breached his image rights.

The actor, famous for his mobster role in movies such as “The Godfather, Part II” and “Goodfellas,” claimed that the producer had misappropriated his image rights by basing “The Simpsons” mobster character, Louie, on him. Mr. Sivero claimed compensation for damages and punitive damages, as well as a stop to the reproduction without consent of his image.

Twentieth Century Fox based its defense on what are known as expressive uses of images protected by the right of free speech and guaranteed by the First Amendment of the US Constitution. The production company called for application of the transformative use test; under this test, designed by the California Supreme Court, a claim of a breach of image rights requires analysis of whether the work reproducing the image has added sufficiently creative elements to consider that there has been a transformation into more than a simple reproduction or imitation of the image.

The court of appeals, confirming the court of first instance’s ruling, upheld that Louie had been subject to various creative contributions, both relating to his name and to his character, even going as far as “Simpsonizing” the mentioned character. Based on this, the court considered that the reproduction of the actor’s image has creative cover under the First Amendment.

The Sivero case is noteworthy because, up until now, the transformative use test has been limited to cases in which a movie, documentary or biographical series reproduced the image of real people and not fictitious ones, such as the roles Sivero played.

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