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7 August 2015

'Goodfellas’ actor’s $250m ‘Simpsons’ image rights claim shot down

A US court has shot down an image rights lawsuit brought by actor Frank Sivero after ruling that the producers of television show “The Simpsons” can rely on First Amendment rights to help defeat his claim.

In a decision handed down yesterday, August 6, the Los Angeles Superior Court dismissed Sivero’s claim that Fox Television Studios misappropriated his image rights.

Sivero sued Fox in October last year claiming that the studio, which produces US cartoon “The Simpsons”, misappropriated his likeness by creating a character called Louie.

Louie, the lawsuit claimed, was based on the fictional characters Genco Abbandando from the film “The Godfather Part II” and Frankie Carbone from “Goodfellas”. Both characters were played by Sivero.

In “The Simpsons” Louie is a member of the Springfield mafia, an Italian-American crime mob, and is second-in-command to leader Fat Tony.

Louie first appeared in the show in 1991 in an episode called “Bart the Murderer”.

In total the character has featured 15 times in the cartoon and also appeared in the 2007 film “The Simpsons Movie”.

Sivero’s complaint stated that “The Simpsons” producer James Brooks was known for basing characters in the television series “on those of real life people and real life characters” and that his [Sivero’s] role in the two films “forms the basis for the character Louie”.

According to the lawsuit, “The Simpsons” has made $12 billion in gross sales since it was first produced in 1989. Sivero added that Brooks was developing the character Louie in 1990, the same year “Goodfellas” was released.

Sivero requested $250 million in damages. He claimed that Fox both misappropriated his likeness and restricted his own attempts to commercialise his image.

But in yesterday’s decision the Los Angeles-based court dismissed the claim and said Fox was protected by the First Amendment.

Judge Rita Miller rejected Sivero’s argument and said that because the Louie character was a parody, it constituted a transformative use of his image.

According to entertainment news website The Hollywood Reporter, Miller said: “Even if Sivero’s face was on [the character], as long as it’s a parody and has other characteristics discussed in the tentative, you can’t win.”

David Bernstein, partner at law firm Debevoise & Plimpton, said the decision is "important".

"Judge Miller expressly rejected Sivero's argument that the issue of whether Louie was similar to his persona is a fact question for the jury. Instead, even if Louie had been based on Sivero and even if consumers would identify Louie as a cartoon version of Sivero, Fox's use was protected because the Louie character was transformative.

"Given how many of these claims are filed in California, Judge Miller's decision should resonate and give other judges the courage to put the kibosh on the raft of right of publicity claims being filed against TV shows, movies, video games, songs, and similar expressive works," he added.

Neither Alex Herrera, attorney at law firm Hess, Hess & Herrera and representing Sivero, nor Robert Rotstein, partner at law firm Mitchell Siberberg & Knupp and representing Fox, had responded to a request for comment at the time of publication, but we will update the story should either get in touch.

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