<font size="3"><p align="justify">After recognizing that First Amendment protections may be limited by publicity rights, the court discussed how to distinguish between protected and unprotected expression. The court adopted a version of the copyright law's fair use test by focusing on whether and to what extent the new work is transformative. The court stated that "this inquiry into whether a work is 'transformative' appears to us to be necessarily at the heart of any judicial attempt to square the </p></font><font size="3">right of publicity with the First Amendment" [EN 40]. "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 state law interest in protecting the fruits of artistic labor outweighs the expressive interest of the imitative artist" [EN 41].
The transformative test determines "whether a product containing a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness" [EN 42]. The court stressed that "when an artist's skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame, then the artist's right of free expression is outweighed by the right of publicity" [EN 43]. In applying the balancing test, courts should not be concerned with the quality of the artistic expression. Rather the inquiry is more "quantitative than qualitative, asking whether the literal and imitative or the creative elements predominate in the work" [EN 44]. </p></font>