The Los Angeles Times from Los Angeles, California • Page 10

A10 MONDAY, APRIL 23, 2001 LOS ANGELES TIMES Nation IN BRIEF ART: Battle for Bucks OverMasters of Yuks One person was killed and about Tornado Tears Through Kansas Town after the celebrity's death. But the state's law exempts original works of art, news publications, books, music, radio, television and movies. The California Supreme Court let stand a lower court ruling in 1995 that said the San Jose Mercury News could lawfully sell posters pf football giant Joe Montana playing in the Super Bowl. Montana had sued, arguing that the posters violated his right of publicity. A state appellate court ruled that the newspaper could use its own photograph in the posters, because the picture was of a newsworthy event and the newspaper was advertising its own news coverage.

TJC Berkeley law professor Stephen Barnett says that the dispute over the Three Stooges is "right on the line" of the legal debate. "Are T-shirts merely garments or are they means of expression?" he asked. The professor says they are means of expression. University of San Francisco Law School professor J. Thomas McCarthy counters that the question is not even close.

No court has allowed the reproduction of famous faces on T-shirts without the celebrities' permission, he said. Selling T-shirts bearing such images, he said, is a commercial Several famous artists have depicted celebrities in their art. Andy Warhol painted Marilyn Monroe and did silk-screen images of her. Norman Rockwell painted Bob Hope. In McCarthy's view, the originals would be protected by free speech, but mass reproductions of posters would not without permission or licensing agreements.

"If it is nroduced in ereat bulk: I 400 homes were damaged when a The town of about 3,000 people was without power and most telephone service after the tornado hit about 9:15 p.m. Although broadcasters warned of possible twisters and sheriff's deputies were watching for them, the town's sirens didn't sound until after the tornado hit, Barton County Sheriff Buck Causey said. City Manager Allen Dinkel said the tornado cut a three-block-wide swath through much of the town, about 100 miles northwest of Wichita. "We're trying to evaluate the situation, but on the surface it looks like 20 of the town has major, major damage," he said. A state assessment team found more than 100 homes with major damage, and 300 others had some From Associated Press HOISINGTON, tornado ripped through this central Kansas town Saturday night, killing one person, damaging about 400 homes and shearing the roof off a hospital.

At least 26 people were injured, three critically, authorities said. Duane Koester said his house was the only one left standing in his neighborhood. "Right where I'm at, when I look west, there's not a thing standing. It's down to rubble. Trees are down to sticks," he said.

Koester said his family was watching weather reports when "all of a sudden we hear this roar. I said: 'That don't sound great. Something's wrong. Let's get to the Ten seconds later it hit" Cuban Americans Still Angry THE MIDWEST Cities Shore Up Dikes to Stem Flood Waters More rain fell along the Mississippi River as residents piled sandbags higher against the water. Even more rain was predicted, but it was not expected to fall heavily across a wide area, and some rain already was factored into flood crest predictions, a National Weather Service official said.

The river crested Saturday in East Dubuque, 111., at 25.4 feet, more than a foot below the record of 26.8 feet, but it was still rising downriver, where communities kept shoring up their defenses. NEVADA Officer, Tourist Hurt in Kidnapping Chase A highway patrolman and a tourist from Baltimore remained in critical condition in Las Vegas after a 25-year-old man kidnapped the woman in an airport taxi, carjacked another car, led authorities on a 40-mile chase and ran down the officer trying to stop him, officials said. Trooper Robert Kintzel 30, suffered a fractured skull, pelvis and right leg, and internal bleeding. The tourist, 57, broke her clavicle, six ribs and a kneecap. Jamal Vornelius Phillips is being held on suspicion of attempted murder and five other felony counts, police said.

Police said Phillips snatched the cab at McCarran International Airport; the tourist was in the back seat. She jumped out and was hit by another vehicle. Phillips then carjacked another auto, said police, who eventually rammed the stolen vehicle after it slammed into Kintzel, who was placing spikes on the road to end the chase. HAWAII Navy to Request Sub Skipper's Resignation The commander of the U.S. attack submarine that collided with a Japanese trawler, killing nine people, will be formally asked to quit the Navy, an official said.

Cmdr. Scott Waddle has been ordered to report to an "admiral's mast" administrative hearing today, the official said. Adm. Thomas Fargo, commander of the U.S. Pacific Fleet, will discuss the findings of a court of inquiry which urged Fargo to choose an administrative punishment and Waddle's exit from the Navy.

FLORIDA New Arm for Alpha, New Day for Canada It was Canada's biggest day ever in space: The first Canadian space-walker helped hook up the new Canadian-built robotic arm on the international space station Alpha. The 58-foot, arm remained bent at the elbow and was to be extended today by crew inside the space station. The arm will serve as a high-tech construction crane, designed to move across the space station like an inchworm and perform chores wherever needed. WASHINGTON, D.C. 'Sweet Tooth' Gene Found, Scientists Say Scientists say they may have located the so-called sweet tooth gene, a finding that could lead to new artificial sweeteners.

In two separate studies, scientists pinpointed a gene in mice they believe is responsible for tasting sweetness and were able to locate the equivalent human gene. The report was published in the journal Nature Genetics. From Times Wire Reports i.TTr.flETtti Associated Press tornado struck Hoisington, Kan. type of damage, said Joy Moser, a spokeswoman for the Kansas adjutant general's office. Students attending their prom at the Knights of Columbus hall were taken to the basement until the storm passed, said Luke Brown, editor of the Hoisington Dispatch.

None of the students was injured. The tornado ripped the roof off Clara Barton Hospital. Patients were evacuated, and the hospital was closed. Dozens of severe thunderstorm and tornado warnings were issued throughout northwestern and north-central Kansas. Hundreds of Boy Scouts camp-.

ing at Fort Hays State University were moved to the basements of Gross Memorial Coliseum and the Memorial Union as a Over Elian years. According to news reports, Elian, now 7, is living with his father in the Cuban coastal city of Cardenas, where the elder Gonzalez is employed as a cashier and waiter. Agents have been watching to make sure the boy's privacy is not disturbed by journalists or other curious visitors. When he goes to school, he has a police escort. According to Sunday editions of the Miami Herald, Elian's 32-year-old father has been lionized as a patriot, appearing at Castro's side at important events such as last week's commemoration of Cuba's victory over the Bay of Pigs invaders in 1961.

In July, he was given Cuba's highest civilian decoration. According to the Herald, the elder Gonzalez has also been promoted to a leading position in the local Communist Party organization. For its loyalty to Cuba and Castro, the family has reportedly benefited materially as well, receiving a new washer, TV set and other scarce consumer goods. To tell the other side of the story, plans are to restore the Little Havana house in which Elian lived i to exactly the way it was on April 22, 2000, when INS agents swooped down. It was in the right front bedroom that an armed INS agent found an obviously frightened Elian, an instant immortalized in a Pulitzer Prize-winning photograph.

That room is now empty, save for an old console TV and a coffee table. A--Am Associated Press Cuban Americans demonstrate outside the home in Miami where Elian Gonzalez was taken from U.S. relatives by the INS a year ago. Continued from Al make money from their mugs, they argue. "The 1st Amendment is not a license to steal," said Robert N.

Benjamin, an heir and attorney who is representing other Stooges' relatives in the fight with Saderup. The case, which the state high court will decide within weeks, is the latest to focus a spotlight on a recurring legal issue: When do the property rights of celebrities and their heirs trump the 1st Amendment rights of artists? The answer often hinges on a court deciding what is art. In recent years, Vanna White and the family of slain civil rights leader Martin Luther King Jr. have won court battles over the control of, and financial earnings from, famous images. Tiger Woods and the estate of Princess Diana have lost out to the right of free speech.

Such cases often center on such questions as: Does the picture have a message or is it mere commercial exploitation? Can a drawing be art in one form but not in another? What distinguishes a work of art from a mere copy of another's likeness? Fame Becomes a Trademark The legal doctrine at issue is called "the right of publicity." It gives entertainers and athletes the sole ability to cash in on their fame. Millions of dollars are often at stake through licensing agreements and endorsements. The legal right is loosely akin to a trademark or a copyright, and more and more states are making it commercial asset that can be inner- ited by a celebrity's descendants. 'It is a troublesome area of the law, because the right came about as a way to keep your likeness from being used in advertising or on products," said Loyola Law School professor F. Jay Dougherty.

"It has been expanded in the second half of the 20th century to where the likeness itself is a property. neiiess useu is a properly. If Saderup had drawn the Three Stooges in a way that sent a defi- nite message, he might have been home free. Saderup might have drawn the slap-happy Stooges with guns pointed at a school as a message about violence in children's entertainment, the scholar said. Such a picture would have made a statement that the 1st Amendment would protect.

The law makes distinctions about which statements are protected and which are not, however. Parody, which would include art that makes fun of a famous person, is protected speech, Dougherty said. For instance, courts have allowed the sale of trading cards that parodied famous baseball players. But satire, in which a celebrity's likeness is used to poke fun at something else, is not, he added. Saderup, who grew up in Los Angeles, contends that his portraits convey a positive message.

The drawing of the Stooges was meant to edify them, to capture their madcap spirit in a way that would make people smile, he said. "I hope that our culture has not become so cynical, so jaded, that only negative and destructive commentary is protected," he said. In other disputes: Tiger Woods has challenged a sports artist who sold a limited number of prints taken from a painting he did of the golf pro. The trial judge ruled for the artist. The case is now before the 6th Circuit Court of Appeals.

The estate of Princess Diana tried unsuccessfully to stop the sale in the United States of memorabilia bearing her likeness. The heirs of Martin Luther King Jr. were able to stop the sale of plastic busts of the slain civil rights leader. The Georgia Supreme Court ruled that King's heirs owned his likeness. Vanna White of "Wheel of Fortune" fame challenged an advertisement that used a female-shaped robot with a blond wig turning a block letter on a game board.

Although the robot looked nothing like White, the U.S. 9th Circuit Court of Appeals agreed that it was an illegal exploitation of her image. Lower courts have intervened on behalf of celebrities and their heirs in cases of sound-alikes, look-alikes and the use of the celebrities' image to endorse or sell merchandise without permission. Elvis and Marx Brothers impersonators have been stopped, and the use of the phrase "Here's Johnny," from "The Tonight Show With Johnny Carson," has been considered protected property, according to the American Intellectual Property Law a group consisting mostly of lawyers who practice patent, copyright, trademark and other intellectual property law. At least 17 states, including California, have laws that specifically give celebrities legal control over their likenesses.

The laws apply to every individual whose name, voice, signature, photograph or likeness has commercial value. In California, heirs own the rights to the likeness for 70 years By JOHN-THOR DAHLBURG TIMES STAFF WRITER MIAMI One year since heavily armed federal agents snatched a year-old Cuban boy to allow him to return home with his father, the wounds in the Cuban American community still fester, the anger burns bright. "We will never forget this, that this happened on U.S. soil," said Armando Sotolongo, 52, an exterminator. "They broke into a peaceful house, acting like the Nazi party did when they tried to capture the Jews." On Sunday, a stream of friends, sympathizers and visitors called at the single-story bungalow in Miami's Little Havana neighborhood where exactly a year before, Elian Gonzalez was grabbed at gunpoint in a predawn raid.

"This year has been the longest year of my life like a whole lifetime. Because we lost so Anna Bonnin, 57, said, fighting back tears. "A lot of us have lost our trust in the American way, the American system." Elian miraculously survived a shipwreck in November 1999 in which his mother and 11 other people trying to reach Florida from Cuba drowned. The child became a potent political symbol as his great-uncle and other Cuban exiles fought to keep him here and Cuban dictator Fidel Castro waged a public relations war to get him back to Cuba. In June, in the company of his father, Juan Miguel Gonzalez, Elian flew home to the island, where he was greeted like a hero.

For U.S. authorities to let him depart, Bonnin said bitterly, was as immoral as banishing him to a "concentration camp." Many Cuban Americans claim their disgust over the Clinton administration's handling of the case cost former Vice President Al Gore the presidency. Capturing Florida became the key to the November elections, and the final margin of victory was razor-thin. Outside the home here where Elian lived for five months as legal battles raged over his custody, a ft the crossed, and it has become merchandise," he said, Lawyers for Saderup contend in court DaDers tw jf uthoeraohs and silk screens of original art cannot be sold without the celebrity's permission, the court will have "put control of art exclusively in the hands of the wealthiest members of society." Scholars Call for -4-1 supreme LOUIt inpUt Legal scholars say that the U.S. Supreme Court must clarify the law.

The court's last ruling on the right of publicity came in 1977 in a dispute about a newscast of a carnival stunt. A television station showed a "human cannonball" being shot out of a cannon. The performer sued, and the U.S. Supreme Court ruled that the station violated his right of publicity because the airing of his whole act might deprive him of making money from it. In California, the heirs of the Three Stooges want Saderup to turn over to them $75,000 in profits he made on Three Stooges T-shirts and posters and to reimburse them for their legal costs.

The American Intellectual Property Law which sides with the Stooges' heirs, contends that if they lose, California will have oblit- erated the exclusive rights of the famous to make money from their names and faces. Saderup's T-shirts and posters illegally compete, with the sale of Three Stooges memorabilia sold by the heirs, the association argued in a brief to the court. A Los Angeles Superior Court and the state Court of Appeal in Los Angeles sided with the Stooges' heirs. Comedy III Productions v. Saderup, S076061, may wind up before the U.S.

Supreme Court. "This guy is a very sophisticated businessman, and he is making a lot of money and it is not right," said Benjamin, the stepson of Curly Joe Derita, who was the third replacement for the original Curly. "And he wants to do it off the backs of the people who own the rights." Saderup considers such comments demeaning. He attended Pasadena's Art Center College of Design and argues that his depiction of the comic trio makes it different from a mere photographic copy. Saderup has drawn more than 100 famous people during his career, including Albert Einstein and John F.

Kennedy. His work is sold in kiosks at shopping centers and at art shows. The artist said that he has agreed to pay royalties on occasion but that the heirs of some celebrities have demanded nothing. Some have even expressed gratitude for the way he portrayed their loved ones, he said. His lithographs of the Stooges sell for $20 or, if signed, $250.

His T-shirts, which he describes as "wearable art," sell for $18 to $20. "I do not censor others, and I should not be he said. Many champions of the 1st Amendment worry that courts are going too far in requiring artists to pay royalties for the likenesses of people who have long been in the public eye. Whether the creations are fine art or low art, the 1st Amendment should apply, argues UCLA constitutional law scholar Eugene Volokh. "We shouldn't have a world where the high artist or the low artist needs someone's permission be-, fore they create art based upon them," he said.

sign claims tne ultimately defeated Gore "paid the price" at the ballot box for how the boy was treated. "It's going to be a long time before we vote for another Democrat," said Elier Cruz, 35, a private investigator. Outside the house on Northwest 2nd Street, one speaker with a bullhorn denounced the U.S. Immigration and Naturalization Service, which seized Elian from his Miami relatives, for "anti-Cuban racism." A sign stuck on the chain link fence proposed sending former President Clinton and former Atty. Gen.

Janet Reno to Cuba so they could live the same life to which they condemned Elian. The modest white stucco home is being converted into a museum and shrine to the child and the anti-Castro struggle he came to embody for Cuban Americans. The facade is festooned with a large wooden crucifix and a banner depicting the Virgin Mary. Palm trees in the small front-yard have been decorated with yellow ribbons, as signs of optimism that Elian will one day return. "We have hope, hope for Elian, hope for the people of Cuba," said Lily Espinosa, 58.

All at once, the former office worker seemed dubious, as if recalling that Castro has been in power since 1959. "Well, maybe," Espinosa said. "We have been waiting for 42 WW. BKcf 5, 4700 different FDA approved lasers for 3 second "no-touch" laser technique 7fCT a. A OKI DR.FEINBERG USES THE LASER! EXCITING MEW USER TECHNIQUES, PIONEERED BY BARRY FEIHBERG M.D.

BOARD CERTIFIED EXPERT NASAL SURGEON CLINICAL FACULTY-UCLA MEDICAL SCHOOL Unique laser procedures are faster healing and permanent Throw away nasal strips, drops and sprays Enjoy clear quiet nasal breathing Wake up refreshed Kiss 'Em Goodbye 6 Reasons Why! 1. Performed laser vision correction since 1990 2. Has only board certified or cornea trained physicians 3. Participated in FDA trials since 1990 4. Uses the new Autonomous LADARV1SI0N tracking laser 5.

Only center to have "-v vision correction 6. Now offering the new 3 iJU I i -1 1 ITlffl Design Ideas Plans Permits 1st 2nd Story Room Additions Kitchens Baths EZ Financing Available Family Owned Operated by the Callahan Family Over 40 Years Experience Call Ami TimA StateConlractors (888) 227-4393 www.cslva.com be. 372907.