Ninth Circuit Uses Anti-SLAPP Statute to Strike Appropriation of Likeness Claim

California has a statute (California Code of Civil Procedure §425.16) that allows a court to strike any cause of action brought against a defendant who was acting in furtherance of his or her constitutional free speech right, unless the plaintiff can show a probability of prevailing on the merits of the cause of action. This statute (called an anti-SLAPP statute – “SLAPP” being an acronym for “strategic lawsuits against public participation") serves to counteract the chilling effect that would arise from overaggressive plaintiffs’ use of the judicial process. Losing plaintiffs have to pay the attorney’s fees and costs that defendants incur in filing the anti-SLAPP motion. Plaintiff sued the producers of the TV show Gangland after an episode of the show revealed plaintiff’s identity despite alleged assurances the producers would keep plaintiff anonymous. Defendants moved to strike under the anti-SLAPP statute. The district court held that the anti-SLAPP statute did not apply to plaintiff’s claims, so it denied the motion. Defendants sought review with the Ninth Circuit. On appeal, the court held that the Anti-SLAPP statute did indeed apply to plaintiff’s claims. And it held that some of the claims should be stricken -- notably the appropriation of likeness claim -- as plaintiff had not demonstrated a probability of success on those claims.

The Anti-SLAPP Statute Applied

A defendant bears the burden to show the anti-SLAPP statute applies. It meets this burden by showing that the lawsuit arises from its own conduct that is (1) protected as a constitutional right of petition or free speech, and (2) connected with a public issue or an issue of public interest.

In this case, the district court had reasoned that defendants’ conduct was not protected as free speech and thus the anti-SLAPP statute did not apply. It looked to plaintiff’s assertion that harm arose from the broadcast of the episode that unlawfully failed to conceal plaintiff’s identity. But the appellate court held that the district court had wrongfully conflated the anti-SLAPP statute’s requirements – the question of whether the conduct was unlawful is better answered after the burden shifts to plaintiff to show that it will probably succeed on the merits. “California courts consistently hold that defendants may satisfy their burden to show that they were engaged in conduct in furtherance of their right of free speech . . . even when their conduct was allegedly unlawful.”

The Ninth Circuit court also held that defendant’s conduct was connected with an issue of public interest. The district court had held that although the episode’s general topic of gang violence was of public interest, plaintiff’s identity was not. The appellate court held that the district court incorrectly required the defendant to show an independent public interest in plaintiff’s identity. It looked to a number of California state cases that instructed that the proper inquiry is whether the broad topic of defendant’s conduct, and not the plaintiff, is connected with an issue of public interest.

Plaintiff Failed to Demonstrate Probability of Success on Certain Claims

After holding that the anti-SLAPP statute applied, the court turned its attention to the second prong of the analysis, namely, whether plaintiff demonstrated a probability of success on the merits of his claims. It held that plaintiff had not demonstrated a reasonable probability of prevailing on his claims for appropriation of likeness under Cal. Civ. Code 3344 and for negligent infliction of emotional distress. So the court struck these claims under the anti-SLAPP statute.

The appropriation of likeness claim failed because Section 3344 contains an exception from liability for any “use of a . . . likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign.” Generally, one misappropriates another’s likeness by “knowingly [using] another’s . . . likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases . . . without such person’s prior consent.” But in this case, the use in documentary fell within the “public affairs” exception.

As for the negligent infliction of emotional distress claim, the court held that California simply does not recognize such as an independent tort cause of action. Plaintiff did not show any other basis upon which a legal duty between defendants and plaintiff arose.

Doe v. Gangland Productions, Inc., No. 11-56325 (9th Cir. September 16, 2013)