Tuesday, February 14, 2017

Juxtaposition is transformative for RoP purposes, divided court rules

Daniel v. Wayans, No. B261814 (Cal. Ct. App. Feb. 9, 2017)

Pierre Daniel, an actor, worked as an extra for a day in A Haunted House 2. Marlon Wayans co-wrote, produced, and starred in the movie. Daniel sued Wayans and others, alleging that he was the victim of racial harassment because during his one day of work on the movie he was compared to a Black cartoon character and called “ ‘[n]igga,’ “ and also alleging violation of his right of publicity. Wayans moved to strike Daniel’s claims against him as a SLAPP suit; the trial court agreed and the court of appeals affirmed.

Over a dissent, the court of appeals agreed that the conduct at issue was part of the “ ‘creative process’ “ inherent in making the movie, and thus involved free speech/an issue of public interest. Wayans also tweeted about Daniel’s appearance, comparing him to the Simpsons’ Cleveland Brown. Given that Daniel was an extra on the film, which was made by a popular producer and was a sequel to a successful film, advance information about the film was a topic of public interest. The post “contributed to the public ‘debate’ or discussion regarding the film by giving fans and those interested a glimpse of someone in the film.”
screencap of tweet
Daniel’s claims for statutory and common law misappropriation of name and likeness were based solely on the tweet; again, over a dissent, the court of appeals held that he couldn’t show a probability of prevailing, as necessary to overcome the anti-SLAPP motion. First, he failed to overcome evidence that he waived his claims when he signed a broad release consenting to the use of his image in connection with the movie. Second, the use was transformative. The court called the test “straightforward”: “whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.” New expression alone is sufficient; it need not convey any “ ‘meaning or message.’ “ Though Wayans used two unaltered images, he juxtaposed them and added “arguably humorous” comedy, adding “an element of caricature, lampoon, or parody.”

[Just to be clear, the implication is that tweets that aren’t transformative, and don’t involve juxtapositions, may infringe the right of publicity. Consider that the next time you see a brand tweeting something related to recent celebrity news.]

Daniel’s false light claim failed because the tweet referred only to Daniel’s physical resemblance to the Cleveland Brown cartoon character. It was a combination of an “expression of an opinion by Wayans that Daniel looked like Cleveland Brown and an accurate photographic comparison.” That wasn’t offensive enough, and it didn’t imply any further comparison to Cleveland Brown.

Judge Liu, whom I respect a great deal, unfortunately dissented; he would not have found the use transformative as a matter of law:

Wayans used Daniel’s photo not as raw material for an original work, but as a literal depiction of Daniel’s appearance and a literal depiction of the appearance of cartoon character Cleveland Brown. Wayans simply repackaged the two images together and added a caption remarking upon the resemblance of the two. This was not a transformation that was primarily Wayans’s own expression.

Sigh. Among other things, what does that mean for a republisher of a transformative work, which isn’t the republisher’s “own expression”? This inability to agree on relatively simple situations shows the instability of “transformativeness” in the right of publicity context.

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