Once Upon a Time in the California Court of Appeals

from McKenna v. Sony Pictures ntm’t, inc.The decision was made Wednesday by the California Court of Appeals, in an opinion by Justice Lamar Baker, joined by Justices Lawrence Rubin and Dorothy Kim:

Paul McKenna, executor of the estate of Christopher Jones …, sued defendants and respondents Sony Pictures Entertainment, Inc., Boss Film Productions, Inc., and Visiona Romantica, Inc. Film accused of misusing Jones’ name and likeness (posthumously) in … Once upon a time … in Hollywood….

Christopher Jones was a popular actor of the 1960s. He has acted in television series The Legend of Jesse James and several movies including 3 in the attic And Wild on the road. Jones left Hollywood in 1969. He died in 2014.

Once upon a time … in Hollywood (film), a film written and directed by Quentin Tarantino. It is produced by Boss Film Productions and released by Sony Pictures Entertainment in 2019. The film stars Leonardo DiCaprio as fictional actor Rick Dalton, Brad Pitt as his fictional stunt-double Cliff Booth, and Margot Robbie as real-life actor Sharon Tate. It depicts a few days in the lives of the three main characters in February and August 1969 and imagines (or re-imagines in Tate’s case), how their lives intersect with the Charles Manson family.

Various products including recognizable name brands will appear throughout the film. For example, there’s a scene where Pete’s character Booth is cooking a box of Kraft macaroni and cheese. As she does this, she has a box of wheat cereal on her counter and a copy of the TV Guide to be seen elsewhere in her house. In the same scene there is a brief glimpse of Booth’s television, which at one point plays an advertisement for Jones’s movie 3 in the attic and identifies Jones as one of its stars. In various other scenes, Booth wears a t-shirt with the Champion Spark Plug logo. The characters also at one point drove down Hollywood Boulevard and passed the Pantages Theater, which was showing a marquee. 3 in the attic Jones’s name included.

The court concluded that the complaint was properly dismissed under California’s anti-SLAPP statute:

[The anti-SLAPP statute applies because t]He is an exercise in free speech making a film… [as to] Matters of public interest. The film deals with late 1960s Hollywood culture and Tate’s Manson family murders. These are matters of public interest that are still being debated. The use of Jones’ name, depictions of Booth and/or Dalton in proximity to branded products, and depictions of Booth wearing shirts with brand logos on them add to the image of late 1960s Hollywood culture. Public interest in these matters is demonstrated by the many articles and reviews discussing the film that the defendants submitted in support of the motion, some of which specifically mention the inclusion of Tarantino’s era-appropriate products, as well as the many months-long run the movie was in theaters (from late July early October 2019).

Plaintiff raises several arguments to the contrary, most of which relate to its contention that the activity upon which its complaint is based is simply a “false brand endorsement,” or, in other words, recreation of Jones’ likeness and portrayal of that likeness. In association with commercial brands without consent or credit. The film, he claims, is incidental to this false endorsement for profit issue and he contends that the public has no interest in his personal dispute with the defendants over the brand endorsement or Jones’ alleged similar use. The problem with plaintiffs’ argument, however, is that the broader creative activity of incorporating the aforementioned aspects of the film and the alleged use of Jones’ likeness are inextricably linked. For example, in the context of the film, any purported commercial reason for Booth dressing in a T-shirt with the Champion logo cannot be divorced from the creative impulse of the same act. Further, the defendants filed a declaration representing the brands depicted (other than Hennessy) were included for artistic reasons and used to “capture the look and feel of the period” and “accurately portray the late ’60s.”

Plaintiffs also rely on several cases for the proposition that advertisements for an artistic work are not noncommercial speech. To the extent plaintiff relies on these cases to argue that the film’s advertisements should not qualify for anti-SLAPP protection, the authority is unpersuasive. Unlike the advertisements cited by the plaintiffs in the case, the advertisements for the film do not allegedly include any false statements and are merely appendices to the film. To the extent that Plaintiff transforms these cases into commercial speech with product placement, the film segments are also misplaced. Both of the plaintiffs’ cases addressed separate advertisements for creative works, not allegedly integrated advertisements within the works…

Thus, in order to withstand an anti-SLAPP motion, the plaintiff had to show a likelihood of prevailing on the claim, and she failed to do so:

Civil Code section 3344.1, subdivision (a)(1) provides in pertinent part: “Any person who uses the name, voice, signature, picture or likeness of any deceased person, in any manner, on or in connection with goods, merchandise or merchandise, or for the purpose of advertising or selling, or soliciting the purchase of goods, merchandise, goods or services, without prior consent from the person or persons specified in subsection (c), shall be liable for any damages sustained by the injured person or persons as a result thereof .”

Subsection (a)(2), however, exempts from subsection (a)(1) a “play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, political work or newsworthy value, or any advertisement or commercial announcement of this work … if it is a fictional or non-fictional entertainment, or a dramatic, literary or musical work.” But there are exceptions to exemptions. Under Civil Code section 3344.1, subdivision (a)(3), “a work protected under subsection (2) shall not be used if it includes a use in connection with a product, article of merchandise, good, or service.” shall be exempted under subdivision, notwithstanding the inclusion of an unprotected use in a work otherwise exempted under this subdivision, If the claimant proves that the use is directly related to a product, article of merchandise, good, or service so that advertising, selling, or soliciting the purchase of that product, article of merchandise, good, or service constitutes an act without prior consent of the deceased person. from the person or persons specified in sub-section (c).

Subsection (k) of the statute provides that “[t]He use of a name, voice, signature, photograph, or similar use in a commercial medium shall not constitute a use requiring consent under subdivision (a) solely because the material containing the use is commercially sponsored or contains paid advertising. Rather, whether the decedent’s name, voice, signature, image, or similar use was so directly associated with commercial sponsorship or paid advertising may be a question of fact as to require consent under subdivision (a).”

The film undoubtedly falls within the exemption under Civil Code section 3344.1 subdivision (a)(2), because it is an audiovisual work of fictional entertainment. In order to demonstrate minimum merit under subdivision (a)(3), then, the plaintiff must make a prima facie case that the film “includes a use within [of a deceased personality’s name, voice, signature, photograph, or likeness] … [that] A product, article of merchandise, good or service so directly connected as to constitute an act of soliciting the advertisement, sale or purchase of that product, article of merchandise, goods or services.

There is no dispute that the film used Jones’ voice, signature or image. Jones’ name has been mentioned twice during the publicity for his movie 3 in the attic (starred in the film), and his name appears fleetingly when the characters pass a marquee promoting the same movie. Plaintiff has not provided any evidence showing that these brief references to Jones, which descriptively identify Jones as a contemporary of Dalton and Booth, are “so directly connected” to any product, merchandise, good, or service that they constitute advertising. The same goes for the appearance of Jones’ name in the film’s promotional trailer and the fake magazine promoting the film.

The real heart of plaintiff’s claim is that Booth, and to some extent Dalton, were based on and styled Jones. Plaintiff identifies both character aspects that he claims constitute a complete likeness to Jones. Some of these aspects are physical—such as Booth’s hairstyle and aviator sunglasses—while others are biographical—such as the scene in which Dalton comforts a child. Although we doubt that plaintiff has demonstrated a likelihood of success alleging use of Jones’s likeness in the film, we need not reach that issue to conclude that plaintiff has not demonstrated a likelihood of prevailing on her Civil Code section 3344.1 cause of action.

The film features Booth and Dalton, though primarily Booth, using many household products and otherwise appearing in scenes featuring the brand’s logo. It depicts Booth wearing one or more t-shirts with a brand logo In response to plaintiff’s complaint, defendants submitted declarations from producer McIntosh claiming that the only product placement in the film was for Hennessy cognac, a product not used by Booth or Dalton and thus not associated with Jones’ alleged likeness. The announcement also emphasized that other products depicted in the film were used only for creative, not financial reasons, and that the filmmakers were not paid for their inclusion. Since the film was not actually compensated for the inclusion of the products and did not advertise them through any sort of product placement, Booth and Dalton’s proximity to the products was not so directly linked to a product that their presence constituted advertising. or sell…

The court similarly rejected plaintiffs’ federal trademark and false endorsement claims, as well as certain other state law claims. Seems pretty accurate to me. Congratulations Louis P. Petrich and Elizabeth L. Schilken (Ballard Spahr), representing defendants