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
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.

from Blogger http://ift.tt/2ld2VIn

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