California appellate court affirms dismissal of actor’s claims of racial harassment against Marlon Wayans related to filming of “A Haunted House 2,” holding that alleged injury-producing conduct arose out of creation of film and its promotion over internet, and were made in furtherance of Wayans’ right of free speech in connection with issue of public interest.
In August 2014, actor Pierre Daniel brought suit in California state court against the filmmakers of the 2014 film “A Haunted House 2,” including actor Marlon Wayans, EFS Entertainment, ICM Partners and IM Global. Daniel alleged racial harassment, common law misappropriation of name and likeness, false light invasion of privacy, breach of quasi-contract, unjust enrichment, and intentional infliction of emotional distress. Specifically, Daniel claimed that during his one day of work on the film and subsequently on Twitter, Wayans subjected him to offensive and derogatory language regarding his race and compared him to a black cartoon character.
Wayans moved to strike Daniel’s claims against him as a SLAPP (strategic lawsuit against public participation) suit under California law, arguing that the claims arose from Wayans’ constitutional right of free speech because the alleged injury-producing conduct, i.e., improvisation and “joking around,” constituted a key part of the film’s creative process and its promotion over the internet. The trial court agreed with Wayans that the acts at issue arose out of protected activity, found that Daniel failed to establish the probability that he would prevail on his claims against Wayans and awarded Wayans $96,040 in attorney’s fees.
On appeal, the California Court of Appeal conducted the two-step analysis applicable to anti-SLAPP motions. It first determined whether Wayans had made a threshold showing that Daniel’s claims arose from a protected activity. Daniel argued that Wayans’ conduct necessarily fell outside the protections of the anti-SLAPP statute because the gravamen of the complaint was race-based harassment, and this conduct is not a protected activity. Daniel also maintained that the conduct at issue was not part of the “creative process” inherent in making a movie because it occurred when the cameras were not rolling and therefore did not involve the right of free speech or an issue of public interest. Unpersuaded, the appellate court ruled that the creative process was not limited to when cameras are rolling and found that all the alleged misconduct was based squarely on Wayans’ exercise of free speech — the creation and internet promotion of the film, including the off-camera creative process.
Turning to the second step of the anti-SLAPP analysis, the court also rejected Daniel’s argument that, even if the conduct at issue implicated Wayans’ right to free speech, he had produced sufficient evidence demonstrating a probability of prevailing on his claims against Wayans. With respect to Daniel’s racial harassment claim, the majority pointed out that Daniel did not introduce any evidence showing that an objectively reasonable black actor in his situation would also find the racial slur so offensive that its usage would unreasonably interfere with his work performance. It also found Daniel failed to overcome the evidence that he waived his misappropriation claims when he signed a voucher containing a broad release consenting to the use of his image in connection with the film, and that Wayans’ transformative use of Daniel’s photograph in his internet posting established a complete defense to those claims.
Finally, the court held that the trial court properly struck Daniel’s claims against Wayans for false light, quasi-contract, unjust enrichment and intentional infliction of emotional distress, and that the award of attorney’s fees was proper.
In a partially dissenting opinion, Justice Elwood Lui disagreed with the majority’s conclusions regarding both the scope of the creative process and the scope of the release that Daniel signed. Further, according to the dissent, Daniel demonstrated a reasonable probability that he would prevail on his cause of action for intentional infliction of emotional distress. Accordingly, Justice Lui stated that he would reverse the lower court’s ruling in part and permit Daniel to proceed on claims relating to Wayans’ alleged on-set conduct and to his internet posting.
Summary prepared by David Grossman and Amanda-Jane Thomas