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IP/Entertainment Case Law Updates

McKenna v. Sony Pictures Entertainment, Inc.

In case alleging wrongful, posthumous use of actor Christopher Jones’ name and likeness in Quentin Tarantino film Once Upon a Time . . . in Hollywood, appellate court affirms trial court ruling granting various production company defendants’ anti-SLAPP motion, finding that plaintiff’s causes of action for right of publicity violations, false endorsement, trademark infringement and other state law claims arose from defendants’ protected, expressive use of Jones’ likeness.

During the 1960s, Christopher Jones was a popular actor who starred in a television series and various movies. Jones died in 2014, and in 2019, plaintiff Paule McKenna, the executor of the Jones estate, sued defendants and respondents Sony Pictures Entertainment, Inc., Boss Film Productions, Inc., and Visiona Romantica, Inc., for allegedly misusing Jones’ name and likeness (posthumously) in the film Once Upon a Time . . . in Hollywood, written and directed by Quentin Tarantino. Plaintiff specifically contended that the following aspects of the film gave rise to violations of the right of publicity, Lanham Act claims for false endorsement and trademark infringement, and other state law claims, including California’s Unfair Competition Law (UCL): (i) the film’s mention of Jones’ name, (ii) a scene in which Jones’ name appears on a marquee in the background, (iii) the mention of Jones’ name in a fake magazine promoting the film, (iv) the use of Jones as inspiration for the film’s characters Rick Dalton (played by Leonardo DiCaprio) and Cliff Booth (played by Brad Pitt), and (v) the portrayal of these characters in proximity to various commercial products and/or brands. Plaintiff did not allege that “Jones’s voice, signature or photograph was used in the film.” In connection with these claims, plaintiff sought damages and an injunction permanently enjoining defendants from using Jones’ name, photographs, likeness, images, voice, sound-alike voice, signature, identity and persona, trademark and trade dress until his influence on the film was properly credited.

In response to the suit, defendants moved to strike the complaint under California’s anti-SLAPP statute, arguing that the film constituted a statement made in a public forum and conduct in furtherance of the exercise of free speech, and, further, that the film concerned issues of public interest—specifically, murders committed by the Manson family, the culture of the 1960s, and the movie and television industry. 

The trial court granted defendants’ motion and struck the complaint in its entirety, finding that plaintiff’s causes of action arose from protected conduct and that defendants established an overwhelming public interest in the film. The appellate court agreed and affirmed the trial court’s ruling.

Finding that plaintiff’s causes of action arose from acts in furtherance of defendants’ First Amendment right of free speech, the court held that the use of Jones’ name and likeness in the film as well as in promotional trailers constituted noncommercial speech protected under the anti-SLAPP statute. In addition, the court found that the disputed acts and speech involved ongoing issues of public interest in that they concerned the culture of the late 1960s in Hollywood and the Manson family murder of real-life actor Sharon Tate (played in the film by Margot Robbie). Contrary to plaintiff’s contention that the film was “incidental” to the “false brand endorsement” (i.e., use of Jones’ likeness and portrayal of his likeness in connection with commercial brands), the court found that defendants’ creative acts were inextricably linked to that alleged use. 

Given that defendants were able to make a prima facie showing that the complained-of acts were used in furtherance of their right of free speech, plaintiff was required to come forward with admissible evidence establishing the legal sufficiency of her claims. She could not. For example, in regard to the right of publicity claim pursuant to Civil Code Section 3344.1, plaintiff failed to demonstrate that the references to Jones in the film, which the court found “narratively serve to identify Jones as a contemporary of Dalton and Booth,” were “so directly connected” to the products that their presence constituted an advertisement or sale. The court concluded that plaintiff could not overcome defendants’ evidence that the only paid product placement in the film was for Hennessy cognac, which product was not used by either Booth or Dalton and, thus, was not associated with Jones’ likeness.
The court also affirmed the lower court’s ruling on plaintiff’s federal false enforcement and trademark infringement claims and remaining state law claims, and awarded defendants costs on appeal.

Summary prepared by Melanie Howard and Mary Jean Kim 

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