In a case of first impression, court grants defendant’s special motion to strike plaintiff’s state law claims for misappropriation of likeness and invasion of privacy under Washington state’s recently amended Anti-SLAPP statute.Plaintiff Ken Aronson and a friend, Eric Turnbow, visited England in 1997. Plaintiff made a home video of their visit which included him singing a song as well as footage of his friend being injured and receiving medical treatment in the UK. The friend submitted the video to Michael Moore and signed a consent form allowing Moore to use the footage in his documentary film on healthcare in the U.S. called Sicko.
Plaintiff filed suit against Moore’s loan-out company for copyright infringement, claiming he is the owner of the song and the video, and invasion of privacy and misappropriation of his likeness based on plaintiff’s appearance and voice in the video.
Defendant moved to strike the state law claims under Washington state’s recently amended Anti-SLAPP statute which was modeled on California’s Anti-SLAPP statute. The statute requires the moving party to show that that the plaintiff’s claims are based on action “involving public participation and petition.” The burden then shifts to the plaintiff to show a probability of prevailing on the claims.
The court began by stating that this is a case of first impression and that there is no authority interpreting this newly enacted legislation. However, the court noted that the legislation mirrors the California Ant-SLAPP statute and that both parties cited to California law as persuasive authority for interpreting the Washington amendments.
The defendant asserted that the plaintiff’s state law claims are based on the defendant’s exercise of free speech in connection with a matter of public interest. The plaintiff argued that the Anti-SLAPP Act does not apply to his claims because (1) his claims are not based on the defendant’s exercise of free speech, but on the defendant knowingly misappropriating and publicly disclosing the plaintiff’s film footage, song lyrics, voice, and likeness without his permission, (2) the defendant’s claim of protected free speech activity is merely incidental to its misconduct upon which plaintiff’s claims are based, and (3) plaintiff is not a public figure and did not inject himself into the public debate on social medicine.
The court first ruled that, under the statute, it “is of no import” that the defendant “may be considered a powerful business entity as compared with the private party plaintiff.” In analyzing whether the defendant met its burden of showing the cause of action is based on a protected activity, the court stated that the focus is on “whether the plaintiff's cause of action itself is based on an act in furtherance of the defendant's right of free speech. In other words, the act underlying the plaintiff's cause, or the act which forms the basis for the plaintiff's cause of action, must itself have been an act in furtherance of the right of free speech.”
Relying largely on California case law, the court held that documentary movies involve free speech, that Sicko addresses issues of widespread public concern, and that the act which forms the basis for the plaintiff’s causes of action – the video showing plaintiff’s friend being injured and treated, with some commentary by plaintiff – is in furtherance of the right of free speech. As the court explained, “[t]he Defendant’s activity that gives rise to the asserted liability is the story of Eric Turnbow's experience as an American receiving medical treatment in a United Kingdom hospital. Plaintiff is depicted initially in the context of Mr. Turnbow’s arrival in London and subsequently in the context of Mr. Turnbow suffering his injury and release from treatment. Although involuntarily thrust into the healthcare discussion, Plaintiff’s appearance in the documentary is not tangential to the subject of the documentary, but is directly connected to the discussion of the healthcare system.”
The court then addressed whether the plaintiff had shown that he is likely to prevail on his state law claims. The court held that under Washington law, the First Amendment protects defendant’s use of plaintiff’s image and voice because the film relates to matters of public interest and because the defendant did not use plaintiff’s likeness or voice to promote an unrelated product of defendant. The court also held that Sicko discloses no facts of intimate details of plaintiff’s life that would be highly offensive to the ordinary reasonable person. Furthermore, the court held that plaintiff’s claims are preempted by the Copyright Act.
The court concluded that the plaintiff failed to meet his burden of showing a likelihood of prevailing on his state law claims and therefore granted defendant’s special motion to strike. The court also awarded defendant reasonable attorney’s fees and costs and the statutorily prescribed amount for the moving party who prevails of $10,000.