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Vijay v. Twentieth Century Fox Film Corp.

District court declines to find that preemption warrants dismissal of all claims brought by actor in “Titanic,” but grants defendant film companies’ motion to dismiss right of publicity and misappropriation of likeness claims on First Amendment grounds.

Plaintiff Vijay was hired for $60 per day to be an extra in the motion picture “Titanic.” Once he arrived on set, director James Cameron cast him in the role of “Spindly Porter,” for which plaintiff spent an additional 90 days filming. Plaintiff alleges that he did not sign a work-for-hire agreement and was not an employee or an industry union or Screen Actors Guild member. His performance was included in the final version of “Titanic,” which earned over $2 billion in gross for defendants Twentieth Century Fox and Paramount Pictures Corp. Defendants Earthship Productions, Inc., Walden Media, LLC, and Walt Disney Pictures later produced a film called “Ghosts of the Abyss,” which contained plaintiff’s “Titanic” scenes and grossed over $30 million. Plaintiff alleged that defendants failed to notify him of the entitlements to compensation, to use of his image, and to residuals and/or foreign royalties that his upgraded “principal performance” earned him.

Plaintiff filed suit in state court under California law for (1) fraud by concealment; (2) right of publicity; (3) common law appropriation of likeness; (4) unfair business practices; and (5) unjust enrichment. Defendants removed the action to federal court and moved to dismiss for failure to state a claim. The court granted in part and denied in part the motion.

First, defendants argued that plaintiff’s claims were preempted under Section 301 of the Labor Management Relations Act (LMRA) because they required interpretation of the Screen Actors Guild collective bargaining agreement. They further contended that preemption required the court to apply a clause that specified arbitration for dispute resolution, but the court held that doing so was a factual inquiry and it would be premature to decide on a motion to dismiss.

Second, defendants argued that plaintiff’s right of publicity and misappropriation of likeness claims should be dismissed based on First Amendment grounds. Although application of this defense is normally a question of fact, the court noted that defendants could prevail on their motion given that both “Titanic” and “Ghosts of the Abyss” were clearly expressive works, and that plaintiff’s appearance in those films was a miniscule portion of the films and was heavily edited and synthesized with significant artistic expression. Plaintiff’s appearance was not the sum and substance of either film and did not generate enough economic value that his right to his appearance needed to be protected above defendants’ First Amendment rights to use his likeness in an expressive work. The court rejected plaintiff’s argument that his agreement to act as an extra in “Titanic” trumped the First Amendment defense. Any agreement between two parties as to an individual’s performance may limit the use of either party’s right of publicity or use of likeness, but that agreement would not invalidate a constitutional defense to a tort cause of action.

Because plaintiff’s claims for appropriation of likeness and right of publicity were based on his brief scene in two expressive works, it was “unfathomable” that he would be able to amend his complaint to allege facts that would cure these two causes of action. The court accordingly dismissed these claims with prejudice.