Ninth Circuit Confirms Breadth Of Anti-SLAPP Statute & Applicability Of Safe Harbor For Statutory Right Of Publicity Claims
Kelley Drye Client Advisory
September 19, 2013

On September 16, 2013, the United States Court of Appeals for the Ninth Circuit issued an important decision for media and entertainment clients in Doe v. Gangland Productions, Inc., No. 11-56325 (9th Cir. Sept. 16, 2013), in which the court (1) reaffirmed the broad scope of California’s anti-SLAPP statute in holding that the statute applied to Plaintiff John Doe’s lawsuit arising from an episode of the documentary television series, Gangland; and (2) reaffirmed the First Amendment protections accorded to creators of documentaries under California’s right of publicity statute.

Plaintiff alleged his identity was revealed in an episode of Gangland, giving rise to multiple causes of action against Defendants Gangland Productions, Inc. and A&E Television Networks, LLC, including statutory misappropriation of likeness under section 3344 of the California Civil Code.  Defendants moved to strike the causes of action under California’s anti-SLAPP statute, section 425.16 of the California Code of Civil Procedure.  

The Gangland episode focused on white supremacist gang Public Enemy Number 1 and, specifically, the death of one of the co-founders, who was allegedly murdered by gang members for giving a television interview.  Plaintiff, a childhood friend of the co-founder and a police informant with knowledge of high profile gangs, was introduced to a Gangland producer and agreed to be interviewed for the program for $300.  According to Plaintiff, he did so on the condition that his identity would be concealed.  When the episode aired on the History Channel, the identities of many of the Public Enemy Number 1 gang members were revealed, along with Plaintiff. 

Defendants sought to strike the complaint under the anti-SLAPP statute, which applies where a defendant is engaged in conduct (1) in furtherance of the right of free speech, and (2) in connection with an issue of public interest.  Cal. Civ. Proc. Code § 425.16(a), (e)(4).  Once a defendant satisfies this test, the burden shifts to plaintiff, where plaintiff must demonstrate a probability of prevailing on the merits of each of plaintiff’s claims.

The court held that Defendants satisfied the first part of this test because “Plaintiff’s claims are based on Defendants’ acts of interviewing Plaintiff for a documentary television show and broadcasting that interview.”  The Ninth Circuit rejected the district court’s holding that Defendants were not engaged in protected activity because “’Defendants’ broadcast television show about gang violence’ merely ‘lurks in the background of Plaintiff’s claims.’”  To the contrary, the lawsuit arose “directly from Defendants’ act of broadcasting Gangland.”  In this regard, the court explained the proper inquiry is whether Plaintiff would have any grounds to sue independent of the broadcast and actions in connection therewith.  The court ruled that there were no independent grounds: “[b]ut for the broadcast and Defendants’ actions in connection with that broadcast, Plaintiff would have no reason to sue Defendants.” 

As for the second part of the test, the Ninth Circuit held that Defendants’ conduct was in connection with an issue of public interest.  In doing so, the court rejected the district court’s attempt to narrow the inquiry to only whether the plaintiff himself is connected with an issue of public interest.  The Ninth Circuit underscored that the “proper inquiry is whether the broad topic of defendant’s conduct, not the plaintiff, is connected to a public issue or an issue of public interest.”  Relying on Tamkin v. CBS Broadcasting, Inc., 193 Cal. App. 4th 133, 139, 143 (2011), among other cases, the court emphasized that public interest in the broad topics of the series Gangland – as opposed to Plaintiff himself – is sufficient to satisfy the second part of Defendants’ burden under prong one of the anti-SLAPP statute.  Indeed, in Tamkin, the California Court of Appeal instructed that the anti-SLAPP statute does not require “that the plaintiff’s persona be a matter of public interest.”  Tamkin, 193 Cal. App. 4th at 144.  Accordingly, Defendants did not need to show any particular interest in Plaintiff himself to satisfy their burden.

While the court held that Defendants had satisfied their burden under the anti-SLAPP statute, Plaintiff nonetheless demonstrated a probability of prevailing on most of his claims.  The court’s analysis is noteworthy with respect to two issues: (1) whether the news or public affairs exceptions under section 3344(d) defeat Plaintiff’s right of publicity claim; and (2) whether the release bars Plaintiff’s claims.  

With respect to Plaintiff’s right of publicity claim, the Ninth Circuit reaffirmed the strength of the public affairs exception to statutory right of publicity claims.  Under section 3344(d), there is no liability for “use of a . . . likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign.”  This defense is rooted in First Amendment concerns.  The court considered whether the Gangland episode fell within the news or public affairs exceptions.  The court explained that, under California law, the “public affairs” exception “is presumed to ‘mean something less important than news,’” and California courts have “held that documentaries on the popular pastimes of surfing and baseball fall within the ‘public affairs category of § 3344(d).”  Thus, even if the use of Plaintiff’s likeness was not in connection with “news”, the documentary concerning criminal related activities of a gang fell safely within the “public affairs” exception.  As a result, Defendants’ use of Plaintiffs’ likeness was protected under the statutory safe harbor and Plaintiff could not establish a reasonable probability of prevailing on his § 3344 claim. 

Also of note is the Gangland court’s conclusion that the release did not bar Plaintiff’s claims.  Defendants contended that Plaintiff signed a release expressly consenting to disclosure of his real name and identity in the broadcast and waived all claims for liability or damages.  The court focused on Plaintiff’s declaration in which he contended that he was misled about the contents of the release.  Plaintiff claimed the producer told him the release was just a receipt for his $300 payment for the interview and thus Plaintiff, who is allegedly dyslexic and illiterate, did not ask for assistance in reading the document.  On these alleged facts, the court held that Plaintiff had sufficiently shown fraud in the execution of the release to overcome the anti-SLAPP motion. 

Although several of Plaintiff’s causes of action survived the anti-SLAPP motion, the Ninth Circuit’s decision nonetheless is helpful for media and entertainment clients defending against similar claims as the court confirmed the breadth of the anti-SLAPP statute and the strength of the public affairs exception to statutory right of publicity claims under section 3344(d) of the California Code of Civil Procedure.

Click below to read the Doe v. Gangland Productions, Inc. decision.