Metropolitan News-Enterprise


Thursday, April 2, 2020


Page 1


Court of Appeal:

Noncommercial Use of Dead Girl’s Name, Likeness Not Tortious

Sixth District Says Use in Connection With Raising Funds for Advocacy Is Protected, Does Not Give Rise to Cause of Action Under Astaire Celebrity Image Protection Act


By a MetNews Staff Writer


Solicitation of funds for the purpose of promoting a cause is not commercial speech, and use of a deceased person’s name and likeness in support of that effort does not give to a cause of action under California’s Astaire Celebrity Image Protection Act in favor of successors-in-interest to the decedent’s personality rights, the Sixth District Court of Appeal held yesterday.

The decision reverses the denial of an anti-SLAPP motion by a family rights advocate, Michael Lazarin, who was sued by Lawrence and Sheila Pott, parents of Audrie Pott who, at age 15, committed suicide. She had been sexually abused by three male classmates after she passed out from ingestion of alcohol at a Labor Day weekend party in 2012, and nude photographs of her were then posted online.

Although the Potts did give Lazarin consent to use the girl’s name and likeness in a movie/documentary, “Audrie & Daisy,” they had not agreed to a display of her photograph by Lazarin at a San Jose press conference or on Facebook posts.

 Lazarin claims to be the biological father of Audrie Pott, and the cause he espouses is increased rights for actual fathers, including a change in the Family Code which now provides that an action to establish that a woman’s husband is not the father of her child “shall be filed and served not later than two years from the child’s date of birth.”

Civil Code §3344.1

The action against Lazarin was brought under Civil Code §3344.1, signed into law on Oct. 12, 1999. It provides that “[a]ny person who uses a deceased personality’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from” the successors-in-interest to such rights “shall be liable for any damages sustained by the person or persons injured as a result thereof.”

Lazarin’s anti-SLAPP motion was denied by Santa Clara Superior Court Judge Mary Arand. She held that the first prong of the anti-SLAPP statute—protected activity—was met, but the second one, a showing by the plaintiff of a probability of succeeding on the merits, wasn’t, because the conduct appears to have run afoul of §3344.1.

The second step in the analysis, the Potts argued in opposition to Lazarin’s appeal, need not be reached because the activity, being in contravention of a statute, was not protected.

Defendant’s Burden

Nathan D. Mihara disagreed, declaring:

“The Potts misunderstand the reach of section 425.16….The moving party’s step-one burden does not require proof that the targeted conduct was in fact protected by the First Amendment.

He explained that what the anti-SLAPP statute, Civil Code §425.16, requires is a prima facie showing that “statements” were made “in...a public forum in connection with an issue of public interest.”

Mihara wrote:

“The Potts’ cause of action plainly targeted statements made by Lazarin at his public press conference at City Hall and in his Facebook posts. His references to Audrie and uses of her likeness were indisputably ‘statements’ made “in...a public forum in connection with an issue of public interest.”

Noncommercial Speech

The Potts did not show a probability that they would prevail if the action proceeded, the jurist said, providing this discussion:

“The Potts argue that Civil Code section 3344.1, despite the obvious import of its language, is not limited to ‘commercial activity....’ We cannot accept this argument. Civil Code section 3344.1 expressly limits its prohibition to the unauthorized use of a name or likeness only “on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services....’ (Italics added.) We cannot see how the statute could be more clear that it is limited to commercial speech.”

He went on to say:

“At bottom, the Potts’ Civil Code section 3344.1 cause of action depends on their claim that the statute extends its reach to solicitation of funds for advocacy. The statutory language is to the contrary. It requires that the unauthorized use relate to a transaction involving products or services, consistent with the California Supreme Court’s construction of the statute as limited to commercial speech. The Potts cite no authority for the proposition that advocacy fundraising fits within the statute’s limitation of its prohibition to commercial speech.”

Impetus to Legislation

Sec. 3344.1 was enacted in response to the Ninth U.S. Circuit Court of Appeals’s 1997 decision in Astaire v. Best Film & Video Corp. There, it was held that California Civil Code §990—enacted in 1984 to provide that the right of publicity is a property interest which is descendible—did not vest in the widow of Fred Astaire is cause of action based on the use of clips from two Astaire movies in a videotape.

The decision was based on an exemption in §990.

The 1999 legislation—the Astaire Celebrity Image Protection Act—increased protections for heirs and extended the period of protection after the celebrity’s death from 50 to 70 years. Sec. 990 was renumbered as §3344.1.

Sec. §3344 is the Celebrity Rights Act which provides protections to living persons.

The case is Pott v. Lazarin, 2020 S.O.S. 1477.

‘Audie’s Law’

The suicide of Audie Potts led to Audrie’s Law being enacted in 2014. SB 838 was portrayed as “a bill that increases penalties and decreases privacy protections for teens convicted of sex acts on someone who is passed out from drugs or alcohol or incapable of giving consent due to a disability.”

What it did was grant the public access to delinquency proceedings where youths are accused of such offenses and require those found to have committed them to participate in sex offender treatment programs.

Of the three boys who digitally penetrated the girl, wrote lewd messages on her body, photographed her and disseminated the photographs, two were incarcerated for 30 days and one for 45 days.

Lazarin’s film premiered at the Sundance Film Festival on Jan. 25, 2016, and was released by Netflix on Sept. 23, 2016.


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