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Court of Appeal:
Sony Didn’t Breach Actor’s Descendible Publicity Rights
Order Granting Anti-SLAPP Motion Is Affirmed; Evidence Does Not Show, Opinion Says, That Character
Portrayed by Brad Pitt in 2019 Movie, Set in 1969, Was Patterned After Budding Actor of That Era
By a MetNews Staff Writer
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Depicted above is a promotional graphic for a 2019 film in which, a Los Angeles Superior Court complaint alleges, Brad Pitt (center) portrays a character that is, in essence, a 1960s actor, Christopher Jones, in violation of a California statute granting to estates a decedent’s publicity rights. The Court of Appeal for this district has upheld Los Angeles Superior Court Judge H. Jay Ford III’s granting of an anti-SLAPP motion brought by Sony Pictures and other defendants. |
The executor of the estate of 1960s actor Christopher Jones has failed to persuade the Court of Appeal for this district that a judge erred in granting an anti-SLAPP motion by Sony Pictures and others, sued under California’s statute barring the use of a decedent’s publicity rights without permission of the party owning them.
Div. Five, in an unpublished opinion filed Wednesday, declared that executor Paule McKenna—with whom Jones had a relationship from 1984-94 and with whom he had four children—failed to show that Jones’s identity was usurped in the 2019 comedy/drama movie, “Once Upon a Time….in Hollywood.” The film is set in 1969.
Leonardo DiCaprio portrayed fictional actor Rick Dalton and Brad Pitt played his fictional double, Cliff Booth, with Margot Robbie impersonating an actual actress in the 1960s, Sharon Tate, depicted in the “hot pants” (shorts) and vinyl boots that were commonplace in the time. McKenna contends that Dalton and Booth—in particular, Booth—were patterned after Jones.
Jones starred in the 1965-66 ABC television series, “The Legend of Jesse James” and had major roles in some top films, including being cast in 1969 as the romantic lead in “Ryan’s Daughter.”
There was a tie-in between Jones and the real-life Tate; after being divorced by actress Susan Strasberg, he was engaged in an affair with Tate, who was the wife of director/producer Roman Polanski. The Aug. 9, 1969 slaying of Tate by Charles Manson followers, Jones later recounted, resulted in his “nervous breakdown” which caused him to end his acting career.
He died Jan. 31, 2014.
Judge Ford Affirmed
Wednesday’s opinion affirms the Jan. 15, 2020 order by Los Angeles Superior Court Judge H. Jay Ford III granting Sony’s anti-SLAPP motion. Div. Five also dismissed an appeal from Ford’s Dec. 10, 2020 award to the defendants of attorney fees in the amount of $64,350.50 because the notice of appeal was filed electronically one minute too late.
Ford said in granting a special motion to strike, under the anti-SLAPP statute, Code of Civil Procedure §425.16, that a motion picture constitutes protected speech, satisfying the first prong of the statute, and that McKenna failed to meet her burden under the second prong of showing a probability of being able to prevail on the merits.
“…Brad Pitt as Cliff Booth is not ‘readily identifiable’ as Christopher Jones,” he declared. “Brad Pitt as Cliff Booth is readily identifiable as Brad Pitt playing Cliff Booth, given his degree of celebrity [status] and the absence of any attempt to disguise or mold Pitt’s face to Jones’s precise features.”
Publicity Statute
McKenna set forth four causes of action, the primary one being predicated on Civil Code §3344.1. That statute says in subd. (a)(1) that “[a]ny person who uses a deceased personality’s name, voice, signature, photograph, or likeness, in any manner…without prior consent from the person or” from the present owner of the rights “shall be liable for any damages sustained by the person or persons injured as a result thereof.”
One bit of evidence proffered by McKenna was that the movie’s chief hairdresser had stated publicly that the hairstyle used on Pitt was based on that of Jones. Ford noted that McKenna “fails to cite any authority holding that a hairstyle alone could qualify as a ‘likeness’ for purposes of CC §3344.1.”
He added:
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Above is a 1966 ABC television publicity still of actor Christopher Jones portraying outlaw Jesse James in the series, “The Legend of Jesse James.” The Court of Appeal for this district on Wednesday held the 2019 movie, “Once Upon a Time…in Hollywood” did not pattern a character portrayed by Brad Pitt after Jones, who died in 2014. |
“[I]f there is a resemblance between Brad Pitt and Christopher Jones it is not due to adoption of Christopher Jones’s ‘likeness,’ but a natural similarity in facial features combined with similar, but not identical hairstyles, and aviator sunglasses, which are common….In fact, existing case law does not support a finding that Brad Pitt, a world-renowned actor, qualifies as Christopher Jones’s ‘likeness,’ merely because he was wearing a hairstyle and aviator glasses that resembled Jones’s ‘look’ from a particular photograph.”
Exemption From Exemption
Subd. (a)(2) of §3344.1 exempts from its reach any “audiovisual work.”
However, subd. (a)(3) says that if a work “includes within it a use in connection with a product, article of merchandise, good, or service, this use shall not be exempt under this subdivision…if the claimant proves that this use is so directly connected with a product, article of merchandise, good, or service as to constitute an act of advertising, selling, or soliciting purchases of that product, article of merchandise, good, or service by the deceased personality without prior consent.”
Various actual products—such as a Ny box of Wheaties and a copy of TV Guide—are seen in the film,
Ford disposed of the contention that §3344.1(a)(3) applies by noting:
“Plaintiff fails to allege that Defendants used Jones’s name, voice, signature, photograph, or likeness in connection with a product, article of merchandise, good or service in such a direct manner as to constitute advertisement.”
Baker’s Opinion
In his opinion affirming Ford’s order, Justice Lamar Baker said:
“There is no contention that Jones’s voice, signature, or photograph was used in the film. Jones’s name is mentioned twice during advertisements for his movie 3 in the Attic (played within the film), and his name appears fleetingly as characters drive past a marquee promoting the same movie. Plaintiff has not provided any evidence demonstrating these brief references to Jones, which narratively serve to identify Jones as a contemporary of Dalton and Booth, are ‘so directly connected’ to any products, merchandise, good, or service that they constitute advertisements. The same is true of the appearance of Jones’s name in promotional trailers for the film and the fake magazine promoting the film.
“The true heart of plaintiffs claim is that Booth, and to a lesser extent Dalton, were based on and styled after Jones. Plaintiff identifies aspects of both characters that she contends make up a whole constituting a likeness of Jones. Some of these aspects are physical—like Booth’s hairstyle and aviator sunglasses—while others are biographical….While we are doubtful that plaintiff has demonstrated a probability of success in alleging Jones’s likeness was used in the film, we need not reach that issue to decide plaintiff has not demonstrated a probability of prevailing on her Civil Code section 3344.1 cause of action.”
He explained:
“The film depicts Booth and Dalton, though primarily Booth, using a slew of household products and otherwise appearing in scenes that feature brand logos. It also depicts Booth wearing one or more t-shirts with a brand logo on it….Booth and Dalton’s proximity to the products was not so directly connected to any of the products that their presence constituted advertisement or sale.”
One Minute Late
Baker said the appeal from Ford’s order awarding attorney fees, pursuant to two statutes, must be dismissed because the notice of appeal was not filed timely. It was due, he noted, on Feb. 9, 2021, but was electronically time-stamped at 12 a.m. on Feb. 10.
He pointed to California Rule of Court, rule 8.77(c), which provides:
“A document that is received electronically by the court after 11:59 p.m. is deemed to have been received on the next court day.”
The jurist declared:
“The notice of appeal is thus facially untimely.”
McKenna, who represented herself, argued the applicability Rule 8.77(d), which says:
“If a filer fails to meet a filing deadline imposed by court order, rule, or statute because of a failure at any point in the electronic transmission and receipt of a document the filer may file the document on paper or electronically as soon thereafter as practicable and accompany the filing with a motion to accept the document as timely filed. For good cause shown, the court may enter an order permitting the document to be filed nunc pro tunc to the date the filer originally sought to transmit the document electronically.”
She said in a declaration:
“Google analytics of ‘events’ transmission of the Notice of Appeal at Nationwidelegal.com through Legal Connect initiated from my laptop under Spectrum wireless wifi at 11:49 pm February 9th, 2021 with login at 11:52 shows the slow connection.…
“The transmission through nationwide legal and legal connect was delayed and was returned with a 12 am stamp.”
An exhibit reflects this activity on Jan. 9, 2021:
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Baker responded that although McKenna “implies she actually submitted the notice of appeal between 11:49 and 11:52 p.m., plaintiffs declaration does not directly identify the time at which the document was submitted,” adding:
“In any event, we do not believe a slow connection resulting in a delay of a few minutes between the submission of an electronically-filed document and its receipt by the court is a “failure ... in the electronic transmission” as contemplated by Rule 8.77(d). If relatively short delays in last-minute filings were meant to be excused, Rule 8.77(c) would provide that any document submitted after 11:59 p.m., rather than received by the court after that time, is deemed filed the next court day. Reading the two portions of Rule 8.77 together, we conclude that because plaintiffs original notice of appeal was received by the court and file-stamped at 12:00 a.m. on February 10, 2021, it was untimely.
“Just as important, however, is the fact that the notice of appeal that plaintiff filed one minute late was still insufficient to invoke this court’s jurisdiction because it did not specify the order or judgment from which plaintiff was appealing. While a court might find reason to excuse a one-minute delay for a properly prepared notice of appeal, that is not what we have here.”
The case is McKenna v. Sony Pictures Entertainment, B304256.
Louis P. Petrich, and Elizabeth L. Schilken of the Century City firm of Ballard Spahr represented Sony and co-defendants Boss Film Productions, Inc. and Visiona Romantica, Inc.
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