In Pott v. Lazarin (Apr. 1, 2020, H044587 )__Cal.App.5th___, the Court of Appeal, Sixth Appellate District (San Jose), determined whether the anti-SLAPP statute applied to the use of a dead person's likeness to promote nonprofit fundraising activities. The trial court denied the defendant's anti-SLAPP motion on the ground his use of the plaintiffs' daughter's likeness was not protected speech with regard to the anti-SLAPP statute. (Slip. Opn., pp 4-5.) The appellate court reversed the trial court's decision. (Id. at p. 12.) A copy of the opinion is attached.
The plaintiffs' daughter committed suicide after being sexually assaulted. (Slip Opn., p. 2.) After her death, the plaintiffs' registered as their daughter's successors-in-interest to her deceased personality rights under Civil Code section 3344.1. (Id. at p. 3.) The plaintiffs authorized a documentary series to use their daughter's name and likeness. (Ibid.) The plaintiffs would later bring a cause of action under Civil Code section 3344.1 against the defendant for using the plaintiffs' daughter's image in connection with fundraising efforts for the change of parental rights laws. (Ibid.) In response, the defendant filed an anti-SLAPP motion to strike the plaintiffs' complaint alleging the lawsuit curtailed protected speech. (Id. at p. 4.) The trial court ruled in favor of plaintiffs finding the defendant failed to demonstrate his use of the plaintiffs' daughter's likeness was protected activity. (Id. at pp. 4-5.) The trial court also found plaintiffs had established a probability of succeeding on their 3344.1 claim by demonstrating their daughter was a deceased personality. (Id. at p. 5.) The defendant appealed. (Ibid.)
As to prong I, the appellate court found the defendant made an appropriate showing that plaintiffs' cause of action attempted to silence protected speech. (Id. at pp. 7-9.) The circumstances surrounding the plaintiffs' daughters' death (suicide after being sexually assaulted) were a matter of public interest, as they were the subject of a documentary. (Ibid.) Further, the plaintiffs' daughter's likeness was used at a public press conference and in public Facebook posts to raise awareness for the defendant's work in support of suicide prevention and legal changes to parental rights laws. (Id. at pp. 8-9.) The statements were made within a public forum. (Id. at p. 9.)
As to prong II, the court held the plaintiffs failed to meet their burden of showing they had a probability of prevailing on their Civil Code section 3344.1 action against the defendant. (Slip Opn., pp. 10-12.) Section 3344.1 prohibits the unauthorized use of a dead person's likeness "on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services." (Id. at p. 10.) The court interpreted section 3344.1 to bar the use of a dead person's likeness only when the defendant uses the likeness to sell goods or services. (Ibid.) Defendant was using the plaintiffs' daughter's likeness to raise money for suicide prevention and the changing of parental law, which does not fall under the definition of commercial speech under Civil Code section 3344.1. (Id. at pp. 11-12.) Solicitations, when intertwined with "advocacy on public issues," is not section 3344.1 commercial speech. (Id. at p. 12.) Since both steps of the SLAPP analysis were in the defendant's favor, the trial court's decision denying defendant's anti-SLAPP motion was reversed. (Ibid.)
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