Pott v. Lazarin, No. H044587 (D6 Mar. 30, 2020)
Plaintiffs’ daughter was sexually assaulted, and afterwards, her assailants distributed photographs of the assault. She committed suicide shortly thereafter. Defendant runs some kind of suicide prevention org> He used the victim’s name and photograph at a press conference in connection with his advocacy and (although this is disputed) some fundraising.
Plaintiffs sued Defendant for violating California’s right of publicity statute, Civil Code § 3344.1, which creates a tort for commercially exploiting the likeness of another. Defendant filed an anti-SLAPP motion, which the trial court denied on the grounds that the conduct was facially illegal under Flatley v. Muoro.
The Flately argument, of course, is wrong. It basically always is. And nobody defends it on appeal.
But there’s also no other basis to affirm. Defendant had been sued for his speech, made in a public forum, on an issue of public interest. (The last point is bolstered by the fact that, with Plaintiffs’ authorization, a documentary had been produced about their daughter.) That satisfies the “arising from protected activity” test under Code of Civil Procedure § 425.16(e)(3).
On the merits, § 3344.1 applies only to commercial speech. (That’s the only reason it’s constitutional.) Here, there’s no question that Defendant’s use wasn’t commercial. It had no connection with the sale of goods or services. It was instead political. That’s the case even if Plaintiffs were right that their daughter’s image and name were used in connection with fundraising for Plaintiff’s advocacy organization.
Reversed.
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