Aronson v. Dog Eat Dog Films, Inc.

• Decision Date: 18 October 2010
• Docket Number: No. C10-5293 KLS,C10-5293 KLS
• Citation: 738 F.Supp.2d 1104
• Parties: Ken ARONSON, Plaintiff, v. DOG EAT DOG FILMS, INC., Defendant.
• Court: U.S. District Court — Western District of Washington

738 F.Supp.2d 1104

Ken ARONSON, Plaintiff,

v.DOG EAT DOG FILMS, INC., Defendant.

No. C10-5293 KLS.

United States District Court,

W.D. Washington,

at Tacoma.

Aug. 31, 2010.

Order Denying Reconsideration Sept. 28, 2010.

Order Denying Second Motion for Reconsideration Oct. 18, 2010.

Bryan D. Doran, Thomas Brian Vertetis, PFAU Cochran Vertetis Kosnoff PLLC, Tacoma, WA, Jason P. Amala, PFAU Cochran Vertetis Kosnoff, PLLC, Seattle, WA, Philip A. Talmadge, Thomas M. Fitzpatrick, Talmadge Fitzpatrick, Tukwila, WA, for Plaintiff.

Bruce EH Johnson, Noelle Helen Kvasnosky, Davis Wright Tremaine, Seattle, WA, for Defendant.

ORDER GRANTING DEFENDANT'S SPECIAL MOTION TO STRIKE PLAINTIFF'S CLAIMS OF MISAPPROPRIATION OF LIKENESS AND INVASION OF PRIVACY

KAREN L. STROMBOM, United States Magistrate Judge.

This matter comes before the Court on Defendant Dog Eat Dog Films, Inc's.¹special motion to strike Plaintiff Ken Aronson's state law claims for invasion of privacy and misappropriation of likeness pursuant to the Washington Act Limiting Strategic Lawsuits Against Public Participation (Washington Anti-SLAPP Act) ². Dkt. 15. The Court has considered the pleadings filed in support of and in opposition to the motion, and the remainder of the file, and GRANTS the motion for the reasons stated herein.

Introduction and Background

Ken Aronson commenced this action against Defendant asserting that the inclusion of a song and video in Michael Moore's documentary film, Sicko, without Aronson's authorization, infringes Plaintiff's exclusive copyright to his video and song. Dkt. 1 pg. 4-5. Plaintiff also asserts two state law claims: Invasion of Privacy—Defendant's unauthorized distribution of Plaintiff's home video gave publicity to a matter concerning Plaintiff's private life in violation of Plaintiff's right to privacy; and Misappropriation of Likeness—Defendant's unauthorized distribution of Plaintiff's home video to the public exposed Plaintiff's likeness without his consent and for pecuniary gain. Dkt. 1 pg. 5-6.

Plaintiff's claims for invasion of privacy and misappropriation of likeness arise from the inclusion of Plaintiff's voice and image in Sicko, a documentary film about the contemporary healthcare crisis in America. Sicko explores this issue, in part, by examining the stories of several individual patients who have received health care in the United States and contrasting them with stories of Americans who have received healthcare abroad.

One of the short vignettes in Sicko tells the story of Eric Turnbow's experience being treated in a United Kingdom hospital. Mr. Turnbow's experience was recorded on home video footage taken by Plaintiff Aronson on a trip Turnbow and Aronson took to England in 1997. Aronson asserts that the resulting footage of the shared trip is his property. Nonetheless, in 2006, in response to a request from Defendant for healthcare stories in preparation of the documentary on the healthcare crisis, Mr. Turnbow sent a copy of the video to Defendant. Mr. Turnbow signed a Standard Materials Release granting Defendant permission to use the footage in connection with the film, Sicko

Just over a minute of footage from the video Mr. Turnbow released to Defendant appears in Sicko. The documentary shows Mr. Turnbow injuring his shoulder while attempting to walk across London's Abbey Road on his hands. Fifty-two of those seconds show Mr. Turnbow's injury and treatment of the injury, while the remaining nineteen seconds provide the context for Mr. Turnbow's visit to the United Kingdom.

Within the seventy-one seconds of Mr. Turnbow's footage in Sicko, sixteen seconds contain Plaintiff's voice and image. These occur in three separate clips. The first clip depicting Aronson is in the context for Mr. Turnbow's visit to London. In a four second clip, Aronson and Turnbow are shown traveling together and singing a song. Plaintiff's voice is heardsinging "Oh England, here we go." In the next clip, Aronson's voice is heard saying "Here's Eric, about to walk on his hands across Abbey Road." The film then shows Mr. Turnbow collapsing in the road and Aronson's voice is heard saying "Try it again!" and then, "Are you in pain?" The documentary then follows Mr. Turnbow's medical treatment. Finally, the film shows Mr. Turnbow walking down the street and Aronson's voice is heard saying "You're all slung up, as Elvis would say."

The Defendant released the documentary Sicko in the United States on or about June 22, 2007. The film was nominated in 2008 for an Academy Award in the "Best Documentary" category.

On April 27, 2010, Aronson filed the instant action for copyright infringement, invasion of privacy and misappropriation of likeness. It is these latter two state law claims that Defendant seeks dismissal pursuant to the Washington Anti-SLAPP Act.

Washington Anti-SLAPP Act

The Washington legislature has observed that strategic lawsuits against public participation (or SLAPP suits) are "filed against individuals or organizations on a substantive issue of some public interest or social significance," and "are designed to intimidate the exercise of First Amendment rights." Laws of 2002, ch. 232, § 1. As first enacted, the Washington Anti-SLAPP law provided that a person who communicates a complaint or information to any branch or agency of federal, state, or local government is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency or organization. RCW 4.24.510. The statute was enacted to encourage the reporting of potential wrongdoing to governmental entities by protecting reporting parties from the threat of retaliatory lawsuits. See Gontmakher v. City of Bellevue, 120 Wash.App. 365, 366, 85 P.3d 926 (2004).

The 2010 amendments to the Washington Anti-SLAPP Act vastly expand the type of conduct protected by the Act. These amendments, patterned after California's Anti-SLAPP Act, became effective on June 10, 2010. See Substitute Senate Bill 6395. Chapter 118, Laws of 2010.

The newly enacted provisions provide, in relevant part, that "[a] party may bring a special motion to strike any claim that is based on an action involving public participation" as defined in the Act. Washington Anti-SLAPP Act § 2(4)(a). The Act applies "to any claim, however characterized, that is based on an action involving public participation and petition." Washington Anti-SLAPP Act § 2(2). An action involving public participation includes: "any lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern." Washington Anti-SLAPP Act § 2(2)(e).

Thus, the Act now provides protection for conduct in the furtherance of the exercise of free speech in connection with an issue of public concern.

A moving party bringing a special motion to strike a claim has the initial burden of showing by a preponderance of the evidence that the claim is based on an action involving public participation and petition. If the moving party meets this burden, the burden shifts to the responding party to establish by clear and convincing evidence a probability of prevailing on the claim. If the responding party meets this burden, the court shall deny the motion. Washington Anti-SLAPP Act § 2(4)(b). In making this determination, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. Washington Anti-SLAPP Act § 2(4)(c).

A moving party that prevails on a special motion to strike pursuant to the Anti-SLAPP Act shall be awarded reasonable attorneys' fees and costs incurred in connection with the motion and an amount of ten thousand dollars. Additional sanctions may be awarded to deter repetitive conduct. In the event the court finds that the special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award to a responding party who prevails reasonable attorneys' fees and costs incurred in connection with the motion and an amount of ten thousand dollars. Additional sanctions may also be awarded this party to deter repetitive conduct. Washington Anti-SLAPP Act § 2(6)(b).

Finally, the Act is to be applied and construed liberally to effectuate its general purpose of protecting participants in public controversies from an abusive use of the courts. Washington Anti-SLAPP Act § 3.

This is a case of first impression. There is no authority interpreting this newly enacted legislation. However, the legislation mirrors the California Anti-SLAPP Act and both parties cite to California law as persuasive authority for interpreting the Washington amendments.

Analysis of an Anti-SLAPP motion requires a two-step process. A defendant who files an anti-SLAPP motion bears the threshold burden of showing that the complaint arises from protected activity. Club Members For An Honest Election v. Sierra Club, 45 Cal.4th 309, 315, 86 Cal.Rptr.3d 288, 196 P.3d 1094 (2008); Dyer v. Childress, 147 Cal.App.4th 1273, 1278, 55 Cal.Rptr.3d 544 (2007). If the defendant is able to make that showing, the burden shifts to the plaintiff to show a probability of prevailing. Dyer, at 1278-79, 55 Cal.Rptr.3d 544; Zamos v. Stroud, 32 Cal.4th 958, 965, 12 Cal.Rptr.3d 54, 87 P.3d 802 (2004).

Defendant contends its anti-SLAPP motion should be granted because (1) it has met the burden of establishing that the complaint arose from protected activity, and (2) Plaintiff fails to demonstrate a probability of succeeding on the merits of any of his state law claims. Plaintiff disputes both these contentions.

1. Causes of Action Based on Defendant's Exercise of First Amendment Rights

Defendant asserts that Plaintiff's causes of action for invasion of privacy and misappropriation of likeness are based on the Defendant's exercise of free speech in connection with a matter of public interest; i.e. the healthcare crisis. Plaintiff poses a number of arguments in...