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First Amendment Rights, Right of Publicity

Do Anti-SLAPP Laws Offer Any Useful Protection to Creators of IP Content?

If you are in the business of communicating ideas which, needless to say, you hope are of general interest to the public, you could find yourself on the wrong end of a lawsuit.  This is because in the course of “doing your job” you also may be stepping on the toes of others, whether they be famous or infamous.  Keep in mind, depending on who is the subject of your article or whose likeness appears on your product, they could object under the legal theories of defamation, invasion of the right of privacy or the right of publicity, intentional infliction of emotional distress, or tortuous interference with contract.

Because of the perceived threat that a costly lawsuit could have on those asserting their First  Amendment rights to express their ideas or participate in public debate, twenty-eight states have passed laws that offer varying levels of protection in what has come to be called “Anti-SLAPP Statues.”  SLAPP, shorthand for the objectionable lawsuits, stands for “strategic litigation against public participation.”  (See  http://www.legal-project.org/149/anti-slapp-statutes-in-the-us-by-state for a list of state laws.)

Generally, where such laws exist, a defendant faced with what she believes is a SLAPP suit, namely trying to discourage her from speaking her mind, could file with the court a motion to strike the lawsuit.  If she then shows that the lawsuit arose due to speech or actions that were protected under the Anti-SLAPP act, mainly First Amendment expressions of idea, then the plaintiff is suddenly placed in a defensive posture.  To overcome the Anti-SLAPP motion, the plaintiff must show the probability that he will prevail on the merits.  However, because under some of these laws, discovery is frozen, the plaintiff is not necessarily in a good position to make such a showing.

While the principal reason for the enactment of Anti-SLAPP laws was in reaction to lawsuits brought to discourage public discourse about legislative, executive or judicial proceedings, their breadth, especially in the case of California’s statute, could offer some protections to those who operate in the commercial arena.  In order to put some meat on the bones, consider the following real life cases:

Hallmark Cards adopted a birthday card showing a caricature of Britney Spears as a waitress based on her appearance in a reality show and quoting her USPTO trademarked phrase, “That’s hot.”  While Hallmark was able to meet the qualifications that its activity was “speech” and was addressing a “public issue,” its motion to strike was denied.  This was because Ms. Spears was able to show the likelihood of success to her claim that Hallmark violated her right of publicity and Hallmark could not overcome this with any affirmative defense.  So, in this case the “right of publicity” trumped caricature.

Another situation involved ABC’s 20/20 Show which broadcast a story questioning the transparency of certain Christian ministries.  In the piece, ABC used a film clip of televangelist Dr. Frederick Price, who preaches “prosperity gospel.”  In the clip Dr. Price made the following statements, “I live in a 25-room mansion. I have my own $6 million yacht.”  While these were Dr. Price’s actual words, it turns out that he said them in the context of telling a parable.  He later sued ABC for defamation.  ABC’s Anti-SLAPP motion to strike was unsuccessful because, while it was true that Dr. Price was rich and had made similar statements about himself, the quotation that ABC used was taken out of context.  In this case, ABC would have been better served if it had found a quote from Dr. Price speaking about himself.

These cases illustrate that while it is important that the First Amendment Right encouraging public discourse be protected, there is another important competing interest, namely to allow people to bring their good faith grievances to court.  If you are aware of this balance of interests, you will be in a better position to speak out, even if your speech has a for-profit element to it as in the Hallmark case.

About Law Office of Barbara I. Berschler

In addition to advising my clients about general business matters associated with business formation and operation, I counsel for-profit and not-for-profit organizations about the protection and use of intellectual property.

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