Consumer Law

Copyright and California's anti-SLAPP law

By Rebecca Tushnet

Duncan v. Cohen, 2008 WL 2891065 (N.D. Cal.)

Duncan sued defendants, including the Sierra Club, based on Thomas Cohen and Kristi Cohen?s attempts to make a film of Duncan?s book The River Why. He alleged copyright infringement and various state-law claims.

The court first rejected the argument that California?s anti-SLAPP statute applied to federal claims. It then reached the same conclusion as to the state law claims. The threshold question is whether the state-law claims arise out of protected activity?the exercise of free speech. Defendants argued that the lawsuit attempted to limit free speech on a matter of public interest: the ?message of environmental activism set in a coming-of-age story? found in Duncan?s book. Then the court took what I think is clearly a wrong turn, holding that the lawsuit imposed no limit on the Cohens? ability to spread their message, because copyright laws don?t restrain ideas?only expression. This is wrong for reasons most famously set forth in that other Cohen case, but more than that, the state-law claims aren?t copyright claims and can?t be in order to survive preemption, so the analysis needs to look at the elements of the state-law claims and whether they?re based on speech on a matter of public interest. It might still be correct to say that the anti-SLAPP law doesn?t apply, but the reasoning was sloppy. More persuasively, the court noted that defendants claimed rights to use the book not based on free speech, but based on a specific contract between the parties.

A prior case, Kronemyer v. Internet Movie Data Base, Inc., 150 Cal.App.4th 941(2007), found that a right of publicity claim was subject to the anti-SLAPP law. There, IMDB?s decision whom to credit as a producer of a film was an exercise of free speech. The court distinguished the present case, somewhat murkily, because Duncan?s right of publicity claim was based on the Cohens? ?use of his name to solicit funds for production of a film in violation of his claimed copyright,? not on their use of free speech. Despite specific references to films in the anti-SLAPP law, plaintiffs can sue filmmakers without being subject to that law?s heightened requirements as long as they?re not targeting free speech.

This could ultimately be the right result, but I?m disturbed by the cavalier treatment of the arguments here?this isn?t a case in which the caterer is suing the filmmaker for failure to pay the bills; Duncan is suing to stop the production of a film on a matter of public interest. If he is successful, his damages would be based on the creation and dissemination of a work of speech; he could receive an injunction against such creation and dissemination. As an initial cut, that sure seems to fall within the anti-SLAPP statute?although the particular claims at issue might well ultimately involve commercial speech or some other exception to the law.

Full post as published by 43(B)log on August 01, 2008 (boomark / email).