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Ninth Circuit:
Lawsuit Against Deepfake App Survives Anti-SLAPP Motion
Opinion Says Reality Star Likely to Succeed on Merits of Action Alleging Company Illegally Used Likeness to Promote its Service That Allows Users to Replace Celebrity’s Face With Own
By Kimber Cooley, associate editor
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KYLAND YOUNG reality TV star |
The Ninth U.S. Circuit Court of Appeals held yesterday that an anti-SLAPP motion was properly denied as to a complaint filed by a reality television star alleging that a technology company used his likeness to promote an app—which allows users to swap their faces for those of celebrities in images and videos from shows, movies, and other media—without his consent, in violation of California law.
At issue is California Civil Code §3344(a), which prohibits a party from “knowingly us[ing] another’s…likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent.”
In a memorandum opinion, signed by Circuit Judge Kim Wardlaw and Senior Circuit Judge Andrew D. Hurwitz, the court found that the plaintiff Kyland Young—who starred in season 23 of CBS’s primetime reality show “Big Brother”—was likely to succeed on his claim, saying that the company had not shown that it had sufficiently “transformed” Young’s likeness by replacing his face in well-known scenes with that of the user.
Circuit Judge Roopali Desai wrote separately, remarking that the decision “faithfully applies…precedent” but calling for the reconsideration of the court’s 2003 opinion in Batzel v. Smith establishing that anti-SLAPP orders are appealable in federal district courts, as they are, by statute (Code of Civil Procedure §425.16(i)) in California’s superior courts.
Allegations in Complaint
Young alleges that the offending company, NeoCortext Inc., offers a free version of “Reface” which places a watermark on any face-swap video clip or image created on the app and offers to remove the mark if the user purchases a paid subscription. The complaint, filed in April 2023, asserts:
“In Defendant’s own words, the [Reface] application allows users to ‘Become Anyone You Wished to Be’—for a fee….Paying PRO Users can become Plaintiff Kyland Young…and recreate his scenes from the television show. Yet even though Defendant profits off Mr. Young and other class members’ identities, it neither sought nor obtained Mr. Young or other class members’ consent to do so. And it certainly never paid Mr. Young or other class members a dime in royalties. Defendant’s actions thus violate Mr. Young and other class members’ right of publicity.
“This case is not about the legality of deep-fake technology or the creative ways Reface application users choose to use the Defendant’s technology. This case is about a company exploiting well-known Californians’ names, voices, photographs, and likenesses to pitch its product for profit….The Reface application’s [free] Teaser Face Swaps are essentially ads intended to entice users to buy PRO subscriptions, and the paid PRO version of the application makes money by including Californians in its library of content.”
NeoCortext responded by filing a motion under Code of Civil Procedure §425.16, California’s anti-SLAPP law.
To prevail on an anti-SLAPP motion, a defendant must establish that the challenged cause of action arises from constitutionally protected activity before the burden shifts to the plaintiff to show a probability of prevailing on the claim.
District Court’s View
District Court Judge Wesley L. Hsu of the Central District of California found that Young’s claim implicates free speech protections but concluded that “Young has adequately pled that NeoCortext ‘knowingly’ used his identity when it compiled his images with his name in the Reface application and made the images available for users to manipulate.”
Hsu acknowledged that California recognizes an affirmative defense for work that sufficiently “transforms” the likeness or does not derive primarily from the celebrity’s fame, but opined:
“At this stage, to defeat Young’s claim, NeoCortext must show that its use is transformative as a matter of law….NeoCortext argues that it has done so because ‘[t]he very purpose of Reface is to transform a photo or video in which Plaintiff’s…image appears into a new work in which Plaintiff’s face does not appear.’….But Young’s face is the only thing that changes in the end product; at least in some instances, the end photograph still depicts the rest of Young’s body in the setting in which he became a celebrity.
“The Ninth Circuit has found that depictions that are arguably more transformative than those created with Reface do not entitle a defendant to the affirmative defense as a matter of law.”
The judge also rejected the defendant’s contention that §3344(a) is preempted by the Copyright Act of 1976.
Ninth Circuit’s Opinion
Hurwitz and Kim said “[w]e assume without deciding that NeoCortext met its burden at step one of the anti-SLAPP analysis,” and considered Young’s chances of prevailing.
NeoCortext argues that §3344(a) requires a defendant to know that it is using a specific plaintiff’s likeness, a burden the plaintiff cannot meet because the company’s content is sourced from various third-party image libraries.
Unpersuaded, the jurists wrote that “[e]ven assuming that § 3344(a) requires a defendant to affirmatively know that it is using a specific plaintiff’s likeness, Young’s allegations that NeoCortext made its database of clips searchable for specific individuals and that videos and images of him were in the database support a reasonable inference that NeoCortext knew it was using Young’s likeness.”
Turning to the “transformative use” defense, they remarked:
“The district court also correctly concluded that NeoCortext failed to establish California’s transformative use defense as a matter of law. This defense turns on ‘…whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.’….NeoCortext ‘is only entitled to the defense as a matter of law if no trier of fact could reasonably conclude that the [resulting clips or images were] not transformative.’
“A trier of fact could reasonably conclude that NeoCortext’s use of Young’s likeness was not sufficiently transformative given Young’s allegation that the resulting clips and images feature Young in the roles for which he is known.”
Agreeing with Hsu that preemption is not implicated, the judges said that “[w]e agree with the district court that Young’s state law claim does not fall within the subject matter of the Copyright Act” as “Young’s claim concerns his name and likeness, ‘not a work of authorship.’ ”
Desai’s Concurrence
Desai said that “I would not have reached the merits of NeoCortext’s anti-SLAPP motion to strike because the district court’s denial of the motion is not a collateral order, and therefore this court lacks jurisdiction to consider the anti-SLAPP motion on interlocutory appeal.”
He continued:
“As several of my colleagues have stressed time and again, the denial of an anti-SLAPP motion to strike neither resolves ‘an important issue completely separate from the merits of the action’ nor is an order ‘effectively unreviewable on appeal from final judgment.’….Yet despite the incongruity between the collateral order doctrine and the denial of anti-SLAPP motions, we persist in entertaining the latter on interlocutory appeal.”
The judge declared that “[i]t is time to reverse Batzel and correct our precedent: denials of anti-SLAPP motions to strike fail to fit within the contours of the collateral order doctrine, and thus are not appropriate interlocutory appeals.”
The case is Young v. NeoCortext Inc., 23-55772.
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