Aronson v. Dog Eat Dog Films, Inc.

Filing 31

DECLARATION of Bruce H. Johnson filed by Defendant Dog Eat Dog Films, Inc. re 30 MOTION for Attorney Fees (Kvasnosky, Noelle)

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Aronson v. Dog Eat Dog Films, Inc. Doc. 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 v. DOG EAT DOG FILMS, INC., Defendant. KEN ARONSON, Plaintiff, The Honorable Karen L. Strombom UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA ) ) ) ) ) ) ) ) ) ) ) ) No. 3:10-CV-05293-KLS DECLARATION OF BRUCE E. H. JOHNSON IN SUPPORT OF DEFENDANT'S MOTION FOR ATTORNEYS' FEES AND COSTS UNDER RCW 4.24.525 NOTE ON MOTION CALENDAR: OCTOBER 8, 2010 I, Bruce E. H. Johnson, am over the age of 18 and have personal knowledge of all facts stated herein and declare as follows: 1. I am a member of the bar of the State of Washington and of this Court. I am a partner in the law firm of Davis Wright Tremaine LLP ("DWT"), and am one of the lawyers responsible for representing Dog Eat Dog Films, Inc. ("Defendant") in this matter. I make this declaration in support of Defendant's Motion for Attorneys' Fees and Costs Under RCW 4.24.525. The matters stated here are true of my own personal knowledge, except for matters stated on information and belief, which I believe to be true. JOHNSON DECLARATION (3:10-CV-05293-KLS) - 1 DWT 15477177v3 0092022-000001 Davis Wright Tremaine LLP LAW OFFICES Suite 2200 1201 Third Avenue (206) 622-3150 Seattle, Washington 98101- 30 45 Fax: (206) 757-7700 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2. Attached as Exhibit A to this Declaration is a true and correct copy of the Court's August 31, 2010 Order Granting Defendants' Special Motion To Strike Plaintiff's Claims of Misappropriation of Likeness and Invasion of Privacy under Washington's AntiSLAPP Act, RCW 4.24.525. 3. Attorney Noelle H. Kvasnosky and I have been the DWT attorneys primarily responsible for working on this matter, with support from paralegal Jennifer Chermoshnyuk. Both Ms. Kvasnosky and I practice primarily in the area of media/intellectual property, and have represented clients in both state and federal trial courts (including numerous matters before this Court) and all levels of appellate court. We regularly represent media clients in defending against claims involving speech protected by the First Amendment. 4. I graduated from Yale Law School in 1977. DWT's standard and customary hourly rate for my services is $505.00. A copy of my biography is attached as Exhibit B. Ms. Kvasnosky graduated with honors from Columbia University School of Law in 2007. DWT's standard and customary hourly rate for her services is $265.00. A copy of Ms. Kvasnosky's biography is attached as Exhibit C. Ms. Chermoshnyuk has ten years experience in litigation with DWT, and her hourly billing rate is $175. A copy of Ms. Chermoshnyuk's biography is attached as Exhibit D. 5. We spent a reasonable number of hours bringing this motion, and managed the work load efficiently and economically. Ms. Kvasnosky, a third-year associate, was primarily responsible for preparing the motion, spending 90.9 hours on legal research, strategy and analysis, drafting the motion to strike, and related matters. Ms. Chermoshnyuk, provided 29.4 hours of paralegal support in preparing the motion, JOHNSON DECLARATION (3:10-CV-05293-KLS) - 2 DWT 15477177v3 0092022-000001 Davis Wright Tremaine LLP LAW OFFICES Suite 2200 1201 Third Avenue (206) 622-3150 Seattle, Washington 98101- 30 45 Fax: (206) 757-7700 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 coordinating the preparation of supporting declarations and filing the motion. I worked 32.1 hours to provide legal analysis and strategy, review and edit the motion to strike and the reply to plaintiff's opposition. 6. For this engagement, DWT bills Defendant for my services and Ms. Kvasnosky's services at a "blended" hourly rate of $340. 7. Defendant is not requesting reimbursement for the fees of other DWT attorneys--including DWT media attorneys well-versed in litigating anti-SLAPP motions in federal court--document clerks, and librarians who assisted in bringing this motion, and whose time was billed to Defendant. 8. Bringing an Anti-SLAPP Motion to Strike under the newly-enacted Washington Anti-SLAPP Act involved specialized legal expertise, and required an understanding of the interplay between and among constitutional mandates, statutory privileges, federal and state procedure, and case law. I assisted in drafting Washington's Anti-SLAPP Act. Ms. Kvasnosky and I spent significant time and resources to research the newly enacted statute, its legislative history, and comparable statutes in other jurisdictions with comparable legislation. 9. This fee request is based upon the actual invoices reflecting the recorded daily time entries for each attorney (or paralegal) for services performed in connection with this matter, multiplied by the agreed upon billing rate at the time that the services were performed. The time entries and billing rates are discussed below and in the accompanying Declaration of Keith Gorder. 10. DWT attorneys and paralegals use time-tracking software to record the time we spend on a particular matter, and to include a narrative description of the tasks JOHNSON DECLARATION (3:10-CV-05293-KLS) - 3 DWT 15477177v3 0092022-000001 Davis Wright Tremaine LLP LAW OFFICES Suite 2200 1201 Third Avenue (206) 622-3150 Seattle, Washington 98101- 30 45 Fax: (206) 757-7700 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 performed. Our regular practice, which we have followed in connection with this matter, is to use the program to track our time on a matter as we are working on it and to draft the narrative description the same or the next business day. This assures the accuracy of both the amount of time we record and the description of the work actually performed. 11. The fee award Defendant seeks includes $46,965 in attorneys' fees and $697.80 in costs that it incurred in connection with its succesful Special Motion to Strike. Exhibit E is a true and correct copy of DWT's invoices to Defendant, which include daily time entries described above for DWT's work on this matter for which Defendant seeks a fee award, and itimzation of the costs incurred. The amount of time indicated on Exhibit E, and the narrative descriptions, have not been edited except to (1) redact time that is not part of Defendant's fee request; (2) redact portions of billing narratives that may disclose attorney-client privileged matters or attorney work product; and (3) specify, for this court's convenience, the precise hours for which a fee award is requested. 12. These fees and costs can be summarized as follows: Time Recorded 41.0 Hours 7.7 Hours Value of Time Recorded Task Categories Analysis of complaints and legal research Communications with clients, Plaintiff, involved parties $13,131.50 $ 2,502.50 $15,781.00 $15,550.00 Total: $46,965.00 Preparation of anti-SLAPP motion and supporting papers 53.5 Hours Preparation of anti-SLAPP motion reply papers 50.2 Hours Cost Categories Messenger services Amounts Incurred $ 75.00 Davis Wright Tremaine LLP LAW OFFICES Suite 2200 1201 Third Avenue (206) 622-3150 Seattle, Washington 98101- 30 45 Fax: (206) 757-7700 JOHNSON DECLARATION (3:10-CV-05293-KLS) - 4 DWT 15477177v3 0092022-000001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Exhibit Costs LEXIS/Westlaw charges $ $ Total $ 304.32 318.48 697.80 13. Defendant seeks an award for fees that are in line with the customary rates DWT charges for similar services. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. DATED this 22nd day of September, 2010 in Seattle, Washington. By /s/ Bruce E. H. Johnson Bruce E.H. Johnson WSBA #7667 JOHNSON DECLARATION (3:10-CV-05293-KLS) - 5 DWT 15477177v3 0092022-000001 Davis Wright Tremaine LLP LAW OFFICES Suite 2200 1201 Third Avenue (206) 622-3150 Seattle, Washington 98101- 30 45 Fax: (206) 757-7700 EXHIBIT A Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 1 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This matter comes before the Court on Defendant Dog Eat Dog Films, Inc's.1 special 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 According to submissions of Defendant, Dog Eat Dog Films, Inc., a loan-out company owned by Michael Moore and his wife Kathleen Glynn, is incorrectly designated as Defendant in this case. The company that produced the documentary film, Sicko, is Goldflat Productions, LLC, owned by Michael Moore, and is the proper Defendant. The Washington Anti-SLAPP Act was amended, effective June 10, 2010, adding sections to RCW 4.24. Because citations to the statute were not available as of the filing of this order, citations herein refer to the new sections of the statute as numbered in Substitute Senate Bill 6395. Chapter 118, Laws of 2010. ORDER - 1 2 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA KEN ARONSON, Plaintiff, v. DOG EAT DOG FILMS, INC., Defendant. Case No. C10-5293 KLS ORDER GRANTING DEFENDANT'S SPECIAL MOTION TO STRIKE PLAINTIFF'S CLAIMS OF MISAPPROPRIATION OF LIKENESS AND INVASION OF PRIVACY Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 2 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 ORDER - 2 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 3 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 heard singing "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 ORDER - 3 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 4 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 Gonthmakher v. City of Bellevue, 120 Wn. 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 ORDER - 4 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 5 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 AntiSLAPP 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 AntiSLAPP 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, 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; Zamos v. Stroud, 32 Cal.4th 958, 965, 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 ORDER - 5 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 6 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 opposition to this assertion. Plaintiff contends that the Anti-SLAPP Act does not apply to Plaintiff's claims because (1) Plaintiff's claims are not based on the Defendant's exercise of free speech, but on the Defendant knowingly misappropriating and publicly disclosing Plaintiff's film footage, song lyrics, voice, and likeness without his permission, (2) the Defendant's claim of protected free speech activity is merely incidental to its misconduct upon which Plaintiff's claims are based, and (3) Plaintiff is not a public figure and did not inject himself into the public debate on social medicine. The anti-SLAPP law applies to claims "based on" speech or 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. The focus is on whether the plaintiff's cause of action itself is based on an act in furtherance of the defendant's right of free speech. City of Cotati v. Cashman, 29 Cal.4th 69, 78, 52 P.3d 695 (2002). In other words, the act underlying the plaintiff's cause, or the act which forms the basis for the plaintiff's cause of action, must itself have been an act in furtherance of the right of free speech. Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53, 66, 52 P.3d 685 (2002). It is beyond dispute that documentary movies involve free speech. Dyer v. Childress, 147 Cal.App.4th 1273, 1279, 55 Cal. Rptr.3d 544 (2007); M.G. v. Time Warner, Inc., 89 Cal.App.4th 623, 107 Cal. Rptr.2d 504 (2001); Dora v. Frontline Video, Inc., 15 Cal.App.4th 536, 544-546, 18 Cal. Rptr.2d 790 (1993). It is clear that a media defendant may file an anti-SLAPP special motion to strike, Braun v. Chronicle Publishing Co., 52 Cal.App.4th 1036, 1044, 61 Cal. Rptr.2d 58 (1997), and nothing in the Anti-SLAPP Act prohibits a powerful corporate defendant from employing the anti-SLAPP statute against individuals of lesser strength and means. M.G. v. Time Warner, Inc., 89 Cal.App.4th 623, 629, 107 Cal.Rptr.2d 504 (2001). The Washington Legislature has directed that the Act be applied and construed liberally to ORDER - 6 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 7 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 effectuate its general purpose of protecting participants in public controversies from an abusive use of the courts. Any conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern is subject to the protections of the statute. That Defendant may be considered a powerful business entity as compared with the private party Plaintiff is of no import under the modern framework of the statute. Nor is it critical that Plaintiff is not a public figure. Whereas a public figure, standing alone, may satisfy the public interest element of the Act, a private individual satisfies this requirement so long as there is a direct connection with the individual to a discussion of a topic of widespread public interest. See Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136, 1149 (S.D. Cal. 2005); Terry v. Davis Cmty. Church, 131 Cal. App. 4th 1534 (2005). It is not disputed that the documentary film, Sicko, addresses issues of widespread public concern. Sicko is a feature-length documentary film examining the healthcare crisis in America. Among other issues, Sicko addresses patients aggrieved by the healthcare coverage they received or were denied by their health insurance companies, and contrast that with the health care received by Americans when traveling abroad. However, not all speech in a film is of public significance and therefore entitled to protection under the anti-SLAPP statute. The issue turns on the specific nature of the speech rather than generalities abstracted from it. Dyer v. Childress, 147 Cal.App.4th 1273, 1280, 55 Cal.Rptr.3d 544 (2007). The focus is not on the form of plaintiff's cause of action but, rather, the defendant's activity that gives rise to defendant's asserted liability and whether that activity constitutes protected speech. Navellier v. Sletten, 29 Cal.4th 82, 92, 52 P.3d 703 (2002); Martinez v. Metabolife Intern., Inc., 113 Cal. App.4th 181, 187, 6 Cal.Rptr.3d 494 (2003). Here, Plaintiff's causes of action arise out of the unauthorized use of his persona and voice. The Defendant's activity that gives rise to the asserted liability is the story of Eric Turnbow's experience as an American receiving medical treatment in a United Kingdom hospital. Plaintiff is depicted initially in the context of Mr. Turnbow's arrival in London and subsequently in the context ORDER - 7 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 8 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 of Mr. Turnbow suffering his injury and release from treatment. Although involuntarily thrust into the healthcare discussion, Plaintiff's appearance in the documentary is not tangential to the subject of the documentary, but is directly connected to the discussion of the healthcare system. Application of this principal can be seen in M.G. v. Time Warner, Inc., 89 Cal.App.4th 623, 107 Cal. Rptr.2d 504 (2001). In M.G., a magazine story and a television program used a photograph of a Little League team to illustrate a story about adult coaches who sexually molest youths playing team sports. Eight players and two coaches depicted in the photograph sued, alleging invasion of privacy. A number of the players had been victims of sexual molestation and others had not. In response to the defendants' anti-SLAPP special motion to strike, the plaintiffs claimed the question of the identity was not a matter of public interest. M.G. found that view of the issue too restrictive. The topic of the article and the program was not whether a particular child was molested, but rather the general topic of child molestation in youth sports, an issue of significance and public interest. Thus, the publication constituted an exercise of the defendants' right of free speech concerning an issue of public interest. Id., at 629. Although the plaintiffs were not public figures and the connection to the issue of child molestation was not of the plaintiffs' making, the issue was of public interest and defendants were entitled to the anti-SLAPP protections. In contrast to M.G. is Dyer v. Childress, 147 Cal.App.4th 1273, 55 Cal. Rptr.3d 544 (2007). In Dyer, plaintiff financial consultant claimed the screenwriter, director, and producers of the motion picture Reality Bites used his name for the main character in the story and misrepresented his actual persona, even though he was not in any way connected with the movie or its subject matter. The court stated the central issue concerned the asserted misuse of plaintiff's persona. The court explained that although the movie may have addressed topics of widespread public interest, there was no connection between those topics and plaintiff's causes of action. Id., at p. 1280. Distinguishing M.G., the court reasoned plaintiff in that case was directly connected to an important issue of public significance, whereas plaintiff financial consultant was not part of any public ORDER - 8 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 9 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 discussion and was not connected to any such discussion. Id., at p. 1282. Finding no connection between the movie's subject matter and plaintiff, the court concluded defendants failed to show the activity underlying plaintiff's complaint was in furtherance of defendants' constitutional right of free speech in connection with a public issue or issue of public interest. Id., at p. 1284. The present case more closely resembles M.G. than Dyer. Unlike Dyer, Plaintiff is not asserting that his persona was misrepresented. Nor is Plaintiff unconnected to the topic of healthcare. Plaintiff appears as a part of the discussion of healthcare in placing Mr. Turnbow's presence in London in the proper context of the healthcare debate. The Court finds that Defendant has satisfied the threshold burden of showing that the complaint arises from protected activity. 2. Plaintiff's Burden to Establish a Probability of Prevailing Once the Defendant has established the threshold burden of showing that the complaint is based on protected activity, the burden shifts to Plaintiff to demonstrate by clear and convincing evidence a probability of prevailing on the merits of his state law claims of invasion of privacy and misappropriation of likeness. See Washington Anti-SLAPP Act 2(4)(b). In making this determination, the court considers pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. Washington Anti-SLAPP Act 2(4)(c). First Amendment and Right of Publicity Claims Defendant contends that Plaintiff's right of publicity claims (misappropriation of likeness and invasion of privacy) are barred by the First Amendment and RCW 63.60.070. In Reid v. Pierce County, 136 Wn.2d 195, 206 (1998), the Supreme Court of Washington confirmed that the common law right of privacy exists in Washington. Under the common law, the tort of invasion of privacy consists of four theories: (1) intrusion, (2) public disclosure, (3) false light, and (4) appropriation. Eastwood v. Cascade Broadcasting Co., 106 Wn.2d 466, 469 (1986). These four privacy torts are related in that "each involves interference with the interest of the ORDER - 9 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 10 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 individual in leading, to some reasonable extent, a secluded and private life, free from the prying eyes, ears and publications of others." Id. The elements of a claim of misappropriation of a persona are (1) the defendant's use of the plaintiff's identity, (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise, (3) lack of consent, and (4) resulting injury. See Restatement (Second) of Torts 652A-E (1977); Stewart v. Rolling Stone LLC, 181 Cal.App.4th 664, 105 Cal. Rptr.3d 98 (2010). In addition to the common law cause of action, Washington has provided a statutory remedy for misappropriation of identity under RCW 63.60. Every individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness. RCW 63.60.010. The unauthorized use of these property rights (personas) is an infringement of the right, subjecting the infringer to liability for statutory or actual damages. RCW 63.60.050 and .060. Under both the statutory cause of action and the common law, there is no cause of action for the publication of matters in the public interest. RCW 63.60.070 provides that "(1) For purposes of RCW 63.60.050, the use of a name, voice, signature, photograph, or likeness in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest, including, without limitation, comment, criticism, satire, and parody relating thereto, shall not constitute a use for which consent is required under this chapter." Further, the statute does not apply to the use of an individual's or personality's name, voice, signature, photograph, or likeness, in any film when the use does not inaccurately claim or state an endorsement by the individual or personality." RCW 63.60.070(2)(b). Under the First Amendment, a cause of action for missappropriation of another's name and likeness may not be maintained against expressive works, whether factual or fictional. See Daly v. Viacom, Inc., 238 F.Supp.2d 1118, 1123 (N.D. Cal. 2002); Comedy III Prod., Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 398, 106 Cal.Rptr.2d 126, 21 P.3d 797 (2001). The use of a plaintiff's identity is not actionable where the publication relates to matters of the public interest, which rests on the ORDER - 10 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 11 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 right of the public to know and the freedom of the press to tell it. Yeager v. Cingular Wireless LLC 627 F. Supp.2d 1170, 1174-75 (E.D. Cal. 2008); Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001). It is only when plaintiff's identity is used without consent to promote an unrelated product of defendant that the defense becomes unavailable. Newcombe v. Adolf Coors Co., 157 F.3d 686, 691-94 (9th Cir.1998); Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 416 (9th Cir.1996); Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1097-98 (9th Cir.1992). Where the use of a plaintiff's identity in an advertisement is merely illustrative of a commercial theme or product and does not contribute significantly to a matter of public interest, a defendant cannot avail itself of the First Amendment defense. Yeager, 627 F.Supp2d at 1175; Downing, 265 F.3d at 1002-03. The appropriate focus is on the use of the likeness itself. Baugh v. CBS, Inc., 828 F. Supp. 745, 753 (N.D. Cal. 1993). If the purpose is informative or cultural, the use is immune; if it serves no such function but merely exploits the individual portrayed, immunity will not be granted. New Kids on the Block v. News America Publ'g, Inc., 745 F. Supp. 1540, 1546 (C.D. Cal. 1990), aff'd, 971 F.2d 302 (9th Cir. 1992). It is beyond dispute that the documentary film Sicko relates to matters of public interest and is entitled to the First Amendment protection. The appropriation of Plaintiff's image and voice are immune from the state law causes of action for misappropriation. Additionally, RCW 63.60.070 provides an exemption to Washington's statutory cause of action for misappropriation. The state law claims for misappropriation being barred by the First Amendment and subject to the statutory exemption, Plaintiff has not shown by clear and convincing evidence the probability of prevailing on the merits of these claims. Accordingly, the state law claims are subject to dismissal pursuant to the Washington Anti-SLAPP Act. Copyright Preemption of State Law Claims Defendant next contends that Plaintiff's state law claims are preempted by the Copyright Act, 17 U.S.C. 101-1332, ORDER - 11 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 12 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff's claims of misappropriation of likeness and invasion of privacy arise solely from the Defendant's use of the home video depicting Plaintiff and of which Plaintiff asserts a copyright claim. Specifically, Plaintiff asserts that he is the copyright owner of the home video and the song heard therein, and that Defendant infringed on Plaintiff's exclusive copyrights in using the video and song in the documentary Sicko. Regarding the state law claims, Plaintiff asserts that 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 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. Congress enacted the Copyright Act, 17 U.S.C. 101-1332, to define and protect the rights of copyright holders. Under the Act, "the owner of copyright ... has the exclusive rights to do and to authorize" others to display, perform, reproduce or distribute copies of the work, and to prepare derivative works. Id. 106. The copyright is the right to control the work, including the decision to make the work available to or withhold it from the public. Laws v. Sony Music Entertainment, Inc. 448 F.3d 1134, 1137 (9th Cir. 2006). Section 301 of the Copyright Act preempts legal or equitable rights granted by state common law or statute that are equivalent to copyright. 17 U.S.C. 301. The Ninth Circuit applies a two-part test to determine whether a state law claim is preempted by Section 301. Laws, at 1137-38. First, the court determines whether the "subject matter" of a state law claim falls within the subject matter of copyright as described in Sections 102 and 103 of the Copyright Act. Second, if it does, the court determines whether the rights asserted under state law are equivalent to the rights contained in Section 106 of the Copyright Act. Id. Citing Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001), Plaintiff argues that the subject matter of his misappropriation and privacy claims are the depiction of his likeness and voice. Despite his likeness being embodied in the copyrightable home video, his likeness is not a work of authorship within the meaning of the Copyright Act and his claims are not subject to ORDER - 12 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 13 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 preemption. Downing, however, is distinguishable from the present action. In Downing, retailer Abercrombie & Fitch was developing a surfing theme for its subscription catalog. Abercrombie published a photo of the plaintiffs, who were participants in a surf championship in Hawaii in 1965. Abercrombie ran the photo, which it had purchased from the photographer (who held the copyright), and identified the plaintiffs by name. Without obtaining plaintiffs' consent to use their names and images, Abercrombie also offered t-shirts exactly like those worn by the plaintiffs in the photo. Downing, at 999- 1000. The court noted that although the photograph itself was within the subject matter protected by the Copyright Act, Abercrombie had not merely published the photograph. Rather, it published the photo in connection with a broad surf-themed advertising campaign, identified the plaintiffs-surfers by name, and offered for sale the same t-shirts worn by the plaintiffs in the photo. By doing so, it had suggested that the surfers had endorsed Abercrombie's t-shirts. Accordingly, the court concluded that "it is not the publication of the photograph itself, as a creative work of authorship, that is the basis for [plaintiffs'] claims, but rather, it is the use of the [plaintiffs'] likenesses and their names pictured in the published photograph." Id. at 1003. In contrast to Downing is the more recent decision in Laws v. Sony Music Ent., Inc., 448 F.3d 1134 (9th Cir. 2006). In Laws, the Ninth Circuit examined the case of a singer who alleged that a clip from one of her songs had been used without her permission in subsequent recordings by other artists. Id. at 1136. The singer asserted numerous state-law claims, including invasion of privacy and misappropriation of name and voice. Id. The recording studio that used the recording argued that her state-law claims were preempted by federal copyright law. Id. The Ninth Circuit agreed, holding that the singer's sound recording was "within the subject matter of copyright" as a work of creative authorship that had been "fixed in a tangible medium." Id., at 1141, 1143. The Defendant had not used the singer's image, name, or voice recording in any manner beyond the use of the copyright material itself. Thus, the singer's claim in Laws "challenged control of the artistic work ORDER - 13 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 14 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 itself and could hardly be more closely related to the subject matter of the Copyright Act." Id., at 1142. The court distinguished Downing on the basis that the defendant in Downing used the likeness of plaintiffs beyond the use of the copyrighted material. Id., at 1141. The court in Laws also found persuasive the California Court of Appeal's decision in Fleet v. CBS, Inc., 50 Cal.App.4th 1911, 58 Cal. Rptr.2d 645 (1996). In Fleet, plaintiffs brought suit against CBS alleging that by airing a motion picture using their names, pictures, and likenesses without their consent, CBS had violated their right of publicity. The court held that the Copyright Act preempted the action. As the court observed, it was not merely plaintiffs' likenesses which were captured on film-it was their dramatic performances which are copyrightable. Id. at 651. Once plaintiffs' performances were put on film, they became dramatic works fixed in a tangible medium of expression. At that point, the performances came within the scope or subject matter of copyright law protection, and the claims were preempted. Id. at 650. "In effect, the plaintiffs' right of publicity claim was a question of control over the distribution, display or performance of a movie CBS owned. Since CBS' use of plaintiffs' likenesses did not extend beyond the use of the copyrighted material it held, there was no right of publicity at issue, aside from the actors' performances." Laws, at 1142-43. Here, Plaintiff's state law claims arise solely from the use of the alleged copyrightable home video depicting Plaintiff. Unlike Downing, where the defendant used plaintiffs' images well beyond the simple reproduction of the subject photograph, the appropriation of Plaintiff's image, voice, and lyrics is confined to the use of the home video in the documentary Sicko. Plaintiff's state law claims are more akin to Laws and Fleet, wherein the defendants' alleged misappropriations were confined to solely displaying copyrighted material. Accordingly, Plaintiff's state law claims for invasion of privacy and misappropriation are within the subject matter of copyright. The court further finds that the rights asserted under Washington law are equivalent to the rights protected under the Copyright Act. To satisfy the "equivalent rights" part of the preemption ORDER - 14 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 15 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 test, the alleged misappropriation must be equivalent to rights within the general scope of copyright. Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134, 1143 (9th Cir. 2006). The Copyright Act provides a copyright owner with the exclusive rights of reproduction, preparation of derivative works, distribution, and display. To survive preemption, the state cause of action must protect rights which are qualitatively different from the copyright rights. The state claim must have an extra element which changes the nature of the action. Id. The essence of Plaintiff's state law claims is Defendant's unauthorized distribution of Plaintiff's home video. His claim is under the Copyright Act. See, Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134, 1143-45 (9th Cir. 2006); Fleet v. CBS, Inc., 50 Cal.App.4th 1911, 1920-22, 58 Cal. Rptr.2d 645 (1996). The state law claims being preempted by the Copyright Act, Plaintiff has not shown by clear and convincing evidence the probability of prevailing on the merits of these claims. Accordingly, the state law claims are subject to dismissal pursuant to the Washington Anti-SLAPP Act. Invasion of Privacy Claim Defendant also contends that Plaintiff cannot establish a claim for invasion of privacy. Washington State recognizes the common law right of privacy and that an individual may bring a cause of action for invasion of that right. Cawley-Herrmann v. Meredith Corp., 654 F.Supp.2d 1264, 1265-66 (W.D. Wash. 2009); Reid v. Pierce County, 136 Wash.2d 195, 206 (1998). One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. Cawley-Herrmann, at 1266; Reid, at 206. The nature of the facts protected by the right of privacy is identified by Cowles Publ'g Co. v. State Patrol, 109 Wash.2d 712, 721(1988) as follows: Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends.... When these intimate ORDER - 15 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 16 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest. See also Cawley-Herrmann, at 1266. Plaintiff has not shown by clear and convincing evidence the probability of prevailing on the merits of the cause of action for invasion of privacy. Sicko discloses no facts of intimate details of Plaintiff's life that would be highly offensive to the ordinary reasonable person. Plaintiff's image and voice are not intimate details of his private life, nor are the events portrayed within the zone of privacy. See Cawley-Herrmann, at 1266. Defendant is entitled to dismissal of Plaintiff's state law claim for invasion of privacy pursuant to the Anti-SLAPP Act. Attorney Fees and Costs The Washington's Anti-SLAPP Act 2(6)(a) provides: The court shall award to a moving party who prevails, in part or in whole, on a special motion to strike made under subsection (4) of this section, without regard to any limits under state law: (i) Costs of litigation and any reasonable attorneys' fees incurred in connection with each motion on which the moving party prevailed; (ii) An amount of ten thousand dollars, not including the costs of litigation and attorney fees; and (iii) Such additional relief, including sanctions upon the responding party and its attorneys or law firms, as the court determines to be necessary to deter repetition of the conduct and comparable conduct by others similarly situated. The Defendant, having prevailed, is entitled to its reasonable attorneys fees and costs that it has incurred in presenting this anti-SLAPP motion and a statutory award in the prescribed amount of ten thousand dollars. Conclusion In conclusion, Plaintiff's state law claims for invasion of privacy and misappropriation of likeness are based on conduct that is protected by the Anti-SLAPP Act. Plaintiff cannot show by clear and convincing evidence the probability of prevailing on his state law claims. Accordingly, ORDER - 16 Case 3:10-cv-05293-KLS Document 23 Filed 08/31/10 Page 17 of 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff's state law claims are subject to dismissal. Defendant is entitled to an award of reasonable attorneys fees, costs and the statutory award of ten thousand dollars. ACCORDINGLY; IT IS ORDERED: (1) Defendant s Special Motion to Strike Plaintiff s Claims of Misappropriation of Likeness and Invasion of Privacy [Dkt. 15] is GRANTED (2) Defendant is awarded its reasonable attorneys fees and costs incurred in presenting this motion and the statutorily prescribed amount of ten thousand dollars. DATED this 31st day of August, 2010. A Karen L. Strombom United States Magistrate Judge ORDER - 17 EXHIBIT B Bruce E. H. Johnson Bruce Johnson, a veteran litigator, represents information industry clients on issues involving media and communications law as well as technology and intellectual property matters. His expertise includes advising on First Amendment law issues, particularly involving commercial speech, commercial transactions and consumer rights. The author of Washington's Reporter's Shield Law, Bruce also works extensively on journalist privilege issues, regularly defending reporters, editors and other members of the media. He also represents national clients in privacy and security matters, advertising liability risks, defamation and online liability cases. He is the author of the Washington Act Limiting Strategy Lawsuits Against Public Participation ("Washington Anti-SLAPP Law"), which was enacted by the State of Washington in March 2010. Selected Experience . Bruce E. H. Johnson Partner Chair, Privacy & Security Practice and Vice Chair, Media Law Practice brucejohnson@dwt.com 206.757.8069 direct 206.757.7069 fax Suite 2200 1201 Third Avenue Seattle, Washington 98101 Related Practices Privacy & Security Media & First Amendment Intellectual Property Litigation Appellate Litigation Advertising, Marketing & Promotions Theft of Ideas Access to Public Records & Proceedings Commercial Speech & Advertising Defamation & Privacy Pre-Publication & Pre-Broadcast Review Prior Restraints Subpoenas & Reporters' Privilege Copyright Trademark Digital Media Copyright Litigation Trademark Litigation Litigation Related Industries Internet and E-Commerce Communications, Media & Technology Entertainment Publishing Software & Technology Aronson v. Dog Eat Dog Films, Inc. Dog Eat Dog Films, Inc. Ongoing Successfully represented a film production company in motion to dismiss invasion of privacy and misappropriation claims relating to the documentary film "Sicko." This is the first substantive decision to apply Washington's new anti-SLAPP statute, which provides important procedural safeguards for media entities and others against unwarranted and meritless suits that stem from the exercise of defendants' First Amendment rights. . Chamber of Commerce of the United States v. Servin, et al. The Yes Men Ongoing Defending the free speech rights of the Yes Men against trademark claims filed after the Yes Men performed a political parody of the Chamber's controversial position on global climate change. . Curious Theatre Co. v. Colorado Department of Public Health & Environment Theatre Communications Group 2010 Represented Theatre Communications Group, which includes 476 theaters, as amicus in support of First Amendment challenge to Colorado law outlawing theatrical smoking. (09-1118) Read the amicus brief. . Doe v. Reed National and Washington state media 2010 Submitted amicus brief on behalf of national and Washington state media in support of constitutionality of the Washington Public Records Act, which required public disclosure of names of referendum sponsors and signatures. . Brain vs. Halsne www.dwt.com KIRO-7 2009 Defended KIRO-7, a Seattle-based television station, and one of its reporters in a defamation lawsuit brought by a Tacoma, Wash., pediatric dentist. . Bruce E. H. Johnson Partner brucejohnson@dwt.com 206.757.8069 Cawley-Herrmann v. Meredith Corporation Meredith Corporation 2009 Successfully represented Meredith Corp., owner of KPTV in Portland, Ore., in motion to dismiss and subsequent motion for reconsideration in a lawsuit brought by plaintiff alleging a new theory of invasion of privacy through the publicity of her identity as the subject of allegedly false and unsubstantiated allegations. . Hust v. State of Wyoming, et al. Media defendants 2009 In federal court, represented media defendants accused by the plaintiff of defamation. Defendants won a dismissal with prejudice on grounds that the two-year statute of limitations had expired. The dismissal was affirmed by the 9th Circuit in March 2010. . Hutchison v. KIRO Inc. KIRO Inc. 2009 Represented local television station in a motion to unseal summary judgment documents filed in a discrimination lawsuit brought by a former news anchor. The court ordered the documents to be unsealed with only a few redactions. . United States of America v. Lucretia James Canadian Broadcasting Corporation (CBC) 2009 Represented CBC in granting an order, in part, to intervene and unseal documents from federal criminal court files for use in its television program "The Fifth Estate." . United States v. Farris and United States V. James Canadian Broadcasting Corporation 2009 Representing the Canadian Broadcasting Corporation in connection with motions to intervene and unseal criminal files in a cross-border drug smuggling case. . United States v. Leonard Joseph Ferris; United States v. James Canadian Broadcasting Corporation (CBC) 2009 Represented intervenor CBC in motions to intervene and unseal criminal records filed in a cross-border drug smuggling case. Motions were filed in the U.S. District Courts for the Eastern and Western Districts of Washington. The courts granted the motions in part. . www.dwt.com Zango, Inc. v. Kaspersky Lab, Inc. Kaspersky Lab, Inc 2009 Summary judgment dismissing lawsuit against distributor of anti-malware products, recognizing "robust" immunity under 47 U.S.C. 230(c)(2) enabling consumer access to information about potentially "objectionable" software. In 2009, the U.S. Court of Appeals for the 9th Circuit affirmed the lower court's 2007 dismissal. . Bruce E. H. Johnson Partner brucejohnson@dwt.com 206.757.8069 Fair Housing Council of San Fernando Valley, et al. v. Roommates.com, LLC Media clients of Davis Wright Tremaine 2008 Submitted amicus brief on behalf of media amici in 9th Circuit's en banc review of the scope of immunity afforded by Section 230 of the Communications Decency Act to mixed-content websites. . Walters v. Seattle School District No. 1 The Seattle Times Company 2008 Represented the Seattle Times in an unusual lawsuit alleging civil rights violations arising from the newspaper's coverage of a recruiting scandal involving two high school basketball coaches. The district court granted the Times' motion to dismiss because it concluded that there were no valid allegations of conspiracy or of interference in contractual relations stemming from news coverage. . WizKids, LLC v. Michael, Best & Friedrich, LLP WizKids, LLC 2008 Represented plaintiffs in patent malpractice claim arising from failure to secure U.S. rights on game patent; successfully settled. . Browne v. AVVO, Inc. AVVO 2007 Defended attorney evaluation website. Court granted motion to dismiss on First Amendment opinion grounds, also holding that distribution of information is not "commerce" under state consumer protection laws. . Clapp v. Olympic View Publishing Co. Sequim Gazette 2007 Represented defendant in favorable application of public reports privilege by Division II in defamation lawsuit, affirming dismissal of case on the pleadings. . Paterson v. Little, Brown & Co. Hachette Brook Group USA Inc. 2007 www.dwt.com Secured summary judgment dismissing defamation and false light claims brought by "father of DOS" computer operating system against book publisher, author and researcher on grounds that statements in suit were protected opinion or were not published with actual malice. . Bruce E. H. Johnson Partner brucejohnson@dwt.com 206.757.8069 Powers v. City of Seattle The Seattle Times Company 2007 Successfully represented client in an opposing motion to join media entities as indispensable parties in a defamation lawsuit filed by terminated city employee against City of Seattle. Judge ruled that our client would not be added as a defendant. . Berry v. Penguin Group (USA), Inc. Penguin Group 2006 Won dismissal of copyright lawsuit against book publisher on jurisdictional grounds. . Spafford v. EchoStar Communications Corp. EchoStar Satellite Corporation 2006 Represented defendant in a First Amendment challenge to regulations barring telephone solicitation, but the court declined our client's motion to dismiss. . Fidelity Mortgage Corp. v. The Seattle Times Company The Seattle Times Co. 2005 Affirmed dismissal of lawsuit alleging unfair trade practice liability by the newspaper's real estate news articles and mortgage rate advertising policies, resulting in a sanctions award against the plaintiff and his attorney. . Expeditors International of Washington, Inc. v. Expeditors (Japan) Ltd. PLS Co. Ltd. 2004 Dismissal of Japanese contract claims for lack of federal diversity jurisdiction. . Harris v. City of Seattle Local broadcaster 2004 Granted summary judgment dismissing false light, intentional infliction of emotional distress, and outrage claims by former public official. . Grassmueck v. Barnett Michael A. Grassmueck 2003 www.dwt.com Represented plaintiff in a suit alleging breach of duty of care. Defendant claimed they shouldn't be sued for mismanagement because their articles of incorporation had indemnification provisions. However, the judge ruled that the director protection provision in the corporation's articles do not shield defendant directors and officers from liability, and the plaintiff's motion to dismiss was denied. . Bruce E. H. Johnson Partner brucejohnson@dwt.com 206.757.8069 Viacom Outdoor, Inc. v. Clallam County (Wash.) CBS Outdoor 2003 Represented client in successful challenge to county sign ordinance. Presentations Event Co-chair, Legal Frontiers in Digital Media, Third Annual Conference, Stanford University, Stanford, Calif., May 6-7, 2010 "Protecting Constitutional Rights in the Digital Age," Practising Law Institute Webinar, 05.03.10 "Advertising, Commercial Speech and Corporate Expression," Communications Law in the Digital Age, Practising Law Institute Communications Law Conference, New York, 11.11.09 "When Protected Speech Meets Embedded Promotions: Product Integration, Sponsorship and Ad-linking," MLRC-Southwestern Law School Media and Entertainment Law Conference, Los Angeles, 01.15.09 Bruce Johnson: Internet Law (video), 12.16.08 "Regulating Attorney Ratings: Emerging Trends and First Amendment Implications," 34th Annual ABA National Conference on Professional Responsibility, Boston, 05.31.08 Seminar on Legal Frontiers in Digital Media, MLRC, Stanford Law School and Stanford Publishing Courses, Stanford, Calif., 05.15.08 "New Developments in Commercial Speech," Communications Law 2007, Practising Law Institute, New York, 11.08.07 "Global Privacy Hypothetical Case Study," Privacy Symposium at Harvard University, Boston, Summer 2007 Advisories Supreme Court Rejects Broad Constitutional Challenge to Public Records Act, 06.28.10 Washington Enacts New Anti-SLAPP Law, 03.18.10 Federal Agencies Release Model Privacy Notice for Financial Institutions, 11.19.09 Update: 9th Circuit Panel Modifies Yahoo! Decision On Section 230, 06.23.09 9th Circuit Panel: Section 230 Immunity Applies to Negligence Claim; Application to Promissory Estoppel Claim Rejected, 05.12.09 www.dwt.com 9th Circuit Affirms Immunity for Pure Third-Party Web Content: En banc decision defines scope of immunity for mixed-content websites, 04.08.08 Federal Court Dismisses Suit by Alleged Malware Vendor, 09.06.07 Books / Publications "Three Significant Commercial Speech Decisions," MLRC MediaLawLetter, March 2010 "Commercial Speech and Free Expression: The United States and Europe Compared," Journal of International Media & Entertainment Law, Vol. 2, No. 2, Winter 2009 "First Amendment Law Letter," Davis Wright Tremaine, October 2009 Brief of Amicus Curiae Association of National Advertisers, Inc. in Support of Petitioners, 04.27.09 "Recollections of Cam DeVore, First Amendment Pioneer," Communications Lawyer, Vol. 26, No. 2, pp 18-19 , March 2009 "Section 230 Immunity and State Right of Publicity Claims," MLRC Bulletin, Dec. 2008 "Fair Housing Council of San Fernando Valley v. Roommates.com: The Ninth Circuit Court of Appeals Announces A New Legal Test For MixedContent Websites," New York State Bar Association Entertainment, Arts and Sports Law Journal, Volume 18, Number 3, Summer 2008 "Advertising and Commercial Speech, A First Amendment Guide Second Edition," New York, NY: Practising Law Institute, 2008 "Amendment XXVIII? Defending Corporate Speech Rights," 58 South Carolina L. Rev. 855, Summer 2007 "A Marketplace of Ideas or `Continuous Partial Attention'?" The Masthead (NCEW), Vol. 59, No. 2, 06.01.07 "First Amendment Commercial Speech Protections: A Practitioner's Guide," 41 Loy. L.A. L. Rev. 297, 2007 "California Code of Civil Procedure 425.17(c): A New Restriction on Anti-SLAPP Motions," First Amendment Law Letter, Davis Wright Tremaine (PDF), Fall 2005 "The Rights of Telemarketers, Faxers, and Spammers are Subordinated to the Rights of Consumers," The Computer & Internet Lawyer, Vol. 22, No. 7, July 2005 "Conflict Issues in Confidential Source Cases: New Dangers from the Model Rules?" Media Law Resource Center Bulletin No. 4, Part B, 2005 "Why Format, Not Content, is the Key to Identifying Commercial Speech," Case Western Reserve Law Review, Vol. 54, No. 4, Summer 2004 "Is There a Constitutional Right to Bombard the Public with Penis Enlargement Proposals?" Communications Lawyer, Volume 21, No. 2, Summer 2003 Bruce E. H. Johnson Partner brucejohnson@dwt.com 206.757.8069 www.dwt.com Professional & Community Activities Member; Chair, 1999-2000, Media Law and Defamation Torts Committee, Tort and Insurance Practice Section American Bar Association Member; Executive Committee, 2000-2005; President, 2004 Defense Counsel Section, Media Law Resource Center Media Law Reporter Advisory Board, 2005-present Association of Professional Responsibility Lawyers Chair Emeritus, 2006-present; Board member, 1993-present; Chair, 2004-2006; President, 1999-2001 Seattle Repertory Theatre Board of Trustees Board Member, Seattle Repertory Theatre Foundation Board of Trustees, 2006-present National Council for the American Theater, 2005-present Board Member, EmcArts Inc., 2007-present Board Member President, Pacific Musicworks (formerly known as Pacific Operaworks), 2007-present Bruce E. H. Johnson Partner brucejohnson@dwt.com 206.757.8069 Professional Recognition Named as one of "America's Leading Lawyers for Business" by Chambers USA in First Amendment Litigation (National), 20072010 Named as one of the "Best Lawyers in America" in First Amendment Law by Woodward/White, 1993-present; named in Ethics and Professional Responsibility Law, 2010-present Selected to "Washington Super Lawyers," Law & Politics, 20082010 Named as one of "155 Top Lawyers" by Seattle Magazine and Seattle Business Monthly, 2007 Avvo Rated Education M.A., University of Cambridge, 1978 J.D., Yale Law School, 1977 B.A., University of Cambridge, 1974 First Class Honours Phi Beta Kappa A.B., Harvard College, 1972, magna cum laude www.dwt.com Admissions Washington, 1977 California, 1992 U.S. District Court Western District of Washington, 1977 U.S. District Court Eastern District of Washington, 1980 U.S. District Court Northern District of California U.S. District Court Southern District of California U.S. District Court Eastern District of California U.S. District Court Central District of California U.S. Supreme Court, 1983 U.S. Court of Appeals 8th Circuit, 2004 U.S. Court of Appeals 9th Circuit, 1978 U.S. Court of Appeals 10th Circuit, 1984 Bruce E. H. Johnson Partner brucejohnson@dwt.com 206.757.8069 www.dwt.com EXHIBIT C Noelle Helen Kvasnosky Noelle focuses her practice on licensing and commercial transactions for technology, media, entertainment, and communications clients. She structures, negotiates, and drafts agreements in a variety of media and technology transactions. Noelle also counsels clients on a range of media and intellectual property issues, including defamation, copyright, trademarks, right of publicity, privacy, prepublication review, and First Amendment issues. She also has experience litigating copyright, defamation, and First Amendment matters in state and federal court. Practice Highlights Negotiation of content, communications, and technology contracts Defense of copyright infringement for media clients in film and television Trademark enforcement for clients in a variety of industries Advice to national, regional, and local media on clearance issues for programmers, publishers, and entertainment companies Counsel on privacy and information management, including developing record management programs, policies, and procedures Noelle Helen Kvasnosky Associate noellekvasnosky@dwt.com 206.757.8196 direct 206.757.7196 fax Suite 2200 1201 Third Avenue Seattle, Washington 98101 Related Practices Intellectual Property Litigation Copyright Litigation Media & First Amendment Defamation & Privacy Privacy & Security Pre-Publication & Pre-Broadcast Review Technology Transactions Copyright Related Industries Communications, Media & Technology Internet and E-Commerce Art Selected Experience . Aronson v. Dog Eat Dog Films, Inc. Dog Eat Dog Films, Inc. Ongoing Successfully represented a film production company in motion to dismiss invasion of privacy and misappropriation claims relating to the documentary film "Sicko." This is the first substantive decision to apply Washington's new anti-SLAPP statute, which provides important procedural safeguards for media entities and others against unwarranted and meritless suits that stem from the exercise of defendants' First Amendment rights. . Curious Theatre Co. v. Colorado Department of Public Health & Environment Theatre Communications Group 2010 Represented Theatre Communications Group, which includes 476 theaters, as amicus in support of First Amendment challenge to Colorado law outlawing theatrical smoking. (09-1118) Read the amicus brief. . Brain vs. Halsne KIRO-7 2009 Defended KIRO-7, a Seattle-based television station, and one of its reporters in a defamation lawsuit brought by a Tacoma, Wash., pediatric dentist. . www.dwt.com Closely held company shareholder fiduciary litigation Closely held corporation 2009 Defended closely held corporation and its officers against complex claims by a former shareholder relating to share restriction agreements, stock pledges, and claims of misrepresentation. Successfully resolved at mediation after depositions in four states. (U.S. District Court for the District of Massachusetts, 2009) . Noelle Helen Kvasnosky Associate noellekvasnosky@dwt.com 206.757.8196 Lucasfilm Ltd. v. Ainsworth, et al. 2008 Drafted expert opinion at the request of defendants on U.S. intellectual property issues with respect to a 2008 lawsuit in the United Kingdom High Court alleging infringement of copyrights and trademarks in costumes for the movie "Star Wars." Additional Qualifications Summer Associate, Davis Wright Tremaine LLP, Seattle, Wash., 2006 Legal Intern, Arts and Cultural Institutions, Office of the City Attorney, San Francisco, Calif., 2005 Professional & Community Activities Lakeside School Alumni Board, 2009-present International Association of Privacy Professionals (IAPP) Federal Communications Bar Association Education J.D., Columbia University School of Law, 2007 Harlan Fiske Stone Scholar Joseph Solomon Fellow, Kern