Andersen et al v. Stability AI Ltd. et al

Filing 54

Joinder re 50 MOTION to Strike Under California Code of Civil Procedure § 425.16 by Midjourney, Inc.. (Dunning, Angela) (Filed on 4/18/2023)

Case 3:23-cv-00201-WHO Document 54 Filed 04/18/23 Page 1 of 2

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COOLEY LLP
ANGELA L. DUNNING (212047)
[e-mail]
J. ASHETON LEMAY (pro hac vice)
[e-mail]
KAYLA BLAKER (pro hac vice)
[e-mail]
3175 Hanover Street
Palo Alto, California 94304-1130
Telephone:
[phone]
Facsimile:
[phone]
JUDD D. LAUTER (290945)
[e-mail]
3 Embarcadero Center, 20th Floor
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]
Counsel for Defendant Midjourney, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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SARAH ANDERSEN, an individual;
KELLY MCKERNAN, an individual;
KARLA ORTIZ, an individual,
Individual and Representative Plaintiffs,
v.
STABILITY AI LTD., a UK corporation;
STABILITY AI, INC., a Delaware
corporation; MIDJOURNEY, INC., a
Delaware corporation; DEVIANTART, INC.,
a Delaware corporation,
Defendants.

Case No. 3:23-cv-00201-WHO
DEFENDANT MIDJOURNEY, INC.’S NOTICE
OF JOINDER IN DEFENDANT DEVIANTART,
INC.’S SPECIAL MOTION TO STRIKE
UNDER CALIFORNIA CODE OF CIVIL
PROCEDURE § 425.16
Date:
Time:
Courtroom:
Judge:

July 19, 2023
2:00 p.m.
2, 17th Floor
William H. Orrick

Trial Date: None
Date Action Filed: January 13, 2023

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COOLEY LLP
ATTORNEYS AT LAW

MIDJOURNEY’S JOINDER IN DEVIANTART’S
SPECIAL MOTION TO STRIKE
CASE NO.: 3:23-CV-00201-WHO

Case 3:23-cv-00201-WHO Document 54 Filed 04/18/23 Page 2 of 2

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NOTICE OF JOINDER AND JOINDER TO ANTI-SLAPP MOTION
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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NOTICE IS HEREBY GIVEN that Defendant Midjourney, Inc. (“Midjourney”) hereby

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joins in DeviantArt, Inc.’s (“DeviantArt”) Special Motion to Strike Under California Code of Civil

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Procedure § 425.16 (“Motion”) (Dkt. 50).

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Midjourney joins in DeviantArt’s Motion and all supporting papers submitted therewith,

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for all the reasons stated therein, namely, that Plaintiffs’ cannot demonstrate a probability of

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prevailing on their speech-inhibiting right of publicity claims because the claims: (1) fall within the

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subject matter of copyright, are predicated on assertions of rights that are equivalent to copyright

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rights, and are therefore preempted under 17 U.S.C. § 301; (2) are based exclusively on conclusory

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allegations; (3) would improperly expand the concept of publicity rights to prohibit use of an

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individual’s name to accurately refer to that individual’s public acts or achievements—in this case,

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the “artistic styles” that Plaintiffs claim they “popularized” on the internet (¶ 205); and (4) are

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predicated on, if anything, transformative uses of Plaintiffs’ identities or likenesses, which are

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protected First Amendment speech, particularly inasmuch as Plaintiffs, themselves, allege that it is

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nearly “impossible” to identify any alleged Work of Plaintiffs from the face of any output from

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defendants’ platforms. (¶¶ 192–93.)

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By way of this joinder, Midjourney requests that the Court grant the Motion and strike
Plaintiffs’ right-of-publicity claims against Midjourney.

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Dated: April 18, 2023

COOLEY LLP

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By: /s/ Angela L. Dunning
Angela L. Dunning
Judd Lauter
Kayla Blaker
Asheton Lemay

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Attorneys for Defendant
MIDJOURNEY, INC.

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COOLEY LLP
ATTORNEYS AT LAW

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MIDJOURNEY’S JOINDER IN DEVIANTART’S
SPECIAL MOTION TO STRIKE
CASE NO.: 3:23-CV-00201-WHO