Andersen et al v. Stability AI Ltd. et al

Filing 78

REPLY (re 50 MOTION to Strike Under California Code of Civil Procedure § 425.16 ) filed byDeviantArt, Inc.. (Gass, Andrew) (Filed on 7/3/2023)

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LATHAM & WATKINS LLP
Andrew M. Gass (SBN 259694)
[e-mail]
Michael H. Rubin (SBN 214636)
[e-mail]
Brittany N. Lovejoy (SBN 286813)
[e-mail]
505 Montgomery Street, Suite 2000
San Francisco, California 94111-6538
Telephone: [phone]

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Attorneys for Defendant DeviantArt, 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,

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Individual and Representative Plaintiffs,

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v.

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STABILITY AI LTD., a UK corporation;
STABILITY AI, INC., a Delaware corporation;
MIDJOURNEY, INC., a Delaware corporation;
DEVIANTART, INC., a Delaware corporation,

CASE NO. 3:23-cv-00201-WHO
DEFENDANT DEVIANTART, INC.’S
REPLY IN SUPPORT OF ITS SPECIAL
MOTION TO STRIKE UNDER
CALIFORNIA CODE OF CIVIL
PROCEDURE § 425.16
Date:
Time:
Place:
Before:

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

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Defendants.
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DEVIANTART’S REPLY ISO
ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

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TABLE OF CONTENTS

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Page

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I.

INTRODUCTION ............................................................................................................. 1

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II.

ARGUMENT ..................................................................................................................... 2

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A.

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The Right-Of-Publicity Claims Arise From Protected Activity ............................ 2
1.

Plaintiffs Concede That DeviantArt Has Engaged In Speech In
Connection With An Issue Of Public Interest............................................ 2

2.

Plaintiffs Misunderstand The Scope Of The Anti-SLAPP Law ................ 3

3.

Whether The Speech Is “Commercial” Is Irrelevant Here......................... 5

4.

The Section 425.17(c) Exemption Does Not Apply .................................. 7

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B.

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Plaintiffs’ Right-Of-Publicity Claims Fail On The Merits .................................... 8
1.

The Claims Are Preempted By The Copyright Act ................................... 8

2.

Plaintiffs Fail To State A Right-Of-Publicity Claim ............................... 10

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3.

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III.

a.

Plaintiffs’ Conclusory Allegations Should Be Disregarded ........ 10

b.

The Complaint Does Not State A Right-Of-Publicity Claim ...... 11

The Claims Conflict With The First Amendment.................................... 13

CONCLUSION ................................................................................................................ 15

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DEVIANTART’S REPLY ISO
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TABLE OF AUTHORITIES
Page(s)

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CASES
Ariix, LLC v. NutriSearch Corp.,
985 F.3d 1107 (9th Cir. 2021) .................................................................................................. 6
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ................................................................................................................ 11
Bolger v. Youngs Drug Prods. Corp.,
463 U.S. 60 (1983) .................................................................................................................... 6

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9
10
11
12

Bosley v. Wildwett.com,
310 F. Supp. 2d 914 (N.D. Ohio 2004) ..................................................................................... 6
Brown v. McCain,
611 F. Supp. 2d 1062 (C.D. Cal. 2009) .................................................................................... 5
C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P.,
505 F.3d 818 (8th Cir. 2007) .................................................................................................. 15

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14
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Camacho v. Control Grp. Media Co.,
No. 21-cv-1954, 2022 WL 3093306 (S.D. Cal. July 18, 2022) ................................................ 6
Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n,
447 U.S. 557 (1980) .................................................................................................................. 6
City of Montebello v. Vasquez,
1 Cal. 5th 409 (2016) ................................................................................................................ 6

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25
26
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Comedy III Prods., Inc. v. Gary Saderup, Inc.,
25 Cal. 4th 387 (2001) ............................................................................................................ 15
Dean v. Friends of Pine Meadow,
21 Cal. App. 5th 91 (2018) ................................................................................................... 6, 7
Downing v. Abercrombie & Fitch,
265 F.3d 994 (9th Cir. 2001) .................................................................................................. 10
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749 (1985) .................................................................................................................. 6
Edjer v. DHI Mortg. Co.,
No. 09-cv-1302, 2009 WL 1684714 (N.D. Cal. June 12, 2009) ............................................. 13
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Building & Constr. Trades Council,
485 U.S. 568 (1988) ................................................................................................................ 15

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Equilon Enters. v. Consumer Cause, Inc.,
29 Cal. 4th 53 (2002) ................................................................................................................ 3
Est. of Fuller v. Maxfield & Oberton Holdings, LLC,
906 F. Supp. 2d 997 (N.D. Cal. 2012) .................................................................................... 15
FilmOn.com Inc. v. DoubleVerify Inc.,
7 Cal. 5th 133 (2019) ............................................................................................................ 3, 6
Global Plasma Solutions, Inc. v. IEE Env’t. Eng’g,
600 F. Supp. 3d 1082 (N.D. Cal. 2021) .................................................................................... 3
Guglielmi v. Spelling-Goldberg Prods.,
25 Cal. 3d 860 (1979) ....................................................................................................... 12, 14
In re Gilead Scis. Litig.,
536 F.3d 1049 (9th Cir. 2008) ................................................................................................ 11
In re Jackson,
972 F.3d 25 (2d Cir. 2020).................................................................................................. 9, 10

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In re QuantumScape Sec. Class Action Litig.,
580 F. Supp. 3d 714 (N.D. Cal. 2022) .................................................................................... 11
JAMS, Inc. v. Superior Ct.,
1 Cal. App. 5th 984 (2016) ....................................................................................................... 7
Kasky v. Nike, Inc.,
27 Cal. 4th 939 (2002) .............................................................................................................. 6

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Kellman v. Spokeo, Inc.,
599 F. Supp. 3d 877 (N.D. Cal. 2022) .................................................................................... 11
Kirby v. Sega of Am., Inc.,
144 Cal. App. 4th 47 (2006) ................................................................................................... 13
Knapke v. PeopleConnect Inc.,
553 F. Supp. 3d 865 (W.D. Wash. 2021) .................................................................................. 6
L.A. Taxi Coop., Inc. v. Indep. Taxi Owners Ass’n of L.A.,
239 Cal. App. 4th 918 (2015) ................................................................................................... 6
Laws v. Sony Music Ent.,
448 F.3d 1134 (9th Cir. 2006) ............................................................................................ 9, 10
Maloney v. T3Media, Inc.,
853 F.3d 1004 (9th Cir. 2017) ............................................................................................ 9, 12

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Michaels v. Internet Ent. Grp., Inc.,
5 F. Supp. 2d 823 (C.D. Cal. 1998) .......................................................................................... 6
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Navellier v. Sletten,
29 Cal. 4th 82 (2002) ............................................................................................................ 3, 6
New Kids on the Block v. News Am. Pub., Inc.,
971 F.2d 302 (9th Cir. 1992) .................................................................................................. 14
No Doubt v. Activision Publishing, Inc.,
192 Cal. App. 4th 1018 (2011) ................................................................................................. 4
Obado v. Magedson,
No. 13-cv-2382, 2014 WL 3778261 (D.N.J. July 31, 2014) .................................................. 12
Paulson v. Carter,
230 F. App’x 645 (9th Cir. 2007) ........................................................................................... 11
Penrose Hill, Limited v. Mabray,
479 F. Supp. 3d 840 (N.D. Cal. 2020) ...................................................................................... 3
Perfect 10, Inc. v. Google, Inc.,
No. 04-cv-9484, 2010 WL 9479060 (C.D. Cal. July 30, 2010).............................................. 12

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ProCD, Inc. v. Zeidenberg,
86 F.3d 1447 (7th Cir. 1996) .................................................................................................... 8
Ray v. ESPN, Inc.,
783 F.3d 1140 (8th Cir. 2015) .............................................................................................. 8, 9
Ross v. Roberts,
222 Cal. App. 4th 677 (2013) ................................................................................................. 14

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Sarver v. Hurt Locker LLC,
No. 10-cv-09034, 2011 WL 11574477 (C.D. Cal. Oct. 13, 2011) ......................................... 14
Schaffer v. City & Cnty. of S.F.,
168 Cal. App. 4th 992 (2008) ................................................................................................... 7
Simpson Strong-Tie Co., Inc. v. Gore,
49 Cal. 4th 12 (2010) ............................................................................................................ 1, 7

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Sivero v. Twentieth Century Fox Film Corp.,
No. B266469, 2018 WL 833696 (Cal. Ct. App. Feb. 13, 2018) ............................................... 7
Solano v. Playgirl, Inc.,
292 F.3d 1078 (9th Cir. 2002) .................................................................................................. 6
Stewart v. Rolling Stone LLC,
181 Cal. App. 4th 664 (2010) ................................................................................................... 6

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Symmonds v. Mahoney,
31 Cal. App. 5th 1096 (2019) ................................................................................................... 4
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Tamkin v. CBS Broad., Inc.,
193 Cal. App. 4th 133 (2012) ............................................................................................... 3, 5
Toyota Motor Sales, U.S.A., Inc. v. Tabari,
610 F.3d 1171 (9th Cir. 2010) .......................................................................................... 14, 15
Tyler v. Travelers Com. Ins. Co.,
499 F. Supp. 3d 693 (N.D. Cal. 2020) ...................................................................................... 3
United States v. United Foods, Inc.,
533 U.S. 405 (2001) ................................................................................................................ 13
Va. Pharmacy Bd. v. Va. Citizens Consumer Council,
425 U.S. 748 (1976), and (2) .................................................................................................. 13

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Valentine v. CBS, Inc.,
698 F.2d 430 (11th Cir. 1983) .......................................................................................... 12, 14

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STATUTES

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Cal. Code Civ. Proc. § 425.16 ............................................................................................... passim

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Cal. Code Civ. Proc. § 425.17 .............................................................................................1, 2, 4, 7

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OTHER AUTHORITIES

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J. Thomas McCarthy & Roger E. Schechter,
Rights of Publicity & Privacy § 11:49 (May 2023 Update) ......................................................9

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Restatement (Second) of Torts § 652C (1977) ..............................................................................11

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Restatement (Third) of Unfair Competition § 47 ..........................................................................12

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v

DEVIANTART’S REPLY ISO
ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

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I.

INTRODUCTION

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Plaintiffs’ opposition to Defendant DeviantArt’s anti-SLAPP motion consists primarily of

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arguments that are irrelevant to any issue presented in the motion, obviously incorrect, or both.

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For example, the brief’s lengthy discussion of the constitutional test “for determining whether

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speech is commercial” and related topics, Dkt. No. 69 (“Opp.”) at 9–12, simply has no application

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to any question before the Court. And the brief’s characterization of the right-of-publicity claims

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that are the subject of the motion—more precisely, the suggestion that those claims are “based on

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Defendants’ use of Plaintiffs’ names, rather than on Defendants’ misappropriation of Plaintiffs’

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art,” Opp. at 15—bears essentially no relationship to the factual allegations in the Complaint itself.

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The opposition, in short, fails to address a number of the central arguments in the opening brief,

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and on those it does engage with, seems to respond largely with a series of non sequiturs.

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Cutting through the confusion, the proper disposition of this motion is straightforward:

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Plaintiffs’ right-of-publicity claims arise from “protected activity” under California’s

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anti-SLAPP law because they allege liability that arises from actions by DeviantArt in

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furtherance of the constitutional right of free speech in connection with an issue of

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public interest: to wit, offering a tool that allows the public to generate new works of

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art in the style of allegedly well-known artists.

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Plaintiffs’ right-of-publicity claims have no “probability of prevailing” because,

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applying the Rule 12(b)(6) standard, the Complaint fails to state a claim three times

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over: first because copyright law preempts these claims; second because the conduct

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alleged is not a right-of-publicity violation; and third because the First Amendment

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would bar liability on the theory asserted, even if those claims were otherwise valid

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(which they are not).

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It does not matter that Defendant DeviantArt is a “corporate interest” (though it is certainly

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surprising to see the company described as “large”). Opp. at 1. It does not matter that section

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425.17 of the California Code of Civil Procedure carves out several categories of claims from the

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coverage of the anti-SLAPP statute in section 425.16, because on their face none of those narrow

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exemptions applies here. See generally Simpson Strong-Tie Co., Inc. v. Gore, 49 Cal. 4th 12, 22

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DEVIANTART’S REPLY ISO
ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

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(2010) (explaining that the “commercial speech” provisions of section 425.17, which are a

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“statutory exception” to section 425.16 and not a free-ranging constitutional inquiry into what

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constitutes “commercial speech,” “should be narrowly construed” (citation omitted)).

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All that matters is that the liability alleged plainly arises from “protected activity,” and the

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claims asserting the liability are legally defective. Nothing in the opposition undermines those

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conclusions. The Court, accordingly, should grant DeviantArt’s motion to strike under California

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Code of Civil Procedure section 425.16.

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II.

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ARGUMENT
A.

The Right-Of-Publicity Claims Arise From Protected Activity

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Plaintiffs fail to meaningfully engage with DeviantArt’s arguments regarding the first anti-

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SLAPP prong, which addresses whether the conduct alleged to give rise to liability in the targeted

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cause of action falls within the ambit of California Code of Civil Procedure section 425.16(e)(4),

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namely, “conduct in furtherance of the exercise of . . . the constitutional right of free speech in

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connection with . . . an issue of public interest.” Instead, the opposition rests on a conception of

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the law’s scope that has no basis in statutory text or case law and is foreclosed by California

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Supreme Court precedent. Indeed, Plaintiffs’ argument that “commercial” speech is categorically

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excluded from anti-SLAPP protection ignores numerous cases that directly contradict it. And

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Plaintiffs’ assertion (and misquotation) of the law’s false-advertising exemption is baseless.

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1.

Plaintiffs Concede That DeviantArt Has Engaged In Speech In
Connection With An Issue Of Public Interest

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Nothing in Plaintiffs’ opposition contests, much less disproves, that artistic styles can be

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issues of “public interest” if they have been “popularized,” Dkt. No. 1 (‘Compl.”) ¶ 205, just like

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a celebrity’s lifestyle becomes an issue of public interest after that person has engaged in activities

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that draw public attention, see Dkt. No. 50 (“Mot.”) at 9. Plaintiffs also do not deny that creating

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a new artistic work that implements and builds upon a “popular[]” artistic style can constitute

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“speech . . . in connection with . . . [that] issue of public interest.”

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§ 425.16(e)(4); see Mot. at 10–11. Nor do Plaintiffs contest that providing a creative tool—like

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DreamUp—to “assist[]” that speech qualifies as “conduct in furtherance of . . . ” that speech. Mot.

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Cal. Code Civ. Proc.

DEVIANTART’S REPLY ISO
ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

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at 9; Tamkin v. CBS Broad., Inc., 193 Cal. App. 4th 133, 143 (2012). Plaintiffs “concede[] these

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arguments by failing to address them in [their] opposition.” Tyler v. Travelers Com. Ins. Co., 499

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F. Supp. 3d 693, 701 (N.D. Cal. 2020).1 On the plain text of the statute, then, the liability alleged

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from the provision of a tool that allows users to create works in the style of recognized artists is

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squarely encompassed by the statute’s definition of protected activity.

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2.

Plaintiffs Misunderstand The Scope Of The Anti-SLAPP Law

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Rather than confront that analysis head-on, Plaintiffs advance a de novo reimagination of

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the anti-SLAPP law. They posit that conduct is only “in connection with . . . [an] issue of public

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interest” in this context if it is speech consisting of hard-hitting criticism on, e.g., “current art

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trends” or “the art world” as a whole. Opp. at 7. And they argue that the anti-SLAPP law does

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not apply here because DeviantArt has not pointed to its participation in “public conversations

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about issues in the art world” or other “comment[ary].” Id.

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The premise of Plaintiffs’ argument is simply incorrect. Time and again, the California

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Supreme Court has ruled that “protected activity” within the meaning of the anti-SLAPP law

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consists of conduct that satisfies the definition of the statutory categories—nothing more, nothing

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less. See, e.g., Equilon Enters. v. Consumer Cause, Inc., 29 Cal. 4th 53, 60–61 (2002) (“The fact

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the Legislature expressed a concern in the Statute’s preamble with lawsuits brought ‘primarily’ to

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chill First Amendment rights does not mean that a court may add this concept as a separate

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requirement in the operative sections of the statute.” (citation omitted)); Navellier v. Sletten, 29

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Plaintiffs cite FilmOn.com Inc. v. DoubleVerify Inc. for the proposition that the statute demands
“closeness” between the speech and the asserted public interest. 7 Cal. 5th 133, 150 (2019); see
Opp. at 7. But that case involved statements disseminated “privately” that were never “intended”
to “enter[] the public sphere”—and thus the court held they lacked a sufficient nexus to the asserted
public issues. Id. at 153–54. No similar facts exist here. See also Global Plasma Solutions, Inc.
v. IEE Indoor Env’t Eng’g, 600 F. Supp. 3d 1082, 1093–94 (N.D. Cal. 2021) (finding FilmOn
inapposite where the “statements at issue” were not “confidential” but rather “published on
[defendant]’s website”). Plaintiffs also cite Penrose Hill, Limited v. Mabray, which concerned a
Tweet referring to the “new era of companies . . . in the wine industry” and suggesting some were
“fakers.” 479 F. Supp. 3d 840, 847 (N.D. Cal. 2020). The court assumed that “the topic of
nontraditional business models for selling wine is a matter of public interest,” but held that the
Tweet lacked “the requisite closeness to that issue” because it did not elaborate on or provide an
“explanation of [the] terms” it used—like “fakers”—rendering it a mere “generic reference.” Id.
at 855. That case has no relevance here, where the speech—new works of art created by DreamUp
users—is not a “generic” or fleeting reference to an issue of public interest, id., but rather a specific
reference to the Plaintiffs’ unprotectable “artistic styles.” Compl. ¶ 205.
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ANTI-SLAPP MOTION TO STRIKE
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Cal. 4th 82, 90 (2002) (holding that the inquiry under the first prong of the anti-SLAPP statute is

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whether the conduct alleged to give rise to liability is encompassed by the “plain language” of the

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statutory definition, irrespective of the label appended to the claim or other considerations).

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The plain text of the operative statutory definitions squarely encompasses a vastly broader

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range of qualifying conduct than just the type of express criticism to which Plaintiffs suggest it is

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limited. The statutory language in section 425.16(e)(4) covers any conduct in furtherance of free

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speech rights in connection with an issue of public interest. And the twin provision in section

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425.17—affording limited exemptions from that sweeping scope of coverage in section 425.16—

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presupposes that “protected activity” includes not only “literary” or “political” works like

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“article[s] published in [] newspaper[s] or magazine[s],” but also “musical” and “artistic work[s].”

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Cal. Code Civ. Proc. § 425.17(d)(2). Those references would make no sense if the only viable

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anti-SLAPP motions were those that attacked claims targeting debate or other prose expression.

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Courts have faithfully applied the expansive scope of the statutory definition of “protected

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activity,” read in light of the statute as a whole, to a wide range of conduct that falls outside the

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cramped conception of the law Plaintiffs advocate. No Doubt v. Activision Publishing, Inc., 192

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Cal. App. 4th 1018 (2011), is instructive. In that case, a famous rock band sued a company that

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made a video game that would allow consumers to play music using digital avatars of the band

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members. Id. at 1024. That was the extent of the conduct allegedly giving rise to right-of-publicity

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and related legal violations. Id. at 1024–25. The court, in turn, ruled that the alleged liability arose

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from protected activity within the meaning of section 425.16(e)(4). “Video games generally are

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considered ‘expressive works’ subject to First Amendment protections,” the court explained. Id.

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at 1027. And the video game maker’s use of the band’s likeness addressed “a matter of public

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interest because of the widespread fame [the band] has achieved.” Id. Nothing more was required.

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The suit fell within the scope of the first prong of the anti-SLAPP law even though it was, at

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bottom, a right-of-publicity claim over the provision of an entertainment product, and not any kind

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of comment or criticism on anything.

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Many other cases have applied similar reasoning to reach the same result in lawsuits that

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have nothing to do with commentary or criticism. See, e.g., Symmonds v. Mahoney, 31 Cal. App.

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5th 1096, 1105–10 (2019) (holding that “[a] singer’s selection of the musicians that play with him

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. . . is an act in furtherance of his exercise of the right of free speech” and that such act was “in

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connection with . . . and issue of public interest” where the singer “perform[ed] at concerts across

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the country, indicating that [his] music and performances were of interest to the public”); Tamkin

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v. CBS Broad., Inc., 193 Cal. App. 4th 133, 143–44 (2011) (holding that “the creation, casting,

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and broadcasting of an episode of a popular television show” (CSI) was “in furtherance of the right

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of free speech,” and that such acts were connected to “an issue of public interest because the public

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was demonstrably interested in the creation and broadcasting of that episode”).

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Thousands of painters have made invaluable, First-Amendment-protected contributions to

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the development of contemporary art through the visual medium, using and building on pre-

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existing styles to express complex and subtle ideas about the subject depicted as well as the artistic

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genres themselves. See Mot. at 10 n.6. There is no material difference, for purposes of the first

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prong of the anti-SLAPP law, between those painters and the DeviantArt users who use DreamUp

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to create new works that participate in discourse on “issue[s] of public interest” by emulating the

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“artistic style[s]” the Plaintiffs chose to “popularize[].” Compl. ¶ 205. DeviantArt’s provision of

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this tool is “conduct in furtherance of the exercise of . . . free speech in connection with . . . an

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issue of public interest,” Cal. Code Civ. Proc. § 425.16(e), and Plaintiffs do not offer any serious

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argument to the contrary.2

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3.

Whether The Speech Is “Commercial” Is Irrelevant Here

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Plaintiffs claim that “Defendants’ [alleged] conduct of selling and advertising their AI

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Image Products” is “unprotected commercial speech” under the First Amendment and therefore

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falls outside the anti-SLAPP law’s protection. Opp. at 7–12. But the case that Plaintiffs rely on

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for this proposition expressly states that “[c]ommercial speech . . . may be protected by the anti-

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Plaintiffs also cite Brown v. McCain, a right-of-publicity case regarding the use of the plaintiff’s
song in a campaign commercial for Senator John McCain. 611 F. Supp. 2d 1062, 1065 (C.D. Cal.
2009). The court held that the defendants had “met their burden of showing that [the] claim arises
from protected activity,” id. at 1069, and went on to discuss California’s common law “news
reporting” or “public interest” privilege, which protects a defendant’s right to use a plaintiff’s
name or likeness to report or comment on “matters related to the plaintiff,” id. at 1071 (declining
to apply the privilege because the campaign ad “did not comment on nor target the [song] nor [its
performer]”). It is that part of the opinion—discussing a common law privilege that none of the
Defendants in this case assert—that Plaintiffs misleadingly quote in their brief. Opp. at 7.
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ANTI-SLAPP MOTION TO STRIKE
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SLAPP statute” if it was “made in connection with a matter of public interest.” L.A. Taxi Coop.,

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Inc. v. Indep. Taxi Owners Ass’n of L.A., 239 Cal. App. 4th 918, 928 (2015). Indeed, California

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courts have uniformly rejected the argument that “commercial speech is categorically excluded

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from the protection of the anti-SLAPP law.” Dean v. Friends of Pine Meadow, 21 Cal. App. 5th

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91, 104 (2018); see, e.g., FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal. 5th 133, 148 (2019) (“We

6

do not . . . sort statements categorically into commercial or noncommercial baskets in analyzing

7

whether they are covered by the catchall provision [of Cal. Code Civ. Proc. section 425.16].”).

8

The California Supreme Court has explicitly instructed “courts determining whether

9

conduct is protected under the anti-SLAPP statute [to] look not to First Amendment law, but to

10

the statutory definitions in” the anti-SLAPP statute itself. City of Montebello v. Vasquez, 1 Cal.

11

5th 409, 421–22 (2016) (explaining that the anti-SLAPP law’s scope “extend[s] beyond the

12

contours of the [First Amendment]”). So when determining whether conduct is protected under

13

California’s anti-SLAPP law, courts need not “wrestle with difficult questions of constitutional

14

law,” like whether speech qualifies for “federal [or] state protection of free expression,” id. at 422,

15

or whether speech is “commercial,” Dean, 21 Cal. App. 5th at 104–05. It is thus irrelevant whether

16

the conduct at issue here meets the definition of “commercial speech” laid out in the First

17

Amendment cases Plaintiffs discuss.3 Opp. at 9–12 (extensively discussing First Amendment); cf.

18

Navellier, 29 Cal. 4th at 94 (warning against “confus[ing] the threshold question of whether the

19

3

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Most cases Plaintiffs cite have nothing to do with anti-SLAPP. See Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749, 751 (1985) (First Amendment limit on libel damages);
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 61–62 (1983) (challenge to statute regarding
contraception advertising); Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S.
557, 558 (1980) (challenge to “ban[]” on “promotional advertising by an electrical utility”); Kasky
v. Nike, Inc., 27 Cal. 4th 939, 945–46 (2002) (First Amendment limits state laws “barring false
and misleading commercial messages”); Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1115
(9th Cir. 2021) (First Amendment limits Lanham Act liability); Solano v. Playgirl, Inc., 292 F.3d
1078, 1089 (9th Cir. 2002) (“newsworthiness” defense to right-of-publicity claim); Knapke v.
PeopleConnect Inc., 553 F. Supp. 3d 865, 878–80 (W.D. Wash. 2021) (First Amendment defense
to right-of-publicity claim); Bosley v. Wildwett.com, 310 F. Supp. 2d 914, 925 (N.D. Ohio 2004)
(same); Michaels v. Internet Ent. Grp., Inc., 5 F. Supp. 2d 823, 838–39 (C.D. Cal. 1998) (same).
The anti-SLAPP cases Plaintiffs do cite address the First Amendment as a defense to a claim—not
in the context of addressing the statute’s first prong. See Stewart v. Rolling Stone LLC, 181 Cal.
App. 4th 664, 674–79 (2010) (right-of-publicity claims against magazine arise from “protected
activity” under anti-SLAPP law); id. at 680–92 (separately discussing “First Amendment . . . as a
defense to plaintiffs’ complaint”); Camacho v. Control Grp. Media Co., No. 21-cv-1954, 2022
WL 3093306, at *20 (S.D. Cal. July 18, 2022) (discussing whether right-of-publicity claims are
barred by the First Amendment); id. at *33 (separately discussing anti-SLAPP).
6

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ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

1

SLAPP statute [] applies” with the “secondary inquiry” on the merits (alterations omitted)).4

2

4.

The Section 425.17(c) Exemption Does Not Apply

3

In support of their argument that “the anti-SLAPP statute does not protect promotional

4

commercial speech,” Plaintiffs quote section 425.17(c) of the anti-SLAPP statute, Opp. at 8, which

5

is a limited exception that applies to “cause[s] of action brought against a person primarily engaged

6

in the business of selling or leasing goods or services.” Cal. Code Civ. Proc. § 425.17(c). But

7

Plaintiffs fail to disclose that the exception applies only to “causes of action arising

8

from . . . representations of fact about [a defendant’s] or a competitor’s ‘business operations,

9

goods, or services.’” Simpson, 49 Cal. 4th at 17 (quoting Cal. Code Civ. Proc. § 425.17(c)(1)).

10

That is a “narrow commercial speech exemption,” Dean, 21 Cal. App. 5th at 105, “aimed squarely

11

at false advertising claims” where “the speech at issue is about the speaker’s product or service or

12

about a competitor’s product or service,” JAMS, Inc. v. Superior Ct., 1 Cal. App. 5th 984, 994–95

13

(2016) (emphasis added). It has no application here, and Plaintiffs do not explain otherwise.

14

Simpson, 49 Cal. 4th at 26 (plaintiff carries burden of proof to establish exemption); see infra at

15

10–11 (explaining Plaintiffs’ failure to allege use of their names to advertise or promote

16

Defendants’ products). Nor do Plaintiffs anywhere grapple with section 425.17’s next subsection,

17

which clarifies that section 425.17(c) “do[es] not apply to . . . [a]ny action against any person or

18

entity based upon the creation, dissemination, exhibition, advertisement, or other similar

19

promotion of any dramatic, literary, musical, political, or artistic work.” Cal. Code Civ. Proc.

20

§ 425.17(d). Plaintiffs’ suit is indisputably “based upon the creation . . . [of] artistic work[s].” Id.5

21
4

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Plaintiffs urge this Court to conduct a means-ends balancing analysis to determine if the conduct
at issue here “warrants [] protection” under the anti-SLAPP statute. Opp. at 10–11. But “section
425.16 does not provide for any balancing test to determine if the defendant’s actions were in
furtherance of the freedom of speech . . . in connection with a public issue.” Schaffer v. City &
Cnty. of S.F., 168 Cal. App. 4th 992, 1004 n.6 (2008). Plaintiffs also argue that “Defendants’ antiSLAPP [claim] fails” because the speech is “misleading and false.” Opp. at 9–10. But a “plaintiff
cannot show that a cause of action does not arise from protected activity simply by characterizing
the defendant’s alleged conduct as tortious.” Sivero v. Twentieth Century Fox Film Corp.,
No. B266469, 2018 WL 833696, at *5 (Cal. Ct. App. Feb. 13, 2018) (unpublished).
5
Plaintiffs also make a passing reference to section 425.17(b) of the statute. Opp. at 6 n.6. But
they make no attempt to explain how this provision is relevant here, cf. Simpson, 49 Cal. 4th at
24–25 (plaintiff “bears the burden to establish the exception”), nor do they acknowledge that
section 425.17(d) explicitly states that “[s]ubdivision[] (b) . . do[es] not apply to . . . [a]ny action .
. . based upon the creation, dissemination . . . or other similar promotion of any . . . artistic work.”
7

DEVIANTART’S REPLY ISO
ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

1

B.

2

Plaintiffs’ Right-Of-Publicity Claims Fail On The Merits
1.

The Claims Are Preempted By The Copyright Act

3

The gravamen of Plaintiffs’ right-of-publicity claims is the fact that Defendants’ models

4

are able to “generate work in the artistic style[s] that Plaintiffs popularized.” Compl. ¶ 205. In

5

fact, the only concrete publicity-related harm that Plaintiffs identify arises from the use of

6

Plaintiffs’ “artistic styles” in new visual works that Plaintiffs do not want to “compete” with. Opp.

7

at 14; see also Mot. at 13 n.9 (harm is a required element of right-of-publicity claims). As

8

DeviantArt explained, however, it is well-established that artistic styles are not only unprotected

9

by copyright law, but are “ideas” and “concepts” that state law cannot protect due to Copyright

10

Act preemption, which “prevent[s] states from giving special protection” to subject matter that

11

Congress “has decided should be in the public domain.” ProCD, Inc. v. Zeidenberg, 86 F.3d 1447,

12

1453 (7th Cir. 1996) (Easterbrook, J.); see also Mot. at 11–14. That artists must “compete” with

13

others who implement and build upon their “artistic styles,” Compl. ¶ 212; see Opp. at 14, is not a

14

legally redressable wrong, but rather the direct and intended result of Copyright Act preemption.

15

Plaintiffs contest none of this. See Opp. at 15–16 (addressing preemption). Plaintiffs make

16

no effort to distinguish the numerous cases in which courts have held that the Copyright Act

17

preempts right-of-publicity claims when the “crux of [the] case” is the plaintiff’s attempt to control

18

subject matter within the Copyright Act’s preemptive scope. Mot. at 14 & n.14 (quoting Ray v.

19

ESPN, Inc., 783 F.3d 1140, 1142–44 (8th Cir. 2015)). Instead, Plaintiffs’ opposition abandoned

20

the “artistic style” aspect of their right-of-publicity claims altogether, and narrowed those claims

21

to focus solely on “Defendants’ [alleged] use of Plaintiffs’ names.” Opp. at 15; see also id. at 2

22

(claims are “based on how Defendants[] . . . utilize Plaintiffs’ names, not [] their particular

23

styles”); id. at 17 (same). The thinking behind the gambit seems to be: If federal law precludes

24

Plaintiffs from asserting exclusive rights in their “artistic styles,” perhaps Plaintiffs can achieve

25

the same result—and redress the same alleged injury—by precluding members of the public from

26

referring to those styles by reference to Plaintiffs’ personal names.6

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Plaintiffs also claim Defendants’ used their names in a different way: “for the purposes of
advertising, selling, and soliciting” their products. Opp. at 15 (quoting Compl. ¶ 217). As
6

8

DEVIANTART’S REPLY ISO
ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

1

But the Copyright Act preempts Plaintiffs’ right-of-publicity claims no matter how they

2

are framed or narrowed. As mentioned, Plaintiffs ignore the many cases dismissing, as preempted,

3

right-of-publicity claims—including claims of name-appropriation—on the grounds that the

4

claims, examined as a whole, (1) concerned material within the “subject matter of copyright,” and

5

(2) asserted rights “equivalent” to those granted by the Copyright Act. 17 U.S.C. 301(a); Mot. 13–

6

14 & n.14 (collecting cases).7 Plaintiffs’ tactic suggests that any of the plaintiffs in these cases

7

could have survived preemption by strategically dropping all aspects of their right-of-publicity

8

claims other than those relating to their personal names. That would create a loophole that would

9

turn preemption doctrine—and the operative line of case law—on its head.

10

At least one court has rejected a name-appropriation claim—framed as part of a broader

11

right-of-publicity claim—on implied or “conflict” preemption grounds. In re Jackson, 972 F.3d

12

25, 54–55 (2d Cir. 2020). There, the Second Circuit considered a right-of-publicity claim based

13

on the use of a plaintiff’s stage name to “accurately name [him] as the performer,” and observed:

14

“Even assuming that the use of an artist’s name[] for the sole purpose of identifying his association

15

with a work” could support a prima facie claim, such a claim would “impermissibly interfere[]

16

with the federal copyright framework.” Id. For that reason, the Court held that a name-based

17

“right of publicity claim [that] seeks to control the use of a copyrighted work by prohibiting

18

accurate descriptions of that work” is “barred by implied preemption.” Id. So too here: Because

19

Plaintiffs’ claim attempts to prohibit the creation of works that reference “artistic styles” by

20

“prohibiting” the use of their names as “accurate descriptions” of those styles, id.; supra at 8, those

21

claims are irreconcilable with the federal policy that such styles are free for all to use and beyond

22

the reach of state law, see Mot. at 11–15; 2 J. Thomas McCarthy & Roger E. Schechter, Rights of

23

Publicity & Privacy § 11:49 (May 2023 update) (conflict preemption of right-of-publicity claims).

24

explained in DeviantArt’s Motion and below, the Court should not credit these conclusory
statements, which lack any supporting factual allegations. See infra at 10–11.
7
See, e.g., Laws v. Sony Music Ent., 448 F.3d 1134, 1136 (9th Cir. 2006) (claim based, in part, on
inclusion of plaintiff’s name “in the booklet accompanying the [defendant’s] compact disk”); id.
at 1146 (claim “preempted by the Copyright Act”); Ray, 783 F.3d at 1141–42 (claim based, in part,
on “misappropriation of [plaintiff’s] name” in connection with rebroadcast “films of his wrestling
matches”); id. at 1144–45 (claim preempted); Maloney v. T3Media, Inc., 853 F.3d 1004, 1007–08
(9th Cir. 2017) (claim based, in part, on use of plaintiffs’ “names” in connection with “photographs
chronicling . . . NCAA sports history”); id. at 1020 (claim preempted).

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DEVIANTART’S REPLY ISO
ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

1

In sum, Plaintiffs have abandoned their style-based claims, and they cannot prevail on their

2

remaining name-based right-of-publicity claims, which constitute attempts to exert rights

3

“equivalent” to those protected by copyright, see Mot. at 14 & n.10, over artistic styles that

4

(Plaintiffs tacitly concede) fall within copyright’s “subject matter,” id. at 11–13. Plaintiffs cannot

5

plead around this issue, so Counts IV and V must be struck.8

6

2.

7

Plaintiffs Fail To State A Right-Of-Publicity Claim

Plaintiffs have also failed to state a right-of-publicity claim, preemption aside.

8

a.

Plaintiffs’ Conclusory Allegations Should Be Disregarded

9

DeviantArt explained in its Motion that Plaintiffs’ right-of-publicity claims depend, in part,

10

on a series of conclusory allegations that parrot the language of California’s right-of-publicity

11

statute and claim that the “Defendants” actually used Plaintiffs’ names—i.e., Sarah Andersen,

12

Kelly McKernan, and Karla Ortiz—on their “apps, website[s], and social media posts,” to

13

“advertise art” and “solicit purchases.” Mot. at 15–16 (quoting Compl. ¶¶ 203, 205–06, 217, 219).

14

There are no specific factual allegations at all in the Complaint regarding any DreamUp

15

advertisements that include Plaintiffs’ names. Mot. at 16. And this is not some minor technical

16

foul: Defendant DeviantArt genuinely has no idea what conduct Plaintiffs are seeking to target

17

with this claim, as it is simply untrue that DeviantArt has ever appended any of the Plaintiffs’

18

names to any advertisement. If DeviantArt had done so, the advertisement would be public and

19

presumably easy for Plaintiffs to locate and bring to the Court’s attention.

20

Plaintiffs cannot maintain a right-of-publicity claim against DeviantArt without alleging

21

facts about what DeviantArt actually did that constitutes an impermissible use of their names.

22

Plaintiffs cannot avoid this basic obligation by relying on the kind of vague and conclusory

23

accusations which, as a matter of law, a court “is not required to accept” on a motion to dismiss.

24

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Plaintiffs’ discussion of Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001), is
misguided. Plaintiffs overlook the Ninth Circuit’s extensive discussion of Downing in Laws, see
448 F.3d at 1141, in which the Court explained that the name-and-likeness claim in Downing
survived preemption not because “[a] person’s name or likeness is not a work of authorship,” cf.
Opp. at 16, but because defendants “had suggested that the [plaintiffs] endorsed [defendant’s
products],” 448 F.3d at 1141; see also Jackson, 972 F.3d at 46–47 (same). As discussed below
and in DeviantArt’s other briefing, see, e.g., Mot. at 15–16, Plaintiffs have pleaded only entirely
conclusory allegations that DeviantArt ever used their names in any DeviantArt advertisements—
and there is no claim that DeviantArt ever suggested that Plaintiffs’ endorsed its products.
10

DEVIANTART’S REPLY ISO
ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

1

In re QuantumScape Sec. Class Action Litig., 580 F. Supp. 3d 714, 729 (N.D. Cal. 2022) (quoting

2

In re Gilead Scis. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008)); see Paulson v. Carter, 230 F. App’x

3

645, 645 (9th Cir. 2007) (rejecting “conclusory allegations . . . unsupported by specific facts”).

4

Plaintiffs altogether ignore this issue in their opposition. They do not even seek the Court’s

5

leave to amend their Complaint to identify any references to Plaintiffs’ names—no doubt because

6

there are no such references.9 Instead, Plaintiffs double-down by insisting—again, without any

7

details—that “Defendants used Plaintiffs’ names . . . to attract customers” and to “advertise and

8

promote their AI Image Products.”

9

(“Defendants[] use [] Plaintiffs name[s] in advertising and marketing.”). Like the allegations in

10

the Complaint, these “[t]hreadbare recitals of the elements of a cause of action, supported by mere

11

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

12

b.

Opp. at 3, 13; see also Dkt. 65 (“MTD Opp.”) at 19

The Complaint Does Not State A Right-Of-Publicity Claim

13

Once these conclusory statements are set aside—and in light of Plaintiffs’ abandonment of

14

their claims based on the use of their “particular styles,” Opp. at 2—Plaintiffs’ remaining right-of-

15

publicity theory is that DeviantArt violated their rights by offering a tool that can process users’

16

references to Plaintiffs’ names in text prompts, see id. at 13 (arguing that Defendants’ applications

17

“cue users to insert an artist’s name”). This theory fails for two independent reasons.

18

The Right Of Publicity Does Not Grant Absolute Control Over A Name. First, providing

19

a service capable of processing references to an artist’s name does not violate the right of publicity.

20

Mot. at. 17–19. “The value of the plaintiff’s name is not appropriated by mere mention of it, or

21

by reference to it in connection with legitimate mention of his public activities.” Restatement

22

(Second) of Torts § 652C cmt. d (1977). Using a personal name to refer to a person’s work or

23

accomplishments—like referring to specific musicians in order to describe a musical genre—does

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9

In another right-of-publicity case before this Court, the plaintiffs included in their Complaint
screenshots of advertisements that used their personal names and information. See Complaint
¶ 45, Kellman v. Spokeo, Inc., No. 21-cv-08976 (N.D. Cal. filed Nov. 19, 2021), ECF No. 1.
Because these examples illustrated that the defendant’s “business model depends on using
[plaintiffs’] names, information, and likenesses” to “entice others to subscribe,” this Court held
that the claims were adequately stated. 599 F. Supp. 3d 877, 895 (N.D. Cal. 2022) (Orrick, J.).
Here, however, Plaintiffs make no attempt to illustrate—through screenshots, concrete allegations,
or otherwise—how their names are “use[d] . . . in advertising and marketing.” MTD Opp. at 19.
11

DEVIANTART’S REPLY ISO
ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

1

not “appropriate to [one’s] own use or benefit the reputation, prestige, social or commercial

2

standing, public interest, or other values of [that person’s] name.” Id. § 652C cmt. c. That use

3

falls far outside the domain of the right of publicity, which is violated only when a defendant trades

4

on a person’s name—to advertise a product, or to attract attention to merchandise, or otherwise.

5

Restatement (Third) of Unfair Competition § 47.10 Public dialogue depends on the freedom to use

6

names to “communicat[e] information,” id. § 47 cmt. c, and any “interpretation [of a right of

7

publicity] statute [that] absolutely bars the use of an individual’s name without consent . . . would

8

raise grave questions as to constitutionality,” Valentine v. CBS, Inc., 698 F.2d 430, 433 (11th Cir.

9

1983); see Guglielmi v. Spelling-Goldberg Prods., 25 Cal. 3d 860, 869 (1979) (Bird, C.J.,

10

concurring). Because there is nothing unlawful about the use of an artist’s name for the sole

11

purpose of referring to her prior work or “artistic style,” there is nothing unlawful about designing

12

an application, like DreamUp, capable of processing such references.

13

Again, Plaintiffs make no attempt to address these issues, all while insisting that

14

“[r]eferring to a Plaintiff[] by name” is a sufficient basis for their right-of-publicity claims. Opp.

15

at 18. Plaintiffs do not cite a single case that supports their novel theory because no court has

16

expanded the right-of-publicity in this way. Doing so would create an entirely new avenue for

17

lawsuits against legitimate businesses like internet search engines (which produce results about a

18

person in response to a search query using a personal name), credit agencies (which produce credit

19

reports based on a requester’s provision of a personal name), online directories (which produce

20

information about, e.g., film industry professionals who users search for by name), and any other

21

services capable of processing user queries that include personal names.11

22

Plaintiffs Do Not Allege Use By DeviantArt. Second, Plaintiffs fail to allege use. To

23

infringe the right of publicity in a name, the defendant must actually use a plaintiff’s name in a

24

way that is perceptible to an audience by, e.g., displaying that name as part of an online

25

advertisement. See Perfect 10, Inc. v. Google, Inc., No. 04-cv-9484, 2010 WL 9479060, at *13

26

10

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See Maloney, 853 F.3d at 1018 (relying on Restatement (Third) of Unfair Competition to analyze
California right-of-publicity claims).
11
Cf. Obado v. Magedson, No. 13-cv-2382, 2014 WL 3778261, at *7 (D.N.J. July 31, 2014) (“The
mere appearance of Plaintiff’s name or image as part of the search results displayed in response to
a user-generated query does not mean that the [defendant violated any publicity rights].”).
12

DEVIANTART’S REPLY ISO
ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

1

(C.D. Cal. July 30, 2010) (citation omitted); supra note 9 (discussing the allegations in Kellman).12

2

Nothing in the Complaint suggests that DeviantArt did so, either by training a model, Opp. at 15

3

(admitting that “Stability developed . . . the functionality to generate output images using specific

4

artist’s names” (emphasis added)), or by using Plaintiffs’ names to create DreamUp images, see

5

Compl. ¶ 171 (alleging that “Individuals have used AI Image Products to create works using the

6

names of Plaintiffs” (emphasis added)). And while Plaintiffs previously suggested that their rights

7

are violated when DeviantArt’s users type their names into DreamUp, id.; but see Mot. at 19

8

(rebutting this), they now disclaim that theory as well, see MTD Opp. at 19 (“The fact users can

9

and do use Plaintiffs’ names in prompts is . . . not a basis of [Plaintiffs’ right-of-publicity]

10

claims.”). Neither the Complaint nor the opposition makes any attempt to explain how DeviantArt

11

allegedly “used” their names, which alone is sufficient reason to grant the Motion. Edjer v. DHI

12

Mortg. Co., No. 09-cv-1302, 2009 WL 1684714, at *6 (N.D. Cal. June 12, 2009) (dismissal

13

warranted where allegations were “vague and largely incoherent”).

14

3.

The Claims Conflict With The First Amendment

15

California courts generally balance right of publicity claims against First Amendment

16

interests using a “Transformative Use” test that insulates expressive works from right-of-publicity

17

claims as long as the plaintiff’s likeness is merely “one of the ‘raw materials’ from which [the

18

secondary work] is synthesized.” Kirby v. Sega of Am., Inc., 144 Cal. App. 4th 47, 58 (2006).13

19

Plaintiffs do not contest that DreamUp’s outputs are not visually similar to the originals, reflect a

20

combination of data gleaned from billions of other images, and can communicate an infinite

21
22
12

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This well-established requirement is no doubt why Plaintiffs bend over backwards to suggest
that DeviantArt “use[d] [] Plaintiffs’ names . . . throughout Defendants’ apps, website, and social
media posts,” Compl. ¶ 219, even though they were unable to cite any specific facts to support it.
13
To the extent Plaintiffs’ opposition can be interpreted as arguing that the First Amendment
defense does not apply to “Commercial” or “False” speech, Opp. at 17 (suggesting this in a section
heading), that argument fails because (1) commercial speech also receives First Amendment
protection, see, e.g., Va. Pharmacy Bd. v. Va. Citizens Consumer Council, 425 U.S. 748, 762
(1976), and (2) Plaintiffs have failed to allege that the speech at issue “does no more than propose
a commercial transaction,” e.g., United States v. United Foods, Inc., 533 U.S. 405, 409 (2001)
(defining “commercial speech”). And while Plaintiffs now claim that Defendants’ “speech” is
“false” because it “induces users to believe that artists have [] endorsed Defendants’ products,” the
Complaint paragraphs they cite in support do not address false endorsement. Opp. at 10.
13

DEVIANTART’S REPLY ISO
ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

1

number of ideas, messages, or concepts supplied by DeviantArt’s users. Mot. at 20.14 These facts

2

establish transformative use as a matter of law. See, e.g., Sarver v. Hurt Locker LLC, No. 10-cv-

3

09034, 2011 WL 11574477, at *6–7 (C.D. Cal. Oct. 13, 2011) (granting section 425.16 motion to

4

strike right-of-publicity claims on transformative use grounds because “[d]efendants

5

unquestionably contributed significant distinctive and expressive content”).15

6

Rather than contest that point, Plaintiffs instead abandon their “style”-based claim and

7

argue that, because DeviantArt has used their “names to market and enhance sales of their

8

products,” its use is not transformative. Opp. at 18. But Plaintiffs have failed to plausibly allege

9

any such use. See supra at 10–11. And the only use Plaintiffs have plausibly alleged (and not

10

now abandoned)—that DeviantArt created a program that can recognize Plaintiffs’ names—does

11

implicate serious First Amendment problems. As noted, any attempt to use the right of publicity

12

to preclude using a personal name to accurately refer to that person’s work would “raise grave

13

questions as to constitutionality,” Valentine, 698 F.2d at 433, and “meaningfully reduce[]” the

14

“range of free expression,” Gugliemi, 25 Cal. 3d at 869 (Bird, C.J., concurring).

15

Courts have acknowledged as much in discussing the analogous nominative-fair-use

16

defense to trademark infringement claims, which shields defendants who use trademarks to “refer

17

to a particular product” as a “point of reference.” New Kids on the Block v. News Am. Pub., Inc.,

18

971 F.2d 302, 306 (9th Cir. 1992); see id. at 307 (“Much useful social and commercial discourse

19

would be all but impossible if speakers were under threat of an infringement lawsuit every time

20

they made reference to a person, company or product.”); Toyota Motor Sales, U.S.A., Inc. v.

21

Tabari, 610 F.3d 1171, 1176 (9th Cir. 2010) (trademark claims “can raise serious First Amendment

22

concerns” in cases of nominative fair use by “interfer[ing] with truthful communication . . . in the

23

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Plaintiffs do claim that they have “offered facts demonstrating why Defendants’ conduct is not
transformative.” Opp. at 17. But in support, they only cite (without explanation) seemingly
random paragraphs from their pleadings, Compl. ¶¶ 86–90, 94–98, and two paragraphs arguing
that “[b]ecause Defendants advertise the ability of their systems to generate artwork,” the use is
“not transformative,” id. ¶¶ 210, 221. None weigh against a finding of transformative use.
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Plaintiffs also address transformative use in their opposition to DeviantArt’s motion to dismiss,
MTD Opp. at 20–21, in which they attempt to distinguish Ross v. Roberts, 222 Cal. App. 4th 677
(2013), on the grounds that here, Defendants’ use was “intended to denote the actual artists who
created certain works,” MTD Opp. at 21. But the Court’s holding in Ross was based on the fact
the defendant “created original artistic works” using the plaintiff’s name and therefore “clearly
added new expression.” 222 Cal. App. 4th at 687–88. The same logic applies here.
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ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO

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marketplace”). That principle applies with full force to the right-of-publicity context. For that

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reason, this Court should either decline Plaintiffs’ invitation to expand the right of publicity to

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prohibit “truthful communication” through the use of a plaintiff’s name, Toyota, 610 F.3d at 1176;

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see supra at 11,16 or hold that the First Amendment affirmatively bars the use of state right-of-

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publicity law for this purpose, see Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387,

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391, 397–98 (2001) (“formulat[ing] . . . a balancing test” to resolve the “tension between the right

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of publicity and the First Amendment”).17

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III.

CONCLUSION

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For the foregoing reasons, and those detailed in DeviantArt’s Motion, the Court should

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grant DeviantArt’s anti-SLAPP motion under California Code of Civil Procedure section 425.16

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and strike Plaintiffs’ right-of-publicity claims against DeviantArt.

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Because any attempt to re-plead those claims would be futile, see MTD at 24–25, and because

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Plaintiffs do not explain otherwise or propose any ways in which they could cure any of their

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defective claims, the Court should deny leave to amend.

See Compl. ¶¶ 201–22.

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See also Edward J. DeBartolo Corp. v. Fla. Gulf Coast Building & Constr. Trades Council, 485
U.S. 568, 575–76, 588 (1988) (applying constitutional avoidance doctrine to reject “construction
of [a] statute . . . [that] poses serious questions . . . under the First Amendment”).
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Courts have a variety of tests for evaluating First Amendment defenses to right-of-publicity
claims. One is the “transformative use” test, which may not make sense where the claim is based
exclusively on the use of a personal name. See Est. of Fuller v. Maxfield & Oberton Holdings,
LLC, 906 F. Supp. 2d 997, 1006–07 (N.D. Cal. 2012) (observing that “a transformative use
[analysis] would be illogical” in the event of a name-only claim because “a name cannot be
transformed while remaining recognizable in the way that an image can”). Other frameworks for
evaluating a First Amendment defense may provide a better fit. See, e.g., C.B.C. Distrib. & Mktg.,
Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818, 823–24 (8th Cir. 2007)
(seeking to “balance[]” the “rights of publicity . . . against first amendment considerations” by
asking whether the facts “implicate the interests that states typically intend to vindicate by
providing rights of publicity to individuals”); id. at 824 (concluding that the First Amendment
“supersede[s] the [plaintiffs’] rights of publicity” in part because there was no “false
impression . . . [or] endors[ment]” and because “it would be strange law that a person would not
have a first amendment right to use information that is available to everyone”). But the Court need
not reach this issue because California’s rights of publicity do not apply here. Supra at 11–13.
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CASE NO. 3:23-cv-00201-WHO

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Dated: July 3, 2023

Respectfully submitted,
LATHAM & WATKINS LLP
By: /s/ Andrew M. Gass

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Andrew M. Gass (SBN 259694)
[e-mail]
Michael H. Rubin (SBN 214636)
[e-mail]
Brittany N. Lovejoy (SBN 286813)
[e-mail]
505 Montgomery Street, Suite 2000
San Francisco, California 94111-6538
Telephone: [phone]

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Attorneys for Defendant DeviantArt, Inc.

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DEVIANTART’S REPLY ISO
ANTI-SLAPP MOTION TO STRIKE
CASE NO. 3:23-cv-00201-WHO