Fox Studios Threatens Anti-SLAPP Lawsuit After Actor Claims The Simpsons Misappropriated His Likeness
When a movie is as iconic as Goodfellas, the characters and dialogue become ripe for parody and imitation. While parody is usually protected by the First Amendment, using an actor’s image for profit or infringing on an actor’s right to control his or her own likeness is not.
Frank Sivero, the actor who portrayed Frankie Carbone in Goodfellas, is suing Twentieth Century Fox Film Corporation (Fox) over what he says is an infringement on his right to publicity and a misappropriation of his likeness.
Fox is the producer of the animated TV series, The Simpsons. According to Sivero, Fox created Louie, an animated character who is part of the show’s Springfield Mafia. Sivero believes that the character is based off of his likeness and character in the movie, Goodfellas. Sivero’s complaint alleges that The Simpsons has been using and misappropriating Silvero’s image since the character of Louie first appeared in 1991. The complaint seeks over $250 million in damages.
For its part, Fox is vigorously defending Louie. Fox claims that the character is not based on Silvero’s role in Goodfellas or the likeness of Silvero himself and that even if Silvero could prove that it were, he waited too long to file a lawsuit and is barred from seeking relief by the statute of limitations. Finally, Fox has threatened the actor with an anti-SLAPP lawsuit for filing a frivolous claim meant to stifle the show’s right to free speech and expression. The studio has asked for the complaint to be dismissed.
Time Limits on the Right to Publicity
Both California statutes and California common law protect a person’s right of publicity. If a person’s image is used commercially, he or she has the ability to file a lawsuit both to stop the misappropriation of his or her image and to seek payment for damages from income lost due to the misuse. However, both types of claims have a two-year statute of limitations. This means that a person whose rights have been infringed has only two years to file a lawsuit.
For Silvero, it would be difficult to get around the statute of limitations because the character first appeared in 1991. He will have to prove that this two-year limit was re-triggered by some event or occurrence in order to keep his claims from being dismissed by the court.
Protecting Free Speech or Bullying?
Fox has also threatened Silvero with an anti-SLAPP motion. SLAPP stands for Strategic Lawsuit Against Public Participation. It is a malicious lawsuit filed with the goal of suppressing speech. Anti-SLAPP laws were enacted in California for additional protection of free speech rights, after the legislature realized that the legal system was being manipulated to prevent constitutionally-protected free speech and expression.
Even if a lawsuit is without merit, it can be expensive and time-consuming to get the case dismissed. An anti-SLAPP motion attempts to fix that problem by allowing a defendant to allege that the plaintiff only filed the lawsuit in order to stop constitutionally-protected speech. Once a judge grants the anti-SLAPP motion, the discovery process stops, and the burden shifts back to the plaintiff. The plaintiff must then show that the lawsuit was filed for legitimate reasons and not only to stop the dissemination of protected speech. If the plaintiff is unable to, then the person or entity who filed the lawsuit may face steep fines and money damages.
While an anti-SLAPP motion is useful against lawsuits that are actually frivolous, it can also be used as a bullying tool by larger, more powerful defendants. Since the discovery process stops during an anti-SLAPP motion, it can be next to impossible for smaller plaintiffs to gather the evidence and information they need to prove that the defendants are misusing their images or likenesses.
If you believe that your image or likeness is being misused, or if you are facing a lawsuit about a character you created, the California entertainment lawyers at Pierce Law Group LLP can help. Our attorneys represent both actors and production companies in a wide variety of legal issues, and can give you the experienced assistance you need on your side.
For your free consultation, call (310) 274-9191, or visit http://www.piercelawgroupllp.com.
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