Woa Brief

ARGUMENT

I. LEGAL STANDARD ON SUMMARY JUDGMENT

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and the admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If it succeeds, the nonmoving party may defeat summary judgment by identifying facts that pose a genuine issue for trial. Id. at 324. In evaluating whether summary judgment should be granted, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

Summary judgment is appropriate upon a "finding that the challenged uses of plaintiffs' names, images and likenesses" are "in connection with a news, public affairs, or sports account'" within the meaning of [California] Civil Code section 3344, subdivision (d)." Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 407 (2001). In general, subdivision (d) is not an affirmative defense, and the burden is on the plaintiff, to establish that the uses in question fall outside of the subsection (d) exemptions. Id. at 417. Therefore, summary judgment should be granted if the plaintiff fails to show that the uses are not "in connection with a news, public affairs, or sports account." Cal. Civ. Code Ð'§ 3344.

Summary judgment is also appropriate if the debated uses of one's likeness are protected under the First Amendment. Because this is an affirmative defense, the moving party must show that the "work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity's fame." Winter v. DC Comics, 39 Cal. 4th 881, 890 (2003).

II. SUMMARY JUDGMENT SHOULD BE GRANTED BECAUSE BOSLEY IS EXEMPT FROM LIABILITY UNDER SECTION 3344(D) OF THE CALIFORNIA CIVIL CODE

Under section 3344 of the California Civil Code, anyone who uses another's name or likeness on products, merchandise or goods, or for the purposes of advertising or selling products without the person's prior consent is liable for damages sustained by the person. Cal. Civ. Code Ð'§ 3344 (West 1997). However, subdivision (d) of the statute specifically exempts from liability the use of a name or likeness in connection with the reporting of any political campaign, news, or public affairs account. Id. Ð'§ 3344(d). Because the bobblehead makes use of Schwarzenegger's likeness in association with his Governorship and celebrity status, it relates to the reporting of both a news and public affairs account in addition to a political campaign. Therefore, the bobblehead is exempt from liability under section 3344(d).

A. The Bobblehead of Arnold Schwarzenegger Conveys a Public Affairs Account, in Accordance with Section 3344(d)

Because subsection (d) of section 3344 distinguishes between news and public affairs, the court has interpreted the term "public affairs" to include things that would not necessarily be considered news, but rather things less important than news. Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536, 545 (1993). Generally, public affairs must be related to real-life occurrences. Id. An unconsented use of one's likeness for commercial purposes is inactionable if it is used in relation to public affairs or something of great public import. Gionfriddo, 94 Cal. App. 4th at 414. In some cases, the very use of a public figure's name makes a statement of the public interest. N.Y. Magazine v. Metro. Transit Auth., 987 F. Supp. 254, 268 (S.D.N.Y. 1997).

The bobblehead constitutes public affairs under the broad definition offered by the Dora court. 15 Cal. App. 4th 536. In Dora, a former legend of the surfing subculture sued under section 3344 after footage and audio of him was featured in a surfing documentary. Id. These uses were found to be for "public affairs" purposes because of surfing's influence on popular culture and lifestyle. Id. at 540-41.

Similarly, Major League Baseball's use of baseball players' likenesses on websites and programs was protected under 3344(d)'s "public affairs" exception. Gionfriddo, 94 Cal. App. 4th 400 (2001). The players knew their performances and games were being broadcast to the public. Id. at 406. Although the likenesses and statistics were not news, baseball's cultural influence (and therefore, its history and participants), are of great public interest and thus, constitute a public affair. Id. at 416.

Given that public affairs includes things that are less important than news, and given that baseball and surfing were found to be public affairs because of their influence on popular culture, Arnold Schwarzenegger's actions and persona are also issues of public affairs. Schwarzenegger's pervasive influence on popular culture, as both a movie icon and now, as the Governor of California, is unparalleled. His cultural and political influence is just as pervasive, if not more so, than surfing or baseball, as Mr. Schwarzenegger has come to represent certain issues through his policy goals and political affiliation.

The bobblehead is also protected because it is of a well-known celebrity and politician, in whom the public has an interest. Because of the nature of the status associated with public figures or personalities, the very use of their identities evokes a public interest in them. Paulsen v. Personality Posters, Inc., 59 Misc. 2d 444, 449-50 (N.Y. Sup. Ct. 1968). In Paulsen, a well-known comedian jokingly entered the 1968 Presidential race and unsuccessfully sought an injunction to bar the sale of posters containing his photograph with the words "For President" written across the bottom. Id. The court held that national politics is in itself a newsworthy arena, and becomes even more so when a well-known entertainer enters the race, "tongue in cheek or otherwise." Id. See Montana v. San Jose Mercury News, 24 Cal. App. 4th 790, 794 (1995) (referencing Paulsen, as it was based on an action brought under New York Civil Rights Law section 51, "New York's equivalent of section 3344").

Commentary does not violate a politicians' right to publicity because by entering into the political arena, they become "the subject of commentary and controversy"