Applications
From Media & Entertainment Law Wypadkis
Contents |
California Code of Civil Procedure § 425.16 - Anti-Slap Statute
- Exercising free speech rights on public issue
- Designed to stop lawsuits filed for reason other than making plaintiff whole
- Easy for defendant to collect attorney’s fees but very difficult for plaintiff to collect attorney’s fees
- if the plaintiff brings a cause of action based on constitutional rights, the defendant can bring a special motion to strike, unless the court finds that the plaintiff will prevail on the claim
- have to be exercising your free speech rights on a public issue to use this special motion to strike
- can consider the pleadings and beyond
- there is no prejudice or res judicata
- the prevailing defendant gets attorney’s fees and costs but the prevailing plaintiff only gets fees if the special motion is frivolous or solely to cause unnecessary delay
This statute was applied in Borat’s suit by the frat boys
- they were the plaintiffs and the judge said they couldn’t make out their claims for recission, right of publicity, etc
- they were on the hook for Fox’s legal fees
Cease and Desist Letters
- Lavely & Singer have bulldog reputations in Hollywood
- sometimes the letters are used to later make a claim for actual malice and therefore create actionable defamation
- EJ says you can’t slap confidential on the letters and expect them to be
- there wouldn’t be a copyright violation for copying the letters
- these letters go beyond the black letter law but people are afraid of being sued and so they will deter conduct
Lindsay Lohan letter
- Legal effect outside of effect on reader: puts reader on notice
- Creates actionable defamation because if publication prints information after receipt of letter, there is actual malice
Other letters (Catherine Zeta-Jones and Jennifer Aniston letters)
- Different purpose
- Create record
- Law firm’s aggressive letter may scare publications out of doing something that they may have right to do
Table: Analyzing Persons as Subjects
- Intrusion
- To How Many? N/A
- True/False? N/A
- Highly Offensive? Yes
- Intent? Yes
- Post-Mortem Protection? N/A
- Disclosure
- To How Many? Public
- True/False? True
- Highly Offensive? Yes
- Intent? Yes
- Post-Mortem Protection? Unknown
- False Light
- To How Many? Public
- True/False? False
- Highly Offensive? Yes
- Intent? Yes, Actual Malice
- Post-Mortem Protection? Probably Not (Same as Defamation)
- Defamation
- To How Many? 1
- True/False? False
- Highly Offensive? No
- Intent? Negligence standard for publication
- Post-Mortem Protection? No
- Outrage (IIED)
- To How Many? N/A
- True/False? N/A
- Highly Offensive? Yes
- Intent? Yes
- Post-Mortem Protection? No
- Appropriation - Right of Publicity
- To How Many? Commercial
- True/False? Doesn't matter
- Highly Offensive? No
- Intent? No
- Post-Mortem Protection? Often (Varies by Jurisdiction)
