1

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
VIJAY, a professional known
as Abrax Lorini, an
individual,
Plaintiff,

v.
TWENTIETH CENTURY FOX FILM
CORP.; PARAMOUNT PICTURES
CORP.; LIGHTSTORM
ENTERTAINMENT; EARTHSHIP
PRODUCTIONS, INC.; WALDEN
MEDIA, LLC; WALT DISNEY
PICTURES; AND DOES 1-400,
inclusive,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CV 14-5404 RSWL (Ex)
ORDER Re: DEFENDANTS
MOTION TO DISMISS [8]
Now before the Court is Defendants Motion to
Dismiss [8]. Having reviewed the papers submitted on
this issue, the Court hereby DENIES IN PART and GRANTS
IN PART Defendants Motion.
1
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 1 of 15 Page ID #:1467
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I. BACKGROUND
A. Factual Background
In 1996, Plaintiff, a Los Angeles County resident
professionally known as Abrax Lorini, went to a
casting call and was hired for sixty dollars per day to
be an extra in the motion picture entitled Titanic.
Compl. 2, 15. When Plaintiff arrived on set, the
films director, James Cameron, cast Plaintiff into the
role of Spindly Porter, for which Plaintiff
eventually spent an additional ninety days filming
under Camerons direction. Id. 16. Plaintiff
contends that because he was hired as an extra, he did
not sign a work-for-hire agreement, nor was he an
employee. Id. at 26. He was not an industry union or
guild member. Id.
Plaintiffs performance was included in the final
version of the film. Id. 17. From its many domestic
and international releases, Titanic went on to earn
over two billion dollars in gross for Defendants
Twentieth Century Fox and Paramount Pictures. Id.
19. Subsequently, Defendants Earthship, Lightstorm,
Walden, and Disney produced a film called Ghosts of
the Abyss, which also contained Plaintiffs Titanic
scenes. Id. 21. That film generated over thirty
million dollars in gross. Id. 23.
According to Plaintiff, whether or not a film uses
performers who are existing and/or prospective members
of a union (including the Screen Actors Guild (SAG),
2
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 2 of 15 Page ID #:1468
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Directors Guild of America (DGA) or Writers Guild of
America (WGA)) determines whether those performers
may be entitled to payments for the results of their
performances, including residual payments and foreign
royalties. Id. 24-25. Plaintiff alleges that
Defendants collectively failed to notify him of the
entitlements to compensation, to use of his image, and
to residuals and/or foreign royalties that his upgraded
principal performance earned him. Id. 26, 28.
Accordingly, Plaintiff alleges five causes of action
under California law: (1) Fraud by Concealment; (2)
Right of Publicity; (3) Common Law Appropriation of
Likeness; (4) Unfair Business Practices; and (5) Unjust
Enrichment.
B. Procedural Background
Plaintiff filed his Complaint in Superior Court in
the County of Los Angeles on June 6, 2014. Defendant
Twentieth Century Fox, joined by the remaining
defendants, timely removed the action to this Court
[1]. Defendants contend that Plaintiffs Complaint
raises questions under federal law and is preempted by
301 of the Labor Management Relations Act (LMRA).
Defs. Notice of Removal at 2:27-3:7 [1].
On July 18, 2014, Defendants Walden and Disney,
joined by the remaining defendants, filed this Motion
to Dismiss [8]. Plaintiff filed an Opposition to the
Motion to Dismiss on August 5, 2014 [17]. Defendants
3
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 3 of 15 Page ID #:1469
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
filed a Reply in Support of Motion to Dismiss on August
12, 2014 [19].
On July 29, 2014, Plaintiff filed this Motion to
Remand Case to Los Angeles Superior Court [14].
Defendants filed an Opposition to the Motion to Remand
on August 5, 2014 [16]. Plaintiff filed a Reply in
Support of Motion to Remand on August 11, 2014 [18].
This Court denied Plaintiffs Motion to Remand on
October 2, 2014 [22].
II. LEGAL STANDARD
Motion to Dismiss Pursuant to Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) allows a
party to move for dismissal of one or more claims if
the pleading fails to state a claim upon which relief
can be granted. Dismissal can be based on a lack of
cognizable legal theory or lack of sufficient facts
alleged under a cognizable legal theory. Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1990). In a Rule 12(b)(6) motion to dismiss, a court
must presume all factual allegations of the complaint
to be true and draw all reasonable inferences in favor
of the non-moving party. Klarfeld v. United States,
944 F.2d 583, 585 (9th Cir. 1991).
The question presented by a motion to dismiss is
not whether the plaintiff will prevail in the action,
but whether the plaintiff is entitled to offer evidence
in support of its claim. Swierkiewica v. Sorema N.A.,
4
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 4 of 15 Page ID #:1470
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
534 U.S. 506, 511 (2002). While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiffs obligation
to provide the grounds of his entitle[ment] to
relief requires more than labels and conclusions, and
a formulaic recitation of a cause of actions elements
will not do. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citation omitted). Although
specific facts are not necessary if the complaint gives
the defendant fair notice of the claim and the grounds
upon which the claim rests, a complaint must
nevertheless contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted).
At the pleading stage, general factual allegations
of injury resulting from the defendant's conduct may
suffice, for on a motion to dismiss we presum[e] that
general allegations embrace those specific facts that
are necessary to support the claim. Lujan v. Natl
Wildlife Fedn, 497 U.S. 871, 889 (1990). If
dismissed, a court must then decide whether to grant
leave to amend. The Ninth Circuit has repeatedly held
that a district court should grant leave to amend even
if no request to amend the pleadings was made, unless
it determines that the pleading could not possibly be
cured by the allegation of other facts. Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
5
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 5 of 15 Page ID #:1471
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
III. DISCUSSION
A. Defendants Motion to Dismiss on Section 301
Preemption Grounds
The crux of Defendants Motion is that resolving
Plaintiffs claims requires interpretation of the
Screen Actors Guild (SAG) collective bargaining
agreement (CBA), which means that Plaintiffs claims
are preempted under Section 301 of the Labor Management
Relations Act (LMRA). Defendants claim that all of
Plaintiffs claims are preempted by Section 301. See
Mot. 5. In analyzing the preemptive effect of Section
301, the Supreme Court in Teamsters v. Lucas Flour Co.,
369 U.S. 95, 103 (1962), explained that the dimensions
of 301 require the conclusion that substantive
principles of federal labor law must be paramount in
the area covered by [state] statute [so that] issues
raised in suits of a kind covered by 301 [are] to be
decided according to the precepts of federal labor
policy. In Allis-Chalmers Corp. v. Lueck, 471 U.S.
202, 210-11 (1985), the Court extended this preemptive
effect beyond mere contract violations, explaining that
in order to prevent parties from evading the
requirements of Section 301 by simply labeling their
contract claims as torts, questions relating to what
the parties to a labor agreement agreed, and what legal
consequences were intended to flow from breaches of
that agreement, must be resolved by reference to
uniform federal law. The gateway question thus
6
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 6 of 15 Page ID #:1472
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
becomes whether a state law claim is independent of any
right or obligation established by a collective
bargaining agreement (CBA), or whether resolution of
the state law claim is necessarily dependent upon
interpretation of a CBA. See id. at 211-13. A state
law claim that is independent of a CBA is not
preempted. Id.
In claiming that Section 301 preemption requires
the Court to dismiss Plaintiffs claims, however,
Defendants assert that not only does the Court have
jurisdiction over Plaintiffs claims, but that
preemption requires the Court to look to the SAG CBA
and apply a clause that specifies arbitration as the
dispute resolution mechanism. Mot. 12:11-13:5. It may
be that Plaintiffs claims are subject to the binding
arbitration clause of the SAG CBA. Whether that is the
case, however, would be prematurely decided in a
12(b)(6) motion, as courts typically decide this issue
on motions for summary judgment or motions to compel
arbitration. See Comer v. Micor, Inc., 436 F.3d 1098
(9th Cir. 2006) (upholding a district courts decision
regarding on a motion to stay proceedings and to compel
arbitration); Letizia v. Prudential Bache Sec., Inc.,
802 F.2d 1185, 1190 (9th Cir. 1986) (concluding that
under 9 U.S.C. 4,
1
it was improper for the district
1
9 U.S.C. 4 makes the arbitrability of claims a
factual inquiry entitled to a jury or bench trial on
that issue. It states:
7
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 7 of 15 Page ID #:1473
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A party aggrieved by the alleged failure,
neglect, or refusal of another to arbitrate
under a written agreement for arbitration may
petition any United States district court
which, save for such agreement, would have
jurisdiction under Title 28, in a civil action
or in admiralty of the subject matter of a suit
arising out of the controversy between the
parties, for an order directing that such
arbitration proceed in the manner provided for
in such agreement. Five days' notice in writing
of such application shall be served upon the
party in default. Service thereof shall be made
in the manner provided by the Federal Rules of
Civil Procedure. The court shall hear the
parties, and upon being satisfied that the
making of the agreement for arbitration or the
failure to comply therewith is not in issue,
the court shall make an order directing the
parties to proceed to arbitration in accordance
with the terms of the agreement. The hearing
and proceedings, under such agreement, shall be
within the district in which the petition for
an order directing such arbitration is filed.
If the making of the arbitration agreement or
the failure, neglect, or refusal to perform the
same be in issue, the court shall proceed
summarily to the trial thereof. If no jury
trial be demanded by the party alleged to be in
default, or if the matter in dispute is within
admiralty jurisdiction, the court shall hear
and determine such issue. Where such an issue
is raised, the party alleged to be in default
may, except in cases of admiralty, on or before
the return day of the notice of application,
demand a jury trial of such issue, and upon
such demand the court shall make an order
referring the issue or issues to a jury in the
manner provided by the Federal Rules of Civil
Procedure, or may specially call a jury for
that purpose. If the jury find that no
agreement in writing for arbitration was made
8
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 8 of 15 Page ID #:1474
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
court to order arbitration before the plaintiff had an
opportunity to make a factual showing as to whether an
arbitration agreement was unenforceable); Olguin v.
Inspiration Consol. Copper Co., 740 F.2d 1468, 1471
(9th Cir. 1984) (upholding a district courts (1)
refusal to remand an action because it was preempted by
Section 301 and and (2) grant of summary judgment
based on the relevant CBAs arbitration clause);
Seid v. Pac. Bell, Inc., 635 F. Supp. 906, 911 (S.D.
Cal. 1985) (dismissing the plaintiffs action on a
12(b)(6) motion as both time barred and deficiently
pleaded, not as immediately subject to arbitration);
Newberry v. Pac. Racing Ass'n, 854 F.2d 1142, 1148 (9th
Cir. 1988) (upholding a district courts grant of
summary judgment based on Section 301 preemption).
Here, it is not clear that Defendants are entitled to
arbitration as a matter of law. Plaintiff claims that
he is not subject to the arbitration provision of the
SAG CBA and resolving this issue will involve
significant factual inquiry. Accordingly, Defendants
or that there is no default in proceeding
thereunder, the proceeding shall be dismissed.
If the jury find that an agreement for
arbitration was made in writing and that there
is a default in proceeding thereunder, the
court shall make an order summarily directing
the parties to proceed with the arbitration in
accordance with the terms thereof.
9 U.S.C.A. 4 (West).
9
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 9 of 15 Page ID #:1475
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion is DENIED on this issue.
B. The Misappropriation of Likeness and Right of
Publicity claims
Defendants assert independent grounds for
dismissing Plaintiffs misappropriation of likeness and
right of publicity claims: consent (in the case of
Titanic), the public interest defense (in the case of
Ghosts of the Abyss,) and First Amendment protections
as to both works.
Defendants assert the First Amendment defense
afforded to expressive works in arguing that
Plaintiffs right of publicity and misappropriation of
likeness claims should be dismissed. Mot. 16:12-21
(citing Daly v. Viacom, Inc., 238 F. Supp. 2d 1118,
1123 (N.D. Cal. 2002). Under the First Amendment, a
cause of action for appropriation of another's name
and likeness may not be maintained against expressive
works, whether factual or fictional. Daly v. Viacom,
Inc., 238 F. Supp. 2d 1118, 1123 (N.D. Cal. 2002)
(citing Guglielmi v. SpellingGoldberg Prods., 25
Cal.3d 860 (1979)). In Comedy III Prods., Inc. v. Gary
Saderup, Inc., 25 Cal. 4th 387, 404-05 (2001), the
California Supreme Court established the means of
determining whether a work should be afforded First
Amendment protection:
This inquiry into whether a work is
transformative appears to us to be
10
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 10 of 15 Page ID #:1476
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
necessarily at the heart of any judicial attempt
to square the right of publicity with the First
Amendment . . . When artistic expression takes
the form of a literal depiction or imitation of
a celebrity
2
for commercial gain, directly
trespassing on the right of publicity without
adding significant expression beyond that
trespass, the state law interest in protecting
the fruits of artistic labor outweighs the
expressive interests of the imitative artist.
The Court further explained that such transformative
expression can take many forms, but the critical
determination is whether the celebrity likeness is one
of the raw materials from which an original work is
synthesized, or whether the depiction or imitation of
the celebrity is the very sum and substance of the work
in question. Id. at 406. The reason for this test,
the Court explained, is that the right of publicity is
essentially an economic right. What the right of
publicity holder possesses is not a right of
censorship, but a right to prevent others from
misappropriating the economic value generated by the
celebrity's fame through the merchandising of the
2
Subsequent decisions have explained that this
defense does not only apply when the subject is a
celebrity, but to non-celebrities as well. See Daly v.
Viacom, Inc., 238 F.Supp. 2d 1118, 1123 (N.D. Cal.
2002).
11
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 11 of 15 Page ID #:1477
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
likeness of the celebrity. Id. at 403 (citing Cal.
Civ. Code 990.)
The application of this defense is normally a
question of fact. Hilton v. Hallmark Cards, 599 F.3d
894, 910 (2009) (citing Comedy III, 25 Cal. 4th at 409
(Although the distinction between protected and
unprotected expression will sometimes be subtle, it is
no more so than other distinctions triers of fact are
called on to make in First Amendment jurisprudence.)).
Only if Defendant is entitled to the defense as a
matter of lawthat is, only if no trier of fact could
reasonably conclude that Defendants use of Plaintiffs
image was not transformativeshould Defendants prevail
on their Motion. See id. (applying the defense in a
motion to strike). Otherwise put, if it appears
beyond a doubt that [Plaintiff] can prove no set of
facts in support of his claim which would entitle him
to relief, his claims should be dismissed. See Conley
v. Gibson, 355 U.S. 41, 45-46 (1957).
This Court should find that based on the
allegations in the pleadings, Plaintiff can prove no
set of facts in support of his claim that Defendants
appropriated his likeness and his right of publicity.
Under the transformative test, both Titanic and
Ghosts of the Abyss are clearly expressive works.
Plaintiffs appearance is but a minuscule portion of
each of these films, heavily edited and synthesized
with significant artistic expression. Plaintiff was in
12
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 12 of 15 Page ID #:1478
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
costume and make-up, being directed by the films
director. His scenes appeared for seconds at most in
nearly five hours of film, and even his filmed scenes
were transformed with special effects and music in the
final product. It can hardly be said that Plaintiffs
appearance is the very sum and substance of either
work. Nor can it be said that it is Plaintiffs
likeness that is generating such economic value that
Plaintiffs right to his appearance must be protected
above Defendants First Amendment rights to use his
likeness in an expressive work.
Plaintiff claims that his employment agreement to
act as an extra in Titanic trumps the First Amendment
defense. Opposition 20:25-21:14 (citing Warner Bros.,
Inc. v. Curtis Mgmt. Grp., Inc., 1995 WL 420043 (C.D.
Cal. March 31, 1993). The Court should find this
distinction irrelevant to the causes of action
Plaintiff asserts. Any agreement between two parties
as to an individuals performance may limit the use of
either partys right of publicity or use of likeness,
but no law indicates that such an agreement would
render inapplicable a constitutional defense to a tort
cause of action. If Plaintiffs contention is that
Defendants breached an agreement to use Plaintiffs
likeness in a certain manner, then the appropriate
cause of action is for breach of contract, not right of
publicity or appropriation of likeness.
Given that Plaintiffs claims for appropriation of
13
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 13 of 15 Page ID #:1479
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
likeness and right of publicity are based on his brief
scene in two expressive works, it is unfathomable that
Plaintiff would be able to amend his complaint to
allege facts that would cure these two causes of action
of their defects. Accordingly, Plaintiffs second
claim for right of publicity and third claim for common
law appropriation of likeness are DISMISSED WITH
PREJUDICE. Defendants alternative grounds for
dismissing these two claims are therefore rendered
moot.
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
///
14
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 14 of 15 Page ID #:1480
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IV. CONCLUSION
This Court therefore GRANTS Defendants Motion to
Dismiss Plaintiffs second claim for right of publicity
and third claim for common law appropriation of
likeness on the grounds that these claims are subject
to First Amendment protection as expressive works.
These two claims are DISMISSED WITH PREJUDICE because
they cannot be cured by stating additional facts.
Because, for the purpose of a 12(b)(6) motion, the
Court must accept all allegations in the complaint as
true, the Court DENIES Defendants Motion to Dismiss on
all other grounds, but notes that these grounds may be
ripe for decision in later motions.
IT IS SO ORDERED.
DATED: October 27, 2014
HONORABLE RONALD S.W. LEW
Senior U.S. District Judge
15
Case 2:14-cv-05404-RSWL-E Document 23 Filed 10/27/14 Page 15 of 15 Page ID #:1481