Drag Queen’s Right of Publicity Claim Against Netflix’s Q-Force Rejected

In this anti-SLAPP appeal, defendants … are the creators and producers of an animated television series titled Q-Force, which is about a group of Lesbian, Gay, Bisexual, Transgender, or Queer (LGBTQ) spies {who, “despite being the best in their field, are undervalued due to their sexualities and identities”}. {Gabe Liedman (Liedman), a co-creator, showrunner, writer, and executive producer of Q-Force, publicly stated every character in Q-Force was based on someone in real life in order to ground the series in reality.}

Plaintiff and respondent Lance Hara, a performer using the name Vicky Vox (plaintiff or Vox), filed a complaint alleging she is a “well-known” drag queen in Hollywood and complaining defendants wrongfully used her likeness in Q-Force without her consent…. Vox has a web series, The Vicky Vox Project, that depicts a cartoon-like illustration of Vox….

Defendants allegedly used Vox’s likeness in one scene of one of the ten 30-minute episodes of Q-Force. Specifically, the scene takes place during episode 5 of the series, which is titled “WeHo Confidential.” It begins with four other characters, including one named Steve, chatting at a table in what appears to be a bar in West Hollywood. During the conversation, Steve says it is time for him to plug back into his community. Shortly thereafter, he calls out to another character, Twink, who is sitting at a different table. As the perspective shifts to show Twink, the side profile of the background character allegedly resembling Vox is visible for approximately one second. The entirety of the character’s seated form is then visible for approximately the next ten seconds, along with the seated forms of Twink and three other drag queens. {As Vox’s complaint describes it, the background character at issue allegedly shares the following similarities with a photograph taken of Vox inside a bar in West Hollywood: “voluminous red-orange hair styled with a center part, defined, close together eyebrows, cat-eye make-up, face shape, nose structure, full jawline, high cheek bones, full bodied figured, her outfit’s color is the same shade and tone of teal, and she is depicted inside a bar in West Hollywood.”}

 Twink replies to Steve and whispers to the others at the table, “That’s my job daddy.” The drag queens turn to look at Steve. Three of them pull out eyewear (pink sunglasses, opera glasses, and a monocle), and the character allegedly based upon Vox flicks open an orange folding fan with the word “Hot” written on it, and fans herself. Twink tells Steve they are having a union meeting. Steve expresses surprise that drag queens have a union, and Twink responds by saying Steve has lived in WeHo so long and yet knows so little, before briefly describing the union. During Twink’s reply, the left edge of the character allegedly resembling Vox, including her shoulder, hair, and the edge of her fan, are visible for approximately nine additional seconds. The assertedly Vox-like background character does not reappear at any other point in the episode.

In addition to the episode, Netflix used approximately four to five seconds of this same scene, including the moment in which the character allegedly resembling Vox opens her fan, at the beginning of the 40-second “official teaser” trailer for Q-Force posted on YouTube during Pride Month in 2021. The cartoon character said to resemble Vox appears in approximately 12% of the teaser trailer….

Defendants also disseminated a still image from the scene featuring the character allegedly resembling Vox to advertise Netflix’s subscription-based streaming services, the series, and the episode. Netflix provided the still to at least one online publication in relation to an article promoting Q-Force. Defendants also promoted the series to entertainment trade publications like Variety.…

Vox sued for “unauthorized use of her likeness” (under the right of publicity and related theories), but the court said no:

The use of real people in fiction is generally protected by the First Amendment, for good reason. “Fiction writers may be able to more persuasively, or more accurately, express themselves by weaving into the tale persons or events familiar to their readers. The choice is theirs. No author should be forced into creating mythological worlds or characters wholly divorced from reality.” A celebrity’s “right of publicity[, on the other hand,] is essentially an economic right …. to prevent others from misappropriating the economic value generated by the celebrity’s fame through the merchandising of the ‘name, voice, signature, photograph, or likeness’ of the celebrity….” Thus, “[a]n obvious tension exists between this right of publicity and the First Amendment to the United States Constitution.”

To grapple with this tension, our Supreme Court formulated “what is essentially a balancing test between the First Amendment and the right of publicity ….” The test aids in determining “whether a work merely appropriates a celebrity’s economic value, and thus is not entitled to First Amendment protection, or has been transformed into a creative product that the First Amendment protects.” In other words, “the inquiry 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.”

For use in particularly close cases, our Supreme Court has also articulated “a subsidiary inquiry” that asks: “does the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted?”  “If this question is answered in the negative, then there would generally be no actionable right of publicity. When the value of the work comes principally from some source other than the fame of the celebrity—from the creativity, skill, and reputation of the artist—it may be presumed that sufficient transformative elements are present to warrant First Amendment protection.” …

[T]he First Amendment forecloses any possibility of liability for defendants’ actions identified in the complaint….

Vox’s alleged likeness is not the sum total of Q-Force—or even of the scene in which it is included. In the scene, the character that is the alleged likeness of Vox is seated with four other drag queens, and they are described as having a union meeting. Vox’s alleged inclusion at most grounds the scene in some semblance of reality, and the character plays a role in what is meant to be a comedic moment.

Vox’s own allegation, that the “use of [her] likeness depicts her as an unspeaking background character whose sole role is to perform a fan ‘thworp’ as a punchline to another character’s joke, thus reducing her … to a mere element of the setting, a part of the furniture,” underscores this point. The character is, effectively, part of the setting, and is part of what makes the setting feel more real. The alleged use of her likeness is thus “one of the ‘raw materials’ from which an original work [was] synthesized ….”  The character is a small part of the larger story, “which is itself quite expressive.” In other words, the likeness was transformed into part of a greater creative product.

Moreover, even if we were to consider this a “close case[ ],” warranting use of the “subsidiary inquiry” described [above], that inquiry too would support finding the complained-of conduct immunized by the First Amendment. The subsidiary inquiry asks whether “the marketability and economic value of the challenged work derive[s] primarily from the fame of the celebrity depicted,” and here it does not. Vox appears in less than one minute of one episode of a 10-episode series. The marketability and economic value of Q-Force cannot be said to “derive primarily” from Vox’s renown.

Vox’s argument that the character resembling her is nonetheless featured prominently at the beginning of the teaser trailer for Q-Force and in a still distributed to at least one media publication does not warrant a different conclusion. Anyone who watched the Q-Force teaser trailer would quickly realize the character is neither central to the story nor a reason to watch the show, as she does not reappear at any later points in the teaser trailer.

Vox, however, generally asserts the First Amendment does not provide a defense to a right of publicity claim where the defendant appropriates the economic value a plaintiff has built in an identity or performance … [and] simply recreate[s] a public figure’s likeness in the setting in which they have achieved renown. But that is not what happened here. Q-Force did not duplicate one of Vox’s acts or otherwise replicate her in a way that would substitute for one of her performances with her drag band, or one of her hosted events. Rather, it used her alleged likeness as a background character to ground the West Hollywood setting of the episode.

Vox does not allege she is “well-known” because she sits in bars with other drag queens or because she attends drag queen union meetings. Rather, she alleges she is well-known for hosting VIP events and appearing in her drag band. That the background character in Q-Force appears in a West Hollywood bar does not make the alleged use of Vox’s likeness one that appropriates the economic value she stands to generate from her character or reputation. This distinguishes two cases upon which Vox relies for this argument, as both are cases in which First Amendment defenses were rejected where video game developers used plaintiffs’ likenesses in video games to perform the same activity for which they were known in real life.

Vox also argues defendants’ use of her likeness “for the purpose of gaining attention” is not expressive and thus does not warrant First Amendment protection…. [But] an allegation “that defendants were trading on plaintiffs’ likenesses and reputations to generate interest … and increase sales” is “irrelevant to whether the [works] are constitutionally protected.” Rather, “[t]he question is whether the work is transformative, not how it is marketed,” and we have answered the former question in the affirmative.

Because we conclude Vox cannot demonstrate minimal merit in light of First Amendment protection from liability, we need not and do not address defendants’ arguments that Vox did not make a minimal merit showing of actual malice or of more than incidental use.