Young v. NeoCortext, Inc.

Ninth Circuit affirms denial of anti-SLAPP motion to dismiss and strike Big Brother runner-up Kyland Young’s putative class action alleging that use of his likeness in generative AI-powered Reface, which allows users to swap faces with celebrities in images and videos, violates his rights under California’s right of publicity statute.

NeoCortext Inc. is the creator of Reface, a photo-editing app that uses generative AI technology to allow users to swap faces with celebrities in images and videos from shows, movies and other media. Kyland Young, a cast member of several reality TV shows, such as Big Brother and MTV’s reality competition show The Challenge: USA, brought a putative class action against NeoCortext on behalf of other California residents whose image and likeness had been displayed on the Reface app. Kyland alleged that NeoCortext violated his right of publicity by using his image and likeness on Reface without authorization.

NeoCortext moved to dismiss and strike the suit under California’s anti-SLAPP statute, arguing that Young’s right of publicity claim is preempted by the Copyright Act and barred by the transformative use defense, and that Young failed to make a prima facie showing that NeoCortext violated Young’s right of publicity. The district court denied the motion, holding that Young plausibly alleged that NeoCortext knowingly used his name or likeness, Young’s state law claim does not fall within the subject matter of the Copyright Act, and NeoCortext failed to establish California’s transformative use defense as a matter of law.

On appeal, the Ninth Circuit considered NeoCortext’s anti-SLAPP motion, which involves a two-step analysis. A defendant must first establish that the challenged claim arises from a protected activity. If the defendant does so, the court then determines whether the plaintiff has demonstrated a probability of success on the merits.

As to the first prong, the Ninth Circuit assumed, without deciding, that NeoCortext met its burden of demonstrating that the challenged claim arises from protected activity. 

Turning to Young’s probability of success on his claims, the court first considered whether Young plausibly alleged that NeoCortext knowingly used his name or likeness. The Ninth Circuit agreed with the district court that Young had done so by alleging that NeoCortext made its database of clips searchable for specific individuals and that videos and images of him were in the database, which supported a reasonable inference that NeoCortext knew it was using Young’s likeness.

The court next considered NeoCortext’s argument that Young’s claims were preempted by the Copyright Act. The Ninth Circuit rejected this argument, concluding that Young’s claims were not preempted because they concerned NeoCortext’s use of Young’s name and likeness as an advertisement for Reface, not a work of authorship. 

Finally, the Ninth Circuit affirmed the district court’s rejection of NeoCortext’s transformative use defense, holding that NeoCortext failed to prove that the new images combining users’ faces with Young’s photographs were sufficiently altered to be protected by the First Amendment as a matter of law. The court reasoned that a trier of fact could reasonably conclude that NeoCortext’s use of Young’s likeness was not sufficiently transformative given Young’s allegation that the resulting clips and images feature Young in the roles for which he is known. Young thus satisfied the second prong of the anti-SLAPP analysis, and the Ninth Circuit accordingly affirmed the district court’s denial of the motion to strike and dismiss the complaint.