Court Says It’s OK to be Offensive on a Movie Set
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UPDATED: Jun 8, 2017
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The California Court of Appeal recently ruled that offensive and derogatory language used on a movie set is protected under the state’s anti-Strategic Lawsuit Against Public Participation (or anti-SLAPP) statute.
Daniel claimed that he was the victim of racial harassment during his one day of work on the movie because, according to the court’s decision, Wayans (who is black) compared Daniel to the black cartoon character “Cleveland Brown” from the show Family Guy, and called him “[n]igga.”
Daniel also claimed that Wayans made “demeaning, abusive, and derogatory comments and gestures” and posted a photograph of Daniel on Twitter without his consent.
The Hollywood Reporter reproduced the Tweet here.
The complaint included 13 causes of action, including:
a race-based harassment claim brought pursuant to Government Code section 12940 et seq.; a claim alleging a violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.); a claim brought pursuant to Civil Code section 3344 for the unauthorized use of another’s photograph for advertising; a common law misappropriation of likeness claim; a common law “false light”/invasion of privacy claim; a common law claim for breach of a quasi-contract; a common law claim for unjust enrichment; and a common law claim for intentional infliction of emotional distress.
Wayans moved to strike the claims against him as a SLAPP suit, saying that the claims
arose from Wayans’s constitutional right of free speech because the core injury-producing conduct arose out of the creation of the movie and its promotion over the Internet.
The trial court agreed with Wayans and entered judgement in his favor.
Daniel appealed. He claimed that the lower court was in error because the offensive conduct wasn’t part of the “creative process” inherent in making a film because it happened when the cameras weren’t rolling.
Wayans claimed that
on-set improvisation, including “[j]oking around,” constituted a key part of the creative process both in A Haunted House 2 and in his other movies, as the scripts for those movies were often just an “outline of scenes.” To demonstrate the improvisational nature of the movie’s creative process, Wayans submitted the certified transcript of three different “takes” of the scene in which Daniel appeared; in each of those takes the action is the same—Wayans’s character calling Daniel’s character to help get a heavy safe off of his dog—but the dialogue is markedly different each time as Wayans experiments or improvises.
Wayans also claimed that Daniel posed for the photograph at issue and allowed it to be taken.
The court found that Wayans’ alleged misconduct was based on his exercise of free speech — “the creation and promotion of a full-length motion picture, including the off-camera creative process.”
The court found that Daniels had waived other claims by signing a broad release form allowing the use of his image in connection with promoting the movie.
The case is potentially a bad precedent for anyone claiming racial or sexual harassment in a creative environment — such as a television writer’s room.