Publicity and Free Speech Toolkit: Transformative Use Memos, Newsworthiness Analyses, and Anti-SLAPP Motions

Summary. This toolkit collects the working documents that publicity disputes over expressive works actually run on, each annotated for both the creator and the person depicted. It opens with a real-person use log and then provides a transformative use memorandum, a chart for comparing a depiction against the decided cases, a newsworthiness and public interest analysis, and a commercial speech worksheet for marketing and brand content. The litigation templates cover a California anti-SLAPP motion, the supporting declarations, the plaintiff's opposition, a federal Rule 12 outline for courts that will not hear a special motion, and a tracker for fees and appeals that reflects the Ninth Circuit's 2025 en banc decision in Gopher Media v. Melone. A final pair of pre-release letters covers the subject's objection and the creator's response. Each template states its purpose, its owner, and when to use it, and is followed by drafting notes tied to the controlling authority.

The anti-SLAPP motion in a publicity case is usually won or lost before anyone files it. The record that won de Havilland was assembled from the production's own research, scripts, and marketing materials; what kept Hilton alive was the greeting card itself, which put Paris Hilton in her own reality-show setting. This toolkit is the paperwork: what to write while the work is being made, what to file when the complaint arrives, and what the person on the other side should write first.

How to use this toolkit

The short answer. Most disputes between a creator and a person depicted are decided on paper and early: on a clearance memo that an insurer reads, a pre-release letter that changes a scene, or a special motion to strike decided within months of filing. A special motion to strike (the anti-SLAPP motion) is a state-law procedure that lets a defendant sued over speech on a public issue force the plaintiff to show, with evidence, that the claim has merit before discovery, with fees to the defendant if the plaintiff cannot. The templates below are built around the questions courts actually ask: is the person raw material or the whole point, is the use news or advertising, and does the claim arise from speech at all.

Bracketed text is a placeholder. Local rules, page limits, and the judge's standing orders control format. For the doctrine behind every template, read The Right of Publicity and the First Amendment: Transformative Use, Newsworthiness, and the Limits of Owning a Persona; for the clearance process step by step, the Clearing Expressive Works Against Right of Publicity Claims: A Practical Guide; and for an item-by-item risk review, the Expressive Work Right of Publicity Risk Checklist: A Practical Checklist.

Template 1: Real-person use log

Purpose. One record of every real person in the work and every use of that person, with a disposition for each. Owner. A producer, editor, or project manager builds it; clearance counsel reviews and signs off. When to use. At the script, manuscript, or design-document stage; again at picture lock or content lock; and whenever marketing produces a new asset.

REAL-PERSON USE LOG
Project: [title]            Version: [draft / lock]        Date: [ ]       Reviewer: [ ]

ROW [ID]
Person: [name]                       Living / deceased (date of death, domicile at death): [ ]
Public figure / limited-purpose / private: [ ]       Minor: Y / N
Identity cues used: [name, nickname, face, voice (real or imitated), number,
                     catchphrase, costume, biography]   Cues changed: [ ]
Use bucket: WORK / AD FOR WORK / MERCHANDISE / THIRD-PARTY AD / NAME AS BRAND /
            LICENSED FOOTAGE-PHOTO-RECORDING
Location: [scene and timecode / page / level / asset ID]
Portrayal: FACTUAL / DRAMATIZED / COMPOSITE / INVENTED / PARODY / PASSING REFERENCE
Governing law and worst plausible forum: [ ]
Statutory exemption (cite): [ ]          Test applied: [ ]
Disposition: CLEAR / CLEAR WITH CHANGES / LICENSE / ESCALATE
Basis (one sentence and one cite): [ ]
Paper on file: [release / license / memo no. / none needed per counsel]

Drafting notes. Fill in the identity cues honestly, because recognizability is decided by the whole presentation, not the name: unnamed avatars were identifiable in Davis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2015), while New York's highest court held that avatars can be "portraits" but were not recognizable as the plaintiffs in Lohan v. Take-Two Interactive Software, Inc., 31 N.Y.3d 111 (2018). Use one row per use, not per person, since the same person can be cleared in the film and need a license on the poster. If the log will go to a distributor or an errors and omissions insurer, keep counsel's reasoning in a separate privileged memorandum (Template 2) and give the log only dispositions and short bases. The disposition "none needed per counsel" is what insurers' clearance procedures typically accept in place of a release, so make sure each such row points to a memo or a written determination.

Template 2: Transformative use memorandum

Purpose. A privileged analysis of one depiction under the transformative use test and the other tests a court might apply. Owner. Clearance counsel. When to use. Whenever a depiction is realistic and the product depends on it: avatars, portraits on goods, literal re-creations, voice imitations, and digital replicas.

PRIVILEGED AND CONFIDENTIAL | ATTORNEY-CLIENT COMMUNICATION | ATTORNEY WORK PRODUCT

TO:   [decision maker]        FROM: [counsel]        DATE: [ ]
RE:   Transformative use analysis: [person] in [work]

I.    QUESTION PRESENTED
      May [company] [use/release] [describe depiction] in [work] without consent?
II.   SHORT ANSWER AND RISK RATING
      [GREEN / YELLOW / RED], with the two facts that drive the rating.
III.  THE WORK AND THE DEPICTION
      A. The work as a whole: genre, premise, setting, length, distribution.
      B. Every appearance of the person (Appendix A: screenshots, timecodes, pages).
      C. Identity cues used, and which were changed or invented.
      D. How the work is marketed (Appendix B: key art, trailers, store pages).
      E. What drives sales: [data, marketing emphasis, reviews].
IV.   GOVERNING LAW AND FORUM
      Plausible forums; the least protective test among them.
V.    STATUTORY EXEMPTIONS
VI.   TRANSFORMATIVE USE
      A. Raw material, or the sum and substance of the work?
      B. Literal, or transformed by distortion, fantasy, new context, new role?
      C. Is the person doing what made them famous?
      D. Does the work's value come mainly from the person's fame?
      E. Comparison with decided cases (Template 3).
VII.  OTHER TESTS THE WORK MAY FACE
      Rogers relatedness; predominant use; balancing; Zacchini (entire act).
VIII. FEDERAL OVERLAYS
      False endorsement; source-identifying use; copyright preemption.
IX.   RECOMMENDATIONS
      Changes that would move the rating; license; limits on marketing and merchandise.
X.    RECORD TO PRESERVE

Drafting notes. Write Part III before anything else, and write it like a neutral critic. The four questions in Part VI come from Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001), and Winter v. DC Comics, 30 Cal. 4th 881 (2003) adds that the court looks at the work itself rather than how it was marketed. Answer Part VI.C bluntly: realistic depictions of people doing what made them famous lost in No Doubt v. Activision Publishing, Inc., 192 Cal. App. 4th 1018 (2011), Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013), Keller v. Electronic Arts Inc. (In re NCAA Student-Athlete Name & Likeness Licensing Litigation), 724 F.3d 1268 (9th Cir. 2013), and Davis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2015), and Hart rejected the argument that users' ability to edit the avatar changed anything. If the answer to VI.D depends on sales data, say so; Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010) shows that a literal depiction in the person's own setting can leave the defense to a factfinder, which affects settlement value. Part VII should cover the tests a plaintiff will choose elsewhere: relatedness under Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) and Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003), predominant use under Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003), and balancing under C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007) and Cardtoons, L.C. v. Major League Baseball Players Association, 95 F.3d 959 (10th Cir. 1996). Part VIII should flag any use of the person's name as a brand, where Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023) removes Rogers from the federal claim, and any licensed footage, where 17 U.S.C. § 301 may preempt the claim. Note that Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) narrowed "transformative" for copyright purposes; it does not govern the publicity test, but expect it in the other side's brief. If the client later relies on the memo to show good faith, for example against punitive damages, privilege over the subject may be waived, so keep business strategy out of it. For the copyright analog, see the Fair Use Toolkit: Analysis Memoranda, Clearance Decisions, and Litigation Positions.

Template 3: Comparison chart for the decided cases

Purpose. A side-by-side comparison that shows a client, an insurer, or a judge where the depiction sits among the decided cases. Owner. An associate or paralegal drafts; counsel checks every characterization. When to use. As Appendix C to Template 2, and as a demonstrative in briefing.

Drafting notes. The full citations are Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47 (2006), Hamilton v. Speight, 827 F. App'x 238 (3d Cir. 2020), Ross v. Roberts, 222 Cal. App. 4th 677 (2013), and ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003), with the others cited in Template 2. Keep each characterization to what the opinion actually held; a chart that overstates a case is the fastest way to lose a judge's trust. For creators, the persuasive move is to show the depiction sitting with Winter, Kirby, and Hamilton. For the person depicted, it is to show the product's value sitting with No Doubt and Hart: the realistic person, doing the real job, in a product sold on that realism.

Template 4: Newsworthiness and public interest analysis

Purpose. A privileged analysis of whether a use is protected as news, public affairs, or a matter of public interest, and where that protection stops. Owner. Clearance counsel. When to use. Documentaries, journalism, biography, sports and history projects, true crime, and any work that shows real events.

PRIVILEGED AND CONFIDENTIAL | ATTORNEY WORK PRODUCT
RE: Newsworthiness analysis: [person] in [work]

I.    THE SUBJECT AND WHY THE PUBLIC CARES
      Issue of public concern: [ ]. Evidence: [coverage, court records, public statements].
II.   STATUTORY NEWS AND PUBLIC AFFAIRS EXEMPTIONS
      Cal. Civ. Code § 3344(d) / § 3344.1(a)(2); Ind. "newsworthy value";
      765 ILCS 1075/35; Wash. Rev. Code § 63.60.070; Tenn. § 47-25-1107.
III.  COMMON-LAW PUBLIC INTEREST DEFENSE (California and similar states)
IV.   NEW YORK: IS THIS "ADVERTISING" OR "TRADE" AT ALL?
      Real relationship to a newsworthy subject? Advertisement in disguise?
      Knowing, substantial fictionalization presented as fact?
V.    HOW THIS PERSON'S IDENTITY IS USED
      Subject of the story, illustration of it, or bait for something else?
      Proportion: [minutes / pages / images] of [total].
VI.   PRIVATE FACTS AND PRIVATE PEOPLE
      Nexus between each private detail and the newsworthy subject; public records;
      consent; minors.
VII.  TRUTH, DRAMATIZATION, AND LABELING
VIII. PROMOTION OF THE WORK (incidental advertising; no implied endorsement)
IX.   CONCLUSION AND CONDITIONS (what must stay true for the conclusion to hold)

Drafting notes. Start Part I with the Supreme Court's definition: speech on a matter of public concern relates to a matter of political, social, or other concern to the community or is a subject of legitimate news interest (Snyder v. Phelps, 562 U.S. 443 (2011)). "News" is not limited to hard news. Courts applying California law have protected surf history (Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536 (1993)), baseball history (Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001)), a newspaper's sale of its own front pages (Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995)), and an editorial fashion spread (Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001)), and Indiana's "newsworthy value" exception covered daily fantasy sports (Daniels v. FanDuel, Inc., 109 N.E.3d 390 (Ind. 2018)). For New York's Part IV, use the "real relationship" and "advertisement in disguise" tests of Finger v. Omni Publications International, Ltd., 77 N.Y.2d 138 (1990) and Messenger v. Gruner + Jahr Printing & Publishing, 94 N.Y.2d 436 (2000), the fashion-is-news holding of Stephano v. News Group Publications, Inc., 64 N.Y.2d 174 (1984), and the knowing-fictionalization exception of Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1967). Part V is where most newsworthiness defenses fail: in Toffoloni v. LFP Publishing Group, LLC, 572 F.3d 1201 (11th Cir. 2009), the article was incidental to the photographs rather than the reverse. For Part VI, California asks whether each private fact bears a logical nexus to the newsworthy subject (Shulman v. Group W Productions, Inc., 18 Cal. 4th 200 (1998)) and protects truthful reports drawn from public court records (Gates v. Discovery Communications, Inc., 34 Cal. 4th 679 (2004)); the Supreme Court has protected truthful publication of lawfully obtained information of public significance (Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Florida Star v. B.J.F., 491 U.S. 524 (1989)). For Part VIII, a publication may advertise itself with the content it legitimately published (Namath v. Sports Illustrated, 48 A.D.2d 487 (1st Dep't 1975); Booth v. Curtis Publishing Co., 15 A.D.2d 343 (1st Dep't 1962)), but not with a false suggestion of endorsement (Cher v. Forum International, Ltd., 692 F.2d 634 (9th Cir. 1982)). Part IX matters because conclusions about newsworthiness are conditional: a re-cut, a new tagline, or a merchandise line can change the answer.

Template 5: Commercial speech classification worksheet

Purpose. A fast, documented classification of each promotional asset as commercial or noncommercial speech. Owner. The marketing lead completes it; counsel reviews anything that is not a clean "no." When to use. For every trailer, poster, cover, store page, press release, influencer kit, social post, and merchandise listing that shows a real person.

ASSET: [ ]            SPEAKER / ACCOUNT: [ ]         CHANNEL: [ ]        DATE: [ ]
1. Proposes a transaction (price, code, "shop now," link to buy)?           Y / N
2. Advertising format (paid, sponsored, brand account, ad placement)?        Y / N
3. Refers to a specific product or service, including the brand itself?    Y / N
4. Speaker has an economic motive for this message?                          Y / N
5. Links the person to the brand (tribute, congratulations, "fan of")?      Y / N
6. Advertises an expressive work that features the person?                  Y / N
   6a. Shows only what the work contains?                                    Y / N
   6b. Implies the person endorses or took part in the work?                 Y / N
7. States facts about the person's role in a product ("featuring," "sung by")? Y / N
8. Editorial content placed near ads, or an ad dressed as editorial?         [ ]
RESULT: COMMERCIAL / NONCOMMERCIAL / MIXED (explain)
ACTION: CLEAR / REVISE / LICENSE / PULL          Reviewer and date: [ ]

Drafting notes. Question 1 tracks the core definition in Board of Trustees of the State University of New York v. Fox, 492 U.S. 469 (1989); questions 2 to 4 are the Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) factors, which no single answer decides. Question 5 exists because of Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014): image advertising that links a brand to a celebrity is commercial even without a product or a price. Question 7 exists because of Serova v. Sony Music Entertainment, 13 Cal. 5th 859 (2022), where statements on an album cover and in a promotional video about who sang the tracks were commercial speech, even though the album they promoted was an artistic work; California's own test looks at the speaker, the intended audience, and the content of the message (Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002)), a case the Supreme Court took and then dismissed without deciding (Nike, Inc. v. Kasky, 539 U.S. 654 (2003)). The Ninth Circuit calls the inquiry "fact-driven" and has held that a publication outside traditional advertising formats can still be commercial (Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 (9th Cir. 2021)). For question 8, editorial content stays protected when it sits beside ads (Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664 (2010)), but a real person used as window-dressing in a catalog (Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001)) or a fact used to sell cars (Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996)) is advertising. A "yes" on question 6b also triggers the FTC's Endorsement Guides, 16 C.F.R. Part 255, and the rule against fake celebrity testimonials in 16 C.F.R. Part 465, enforced under 15 U.S.C. § 45. For endorsement disclosures generally, see Sponsorship, Endorsement, and Influencer Agreements: A Practical Guide.

Template 6: California anti-SLAPP motion outline

Purpose. The notice and memorandum for a special motion to strike state-law claims over an expressive work. Owner. Litigation counsel for the creator. When to use. On receipt of a California state-law claim (publicity, false light, defamation, unfair competition) that targets the creation, content, or promotion of a work. The motion is due within 60 days of service of the complaint unless the court allows a later filing (Cal. Civ. Proc. Code § 425.16(f)).

[DEFENDANT]'S NOTICE OF SPECIAL MOTION TO STRIKE (CAL. CIV. PROC. CODE § 425.16)

PLEASE TAKE NOTICE that on [date], at [time], in Department [ ], Defendant will move
to strike the [first through ___] causes of action of the Complaint. The motion is based
on this notice, the memorandum, the declarations of [creator], [researcher], [marketing
lead], and [custodian], the lodged copy of [work], the request for judicial notice, the
pleadings, and argument at the hearing.

MEMORANDUM OF POINTS AND AUTHORITIES
I.   INTRODUCTION (one page: the work; who the plaintiff is; why the claims attack speech)
II.  STATEMENT OF FACTS (the work; how it was made; the research; the marketing;
     the plaintiff's public role)
III. ARGUMENT
     A. Each challenged claim arises from protected activity (§ 425.16(b)(1), (e)(3), (e)(4))
        1. Creating, producing, and distributing [work] is conduct in furtherance of speech.
        2. The work concerns an issue of public interest: [name the issue].
        3. The commercial speech exemption does not apply (§ 425.17(c), (d)(2)).
     B. Plaintiff cannot show a probability of prevailing
        1. The statutory exemptions bar the § 3344 / § 3344.1 claims.
        2. The First Amendment bars the common-law claim: [transformative use /
           public interest / strict scrutiny of a content-based restriction].
        3. [Copyright preemption, if the claim targets licensed footage.]
        4. [False light and defamation: no false statement of fact; no actual malice.]
IV.  DEFENDANT IS ENTITLED TO FEES AND COSTS (§ 425.16(c)(1)); amount by later motion
V.   CONCLUSION

Drafting notes. At step one, the defendant need not show that the plaintiff meant to chill speech (Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53 (2002)); it must show that the claim arises from protected activity, meaning that the speech is itself the wrong complained of and supplies elements of the claim, not merely evidence of it (Navellier v. Sletten, 29 Cal. 4th 82 (2002); Park v. Board of Trustees of California State University, 2 Cal. 5th 1057 (2017)). The motion can target individual claims and even individual allegations of protected activity within a mixed claim (Baral v. Schnitt, 1 Cal. 5th 376 (2016); Bonni v. St. Joseph Health System, 11 Cal. 5th 995 (2021)). Courts have treated the creation and casting of a television episode (Tamkin v. CBS Broadcasting, Inc., 193 Cal. App. 4th 133 (2011)) and on-set conduct while making a film (Daniel v. Wayans, 8 Cal. App. 5th 367 (2017)) as protected, and a celebrity greeting card satisfied the public interest prong in Hilton. Under FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal. 5th 133 (2019), context matters: identify the public issue, then show the functional relationship between the work and the public conversation about it. Do not overreach for a private person depicted in fiction; the denial of the motion was affirmed in Dyer v. Childress, 147 Cal. App. 4th 1273 (2007). If the plaintiff invokes the commercial speech exemption, the plaintiff bears the burden of proving it (Simpson Strong-Tie Co. v. Gore, 49 Cal. 4th 12 (2010)), and § 425.17(d)(2) preserves the motion for actions based on the creation, dissemination, or advertisement of dramatic, literary, musical, political, or artistic works. At step two, the plaintiff must show a legally sufficient claim with minimal merit; the court accepts the plaintiff's evidence as true and asks only whether the defendant's evidence defeats the claim as a matter of law (Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811 (2011); Monster Energy Co. v. Schechter, 7 Cal. 5th 781 (2019)). The model record is the one in de Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018), and the strongest constitutional argument for a film about a matter of public concern is the strict scrutiny holding of Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016), which rests on the rule that content-based restrictions are presumptively invalid (Reed v. Town of Gilbert, 576 U.S. 155 (2015)). For the full procedure, see Filing an Anti-SLAPP Motion: A Practical Guide.

Template 7: Supporting declarations

Purpose. Short, factual declarations that put the work, its making, and its marketing before the court. Owner. Litigation counsel drafts with each witness; each witness reviews every sentence. When to use. With Template 6, and with any early motion for summary judgment.

DECLARATION OF [CREATOR: writer / showrunner / creative director]
1. I am [role] of [work]. I have personal knowledge of the facts stated here.
2. The work: [genre, length, premise, themes, release date and platform].
3. Why [plaintiff] appears: [role in the story; the theme the portrayal serves].
4. Research: [sources reviewed; interviews; records]. True copies are Exhibits [ ].
5. Creative choices: [what was dramatized, composited, or invented, and why;
   how the work tells the audience it is a dramatization].
6. [Plaintiff] appears in [__ minutes of __ / __ pages of __ / __ of __ levels].

DECLARATION OF [RESEARCHER OR FACT-CHECKER]
1. Role and personal knowledge.
2. Exhibit [ ] is the annotated script, tagging each scene that depicts [plaintiff]
   as factual, dramatized, composite, or invented, with its source.
3. Sources for each challenged scene: [scene: source, page, date].

DECLARATION OF [MARKETING LEAD]
1. Role and personal knowledge.
2. Exhibits [ ] are all trailers, key art, store pages, and paid placements.
3. [Plaintiff]'s name or image [was not used in advertising / was used only in ___].
4. No merchandise bearing [plaintiff]'s likeness was made or licensed.
5. No advertising stated or implied that [plaintiff] endorsed or took part in the work.

DECLARATION OF [CUSTODIAN] LODGING THE WORK
1. Role and personal knowledge.
2. Exhibit [ ] is a true and correct copy of [work] as [released / broadcast / published]
   on [date]. Exhibit [ ] is a timed transcript.

I declare under penalty of perjury under the laws of [the State of California /
the United States of America] that the foregoing is true and correct.
Executed on [date] at [city, state].        ______________________ [name]

Drafting notes. Keep declarations factual and in the witness's own knowledge; legal conclusions belong in the brief. The marketing declaration is often the most valuable one, because it answers the commercial-use theory before the plaintiff can develop it, as FX's did in de Havilland. California courts may consider evidence at step two if it is reasonably possible that it will be admissible at trial (Sweetwater Union High School District v. Gilbane Building Co., 6 Cal. 5th 931 (2019)), but there is no reason to test that rule with hearsay when a witness with knowledge is available. In federal court, a declaration must be made on personal knowledge and set out facts admissible in evidence under Fed. R. Civ. P. 56; authenticate the lodged work and exhibits under Fed. R. Evid. 901, and use a summary under Fed. R. Evid. 1006 for sales or screen-time data too voluminous to present conveniently. Do not let a witness describe counsel's clearance advice unless the client has decided to waive privilege over it. For the clearance file these declarations draw on, see the Entertainment and Media Production Toolkit: Rights, Talent, and Distribution.

Template 8: Opposition outline for the person depicted

Purpose. The structure for opposing a special motion to strike a publicity, false light, or related claim. Owner. Plaintiff's counsel. When to use. On service of the motion. In California state court the opposition is due nine court days before the hearing (Cal. Civ. Proc. Code § 1005(b)), and § 425.16(f) calls for a hearing within 30 days of the motion's service unless the court's docket requires a later date, so start immediately.

PLAINTIFF'S OPPOSITION TO SPECIAL MOTION TO STRIKE
I.   INTRODUCTION (the use exploits plaintiff's identity commercially; it is not storytelling)
II.  STATEMENT OF FACTS, WITH EVIDENCE
     Side-by-side comparison of plaintiff and the depiction; the marketing; the
     merchandise; sales or download data; any public statements by defendant.
III. ARGUMENT
     A. The claims do not arise from protected activity
        1. The commercial speech exemption applies (§ 425.17(c)); § 425.17(d)(2) does not
           reach [merchandise / third-party advertising].
        2. The claim is not "in connection with" a public issue: [context; private person].
        3. The claim rests on [unpaid license fee / breach of agreement], not on speech.
     B. Plaintiff has shown a probability of prevailing
        1. Each element, with admissible evidence (identity; use; no consent;
           commercial advantage; injury).
        2. The use is not transformative: [realistic; plaintiff's own field; value from fame].
        3. No statutory exemption applies: [merchandise / advertising].
        4. No public interest defense: plaintiff's identity is the bait, not the subject.
     C. Alternatively, plaintiff needs specified discovery (§ 425.16(g)): [what, and why].
IV.  CONCLUSION

Drafting notes. Plaintiffs carry the burden of proving the commercial speech exemption (Simpson Strong-Tie Co. v. Gore, 49 Cal. 4th 12 (2010)), so build it from the defendant's own marketing. On the first prong, FilmOn helps plaintiffs too: context can show that a use is commercial exploitation rather than participation in a public conversation, and Dyer v. Childress, 147 Cal. App. 4th 1273 (2007) shows that a private person depicted in fiction may defeat the prong outright. A claim that rests on a broken promise to pay or license, rather than on the content of the work, may not arise from protected activity at all (Park v. Board of Trustees of California State University, 2 Cal. 5th 1057 (2017); Jordan-Benel v. Universal City Studios, Inc., 859 F.3d 1184 (9th Cir. 2017)). On the merits, put the depiction side by side with the person and argue the pattern of No Doubt v. Activision Publishing, Inc., 192 Cal. App. 4th 1018 (2011) and Keller v. Electronic Arts Inc. (In re NCAA Student-Athlete Name & Likeness Licensing Litigation), 724 F.3d 1268 (9th Cir. 2013); for identity used as bait, rely on Toffoloni v. LFP Publishing Group, LLC, 572 F.3d 1201 (11th Cir. 2009) and Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001). Ask for targeted discovery only with a specific showing of what the defendant alone has, such as sales data or design documents. In the Ninth Circuit, a motion that attacks the facts is decided under Rule 56 standards, which opens the door to discovery under Rule 56(d) (Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, 890 F.3d 828 (9th Cir. 2018); Metabolife International, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001)), and a plaintiff who loses on the pleadings is ordinarily allowed to amend under Fed. R. Civ. P. 15 (Verizon Delaware, Inc. v. Covad Communications Co., 377 F.3d 1081 (9th Cir. 2004)). The state statute does not reach a federal Lanham Act claim pleaded alongside it. Before filing the opposition, count the cost: a losing plaintiff pays the defendant's reasonable fees, measured by the lodestar and including the fees for the fee motion (Ketchum v. Moses, 24 Cal. 4th 1122 (2001)).

Template 9: Federal Rule 12 outline where no special motion is available

Purpose. A motion to dismiss built on the work itself, for federal courts that will not apply a state special motion. Owner. Litigation counsel for the creator. When to use. In the Second, Fifth, Tenth, Eleventh, and D.C. Circuits, in other federal courts where the question is open, and for the federal claims in any court.

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(6)
I.   THE WORK IS PROPERLY BEFORE THE COURT
     Incorporation by reference; judicial notice of the work and its release.
II.  LEGAL STANDARD (plausibility; legal conclusions not credited)
III. THE [STATE] PUBLICITY CLAIM FAILS AS A MATTER OF LAW
     A. Statutory exemption.   B. First Amendment under the forum's test.
     C. Copyright preemption, if the claim targets licensed footage or recordings.
IV.  THE LANHAM ACT CLAIM FAILS
     Rogers (where the use is expressive and not source-identifying), or no plausible
     likelihood of confusion about sponsorship.
V.   [FALSE LIGHT / DEFAMATION: no actionable statement of fact]
VI.  AMENDMENT WOULD BE FUTILE

Drafting notes. A court may consider the work on a Rule 12(b)(6) motion because the complaint depends on it (Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007)) and may take judicial notice of its release under Fed. R. Evid. 201; if the court goes further, Fed. R. Civ. P. 12 requires conversion to summary judgment. The plausibility standard of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) lets the court disregard labels such as "commercial exploitation" when the work shows otherwise. On appeal, a finding of actual malice receives independent review of the whole record (Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984)), and at summary judgment a public figure must show actual malice with convincing clarity (Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). The D.C., Second, Fifth, and Eleventh Circuits hold that state special motions conflict with Rules 12 and 56, applying Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010) and Hanna v. Plumer, 380 U.S. 460 (1965) (Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015); La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020); Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019); Carbone v. Cable News Network, Inc., 910 F.3d 1345 (11th Cir. 2018)), and the Tenth Circuit treats New Mexico's statute as procedural and inapplicable in federal court (Los Lobos Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d 659 (10th Cir. 2018)). The Ninth Circuit still applies California's statute under United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999) and CoreCivic, Inc. v. Candide Group, LLC, 46 F.4th 1136 (9th Cir. 2022), but in Gopher Media LLC v. Melone, No. 24-2626 (9th Cir. Oct. 9, 2025) (en banc) the en banc court only assumed that the statute applies in federal court, and four judges wrote that they would hold it does not, so check for later developments before relying on it. Removal under 28 U.S.C. § 1441 must occur within 30 days of service under 28 U.S.C. § 1446, and a plaintiff who wants the case back in state court must move to remand under 28 U.S.C. § 1447. Plaintiffs who prefer federal court can plead a false endorsement claim under 15 U.S.C. § 1125(a) for jurisdiction under 28 U.S.C. § 1338 and 28 U.S.C. § 1367, or rely on diversity under 28 U.S.C. § 1332. For the general motion practice, see Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants; First Amendment defenses that are not raised by motion belong in the answer, and the Responsive Pleading Toolkit: Answer Templates, Affirmative Defense Libraries, and Counterclaim Outlines has defense language to adapt.

Template 10: Fees and appeals tracker

Purpose. One page that tells the client what the motion can cost or recover and when each appeal clock runs. Owner. Litigation counsel for either side. When to use. From the day the motion is filed or served, and in every settlement discussion.

Drafting notes. Remember the second fee clause: Cal. Civ. Code §§ 3344(a) and 3344.1(a)(1) award fees to "the prevailing party," which cost the plaintiff in Kirby roughly $608,000 in Sega's fees, and the clause applies whether or not a special motion is filed. Federal courts measure fee requests against the results obtained (Hensley v. Eckerhart, 461 U.S. 424 (1983)), and a defendant's offer of judgment under Fed. R. Civ. P. 68 shifts post-offer costs to a plaintiff who does no better. Gopher Media changes federal strategy for defendants: a denied motion can no longer be appealed at once, so the realistic paths are a motion for summary judgment, certification for interlocutory appeal under 28 U.S.C. § 1292, or a state-court forum where § 425.16(i) still applies. Plaintiffs should note the corollary: in federal court the denial no longer buys the defendant a year of appellate delay. A voluntary dismissal after the motion is filed does not reliably avoid a fee award, so decide which claims to keep before the motion arrives. For Lanham Act fee practice, see Lanham Act Attorney's Fees Under 15 U.S.C. § 1117(a): A Practical Guide.

Template 11: Pre-release letters

Purpose. Two short letters: the depicted person's objection, and the creator's response. Owner. Counsel for each side. When to use. As soon as either side learns of the project or the objection, and always before release.

LETTER A: OBJECTION ON BEHALF OF THE PERSON DEPICTED
[Date]      VIA EMAIL AND OVERNIGHT COURIER
Re: [Title]: [episodes, scenes, timecodes, pages, or asset IDs]
1. We represent [name], who has not consented to the uses described below.
2. Specific factual objections: [Episode 4, scene 12 depicts ___. The trial transcript
   at pages ___ to ___ shows ___ (enclosed).]
3. Commercial uses: [poster, store page, merchandise, sponsor integration, social post].
4. Requested changes by [date]: [revise scene / remove name and image from marketing /
   add dramatization notice / license terms].
5. Preservation: please preserve drafts, research files, marketing assets,
   communications, and sales data relating to [name].
6. Nothing in this letter waives any claim or remedy.

LETTER B: CREATOR'S RESPONSE
Re: [Title]: response to your letter of [date]
1. We reviewed each item with the production and its research file.
2. [Title] is protected expression about [subject]: [one paragraph, with the statutory
   exemption and two or three leading cases].
3. Item by item: [Scene 12: sources are ___; we have / have not revised it, because ___].
4. Marketing: [name]'s name and image are used only in [___]; no endorsement is stated
   or implied; no merchandise bears [name]'s likeness.
5. No license is required, and we decline the request for payment.
6. We have taken steps to preserve relevant materials.

Drafting notes. For the person depicted, specificity is the point: a letter that identifies the scene, the contrary record, and the requested change often gets the scene fixed, and if the scene airs unchanged it helps prove that the producer entertained serious doubts about its truth (St. Amant v. Thompson, 390 U.S. 727 (1968)) or purposely avoided the truth (Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989)). Avoid threats unconnected to the claim, and remember that an injunction against an expressive work before trial is a prior restraint that courts rarely grant under Fed. R. Civ. P. 65; see Preliminary Injunctions and Temporary Restraining Orders: Emergency Relief in Federal Court. For creators, answer item by item, fix what your own file shows is wrong (a documented correction undercuts any actual malice theory), notify the errors and omissions carrier, and issue a litigation hold. Never promise approval, anonymity, or a flattering portrayal you will not deliver, because promises are enforceable notwithstanding the First Amendment (Cohen v. Cowles Media Co., 501 U.S. 663 (1991)). A creator facing a persistent threat can sue first for a declaratory judgment under 28 U.S.C. § 2201, but doing so gives up the defendant's special motion; see Declaratory Judgment Actions: Jurisdiction, Discretion, and the Race to the Courthouse. For more letter forms, including takedown demands, use the Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands and Drafting a Demand Letter: A Practical Checklist.

Common drafting mistakes

1. Arguing transformation in the abstract. Courts decide these cases by looking at the work; describe it precisely and lodge it.
2. Using Rogers for the state claim in a court that rejects it. Hart and Keller refused, and Jack Daniel's removed it for source-identifying uses on the federal claim.
3. Declarations that argue. A witness who offers legal conclusions or counsel's advice invites a motion to strike and a privilege fight.
4. Ignoring the marketing. Plaintiffs win on posters, store pages, and brand posts far more often than on the work itself.
5. Suing over a reputational injury with a publicity claim. The fee clauses make that an expensive mismatch; plead defamation or false light for false scenes.
6. Assuming federal court preserves the special motion and the interlocutory appeal. Many circuits refuse the motion, and Gopher Media ended immediate appeals of denials in the Ninth Circuit.

Frequently asked questions

Can a clearance memo stay privileged and still satisfy an insurer? Usually, if the insurer receives the log and short written determinations rather than the full memo. Sharing the memo itself with third parties risks waiver.

Is a special motion worth filing if the judge may deny it? Often, in state court: the plaintiff must preview its evidence, discovery is stayed, and a denial is immediately appealable. In federal court within the Ninth Circuit the appeal is gone, so the case for filing rests on the merits and the fee clause.

Does fiction need a newsworthiness analysis? Rarely. Fiction is protected as expression; the newsworthiness memo matters most for documentaries, journalism, and anything sold as true.

How can a plaintiff avoid a special motion altogether? Sue over what is not speech about a public issue: the merchandise, the advertising, or a broken contract, and plead it that way from the start.

Practical takeaways

• Write the use log and the memos while the work is being made; they become the insurance file and the motion record.
• Describe the work before analyzing it, and compare it to the decided cases honestly.
• Classify every promotional asset separately; that is where most claims succeed.
• Choose the forum with the special motion, the fee clauses, and Gopher Media in mind.
• Send or answer pre-release letters item by item; specific letters change scenes and build or defeat actual malice.

This document is general information, not legal advice for any particular situation; the law changes, and the facts matter.

Related Documents

Related Articles

• The Right of Publicity and the First Amendment: Transformative Use, Newsworthiness, and the Limits of Owning a Persona: the doctrine behind each template.
• Anti-SLAPP Statutes and Strategic Litigation Against Public Participation: the statutes and their reach in federal court.
• Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law: voice and replica statutes that add to these analyses.
• Defamation, Business Disparagement, and Online Reviews: the claims that travel with publicity claims in docudrama cases.
• Right of Publicity Basics: the elements a plaintiff must prove.

Related Guides

• Clearing Expressive Works Against Right of Publicity Claims: A Practical Guide: the clearance process these templates support.
• Filing an Anti-SLAPP Motion: A Practical Guide: timing, evidence, hearings, and fees.
• Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants: the federal alternative.
• Lanham Act Attorney's Fees Under 15 U.S.C. § 1117(a): A Practical Guide: fees on the parallel federal claim.

Related Checklists

• Expressive Work Right of Publicity Risk Checklist: A Practical Checklist: the item-by-item risk review that feeds Templates 1 to 5.
• Litigation Hold and Evidence Preservation Checklist: A Practical Checklist: preserving the record both sides will need.
• Answer and Affirmative Defenses Checklist: A Practical Checklist: pleading First Amendment and statutory defenses.

Related Toolkits

• Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands: releases and demand letters.
• Trademark Fair Use Toolkit: Nominative Use Guidelines, Comparative Advertising Clearance, and Defense Briefing: briefing the Rogers and nominative use defenses.
• Responsive Pleading Toolkit: Answer Templates, Affirmative Defense Libraries, and Counterclaim Outlines: defense language for the answer.
• John Doe Litigation Toolkit: Early Discovery Motions, Platform Subpoenas, and Motions to Quash: when the impersonator is anonymous.
• Fair Use Toolkit: Analysis Memoranda, Clearance Decisions, and Litigation Positions: the copyright counterpart to Template 2.
• Entertainment and Media Production Toolkit: Rights, Talent, and Distribution: production paperwork behind the declarations.