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March 20, 2026 Get Citation Alerts Download PDF Add Note

Hara v. Netflix CA2/5

California Court of Appeal

• Citations: None known
• Docket Number: B340401

• Precedential Status: Non-Precedential

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (787)

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Combined Opinion

Filed 3/20/26 Hara v. Netflix CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

LANCE HARA, B340401

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 23STCV27581)

NETFLIX, INC. et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Jon R. Takasugi, Judge. Reversed.
Davis Wright Tremaine, Diana Palacios, Cristina Salvato,
and Joel Richert for Defendants and Appellants.
Valkyrie Law Group and Heather L. Blaise for Plaintiff and
Respondent.
In this anti-SLAPP appeal, defendants and appellants1 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. 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. Defendants and
appellants filed an anti-SLAPP motion arguing the complaint
arose from conduct protected by the anti-SLAPP statute and had
no merit. The trial court agreed the complaint targeted protected
activity under the anti-SLAPP statute, but it denied the anti-
SLAPP motion because it found Vox’s claims were supported by a
sufficient prima facie showing. Defendants now ask us to decide
whether this was error because Vox’s claims are barred by the
First Amendment and therefore have no prospect of succeeding.

I. BACKGROUND
A. Q-Force and Vox, as Alleged in Vox’s Complaint
In 2021, Netflix released Q-Force, a 10-episode animated
series that features a group of LGBTQ-spies who, “despite being
the best in their field, are undervalued due to their sexualities
and identities.” Gabe Liedman (Liedman), a co-creator,

1
The defendants and appellants are Netflix, Inc. (Netflix),
Titmouse Inc., LOL Send, Inc., Gabe Liedman, Fremulon, LLC,
Michael Schur, Universal Television LLC, Hazy Mills
Productions, Inc., Sean Hayes, Todd Milliner, Ben Heins, 3 Arts
Entertainment, LLC, David Miner, and Max Silvestri
(collectively, defendants).

2
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.
Vox is a “well-known Drag Queen in Hollywood who hosts
VIP events [at venues like] the Roosevelt Hotel in Hollywood and
Hamburger Mary’s in West Hollywood.” Vox is best known for
her drag band. She has appeared in theater productions, reality
TV shows, music videos, and at least one film. Vox commonly
uses a handheld folding fan as part of her drag persona, and she
has fans with her name and likeness on them. Vox has a web
series, The Vicky Vox Project, that depicts a cartoon-like
illustration of Vox.

B. The Alleged Uses of Vox’s Likeness
Defendants allegedly used Vox’s likeness in one scene of
one of the ten 30-minute episodes of Q-Force.2 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

2
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.”

3
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.
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 2021.3 (Netflix, Q-
FORCE Official Teaser Netflix, YouTube (Jun. 23, 2021),

3
Another character that has no resemblance to Vox also
displays a handheld fan (bearing the word “slay”) in the Q-Force
teaser trailer.

4
https://www.youtube.com/watch?v=Fk9s-zTbq28 (last visited
November 24, 2025).) 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.
Following the release of advertisements depicting the
background character who resembles Vox, Vox was contacted by
family, friends, fellow drag performers, and fans regarding the
depiction of her image and likeness in the advertisements. Many
of the people who contacted Vox expressed confusion and concern
about her connection with Q-Force. The teaser trailer resulted in
negative criticism about the perpetuation of harmful stereotypes
of the LGBTQ community.

C. Vox’s Causes of Action
Vox filed her complaint in this action in November 2023,4
and it alleges she did not grant her permission to have her image

4
Before that, in May 2023, Vox brought misappropriation
and right of publicity claims, alongside a Lanham Act claim, in
federal court. (Lance Hara p/k/a Vicky Vox v. Netflix, Inc., et al.
(C.D.Cal.) Case No. 2:23-cv-03456-RGK-AS). Defendants filed a
motion to dismiss and an anti-SLAPP motion. The federal court
dismissed the Lanham Act claim with prejudice without reaching
the state law claims, (Hara v. Netflix, Inc. (C.D.Cal. Oct. 26,
2023, No. 2:23-cv-03456-RGK-AS) 2023 U.S.Dist. Lexis 248082),

5
or likeness used as a stereotypical drag performer for the purpose
of appealing to potential viewers or to show or imply her
affiliation with or endorsement of Q-Force or defendants. Vox
further alleges Netflix has exhibited a pattern of problematic
behavior toward the LGBTQ community and Vox would never
have granted Netflix the right to commercially exploit her image
and likeness.
The complaint asserts three causes of action: violation of
California’s statutory right of publicity (Civ. Code, § 3344);
violation of California’s common law right of publicity; and
invasion of privacy by appropriation. The Civil Code-based cause
of action alleges defendants infringed on Vox’s publicity rights
and used her image or likeness without her consent, caused
confusion in the marketplace because Vox’s fans believed the use
was authorized, damaged the value of her merchandise in the
marketplace, and harmed her goodwill and reputation. Vox
alleges that given her “established brand and image, professional
reputation, and moral commitment as a champion of the working
class, she never would have licensed her image or likeness in
connection with the show Q-Force,” and is “appalled, disgusted,
and embarrassed to see her image and/or likeness falsely
endorsing Defendants’ products because such unauthorized use
creates a perception of hypocrisy in the public eye and
irreparably undermines the important international social work
that has been [Vox’s] adult life’s mission . . . .” The cause of
action for violation of the common law right of publicity is
substantially similar—alleging defendants infringed on Vox’s

and the Ninth Circuit Court of Appeals affirmed (Hara v. Netflix,
Inc. (9th Cir. 2025) 146 F.4th 872).

6
publicity rights for the purpose of advertising and marketing Q-
Force. The invasion of privacy by appropriation cause of action
alleges defendants’ “use of Plaintiff’s 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 identity, her long and accomplished career, and her
regular presence at Hamburger Mary’s West Hollywood to a mere
element of the setting, a part of the furniture.” The invasion of
privacy claim also alleges Q-Force has been widely panned and
criticized by members of the LGBTQ community for upholding
and reinforcing harmful stereotypes about the community and
Vox’s unconsented-to association with Q-Force has caused her
mental distress and dignitary harm.
Vox prays for compensatory damages for the unauthorized
use of her likeness, an accounting for and payment of actual
damages, all gains, profit, and advantages derived as a result of
the unauthorized use, punitive damages, an injunction
preventing the unauthorized use of Vox’s image or likeness,
attorney fees and costs, and pre- and post-judgment interest.

D. The Anti-SLAPP Proceedings
1. Defendants’ motion
Defendants filed a special motion to strike Vox’s complaint
pursuant to Code of Civil Procedure section 425.16.5 Defendants
contended Q-Force is protected speech made in a public forum in
connection with an issue of public interest. Defendants argued
Q-Force constitutes speech in connection with matters of public

5
Undesignated statutory references that follow are to the
Code of Civil Procedure.

7
interest because the creation of popular entertainment is itself a
matter of public interest; they also asserted the extensive media
coverage surrounding Q-Force was further evidence of its status
as a matter of public interest. Defendants additionally argued
Vox could not show a probability of prevailing on the merits of
her claims. They argued that because Q-Force is an expressive
work, Vox’s right of publicity claims are barred by the First
Amendment. They also argued the alleged depiction of Vox in Q-
Force is “transformative” under the test articulated by the
California Supreme Court and thus entitled to First Amendment
protection. Defendants further contended Vox’s claims failed
because the underlying conduct was noncommercial speech and
she had not alleged actual malice. And they argued Vox’s claims
were independently barred by the doctrine of incidental use.
In support of their motion, defendants submitted Episode 5
of Q-Force, a screenshot of the YouTube page depicting the
official teaser trailer for Q-Force, a screenshot of Netflix’s own
webpage associated with Q-Force, and two minute orders in the
federal action we identified earlier in the margin. Defendants
also submitted five reviews or articles about the show from
publications including NPR, The Hollywood Reporter, Variety,
and The Guardian. One highlights that the series “is the product
of many queer creators, both behind the scenes—as writers,
producers[,] and animators—and behind the mic,” and questions
whether it makes a “palpable difference that, in most cases,
queer characters are voiced by queer actors[ ] and straight
characters by straight actors.” (Weldon, ‘Q-Force’ Trafficks In
Queer Stereotypes — Then Drives Through Them, NPR (Sept. 2,
2021) trafficks-in-queer-stereotypes-then-drives-through-them> [as of

8
Dec. 3, 2025].) Another discussed where Q-Force falls in the
spectrum of “[r]epresentational progress.” (Fienberg, Sean Hayes
and Wanda Sykes in Netflix’s ‘Q-Force’: TV Review, The
Hollywood Reporter (Sept. 1, 2021)
1235006128/> [as of Dec. 3, 2025].) Yet another described Q-
Force as a show that “attempts . . . to . . . comment on the power
of queer communities” and “attempt[s] to renovate its genre.”
(D’Addario, Gay Espionage Series ‘Q-Force’ Lacks a Central
Presence to Pull It Together: TV Review, Variety (Aug. 26, 2021)
1235049159/> [as of Dec. 3, 2025].)

1. Vox’s opposition Vox opposed the anti-SLAPP motion, contesting defendants’ arguments on both anti-SLAPP prongs (protected activity and minimal merit). (See generally Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385 [a moving defendant must make a prima facie showing of protected activity and, if that showing is made, the plaintiff must demonstrate the challenged claims have at least “‘minimal merit’”].) On the question of anti-SLAPP protected activity, Vox argued the use of her image and drag persona did not implicate or contribute to the public discussion of any public issue. On the question of whether Vox had a probability of prevailing on her claims, Vox argued Liebman admitted he wanted to hire actual drag queens but received pushback—which in her view established the decision to use her likeness was a commercial decision, not an expressive one. Vox also argued defendants’ alleged use of her likeness was not transformative because defendants “simply recreated [her]

9
likeness as a cartoon and plugged her into the very setting in
which [she] worked to achieve her renown . . . .”

1. The trial court’s order After holding a hearing, the trial court issued an order denying defendants’ anti-SLAPP motion. The court agreed with defendants that the first prong of the anti-SLAPP analysis was satisfied because Vox was—by her own allegation—a public figure in a defined subculture and her claimed inclusion in the series was connected to a matter of public interest. Turning to whether Vox had established a probability of prevailing on the merits, the court found her evidence supported a reasonable inference that defendants’ use of Vox’s likeness was fundamentally not expressive, and thus not transformative. The court emphasized that Vox was not a character in Q-Force and her alleged inclusion was not part of any storyline or expressive feature of the series itself; indeed, in the court’s view, Vox was depicted without any commentary or actual expressive purpose. The court accordingly found Vox’s allegations could show defendants’ aim in using Vox’s likeness in the series was to appropriate her image and character, without compensation, for commercial promotion of an audiovisual work and for unrelated goods and services. The court concluded there was a factual dispute regarding the commercial classification of Q-Force, its advertisements, the advertisements for other goods and services that are unrelated to the Q-Force series, and defendants’ intent in including Vox without her authorization. Because the court concluded the speech could be classified as commercial, it found Vox was not required to demonstrate actual malice. And because Vox was, in the court’s view, prominently included in

10
advertisements for the series, there was a factual issue as to
whether defendants’ use was incidental.

II. DISCUSSION
We agree with the trial court’s conclusion that the
challenged conduct, all of which relates to the creation and
promotion of a television show that generated significant
discussion and public debate, falls comfortably within the scope of
the anti-SLAPP statute’s definition of protected activity. We
disagree, however, with the trial court’s conclusion that Vox
demonstrated minimal merit. Q-Force is an expressive work.
Vox’s alleged likeness was not the sum and substance of Q-Force,
but merely one of many raw materials defendants used in telling
a part of the larger Q-Force story. As such, defendants’ actions
merit First Amendment protection that bars any possibility that
Vox could prevail on the merits of any of her claims.

A. The Complaint’s Causes of Action Arise from
Protected Activity
There are four categories of protected activity defined in
the anti-SLAPP statute. Defendants invoke two: statements in a
public forum in connection with an issue of public interest and
conduct in furtherance of the exercise of the constitutional right
of free speech in connection with a public issue or an issue of
public interest. (§ 425.16, subd. (e)(3), (4); see also FilmOn.com
Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145-146 [“In
articulating what constitutes a matter of public interest, courts
look to certain specific considerations, such as whether the
subject of the speech or activity ‘was a person or entity in the
public eye’ or ‘could affect large numbers of people beyond the

11
direct participants’ [citation]; and whether the activity ‘occur[red]
in the context of an ongoing controversy, dispute[,] or discussion’
[citation], or ‘affect[ed] a community in a manner similar to that
of a governmental entity’ [citation]”].) “A claim arises from
protected activity when that activity underlies or forms the basis
for the claim.” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1062.) Whether a claim is
based on protected activity turns on “whether the ‘“core injury-
producing conduct”’ warranting relief under that cause of action
is protected activity.” (Mission Beverage Co. v. Pabst Brewing
Co., LLC (2017) 15 Cal.App.5th 686, 698.)
The alleged wrongs underlying Vox’s complaint include
using Vox’s likeness as a non-speaking background character in
the Q-Force animated television show, using that character in a
single scene featuring five drag queens having a union meeting at
a West Hollywood bar, utilizing a portion of that scene in a teaser
trailer for Q-Force, and utilizing a still image from that scene in
other marketing for the series. In other words, all the pertinent
acts were part of the creation of the television series, the series
itself, and advertisements promoting it.
The creation of a television show is an exercise of free
speech. (Tamkin v. CBS Broadcasting, Inc. (2011) 193
Cal.App.4th 133, 143-144.) “Steps taken to advance such
constitutionally protected expression are properly considered
‘conduct in furtherance of’ the exercise of the right of free speech
within the meaning of section 425.16, subdivision (e)(4).
[Citations.]” (Musero v. Creative Artists Agency, LLC (2021) 72
Cal.App.5th 802, 816-817.) “‘[T]he creative process must be
unfettered, especially because it can often take strange turns, as
many bizarre and potentially offensive ideas are suggested, tried,

12
and, in the end, either discarded or used . . . . [¶] . . . We must
not permit juries to dissect the creative process in order to
determine what was necessary to achieve the final product . . . .’”
(Tamkin, supra, at 144-145, italics omitted.)
The teaser trailer for Q-Force and the related still image
are advertisements for the show, and they too are protected
activity as “merely . . . adjunct[s] to the exhibition of the
[television show].” (Guglielmi v. Spelling-Goldberg Productions
(1979) 25 Cal.3d 860, 872 (conc. opn. of Bird, C. J.);6 see also
Polydoros v. Twentieth Century Fox Film Corp. (1997) 67
Cal.App.4th 318, 325.) The fact that the teaser trailer was made
available on Netflix’s YouTube channel, which Vox alleges was
monetized, does not alter the nature of the teaser trailer, which
advertised only Q-Force. Although Vox argues a viewer would
need access to a Netflix subscription to watch Q-Force, this does
not transmute the teaser’s essential nature from a promotion of
Q-Force into a broader advertisement for Netflix’s services
because the teaser relates only to the Q-Force storyline—Netflix’s
other offerings are not mentioned. Nor does Vox’s allegation that
the YouTube page included links to unrelated merchandise in the
Netflix shop somehow convert the Q-Force teaser trailer into an
advertisement for other products. (See Hara v. Netflix, Inc. (9th

6
Chief Justice Bird’s concurrence was joined by two other
justices, and a third justice concurred in the constitutional
discussion. (Guglielmi, supra, 25 Cal.3d at 862 (conc. opn. of
Bird, C. J.), 876 (conc. opn. of Newman, J.).) Our high court has
since cited the concurring opinion with approval. (Winter v. DC
Comics (2003) 30 Cal.4th 881, 887-888, 891; Comedy III
Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387,
396, fn. 7.)

13
Cir. 2025) 146 F.4th 872, 881, fn. 4 [agreeing with Netflix’s
argument that banner advertisements for third-party products on
its YouTube channel did not “‘somehow transform’” the teaser
into an advertisement for the products]; see also Stewart v.
Rolling Stone LLC (2010) 181 Cal.App.4th 664, 686 [proximity of
unrelated advertisement to expressive magazine feature did not
convert the latter to commercial speech].)
The acts and speech at issue also involve issues of public
interest. The public interest need not be widespread to be
protected by the anti-SLAPP statute. (Nygård, Inc. v. Uusi-
Kerttula (2008) 159 Cal.App.4th 1027, 1042; Tamkin, supra, 193
Cal.App.4th at 143.) Both the topic of the series and of the
particular scene at issue relate to the depiction of LGBTQ
individuals in entertainment. This is a matter of ongoing public
interest and debate. (See, e.g., Brodeur v. Atlas Entertainment,
Inc. (2016) 248 Cal.App.4th 665, 675; Dyer v. Childress, 147
Cal.App.4th 1273, 1284.) Indeed, the public interest in these
topics is demonstrated by the numerous articles and reviews
discussing the series that defendants submitted in support of the
motion (not to mention the more than 18,000 comments posted on
the YouTube page for the teaser trailer as of January 2024).7

7
Additionally, “‘[i]n general, “[a] public issue is implicated if
the subject of the statement or activity underlying the
claim . . . was a person or entity in the public eye.”’ [Citations.]”
(Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1254.) Vox
alleges she is a “well-known” drag queen in Hollywood and/or
West Hollywood, where she hosts a series of events. In this
particular context, this is sufficient to qualify as being a person
“in the public eye.”

14
Vox nonetheless contends there is no public interest “in a
fictional story about gay spies” and that “there is no matter of
public interest to include Plaintiff’s image and character in the
Series and prominently in the Advertisements . . . .” The alleged
inclusion of Vox’s drag persona in a scene featuring drag queens
in West Hollywood serves Liedman’s stated purpose of grounding
the series in reality, a decision related to the series’ depiction of
the LGBTQ community. There can be no real dispute that the
public is interested in the depiction of the LGBTQ community in
entertainment, whether in a fictional story about gay spies or
otherwise. Moreover, defendants’ evidence, including the articles
covering the series and the screenshot revealing the number of
comments on the teaser trailer, demonstrates the public was in
fact interested in the series.8

B. Vox Cannot Demonstrate a Probability of Prevailing
As previously discussed, Vox asserted three causes of action
in her complaint: violation of the statutory right of publicity (Civ.
Code, § 3344); violation of the common law right of publicity, and
invasion of privacy by appropriation. First Amendment

8
Vox’s reliance on Musero, supra, 72 Cal.App.5th 802, to
urge the contrary conclusion is unpersuasive. In Musero, the
Court of Appeal determined the creative aspects of a work that
were allegedly misappropriated following a private
communication did not contribute to the discussion of the issue of
public interest identified, namely the creation and production of a
television pilot about Eric Holder. (Id. at 821-822.) Here, in
contrast, Vox is a self-described public figure in the drag
community, and the alleged use of her likeness was presented to
the public via the Q-Force series and its advertisements.

15
protection may be a defense to all of these claims, statutory and
common law alike.9 (De Havilland v. FX Networks, LLC (2018)
21 Cal.App.5th 845, 860-861.)
“The freedom of expression protected by the First
Amendment exists to preserve an uninhibited marketplace of
ideas and to further individual rights of self-expression.
[Citation.] The protections may extend to all forms of expression,
including written and spoken words (fact or fiction), music, films,
paintings, and entertainment, whether or not sold for a profit.”
(Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47, 57-58,
fn. omitted.)
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.” (Guglielmi, supra, 25 Cal.3d at 869 (conc. opn. of
Bird, C. J.).) 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. [Citation.]” (Comedy

9
As our colleagues in Division Three discussed in De
Havilland, supra, 21 Cal.App.5th 845, it is unclear if the
portrayal of “a real person in a television program (or a book,
play, or film) constitutes the ‘use’ of that person’s name or
‘likeness’ ‘on or in’ a product, merchandise, or good.” (Id. at 857.)
For purposes of this analysis, we assume without deciding that
such a portrayal is a “use” for purposes of the right of publicity.

16
III, supra, 25 Cal.4th at 403.) Thus, “[a]n obvious tension exists
between this right of publicity and the First Amendment to the
United States Constitution.” (Winter, supra, 30 Cal.4th at 885.)
To grapple with this tension, our Supreme Court
formulated “what is essentially a balancing test between the
First Amendment and the right of publicity . . . .” (Comedy III,
supra, 25 Cal.4th at 391.) 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.” (Winter, supra, 30 Cal.4th at 888.) 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.” (Comedy III, supra, at 406.)
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?” (Id. at 407.)
“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.”
(Ibid.)
In Comedy III, the test was applied to lithographs and t-
shirts bearing a hand-drawn likeness of The Three Stooges. Our
high court concluded the artist’s skill in drawing the likeness was
“manifestly subordinated to the overall goal of creating literal,

17
conventional depictions of The Three Stooges so as to exploit
their fame” and therefore was not protected by the First
Amendment.10 (Comedy III, supra 25 Cal.4th at 409.) In Winter,
our Supreme Court applied the Comedy III test to a comic book
that allegedly used the likenesses of two musicians. The comic
book characters, which were depicted as half-human and half-
worm, had similar names, were drawn with features similar to
the musicians’ features, and one wore a tall black top hat similar
to a hat his alleged real-life counterpart often wore. (Winter,
supra, 30 Cal.4th at 886, 890.) Our high court determined the
depictions were “not just conventional depictions of plaintiffs but
contain[ed] significant expressive content other than plaintiffs’
mere likenesses” and that the plaintiffs were “merely part of the
raw materials from which the comic books were synthesized.”
(Id. at 890.) It emphasized the characters were “but cartoon
characters . . . in a larger story, which is itself quite expressive.”
(Ibid.) The court also determined the characters and their
portrayals did not greatly threaten the plaintiffs’ right of

10
At least one court has questioned whether the Comedy III
test should be applied outside of its original context of
“‘merchandising’” a celebrity’s image. (De Havilland, supra, 21
Cal.App.5th at 863 [“Comedy III’s ‘transformative’ test makes
sense when applied to products and merchandise . . . . [Citation.]
Lower courts have struggled mightily, however, to figure out how
to apply it to expressive works such as films, plays, and television
programs”].) While we agree the description of the test as one
that weighs whether a use is “transformative” is not as well
suited to the analysis of whether a film or television show is
protected by the First Amendment, we nevertheless conclude the
principles expressed by Comedy III can be applied to the case at
hand with relative ease.

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publicity because fans of the plaintiffs who wanted pictures of
them would find the drawings unsatisfactory as a substitute for
conventional depictions. (Ibid.)
Applying the Comedy III test here, informed by our
Supreme Court’s analysis in Winter, we conclude the First
Amendment forecloses any possibility of liability for defendants’
actions identified in the complaint. We agree the background
character allegedly based upon Vox does bear some resemblance
to the photograph of Vox included in her complaint. There are no
fantastical elements that undermine the resemblance, like the
half-worm depiction of the musicians in Winter, but the
resemblance alone is not enough under the Comedy III test
because the remaining considerations point in favor of First
Amendment protection.
Just as the alleged likenesses of the musicians in Winter
were not the sum total of the comic books in which they were
portrayed, 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

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original work [was] synthesized . . . .” (Comedy III, supra, 25
Cal.4th at 406.) The character is a small part of the larger story,
“which is itself quite expressive.” (Winter, supra, 30 Cal.4th at
890.) In other words, the likeness was transformed into part of a
greater creative product. (Id. at 888-889.)
Moreover, even if we were to consider this a “close case[ ],”
warranting use of the “subsidiary inquiry” described by Comedy
III, supra, 25 Cal.4th at page 407, 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”
(Ibid.), 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. She maintains Comedy III provides
no defense to defendants who simply recreate 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

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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, No Doubt v. Activision Publishing,
Inc. (2011) 192 Cal.App.4th 1018, 1023 and Keller v. Electronic
Arts, Inc. (In re NCAA Student-Athlete Name & Likeness
Licensing Litigation) (9th Cir. 2013) 724 F.3d 1268, 1276, 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. As our high court
explained in Winter, however, 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.” (Winter, supra, 30
Cal.4th at 891.) Rather, “[t]he question is whether the work is
transformative, not how it is marketed” (ibid.), and we have
answered the former question in the affirmative.

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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.

DISPOSITION
The order denying the motion to strike is reversed. The
trial court is directed to enter a new and different order granting
the motion. Defendants are awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

HOFFSTADT, P. J.

KUMAR, J.*

*
Retired Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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