2:51pm PT by Eriq Gardner
Lionsgate Beats $55M Lawsuit for Overdubbing Actress' Voice in Movie
Paz de la Huerta, an actress who had prominent roles in Boardwalk Empire, A Walk to Remember and Cider House Rules, has been unsuccessful in convincing a California appeals court to revive her $55 million lawsuit against Lionsgate over the way her voice was overdubbed in Nurse 3D.
De la Huerta had a lead role in the film, but suffered an injury doing a stunt. Specifically, she was hit by a moving ambulance. In postproduction, she was called on to record offscreen narration, but producers were unsatisfied with the results. Those parts were later rerecorded using a voice double without her knowledge.
So, de La Huerta sued over her experience and claimed, among other things, a breach of her contract.
On Wednesday, California's Second Appellate District affirmed a decision to strike de La Huerta's claims under California's anti-SLAPP statute.
In coming to a decision that the actress hasn't demonstrated a probability of prevailing on the merits, California Justice Norman Epstein addresses her contract. He writes that it is undisputed that the production company is allowed "to dub or simulate" her voice so long as it complies with the Screen Actors Guild Agreement, which allows for use of a voice double "when the performer fails or is unable to meet certain requirements of the role."
The parties disagreed whether this condition allowed for dubbing based on dissatisfaction with an actor's reading of lines. De La Huerta asserted it didn't apply "since she was able to speak her own voice," but Epstein rejects that. He also isn't impressed with the actress' argument that a provision in her contract that allowed her to have first opportunity to dub in English mattered since she was given such an opportunity to do offscreen voiceover narration during postproduction.
Justice Epstein also addresses how she hasn't offered proof of damages from the voice dubbing.
De La Huerta's main argument was that the voice double's performance was inferior to her own and she suffered from viewers who would mistakenly attribute what they heard to her. She quoted a film critic who described her "somnambulistic delivery of beyond-purple lines" in Nurse 3D.
The appeals court dismisses such evidence as not being properly filed.
"Even were we to accept appellant’s point that on appeal she may rely on evidence submitted by respondents, that evidence does not support her claim for damages based on the voice double’s performance," writes Epstein. "Read as a whole, Gonzalez’s review is not critical of the dubbed portions per se. Rather, the reviewer is disappointed in the film’s message — namely, that the character appellant portrayed (a murderous nurse luring 'ostensibly dangerous predators') is not subversive of gender stereotypes, but is 'little more than a product of the same male fantasies she rebels against.'”
The California appeals court next addresses de La Huerta's argument that damages may be presumed because use of her name or voice in the film infringed on her right to publicity or was likely to result in trademark confusion. She didn't actually sue on those grounds, but not insignificantly, Epstein says those claims would have been preempted by federal copyright law or consent. In doing so, he reviews notable decisions on the topic including Fleet v. CBS and cases involving Clint Eastwood and Kareem Abdul-Jabbar.
According to Epstein, de La Huerta's "claims are indistinguishable from those in Fleet. The actress variously claims that respondents misappropriated her name or voice, or misused her persona, when they distributed the film after using a voice double. She seeks $55 million in damages and an injunction requiring respondents to redub the film using her voice and remove from circulation copies of the original. However, respondents did not use appellant’s name or voice independently of her own performance in the film, and it is undisputed that appellant agreed her performance was 'work made for hire' under the 1976 Copyright Act. De La Huerta also expressly consented to the use of her name, voice and likeness in relation to the film."
Adds Epstein, "The partial dubbing over of appellant’s voice does not vitiate her consent to the use of her name and voice in relation to the film as a whole since all agreements on which she relies allow the use of a voice double. In light of her consent and actual performance in the film, appellant may not rely on principles relevant to the unauthorized use of celebrity marks to falsely endorse products, or on principles generally relevant to trademark law."
Here's the full opinion that also adds de La Huerta hasn't shown evidence of suffering any actual emotional distress from the dubbing of her voice and discusses claims related to that injury of being hit by a moving ambulance.