Judge tosses out privacy claim against Michael Moore over 'Sicko' segment

A federal magistrate judge in Tacoma has thrown out key claims in a lawsuit filed against controversial filmmaker Michael Moore and his Academy Award-nominated documentary "Sicko," the first use of a state law that bars lawsuits targeting conduct associated with free speech and the First Amendment.

Judge Karen Strombom last week granted Moore's motion to dismiss claims of invasion of privacy and "misappropriation of likeness" filed by Hoquiam resident Ken Aronson, ruling that Moore's use of 71 seconds of video belonging to Aronson was based on Moore's exploration of an issue of significant public concern — health care — and that its use was protected by the First Amendment.

A federal copyright-infringement claim survived, said Aronson's Tacoma lawyer, Thomas Vertetis.

He said Aronson is considering appealing Strombom's ruling, which included a mandated $10,000 fine against Aronson and ordered him to pay Moore's attorney fees.

"This is a nasty law," he said. "It has a chilling effect on property rights."

At issue was a snippet of video taken from several hours of tape Aronson shot while touring England with a friend, Eric Turnbow, in 1997.

It showed Turnbow attempting to walk on his hands across Abbey Road and falling, injuring himself. It also contained a brief snatch of a song Aronson composed and sang.

According to court filings, Aronson's voice and photograph appear in 16 seconds of the tape.

Turnbow, a fan of Michael Moore's, sent tape to the filmmaker in 2006. Moore was soliciting stories about health care outside the U.S.

Turnbow's shoulder injury was treated in a British hospital, and Moore used it to compare the health-care systems in the two countries.

However, Turnbow did not have Aronson's permission to send the tape, and Aronson never signed a waiver, although Turnbow did, according to the pleadings.

Aronson sued, claiming Moore invaded his privacy and used his image and voice without compensation or permission.

Moore, whose film "Sicko" garnered a nomination for best documentary at the 2007 Academy Awards and grossed nearly $35 million worldwide, argued the video was used "in furtherance" of Moore's constitutional right of free speech in connection with an issue of public concern — health care — and was protected.

He relied on revisions to a 2002 law that have been on the books only since June sharply limiting what is known among First Amendment lawyers as "strategic lawsuits against public participation," or the Washington anti-SLAPP law.

Strombom noted that the Legislature found in 2002 such strategic lawsuits are often "designed to intimidate the exercise of First Amendment rights" and lawmakers saw fit to enact anti-SLAPP legislation to "encourage the reporting of potential wrongdoing to government entities by protecting reporting parties from the threat of retaliatory lawsuits."

Amendments to the law this past session "vastly expanded the type of conduct protected by the act," and allowed targets of SLAPP lawsuits to seek a special motion to dismiss claims early in the process. That's the provision under which Moore sought to dismiss Aronson's claim.

Moore's attorney in Seattle, Bruce Johnson, was the author of that legislation and said the idea was to give plaintiffs exercising their First Amendment rights and targeted by strategic lawsuits "an early resolution and dismissal of a claim" so they don't have to waste time and resources in court.

Johnson, with the law firm Davis Wright Tremaine, also represents The Seattle Times.

Vertetis, Aronson's attorney, said his client wasn't trying to do anything but protect what was his.

"This wasn't a strategic lawsuit," he said. "This is a good man who had his videotape used without his permission."

Mike Carter: 206-464-3706 or mcarter@seattletimes.com