Actress suffers early setback in lawsuit over use of face in ‘Avatar’

A federal judge said Q'orianka Kilcher didn't show how the purported use of her likeness for the character Neytiri was explicitly misleading.LOS ANGELES (CN) — A federal judge on Friday indicated that he saw little merit in the claim by actress Q’orianka Kilcher that director James Cameron misappropriated her likeness to create the character of Neytiri for his “Avatar” movies.U.S. District Wesley Hsu dismissed Kilcher’s claim for false endorsement and false designation of origin under the federal Lanham Act.While the judge, a Joe Biden appointee, allowed Kilchner to amend her lawsuit, he said at a brief hearing in downtown Los Angeles that he doubted she would be able to meet the legal requirements of the law intended to protect consumers from being mislead about the source of products and services.“The complaint identifies no explicit statement in the films representing that plaintiff sponsored, endorsed, approved or was affiliated with ‘Avatar,’” the judge said in his tentative ruling, which he adopted as final at the hearing. “Rather, plaintiff alleges that consumers may infer such an association after learning that her likeness allegedly served as the design foundation for Neytiri.”However, under the so-called Rogers test used by the Ninth Circuit — named after the 1986 lawsuit in which Ginger Rogers claimed her public personality was misappropriated in Federico Fellini’s “Fred and Ginger” and used to protect creative works from false endorsement claims — Kilcher’s claim can only go forward if she can argue that the use of her facial features in creating the movie character was explicitly misleading.“Any amended complaint must plausibly allege how plaintiff’s own asserted identity or identifying characteristic, as distinct from the Neytiri character or ‘Avatar’ branding, is used in a manner that falsely or misleadingly communicates plaintiff’s affiliation, connection, association, sponsorship or approval,” Hsu added.Cameron and Walt Disney Co., which now owns 20th Century Fox, the producer and distributor of the 2009 movie, asked the judge to dismiss Kilcher’s only federal law claim and to decline jurisdiction over her remaining state law claims.Hsu said he would decide at a later point whether he would exercise supplemental jurisdiction over the state law claims. He also postponed a decision on the defendants’ anti-SLAPP motion to throw out the lawsuit.Arnold Peter, Kilcher’s attorney, argued that her lawsuit was different from other misappropriation of likeness cases.“We don’t have to guess,” Peter said. “There’s a concession that Ms. Kilcher’s facial geometry was used.”Kilcher, who played Pocahontas in the 2005 movie “The New World,” said in her complaint that Cameron used a photo of her from that movie to develop the look of Neytiri.“Cameron’s initial film in the series grossed nearly $3 billion worldwide, becoming the highest-grossing movie of all time, yet it was built in material part on the misappropriation of a minor’s biometric facial features as unpaid commercial source material,” she claims.In an April 2024 interview for Parisian museum exhibit called “Tech Noir,” Cameron referred to the 2005 sketch he made based on her photo.“I did this drawing to give the art department kind of an inspiration,” he said in an excerpt from the interviewed cited in his motion to dismiss Kilcher’s lawsuit. “I wanted her to be a person that we wanted to know.… The source for this was a photograph that was in the LA Times as part of the promotion for ‘The New World.’ […] So this is actually her lower face.”However, later in the same interview, Cameron explained that once Zoe Saldaña was cast as Neytiri, the character was based on her.“The second we cast Zoe, we started — you know, Neytiri suddenly looked like Zoe,” he said.Cameron met Kilcher in 2010 after “Avatar” had been released, he said in his motion, and gave her a signed copy of the 2005 sketch with a note that said “Your beauty was my early inspiration for Neytiri.”Nevertheless, as Cameron and Disney point out, she waited 16 years with bringing her misappropriation lawsuit.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads