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This Amici Brief was filed before the Superior Court of the State of California, County of Alameda in the case of Renderos et al. v. Clearview AI, Inc. et al. in support of Plaintiffs’ opposition to Defendant Clearview’s Special Motion to Strike Pursuant to California Code of Civil Procedure § 425.16 (California’s anti-SLAPP statute).

For over a century, the right of publicity (ROP) has protected individuals from unwanted commercial exploitation of their identities. Originating around the turn of the twentieth century in response to the newest image-appropriation technologies of the time, the ROP has continued to evolve to cover each new wave of technologies enabling companies to exploit peoples’ identities as part of their business models.

The latest example of such a technology is Defendant Clearview AI’s facial recognition (FR) application. Clearview boasts that the primary economic value of its app stems from commercially exploiting its massive facial image database, filled with millions of individual likenesses and identities that it appropriated through images scraped from across the internet. Clearview’s misappropriations also extend to training its algorithm, matching identities to new images, and displaying results to customers. The purpose of Clearview’s product is to allow customers to identify an individual using only a picture of their face. Without the capacity to exploit millions of likenesses and identities, Clearview’s system would fail to function as a commercial product.

Clearview attempts to avoid ROP liability by arguing (1) that it cannot be liable because humans rarely witness its acts of misappropriation and (2) that its app and business strategy are forms of protected speech under the First Amendment.

In this brief, Amici Science, Legal, and Technology Scholars urge the Court to reject Clearview’s arguments and allow Plaintiffs’ ROP claim to proceed. First, Amici describe how the ROP claim against Clearview's FR technology is consistent with those upheld by the courts for over a century, tracing the parallel evolutions of early image-appropriation technologies and of the ROP as a legal limitation on their capacity to exploit identities for profit. Amici then apply each ROP element to Clearview’s FR app. Second, Amici challenge Clearview’s claim to protection under the anti-SLAPP statute. Clearview does not appropriate images and identities as a form of speech in connection with a public issue. Clearview is a visual surveillance company that built its app off misappropriated images for the exclusive purpose of selling and operating its commercial surveillance services, using proprietary software that it attempts to keep as far from public scrutiny as possible.

If the Court finds this case is insulated from judicial review, a company can appropriate billions of individuals’ images and identities without consent, enmesh those identities in its product, license that product widely, profit lavishly, and continue with business as usual. As new products emerge that similarly undermine one’s ability to control who can use their identity and how, individuals will have less legal recourse than their ancestors had a century ago.

Faced with these facts, this Court should reject Clearview's anti-SLAPP Motion and find Plaintiffs have alleged a legally valid ROP claim at this early stage.