# Young v. NeoCortext: When a Face-Swap App Meets California's Right of Publicity

> The Ninth Circuit let a Big Brother contestant's putative class action over the Reface deepfake app proceed, rejecting both a copyright-preemption defense and a transformative-use shield at the pleading stage.

Topic: Right of Publicity  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/young-v-neocortext-reface-deepfake-right-of-publicity/


This is a litigation post, not a legislation post: it concerns a live lawsuit and a federal appellate ruling, not a statute. In *Young v. NeoCortext, Inc.*, No. 2:23-cv-02496 (C.D. Cal., filed Apr. 3, 2023), Kyland Young (a fourth-place finisher on CBS's *Big Brother* season 23) sued the maker of the AI face-swapping application Reface for using his image, and the images of thousands of other recognizable people, to sell paid subscriptions without consent. The district court refused to dismiss the case and denied NeoCortext's anti-SLAPP motion to strike. NeoCortext took an interlocutory appeal from the anti-SLAPP denial, and on December 5, 2024, the U.S. Court of Appeals for the Ninth Circuit affirmed in an unpublished memorandum disposition, *Young v. NeoCortext, Inc.*, No. 23-55772 (9th Cir. Dec. 5, 2024) (Wardlaw, Hurwitz, and Desai, JJ.; Desai, J., concurring). For a generative-AI consumer app, the decision is a warning: a tool that markets recognizable people as content can be liable under California's right-of-publicity statute, and neither copyright preemption nor a reflexive "it's transformative" defense will end the case at the threshold.

## At a glance

- **Case:** *Young v. NeoCortext, Inc.*, No. 2:23-cv-02496 (C.D. Cal.); appeal No. 23-55772 (9th Cir.)
- **District court:** Judge Wesley L. Hsu denied NeoCortext's motion to dismiss and anti-SLAPP motion to strike; opinion published at 690 F. Supp. 3d 1091 (C.D. Cal. 2023)
- **Appeal:** interlocutory appeal from the anti-SLAPP denial only; unpublished Ninth Circuit memorandum disposition affirming, argued November 6, 2024 and filed December 5, 2024 (Wardlaw, Hurwitz, Desai, JJ.), with Judge Desai concurring to urge the court to reconsider *Batzel v. Smith* and stop hearing anti-SLAPP denials on interlocutory appeal
- **Claim:** California's statutory right of publicity, Cal. Civ. Code § 3344, pleaded as a putative class action
- **Product:** Reface, an AI face-swap app that lets users insert their own faces into clips and stills of celebrities and public figures
- **Status:** Affirmed, with no remand ordered; the case continues in the district court, where the merits and class certification remain open

## How the dispute arose

NeoCortext distributes Reface, an application that uses generative face-swapping to splice a user's face into short clips and images drawn from movies, television, music videos, and viral media. Young's complaint alleges the app maintains a searchable catalog of recognizable people (actors, musicians, athletes, and reality-television figures), and that users can find a specific person and produce a customized deepfake. The business model, the complaint says, depends on the appeal of those identities. The free version stamps each output with a watermark reading "made with reface app," and removing that watermark requires a paid subscription. Young alleges his likeness sits in that catalog, and that the watermarked clips featuring him therefore functioned as advertising for paid subscriptions, without his permission or compensation.

That framing is doctrinally important. California Civil Code § 3344 imposes liability on anyone who "knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling," without consent. The statute requires a "knowing" use, and § 3344(e) provides that where a likeness appears in a commercial medium, the question whether the use was for advertising purposes turns on whether there was a "direct connection" between the use and the commercial sponsorship. Young's theory is that NeoCortext's curation of a searchable, monetized library of identifiable people supplies both.

## Copyright preemption: advertising, not authorship

NeoCortext's lead defense was that the federal Copyright Act preempts Young's claim. The argument runs that the source clips are copyrighted audiovisual works, that any right-of-publicity claim "equivalent" to rights in those works is preempted under 17 U.S.C. § 301, and that letting a state publicity claim attach to the use of a copyrighted clip would let plaintiffs end-run the Copyright Act.

Both courts rejected that. The Ninth Circuit did not even reach the "equivalent rights" question: it held that Young's claim does not fall within the *subject matter* of copyright at all, because the claim concerns his name and likeness, "not a work of authorship," quoting *Downing v. Abercrombie & Fitch*, 265 F.3d 994, 1004 (9th Cir. 2001). The operative allegation is narrow and specific: the free version of Reface stamps outputs with a "made with reface app" watermark, and Young plausibly alleges that the watermarked clips bearing his likeness operate as an advertisement for the paid subscription. That fits the line the Ninth Circuit drew in *Maloney v. T3Media, Inc.*, 853 F.3d 1004 (9th Cir. 2017), which held that "a publicity-right claim is not preempted when it targets non-consensual use of one's name or likeness on merchandise or in advertising." Because Young seeks to "vindicate misuse of [his] likeness, as opposed to merely interfering with the distribution, display, or performance of a copyrighted work," his claim falls outside the Copyright Act's scope. The use-as-advertisement framing matters because it sidesteps the harder question of whether a publicity claim attached to the *content* of a copyrighted clip would survive. The court did not need to reach that, because the gravamen here was the sale of the app.

## Transformative use, unresolved at the pleadings

NeoCortext also invoked the transformative-use defense: the California doctrine from *Comedy III Productions, Inc. v. Gary Saderup, Inc.*, 25 Cal. 4th 387 (2001), which asks, in the court's words, "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." NeoCortext argued that a face-swap, by definition, combines the user's face with the source figure and is therefore transformative as a matter of law.

The Ninth Circuit was unpersuaded, at this stage. It held that "[t]he district court also correctly concluded that NeoCortext failed to establish California's transformative use defense as a matter of law." The phrase "as a matter of law" is doing the work. Quoting *Hilton v. Hallmark Cards*, the panel explained that NeoCortext "is only entitled to the defense as a matter of law if no trier of fact could reasonably conclude that the [resulting clips or images were] not transformative." It did not hold that face-swaps can never be transformative. It held only that "[a] trier of fact could reasonably conclude that NeoCortext's use of Young's likeness was not sufficiently transformative given Young's allegation that the resulting clips and images feature Young in the roles for which he is known," an analysis it drew from the college-athlete video-game case *In re NCAA Student-Athlete Name & Likeness Licensing Litigation*, 724 F.3d 1268 (9th Cir. 2013).

One point is easy to overstate and worth stating precisely: this was not a First Amendment ruling. In a footnote, the panel declined to exercise its discretion to reach NeoCortext's "newly raised First Amendment defense," which the company had not sufficiently presented to the district court. The court added that although the transformative use defense "is rooted in First Amendment concerns, it is a separate defense and a distinct analysis from a traditional First Amendment defense." So the holding is about a California defense, not about whether the outputs are protected speech.

The court also accepted that Young plausibly alleged the "knowing use" element: NeoCortext made its library searchable by individual and included clips and images of Young, supporting an inference that the company knew it was trafficking in his identity rather than incidentally sweeping it up.

## Open questions

The memorandum decides procedure, not the merits. Several questions remain genuinely open. First, will the transformative-use defense succeed on a fuller record? A summary-judgment motion with expert evidence about how outputs are generated and perceived could still carry the day for NeoCortext on some or all uses. Second, can the case be certified as a class? The publicity claims of thousands of distinct people raise individualized questions of recognizability, consent, and damages that may resist common treatment. Third, how far does the "use-as-advertisement" theory reach: does it cover only the marketing of the app, or also the user-generated outputs themselves? Fourth, the case predates and runs parallel to California's new digital-replica statutes (AB 1836 and AB 2602); future plaintiffs may pair § 3344 with those laws, and courts will have to harmonize them. Finally, the complaint alleges NeoCortext is incorporated in Delaware but keeps its principal place of business in Kyiv, Ukraine, which raises practical questions of collection and enforcement that could shape any judgment's real-world value.

## Implications

- **For AI app developers:** Curating recognizable people into a searchable, monetized catalog is high-risk. The "knowing use" element is easy to plead when the product is designed to find and deploy specific identities.
- **For the transformative-use defense:** It survives, but it is no longer a reliable early escape hatch in the Ninth Circuit. A defendant wins on the defense as a matter of law only if no trier of fact could reasonably find the output non-transformative, which is a hard showing to make before discovery. Note also that this is an unpublished memorandum disposition and, under Ninth Circuit Rule 36-3, it is not precedent.
- **For preemption strategy:** Framing a publicity claim around advertising and the sale of a product, rather than the content of a copyrighted clip, is an effective route around § 301 preemption in the Ninth Circuit.
- **For rightsholders and talent:** California's § 3344 already reaches AI deepfake products today. No new statute was needed to get this case to discovery. The newer digital-replica laws layer on top of, rather than replace, this baseline.

## Frequently asked questions

**Did the court rule that Reface is illegal?** No. It ruled only that Young's lawsuit can proceed. The court rejected NeoCortext's attempts to end the case early; it did not decide whether the app actually violates the right of publicity. That will be litigated on the merits.

**Why couldn't NeoCortext win on the "transformative use" defense?** Because whether a face-swap output is sufficiently transformative is a factual question. The Ninth Circuit held that NeoCortext "failed to establish California's transformative use defense as a matter of law," because a trier of fact could reasonably find the outputs not transformative where they show Young in the roles for which he is known. The defense could not be resolved at this stage; that does not mean it can never succeed. Note that the panel expressly declined to reach NeoCortext's separate First Amendment defense.

**Is this a class action yet?** It is a *putative* class action, pleaded on behalf of a proposed class but not yet certified. Whether the court will certify a class of the many people allegedly in Reface's catalog remains an open and contested question.

## Authorities and sources

- *Young v. NeoCortext, Inc.*, No. 2:23-cv-02496 (C.D. Cal.): [class action complaint (PDF)](https://www.classaction.org/media/young-v-neocortext-inc.pdf).
- Cal. Civ. Code § 3344: [official text (California Legislative Information)](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=3344.).
- District court opinion: *Young v. NeoCortext, Inc.*, 690 F. Supp. 3d 1091 (C.D. Cal. Sept. 5, 2023), via [FindLaw](https://caselaw.findlaw.com/court/us-dis-crt-cd-cal/115136608.html).
- Ninth Circuit memorandum, No. 23-55772 (9th Cir. Dec. 5, 2024): [opinion PDF (ca9.uscourts.gov)](https://cdn.ca9.uscourts.gov/datastore/memoranda/2024/12/05/23-55772.pdf).
- Analysis: [Loeb & Loeb, "Young v. NeoCortext, Inc."](https://www.loeb.com/en/insights/publications/2024/12/young-v-neocortext-inc); [Knowing Machines legal explainer](https://knowingmachines.org/knowing-legal-machines/legal-explainer/cases/young-v-neocortext); [Perkins Coie, "Reface/Off?"](https://www.ageofdisruptionblog.com/2023/11/reface-off-animating-the-right-of-publicity-in-the-dawn-of-generative-ai/).