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Judge Sinks ‘Titanic’|Actor’s Publicity Claim

LOS ANGELES (CN) - An extra elevated to the role of "spindly porter" in James Cameron's "Titanic" failed to persuade a judge that he deserves damages for use of likeness and right of publicity.

U.S. District Judge Ronald Lew ruled Monday that the filmmaker's use of plaintiff Vi Jay's performance was transformative and protected under the First Amendment.

Vi Jay, who performs as Abrax Lorini, filed a Superior Court complaint in February against Twentieth Century Fox, Paramount, Walt Disney, Cameron's Lightstorm Entertainment, Earthship Productions, and Walden Media.

In the complaint later removed to Federal Court, Vi Jay claimed he was cast by Cameron as a "spindly porter" after he arrived on set in Mexico. He claimed he ended up working 90 days on the movie and appeared in a scene with Kathy Bates.

"Titanic" grossed $2 billion, and Vi Jay's scenes were featured in the documentary tie-in "Ghosts of the Abyss," which grossed $30 million, according to his complaint.

He claimed he earned $60 a day as an extra but was entitled to much more for his work on the film, including a cut of residuals and foreign royalties, as a so-called "principal" performer under union agreements.

But Judge Lew dismissed his claims for common law misappropriation of likeness and right of publicity.

Noting that Vi Jay's screen time is a "minuscule portion" of the two films, the judge said his performance was "heavily edited and synthesized with significant artistic expression."

"Plaintiff was in costume and make-up, being directed by the film's director. His scenes appeared for seconds at most in nearly five hours of film, and even his filmed scenes were transformed with special effects and music in the final product," Lew wrote.

Lew said that Vi Jay may have been better served if he had made a claim for breach of contract instead.

"(I)t is unfathomable that plaintiff would be able to amend his complaint to allege facts that would cure these two causes of action of their defects," the judge concluded.

While the judge granted the motion to dismiss, he denied the studios' motion for arbitration under Screen Actors Guild contracts.

Vi Jay's remaining claims are for fraud by concealment, unfair business practices and unjust enrichment.

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