Filmed Conversation with Celebrity

The Seventh Circuit's Decision

The Seventh Circuit first concluded that the district court judge was correct in considering the content of the video to determine whether it contradicted Bogie's claims in her complaint. When an exhibit attached to a complaint contradicts the allegations of the complaint, the content of the exhibit is controlling. Thus, the Seventh Circuit held that the judge correctly watched the video to decide whether the backstage area was a “place that a reasonable person would consider private” and whether the intrusion on her alleged privacy was “of a nature highly offensive to a reasonable person,” as provided in the Wisconsin statute. Because of an unusual provision in the Wisconsin statute that requires it to be interpreted “in accordance with the developing common law of privacy,” and the fact that the law used New York's highly similar privacy statute as a model, the Seventh Circuit also found that New York cases were useful for interpreting the Wisconsin statute.

Bogie contended that a reasonable person could have had an expectation of privacy backstage in the casino. However, the video shows a relatively crowded area with a lot of chatter in the background. The camera operator was standing close to Rivers and Bogie, as were a security guard and two other men. More people appear on camera backstage as Rivers is leaving the casino. Although members of the general public were not supposed to be backstage, the video shows that a number of people were present. Unlike in a private dressing room or a home, no reasonable person would expect privacy in the backstage area. Indeed, any reasonable person approaching a celebrity backstage would expect to encounter security personnel, as occurred. The video personnel were also visible as they were filming Rivers and Bogie. Other courts have held that not even a performer has a reasonable expectation of privacy in a backstage area. People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 895 P.2d 1269 (Nev. 1995). The Seventh Circuit concluded that the video shows the environment not to be private, clearly contradicting Bogie's allegations in the complaint.

Wisconsin courts, in determining whether an intrusion into privacy would be highly offensive to a reasonable person, consider the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion, the intruder's motives and objectives, the setting, and the expectations of the people whose privacy is being invaded. The intrusion must result from conduct to which a reasonable person would strongly object. Bogie contended that: 1) she was filmed without her consent, 2) the filming had a profit motive, and 3) the film showed her “private
expression of scorn,” displaying her as insensitive to the hearing impaired. However, noted the Seventh Circuit, lack of consent is assumed at this stage in the proceedings, so it is not a factor that increases the offensive nature of the alleged intrusion. A profit motivation is not part of the claim for invasion of privacy; it is only a factor in a misappropriation claim, as only the misappropriation provision of the Wisconsin statute includes the factor “for purposes of trade.” The Seventh Circuit observed that a “pecuniary gain” motive would only apply to a person's right of publicity, not to the “hurt-feelings, personal injury” wrong of misappropriation.

As any embarrassment to Bogie arises from the content of her own statements, she cannot claim that her right of privacy was violated. The filming did not become a highly offensive intrusion because Bogie was embarrassed to be caught saying something she regretted and later deemed offensive. The Wisconsin statute protects citizens against highly offensive intrusions on their privacy, not from being associated with highly offensive material. Therefore, the Seventh Circuit found that Bogie could not meet two essential factors of the right to privacy cause of action.

Bogie's misappropriation claim also fell short. The fact that the documentary was meant for “purposes of trade” does not make the use of her footage a misappropriation of her picture, because the newsworthiness or public interest exception applies to shield the documentary. That exception, noted the Seventh Circuit, must be interpreted broadly and covers social trends or any subject of public interest. The Rivers documentary is such a matter of public interest. It is similar to 13 seconds of film in the movie “Borat” where the fictional Borat character approaches a real person on a street corner in New York and the person runs away in terror, an objectively embarrassing piece of footage that was not a misappropriation because the film “ Borat” was newsworthy. Similarly, a movie depicting the Woodstock concert and festival was entitled to the newsworthiness exception in defense to a claim that 45 seconds of a stage performance was shown without consent. The Seventh Circuit found that the public's interest in Joan Rivers' career and fame placed the documentary safely within the newsworthiness exception so that Bogie's misappropriation claim was groundless.

In addition, the Seventh Circuit noted that there is another exception for “incidental use.” There must be a substantial rather than an incidental connection between the use of the person's name or likeness and the main purpose and subject matter of the work. As a matter of law, the Seventh Circuit concluded that the 16-second clip of Bogie in the 82-minute documentary was merely incidental. There was no evidence that the clip was used to advertise the film or in any other commercial manner, so the incidental use exception also applies.

A Balancing Act

Documentary filmmakers must balance their creative and artistic concerns against privacy, publicity and copyright issues. Although they may be protected to a large extent from privacy/publicity claims by the “newsworthiness” or “public interest” exceptions, the “fair use” exceptions under the Copyright Act are more limited. For example, if a documentary filmmaker is using newspaper stories or photographs to illustrate a historical point, it may be necessary to obtain a license or consent from the publisher and/or photographer. For unlicensed uses that fall within the copyright statute's fair use provision, it is important to use only so much of the copyrighted material as is necessary to make the journalistic point in the film. In some cases, that may mean that only the headline is legible and the rest of the article is deleted or blurred out. There is also a danger in using copyrighted materials such as posters in the backgrounds shown in the film, even for very short times that would be considered “incidental use” in a privacy/publicity situation.

'

Judith L. Grubner is a partner in the IP Practice Group of Arnstein & Lehr LLP and a member of this newsletter's Board of Editors. She may be contacted via e-mail at
[email protected].

The U.S. Court of Appeals for the Seventh Circuit recently found that a woman who appears on camera for 16 seconds in an 82-minute documentary film about Joan Alexandra Molinsky Sanger Rosenberg (more commonly known as the comedian Joan Rivers), does not have a right to sue for invasion of privacy and misappropriation of her image under the Wisconsin Right of Privacy statute. Bogie v. Rosenberg, No. 12-1923 (7th Cir. Jan. 17, 2013).

Ann Bogie attended a stand-up comedy performance by Rivers at the Lake of the Torches Casino in Lac du Flambeau, WI. During the performance, Rivers told a joke about Helen Keller that offended an audience member whose son was deaf. The performance was filmed for inclusion in a documentary about Rivers. When the audience member heckled Rivers, their exchange was filmed for the documentary. Right after the show, Rivers left the stage for a backstage area closed to the general public. Bogie also went backstage to have Rivers autograph a copy of Rivers' book. Bogie and Rivers had a short conversation in which Bogie spoke harshly about the heckler, and Rivers expressed sympathy for him. Several other people were present within a few feet of Bogie and Rivers during the exchange, including the film crew.

The documentary, sold nationwide, included footage of that interaction. Significant press coverage of the film praised it for illuminating Rivers' long career and the public's obsession with show business. Bogie, however, claimed that the film invaded her privacy and misappropriated her image for commercial purposes without her consent in violation of Wisconsin law. She argued that the film portrayed her as approving of condescending and disparaging remarks by Rivers about Wisconsin, its citizens, and the heckler, causing her embarrassment. The U.S. District Court for the Western District of Wisconsin dismissed the case for failing to state a claim.

The Seventh Circuit's Decision

The Seventh Circuit first concluded that the district court judge was correct in considering the content of the video to determine whether it contradicted Bogie's claims in her complaint. When an exhibit attached to a complaint contradicts the allegations of the complaint, the content of the exhibit is controlling. Thus, the Seventh Circuit held that the judge correctly watched the video to decide whether the backstage area was a “place that a reasonable person would consider private” and whether the intrusion on her alleged privacy was “of a nature highly offensive to a reasonable person,” as provided in the Wisconsin statute. Because of an unusual provision in the Wisconsin statute that requires it to be interpreted “in accordance with the developing common law of privacy,” and the fact that the law used New York's highly similar privacy statute as a model, the Seventh Circuit also found that New York cases were useful for interpreting the Wisconsin statute.

Bogie contended that a reasonable person could have had an expectation of privacy backstage in the casino. However, the video shows a relatively crowded area with a lot of chatter in the background. The camera operator was standing close to Rivers and Bogie, as were a security guard and two other men. More people appear on camera backstage as Rivers is leaving the casino. Although members of the general public were not supposed to be backstage, the video shows that a number of people were present. Unlike in a private dressing room or a home, no reasonable person would expect privacy in the backstage area. Indeed, any reasonable person approaching a celebrity backstage would expect to encounter security personnel, as occurred. The video personnel were also visible as they were filming Rivers and Bogie. Other courts have held that not even a performer has a reasonable expectation of privacy in a backstage area. People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd. , 895 P.2d 1269 (Nev. 1995). The Seventh Circuit concluded that the video shows the environment not to be private, clearly contradicting Bogie's allegations in the complaint.

Wisconsin courts, in determining whether an intrusion into privacy would be highly offensive to a reasonable person, consider the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion, the intruder's motives and objectives, the setting, and the expectations of the people whose privacy is being invaded. The intrusion must result from conduct to which a reasonable person would strongly object. Bogie contended that: 1) she was filmed without her consent, 2) the filming had a profit motive, and 3) the film showed her “private
expression of scorn,” displaying her as insensitive to the hearing impaired. However, noted the Seventh Circuit, lack of consent is assumed at this stage in the proceedings, so it is not a factor that increases the offensive nature of the alleged intrusion. A profit motivation is not part of the claim for invasion of privacy; it is only a factor in a misappropriation claim, as only the misappropriation provision of the Wisconsin statute includes the factor “for purposes of trade.” The Seventh Circuit observed that a “pecuniary gain” motive would only apply to a person's right of publicity, not to the “hurt-feelings, personal injury” wrong of misappropriation.

As any embarrassment to Bogie arises from the content of her own statements, she cannot claim that her right of privacy was violated. The filming did not become a highly offensive intrusion because Bogie was embarrassed to be caught saying something she regretted and later deemed offensive. The Wisconsin statute protects citizens against highly offensive intrusions on their privacy, not from being associated with highly offensive material. Therefore, the Seventh Circuit found that Bogie could not meet two essential factors of the right to privacy cause of action.

Bogie's misappropriation claim also fell short. The fact that the documentary was meant for “purposes of trade” does not make the use of her footage a misappropriation of her picture, because the newsworthiness or public interest exception applies to shield the documentary. That exception, noted the Seventh Circuit, must be interpreted broadly and covers social trends or any subject of public interest. The Rivers documentary is such a matter of public interest. It is similar to 13 seconds of film in the movie “Borat” where the fictional Borat character approaches a real person on a street corner in New York and the person runs away in terror, an objectively embarrassing piece of footage that was not a misappropriation because the film “ Borat” was newsworthy. Similarly, a movie depicting the Woodstock concert and festival was entitled to the newsworthiness exception in defense to a claim that 45 seconds of a stage performance was shown without consent. The Seventh Circuit found that the public's interest in Joan Rivers' career and fame placed the documentary safely within the newsworthiness exception so that Bogie's misappropriation claim was groundless.

In addition, the Seventh Circuit noted that there is another exception for “incidental use.” There must be a substantial rather than an incidental connection between the use of the person's name or likeness and the main purpose and subject matter of the work. As a matter of law, the Seventh Circuit concluded that the 16-second clip of Bogie in the 82-minute documentary was merely incidental. There was no evidence that the clip was used to advertise the film or in any other commercial manner, so the incidental use exception also applies.

A Balancing Act

Documentary filmmakers must balance their creative and artistic concerns against privacy, publicity and copyright issues. Although they may be protected to a large extent from privacy/publicity claims by the “newsworthiness” or “public interest” exceptions, the “fair use” exceptions under the Copyright Act are more limited. For example, if a documentary filmmaker is using newspaper stories or photographs to illustrate a historical point, it may be necessary to obtain a license or consent from the publisher and/or photographer. For unlicensed uses that fall within the copyright statute's fair use provision, it is important to use only so much of the copyrighted material as is necessary to make the journalistic point in the film. In some cases, that may mean that only the headline is legible and the rest of the article is deleted or blurred out. There is also a danger in using copyrighted materials such as posters in the backgrounds shown in the film, even for very short times that would be considered “incidental use” in a privacy/publicity situation.

'

Judith L. Grubner is a partner in the IP Practice Group of Arnstein & Lehr LLP and a member of this newsletter's Board of Editors. She may be contacted via e-mail at
[email protected].