In January, the 7th Circuit upheld a lower court's dismissal of an invasion of privacy suit brought against Joan Rivers and the distribution company behind her documentary Joan Rivers: Piece of Work. The plaintiff, Ann Bogie, alleged part of the film, which showed her interacting with Rivers after one of the comedienne's performances, constituted an invasion of privacy and a misappropriation of her image under Wisconsin's Right of Privacy statute. The Wisconsin statute provides a cause of action for:
Bogie's suit stemmed from a 16-second clip, which showed the plaintiff meeting Rivers backstage. In the clip, Bogie expresses sympathy for Rivers and disdain for a heckler who had taken offense to Rivers' earlier joke regarding the deaf and Helen Keller.(a) Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.(b) The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian.
The Court didn't have much sympathy for Bogie, noting that the clip only constituted 0.3% of the film's run time. Notwithstanding Bogie's rather brief appearance, the Court also endorsed the lower court's decision to dismiss the privacy claim on the grounds that no reasonable expectation of privacy exists backstage and no reasonable person would have found the film clip to be "highly offensive." In regards to the misappropriation claim, the 7th Circuit approved of the lower court's dismissal on the grounds that River's use of Bogie's image fell under the "newsworthiness" and "incidental use" exceptions.Bogie: Thank you. You are so ... I never laughed so hard in my life.Rivers: Oh, you're a good laugher and that makes such a difference.Bogie: Oh, I know. And that that rotten guy....Rivers: Oh, I'm sorry for him.Bogie: I was ready to get up and say ... tell him to leave.Rivers: He has a, he has a deaf son.Bogie: I know.Rivers: That's tough.Bogie: But he's gotta realize that this is comedy.Rivers: Comedy.Bogie: Right.
This isn't the first time that the newsworthiness exception has allowed filmmakers to fend off invasion of privacy suits and the exception hasn't been limited solely to documentaries. The feature film Borat used the exception in response to a number of suits by unwitting participants in the mock documentary. Cases like these have given filmmakers leeway on their use of non-professionals in film projects.
More importantly, the 7th Circuit gave no credence to Bogie's argument that she never signed a consent form, holding that lack of consent is not a sufficient for staking out an invasion of privacy claim. This line of thinking from the court indicates consent forms may not even be necessary for filmmakers and isn't the shield of protection that we non-celebrities think it is.
The non-consent portion of this decision certainly makes sense to me; if the court finds that there is no expectation of privacy in the location, then the filmmaker should not need to ask for permission to "invade" that privacy, since the subject can't expect it. Perhaps if the state's common law regime of right of publicity would protect this kind of individual, consent of some kind would make more sense, but that is not the claim here.
ReplyDeleteI do find the "brief appearance" aspect of the decision interesting (in the Minnesotan sense of the word "interesting"). As a private individual, any screen time that she did not want is likely substantial to her and shows more of her life than she wants on screen. But I am a big advocate for the newsworthiness exception, though, so this is a great result on that basis.
I'm curious as to why there wouldn't be an expectation of privacy backstage. Were the cameras readily apparent to the person talking to Rivers?
DeleteBackstage seems like a rather intimate place to me, and one where I wouldn't expect a conversation to be taped and put into a widely distributed documentary.
I agree on you that the court analyzed it correctly under the idea that there was no expectation of privacy. I just disagree with the initial premise of the court that there isn't an expectation of privacy backstage from such an extensive intrusion.