“Don’t start with me:” privacy and publicity

If you are a business person, you should be aware of the potential legal grievances of (i) intrusion into private affairs and (ii) misappropriation of publicity. These two rights, although not strictly patents, trademarks, copyright or trade secrets, creep into seemingly innocuous situations where third persons object to unauthorized photographs, audio, publications and photographs. Celebrities and other high profile public figures generally do not have significant redress for intrusions into their private matters. However, everyone can and does object to unauthorized use of their likenesses and speech for commercial reasons, and private (non-celebrity) individuals generally have more latitude when raising privacy matters.

Recently the Seventh Circuit Court of Appeals addressed these issues in Anne Bogie v. Joan Alexandra Molinsky Sanger Rosenberg a/k/a Joan Rivers et al. [Hereinafter “Bogie and “Rivers”]. According to the litigation record, Bogie went backstage after Rivers performed a live standup comedy set at a Wisconsin casino. While in the backstage area Rivers provided her autograph and the two women briefly spoke about a heckler in the audience who became offended when Rivers joked about deaf persons. The camera staff and security staff worked in close proximity to Rivers and Bogie during this autograph process and conversation.

Subsequently Rivers aired her autobiographical documentary entitled “Joan Rivers: A Piece of Work.” This documentary included a sixteen second segment in which Bogie was recorded, in both audio and visual, while she had conversed with Rivers backstage. Thereafter Bogie filed a lawsuit in which she contended that Rivers improperly intruded into her (Bogie’s) private affairs by airing this film segment. She also contended that Rivers violated her right to publicity because the clip was aired without her consent and for commercial purposes. The appellate court first addressed the unwarranted intrusion contention by reviewing the circumstances under which the autographing and conversation occurred. The court initially observed that a backstage area in a casino or theatre generally does not provide an expectation of privacy for persons in that area. It also noted that there were other third persons present, including the camera crew and security staff in close proximity to Bogie and Rivers.

Because of the presence of these numerous strangers, as well as the nature of the backstage area itself, the court concluded that there was no reasonable expectation of privacy. The appellate court also concluded that the situation was not a highly offensive occurrence because the event must be such that a reasonable man would strongly object. It also concluded that lack of Bogie’s consent per se did not increase intrusiveness, nor did a profit motive, nor Bogie’s own statements that became the object of publicity and distribution.

The appellate court then addressed whether Rivers had misappropriated Bogie’s video likeness and speech because the documentary was (ii) aired publicly without Bogie’s consent and (ii) for commercial purposes. However, the court concluded that the documentary covered a matter of legitimate public interest and therefore fell into the newsworthy exception to misappropriation liability. The court also reasoned that under Wisconsin law there must be a direct substantial connection between a person’s name and image to the main purpose of the work; this association was absent in Bogie’s situation. It then concluded that the sixteen second clip featuring Bogie, in a film that was eighty-two minutes in length about Rivers, was an incidental commercial use of Bogie’s likeness. It should be noted, however, this decision is only law in Illinois, Wisconsin and Indiana, because only these states are within the scope of this particular appellate court.

© 2013 Adrienne B. Naumann, Esq.
Ms. Naumann does not endorse or sponsor the advertisements at adriennebnaumann.wordpress.com.

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