Bret Michaels v Internet Entertainment Group
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| United States |
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[edit] 1 Bret Michaels v Internet Entertainment Group, Inc.
Case Name: Bret Michaels v Internet Entertainment Group, Inc.
Key words: copyright preemption, dissemination of tape on Internet, right to publicity, privacy
Country: USA
Citation: 5 F. Supp. 2d 823; 1998 U.S. Dist. LEXIS 10678
Court: United States District Court C. D., California
Date: 27 April 1998
Case N°: CV 98-0583 DDP (CWx)
Importance: A right to publicity claim was not preempted where the claim contained elements that were different in kind from copyright infringement. Crafting an injunction to prevent irreparable injury arising from violation of the plaintiffs’ rights to publicity required a weighing of the private interest of the right of publicity against matters of public interest.
Facts: This case was instituted to enjoin the Defendant, the Internet Entertainment Group (IEG) from disseminating or exploiting a tape that depicted Bret Michaels and P A Lee engaged in sexual activity.
[edit] 2 Decision and reasoning
[edit] 2.1 Copyright Claims
Where a copyright plaintiff succeeds in showing a likelihood of success on the merits, irreparable injury is presumed. It is well-settled that monetary damages cannot compensate for the harm caused by copyright infringement.
Distribution of the tape on the Internet would conflict with the plaintiffs’ exclusive rights to distribute copies of the tape to the public (17 U.S.C. § 106(4)). It would also interfere with the plaintiffs’ public display rights, which included the right to display ‘individual images of a motion picture’ (17 U.S.C. § 106(5). Therefore, the display of still images from the tape on the Internet would also conflict with rights conferred exclusively on the plaintiffs by the Copyright Act.
[edit] 2.2 Right to Publicity
Under California law, the plaintiffs owned the right to exploit their names and likenesses for commercial gain. The common law of California recognized this right of publicity in a person's name, likeness and identity.
[edit] 2.3 Copyright Preemption
The Copyright Act of 1976 sets out a two-part test for determining whether a state law claim was preempted. First, the work on which the state law claim was based must be within the subject matter of copyright, i.e., the state law claim must arise from rights in a work of authorship fixed in a tangible medium of expression. (See 17 U.S.C. § 301(b) (1)). Second, the state law claim must assert rights that were equivalent to the exclusive rights specified by Section 106 of the Act, i.e., the right to prohibit reproduction, creation of derivative works, performance, distribution, or display of a work. (See 17 U.S.C. § 301 (b) (3)).
A right to publicity claim was not preempted where the claim contained elements that were different in kind from copyright infringement. (See Wendt v. Host Int'l. Inc., 125 F.3d 806, 810 (9th Cir. 1997). Here, the plaintiffs had alleged that the defendants had used their names, likenesses and identities on radio, television and the Internet to advertise the imminent distribution of the tape. This conduct was unrelated to the elements of copyright infringement, which were concerned only with distribution of the tape itself.
The Court therefore rejected the contention that the claims for right to publicity were preempted by the Copyright Act.
[edit] 2.4 Likelihood of Success on the Merits
The elements of a common law right to publicity claim are: (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercial or otherwise; (3) lack of consent; and (4) resulting injury.(Eastwood, 198 Cal. Rptr. at 347). The statutory cause of action under s. 3344 required two additional elements: knowing use of the plaintiff's name, photograph of likeness for purposes of advertising or solicitation of purchases, and a ‘direct connection’ between the use and the commercial purpose. Lack of consent, was not seriously contested. Injury was satisfied by two showings: Firstly, if IEG's membership revenue had increased due to its use of the plaintiffs’ names and likenesses, IEG had deprived the plaintiffs of money they could have made by exploiting their right to publicity. Secondly, the plaintiffs had presented evidence that publicity in association with pornography had damaged their attempts to establish and maintain careers in mainstream entertainment. The Court also found that the statutory elements were satisfied.
While the plaintiffs had an exclusive right to exploit their names and likenesses for commercial purposes, they however, did not have an exclusive right to the use of their names and likenesses in the publication of matters of public interest.
Crafting an injunction to prevent irreparable injury arising from violation of the plaintiffs' rights to publicity required “a weighing of the private interest of the right of publicity against matters of public interest calling for constitutional protection, and a consideration of the character of these competing interests.” (Eastwood, 198 Cal. Rptr. at 349.
[edit] 2.5 Right to Privacy
Both the public disclosure and intrusion torts were subject to a newsworthy privilege, which protected the First Amendment freedom to report on matters of public concern. Yet, the privilege to report newsworthy information is not without limit. Here, the distribution of the tape on the Internet would constitute public disclosure. The contents of the tape constituted a set of private facts whose disclosure would be objectionable to a reasonable person.
[edit] 2.5.1 Do Sex Symbols Have Privacy?
The fact that Lee had performed a role involving sex did not, however, make her real sex life open to the public. The Court was also not prepared to conclude that public exposure of one sexual encounter forever removed a person’s privacy interest in all subsequent and previous sexual encounters.
While Michaels' voluntary assumption of fame as a rock star threw open his private life to some extent, even people who voluntarily entered the public sphere retained a privacy interest in the most intimate details of their lives.
[edit] 2.5.2 Newsworthiness Privilege
In order to determine whether the contents of the tape were covered by the privilege for reporting private but newsworthy information, the Court had to balance: (1) the social value of the facts published; (2) the depth of the intrusion into ostensibly private affairs; and, (3) the extent to which the party had voluntarily acceded to a position of public notoriety. The first factor, the social value of the facts published, weighed against a finding of newsworthiness. The second factor, depth of intrusion, also weighed against a finding of newsworthiness. This factor had to be applied with an eye toward community mores as to the depth of intrusion. The third factor, voluntary accession to fame, weighed in favour of a finding of newsworthiness. The Plaintiffs had demonstrated a likelihood of success in meeting their burden to show that the contents of the tape were not covered by the newsworthiness privilege.
[edit] 2.6 Result
TRO granted.
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