Ann Bogie v. Joan AlexandraSanger , 705 F.3d 603 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1923
A NN B OGIE,
Plaintiff-Appellant,
v.
JOAN A LEXANDRA M OLINSKY
S ANGER R OSENBERG a/k/a JOAN R IVERS,
IFC F ILMS LLC, B REAK T HRU F ILMS, INC.,
R ICKI S TERN , A NNIE S UNDBERG , and SETH K EAL,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 11-cv-0324—William M. Conley, Chief Judge.
A RGUED S EPTEMBER 24, 2012—D ECIDED JANUARY 17, 2013
Before B AUER, F LAUM, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Plaintiff Ann Bogie appeals
the district court’s dismissal of her claims under Wis-
consin law for invasion of privacy and misappropriation
of her image. The claims are based on Bogie’s attendance
at a comedy performance by defendant Joan Rivers, sued
2 No. 12-1923
here under her full name, Joan Alexandra Molinsky
Sanger Rosenberg. Shortly after the show, Bogie ap-
proached Rivers in the backstage area of the Lake of the
Torches Casino in Lac du Flambeau, Wisconsin. After
autographing a copy of her book, Rivers had a brief
conversation with Bogie. This sixteen-second exchange
was filmed (we must assume without Bogie’s consent)
and included in a documentary film on Rivers that
was sold nationwide.
Bogie has sued Rivers, her production company, and
others for invasion of privacy and misappropriation
of her image under Wis. Stat. § 995.50(2)(a)-(b). The case
was filed in state court but was removed to federal
court under diversity jurisdiction. The district court
granted defendants’ motion to dismiss both claims with
prejudice for failure to state a claim. Bogie appeals.
Because we agree with the district court that no set
of facts could exist consistent with the complaint
that would allow these claims to survive, we affirm
the judgment.
I. Factual and Procedural Background
A. Plaintiff’s Allegations and the Film
Bogie attended a stand-up comedy show featuring
Rivers. During the performance, Rivers told a joke about
the deaf and blind Helen Keller, offending an audience
member who had a deaf son. The audience member
heckled Rivers, and the two had a brief but sharp exchange
that was also captured on film and was part of the docu-
mentary. Immediately after the show, Rivers exited to a
No. 12-1923 3
backstage area closed to the general public. Bogie gained
entry to this backstage area and asked Rivers to sign a
copy of her book. Bogie engaged Rivers in a short conver-
sation during which Bogie expressed frustration with
the heckler and sympathy for Rivers. Rivers responded
with an expression of sympathy for the heckler. The
conversation went as follows:
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.
The film shows there were at least three other individuals
present during this exchange: a uniformed security
guard and two other men who appeared to work for or
were at least associated with Rivers. They were all
within a few feet of both Bogie and Rivers.
4 No. 12-1923
The interaction was filmed and included in the docu-
mentary entitled Joan Rivers: A Piece of Work. Bogie’s
conversation lasted sixteen seconds in the film’s eighty-
two minutes, or 0.3 percent of the entire film. The docu-
mentary was distributed and sold nationwide, including
in Wisconsin. It enjoyed a positive reception and signifi-
cant press coverage, touted for shedding light not only
on Rivers’s long career but also on the public’s obsession
with show business generally.
Plaintiff Bogie alleges that she was portrayed in the
film as having approved of condescending and dis-
paraging remarks by Rivers toward Wisconsin, its
citizens, and the heckler. Bogie’s complaint alleges that
her privacy was invaded by the distribution of the film
and that the film misappropriated her image for com-
mercial purposes without her consent. Bogie seeks com-
pensatory damages and an injunction against further
distribution of the film.
B. The District Court Decision and the Standard of Review
The district court granted the defendants’ motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief could be
granted. The video recording of the documentary was
incorporated in Bogie’s complaint, and the district court
relied on its viewing of the video to decide the case. The
district court ruled that no reasonable person in plain-
tiff’s position could have considered the backstage area
private, nor could the alleged intrusion have been con-
sidered highly offensive by a reasonable person. Bogie’s
No. 12-1923 5
invasion of privacy claim under section 995.50(2)(a) thus
failed as a matter of law. The district court also found
that the appropriation claim under section 995.50(2)(b)
failed because it was subject to at least two separate
common law exceptions: the newsworthiness or public
interest exception, and the incidental use exception.
The court concluded that amendment of the complaint
would have been futile as to either claim, so its dis-
missal was with prejudice.
We review de novo a district court’s dismissal of a
claim pursuant to Rule 12(b)(6), construing the allega-
tions in the complaint in the light most favorable to the
non-moving party and giving that party the benefit of
reasonable inferences from those allegations. Citadel
Group Ltd. v. Washington Regional Medical Center, 692
F.3d 580, 591 (7th Cir. 2012); Reger Development v. National
City Bank, 592 F.3d 759,763 (7th Cir. 2010). “Under the
federal rules’ notice pleading standard, a complaint
must contain only a ‘short and plain statement of the
claim showing that the pleader is entitled to relief.’ Fed. R.
Civ. P. 8(a)(2).” Wigod v. Wells Fargo Bank, N.A., 673
F.3d 547, 555 (7th Cir. 2012).
When a complaint fails to state a claim for relief, the
plaintiff should ordinarily be given an opportunity, at
least upon request, to amend the complaint to correct
the problem if possible. See Fed. R. Civ. P. 15(a); Bausch
v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010)
(reversing dismissal with prejudice); Foster v. DeLuca,
545 F.3d 582, 584-85 (7th Cir. 2008) (reversing dismissal
with prejudice where district court did not explain
6 No. 12-1923
reason for denying leave to amend). Leave to amend
need not be granted, however, if it is clear that any amend-
ment would be futile. Garcia v. City of Chicago, 24 F.3d
966, 970 (7th Cir. 1994).
C. District Court’s Review of the Video on Motion to Dismiss
Bogie incorporated the video recording into her
original complaint both by reference and by physically
attaching the video recording to the amended com-
plaint. The video shows in real time the content and
context of the alleged wrongs. Bogie’s complaint
alleges that she was “back stage in a place that the public
was prohibited from entering, and which a reasonable
person, including the Plaintiff, would consider private.”
The district court viewed the recording and weighed
its content against the complaint’s allegations. In con-
sidering a motion to dismiss under Rule 12(b)(6), district
courts are free to consider “ ‘any facts set forth in
the complaint that undermine the plaintiff’s claim.’ ”
Hamilton v. O’Leary, 976 F.2d 341, 343 (7th Cir. 1992),
quoting R.J.R. Services Inc. v. Aetna Casualty & Surety
Co., 895 F.2d 279, 281 (7th Cir. 1989). The freedom
includes exhibits attached to the complaint, Fed. R. Civ.
P. 10(c), or documents referenced in the pleading if
they are central to the claim, Citadel Group Ltd., 692 F.3d
at 591. “Taking all facts pleaded in the complaint as
true and construing all inferences in the plaintiff’s favor,
we review the complaint and all exhibits attached to
the complaint.” Forrest v. Universal Savings Bank, F.A., 507
F.3d 540, 542 (7th Cir. 2007); see also Brownmark Films, LLC
No. 12-1923 7
v. Comedy Partners, 682 F.3d 687, 690-91 (7th Cir. 2012)
(stating that it would make “eminently good sense” to
extend incorporation-by-reference doctrine to video
recording of television show that allegedly infringed
copyright, but reserving decision on issue).
When an exhibit incontrovertibly contradicts the al-
legations in the complaint, the exhibit ordinarily controls,
even when considering a motion to dismiss. Forrest
v. Universal Savings Bank, F.A., 507 F.3d at 542 (“Where
an exhibit and the complaint conflict, the exhibit
typically controls.”). Cf. Associated Builders, Inc. v. Alabama
Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (“If the
appended document, to be treated as part of the
complaint for all purposes under Rule 10(c), Fed. R. Civ.
P., reveals facts which foreclose recovery as a matter of
law, dismissal is appropriate.”). As we said in Brown-
mark Films, it makes “eminently good sense” to apply
these principles to video recordings attached to
or referenced in a complaint, and we do so here. See
682 F.3d at 690-91. Because Wisconsin privacy law turns
in part on the reasonable expectation an individual
would have in the environment in question, we agree
with the district court that the entire first claim can be
resolved as a matter of law by observing the scene in
the video.
When an exhibit contradicts the allegations in the
complaint, ruling against the non-moving party on a
motion to dismiss is consistent with our obligation to
review all facts in the light most favorable to the non-
moving party. We have explained that, “[s]uch an
8 No. 12-1923
analysis is no different than that involved in contract
disputes in which a plaintiff attaches a contract to the
complaint and makes an allegation that the contract on
its face clearly disputes.” Northern Indiana Gun & Outdoor
Shows, Inc. v. City of South Bend, 163 F.3d 449, 456 (7th
Cir. 1998). That is not to say that a plaintiff cannot con-
tradict the apparent meaning or significance of a
document or other exhibit. Consider, for example, a
complaint alleging that the plaintiff’s signature on the
attached contract or other instrument was obtained by
fraud or coercion. But a plaintiff whose case relies on
contradicting such an attachment needs to explain her
position.
II. Legal Analysis
A. The Language and Legislative History of Section 995.50
and Subsection 3
Because Wisconsin substantive law applies to plain-
tiff’s claims, our task is to interpret the state’s law as
we predict the state’s highest court would. E.g., Pisciotta
v. Old National Bancorp, 499 F.3d 629, 634-35 (7th Cir.
2007); see generally Erie Railroad Co. v. Tompkins, 304 U.S.
64 (1938). Before a more detailed analysis of plaintiff’s
claims for invasion of privacy, it may be useful to
highlight an unusual aspect of applicable Wisconsin law
of invasion of privacy. Subsection 3 of Wis. Stat. § 995.50provides in part that the right of privacy “shall be inter-
preted in accordance with the developing common law
of privacy . . . with due regard for maintaining freedom
No. 12-1923 9
of communication, privately and through the public
media.” In drafting section 995.50, the Wisconsin legisla-
ture used New York’s privacy statute as a model. Judith
Endejan, Comment, The Tort of Misappropriation of Name
or Likeness Under Wisconsin’s New Privacy Law, 1978 Wis.
L. Rev. 1029, 1034 & n.30 (1978). The text of subsection
995.50(2)(b) duplicates nearly verbatim New York Civil
Rights Law § 50, so “[c]ase law under the New York
privacy statute may be particularly useful because sub-
section (2)(b) was modeled after the New York law.” Id.
at 1041 (internal citations omitted). Sound analysis
of Wisconsin privacy law as codified in section 995.50
therefore includes consideration of the developing com-
mon law of privacy in Wisconsin, as well as in other
jurisdictions, especially in New York. See, e.g., Fischer v.
Mt. Olive Lutheran Church, 207 F. Supp. 2d 914, 928 (W.D.
Wis. 2002) (explaining that earlier codification of section
995.50 stated: “ ‘[t]he right of privacy recognized in
this section shall be interpreted in accordance with the
developing common law of privacy,’ which supports a
reading in accordance with the general common law as
reflected by the Restatement”).
B. Invasion of Privacy
We now turn to the claims Bogie presents on appeal, first
to the invasion of privacy claim. To prevail on this claim,
Bogie must allege and ultimately prove two things: (1) her
conversation with Rivers was “in a place that a rea-
sonable person would consider private;” and (2) the
alleged intrusion on her privacy through filming was
10 No. 12-1923
“highly offensive to a reasonable person.” Wis. Stat.
§ 995.50(2)(a). The complaint and the film attached to it
show that both elements are lacking as a matter of law.1
1. Reasonable Expectation of Privacy
Bogie claims on appeal that the district court lacked
a sufficient evidentiary basis for finding that no
reasonable person could have had an expectation of
privacy backstage. In evaluating situations in which
there could be a reasonable expectation of privacy, we
consider the context, facts, and circumstances. Bogie
must have had a reasonable expectation of privacy
either in the area itself or in the items in the area. K.H.
Doe v. Saftig, 2011 WL 1792967, at *14 (E.D. Wis.
May 11, 2011).
As the district court noted, the conversation “occurred
in what appears to be a relatively crowded backstage
area, with the din of chatter in the background. The
camera, and thus the camera person, appear to be in
1
Subsection 1 of section 995.50 grants relief based on the
ensuing subsections only to “one whose privacy is
unreasonably invaded.” If this element of unreasonableness
is read to apply to the entire statute (i.e. to subsections 2 and 3),
then Bogie would also have to show the unreasonableness
of the invasion itself as an independent element. The Wiscon-
sin Supreme Court recently declined to decide this issue on
certification by the state’s Court of Appeals. See Habush v.
Cannon, 822 N.W.2d 883 (Wis. 2012) (table). We also need not
answer the question in this case.
No. 12-1923 11
close proximity to Rivers and Bogie.” Furthermore, as
defendants point out in their brief, the “autograph ses-
sion” and conversation took place immediately after
Rivers exited the stage in the plain view and company
of four other individuals. Joint App., Ex. A 1:07:06-50.
After the autograph session, Rivers left the casino as
even more people appeared on camera in the back-
stage area.
Bogie must therefore establish that a reasonable
person could have an expectation of privacy when
visiting a celebrity performer’s backstage area where the
general public, of which Bogie was a member, was not
allowed, but where at least several others were present.
(This case does not concern a private dressing room or
the like.) The Restatement of Torts explains that the
invasion of privacy tort protects people from “one who
intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or
concerns.” Restatement (Second) of Torts § 652B. Cf.
Munson v. Milwaukee Bd. of School Directors, 969 F.2d 266,
271 (7th Cir. 1992) (dismissing claim as frivolous for
failure to allege reasonable expectation of privacy where
surveilling party did not trespass on private property).
The record does not indicate how Bogie obtained
access to the backstage area beyond the assertion in
Bogie’s brief in the district court that she was invited
back. Assuming that Bogie was invited backstage, that
would not advance her claim of a reasonable expectation
of privacy. The film shows that any such invitation was
to obtain a backstage autograph from a celebrity in the
12 No. 12-1923
presence of several security personnel and a film crew.
No reasonable person would expect privacy in that situ-
ation.
Bogie argues that this question cannot be decided fairly
on a motion to dismiss and that she needs discovery
for further factual development. She cites a multitude of
cases saying that disputes involving a reasonable expec-
tation of privacy are fact-sensitive and context-dependent.
We endorse that common sense proposition, but it
does not help Bogie in this case. Her argument that
“Segment 12 reveals remarkably little about the back-
stage environment” is not persuasive when the film
shows the environment at issue. We do not mean to
suggest that under Rule 12(b)(6) a plaintiff’s pleadings
cannot ever override or provide relevant context to a
video recording. We also recognize that any photograph
or film shows only one perspective on a scene, so that
additional perspectives, such as eyewitness testimony
or photographs or films from different angles or dif-
ferent times, might reveal additional facts that would
change the legal analysis. See generally Scott v. Harris,
550 U.S. 372, 378-81 (2007) (directing entry of summary
judgment based on video recording of disputed police
chase); id. at 389-91 (Stevens, J., dissenting) (drawing
different conclusions from watching video recording).
Also, “[a] party who appeals from a Rule 12(b)(6) dis-
missal may elaborate on her allegations so long as the
elaborations are consistent with the pleadings.” Wigod
v. Wells Fargo Bank, N.A., 673 F.3d at 555. Bogie’s com-
plaint and her arguments on appeal, however, have not
identified any potential basis for undermining the
No. 12-1923 13
district court’s reasoning about the expectation of pri-
vacy. This failure to identify additional facts that
could create a reasonable expectation of privacy or a
highly offensive invasion of this privacy makes amend-
ment of the complaint a futile exercise that the district
court rightly denied.
In dismissing on the pleadings an invasion of privacy
claim brought by a public official who was filmed at a
casino, another federal court observed that a casino is not
a place where a reasonable person would expect
privacy, such as one’s home. Indeed, any person in a
casino in Las Vegas would expect to be filmed and
observed by the establishment’s security. Ms. Harris
clearly would expect persons to pass her by and
observe her gambling. Accordingly, there was no
invasion of her private space and no intrusion into
her legitimately private activities that revealed inti-
mate personal facts.
Harris v. City of Seattle, 2003 WL 1045718, at *5 (W.D. Wash.
Mar. 3, 2003). Here, although Bogie was backstage
rather than at a slot machine, the reasoning is still
relevant. She voluntarily approached a celebrity just
after a public performance. Any reasonable person
would expect to encounter some kind of a security pres-
ence, and indeed here that presence was visible. Fur-
thermore, the camera crew must have also been visible
to Bogie as they were filming both Rivers and, of
course, Bogie. Courts have found that even performers
themselves cannot count on a reasonable expectation of
privacy in their own backstage areas. People for the
Ethical Treatment of Animals a/k/a PETA v. Bobby Berosini,
14 No. 12-1923
Ltd., 895 P.2d 1269, 1282 (Nev. 1995) (finding no
reasonable expectation of privacy where “Gesmundo
filmed activities taking place backstage at the Stardust
Hotel, an area where Gesmundo had every right to be,
and the filming was of a subject that could be seen and
heard by any number of persons”). The point applies
with more force to backstage visitors. The video and
complaint show as a matter of law that the actual cir-
cumstances of the backstage area did not support a rea-
sonable expectation of privacy.
2. Highly Offensive to a Reasonable Person
To succeed in her section 995.50(2)(a) claim, Bogie
must also show that the alleged intrusion into her
privacy would be highly offensive to a reasonable per-
son. “The question of what kinds of conduct will be
regarded as a ‘highly offensive’ intrusion is largely a
matter of social conventions and expectations.” J. Thomas
McCarthy, The Rights of Publicity and Privacy, § 5.1(A)(2)
(1993); Gillund v. Meridian Mutual Insurance Co., 323 Wis. 2d
1, 20 (Wis. App. 2009) (describing the evaluation of what
is highly offensive as an objective test). In conducting
this evaluation, we consider
the degree of intrusion, the context, conduct and
circumstances surrounding the intrusion as well as
the intruder’s motives and objectives, the setting
into which he intrudes, and the expectations of
those whose privacy is invaded.
PETA v. Bobby Berosini, Ltd., 895 P.2d at 1282 (citations
omitted). The intrusion must be the “result of conduct
No. 12-1923 15
to which the reasonable man would strongly object.”
Restatement (Second) of Torts § 652B cmt. d (1977).
Bogie relies on three factors to argue the intrusion of the
camera was highly offensive: she was filmed without her
consent, the filming was motivated by profit, and the
filming captured her “private expression of scorn,” dis-
playing her insensitivity to the heckler’s deaf son.
We consider each in turn.
a. Lack of Consent
Bogie’s first proposed factor, the lack of consent, does
not advance her claim. We have assumed lack of consent
at this stage in the proceedings. Restating it as a factor
that should increase the offensiveness of the alleged
intrusion adds nothing to the analysis. To be actionable
at all, the filming would need to occur without the plain-
tiff’s consent or at least exceed the scope of the plaintiff’s
valid consent. Put differently, consent operates here
more as an affirmative defense than as an element of
the tort; lack of consent is a makeweight of sorts and
does not do anything more than make Bogie’s claim
theoretically possible. Without more, it does not add to
a conclusion that the intrusion could have been highly
offensive.
b. Profit Motive
Bogie’s second factor, that the filming was motivated
by profit, is resolved by sensitive attention to the statu-
16 No. 12-1923
tory language. Subsection (2)(b) includes the factor
“for purposes of trade,” which is tantamount to “for
profit,” while subsection (2)(a) does not contain equivalent
language. We assume that where the legislature has
intentionally included an element in one subsection of a
statute, its exclusion in a different part of the statute is
also intentional. See, e.g., Crandon v. United States, 494
U.S. 152, 163-64 (1990) (where Congress used “unambigu-
ous language” in other sections to cover preemploy-
ment payments, “the absence of comparable language
in § 209(a) indicates that Congress did not intend to
broaden the pre-existing coverage to that provision”); see
also James J. Brudney & Corey Ditslear, Canons of Con-
struction & the Elusive Quest for Neutral Reasoning, 58 Vand.
L. Rev. 1, 12-13 (2005) (discussing appropriate applica-
tion of the canons Whole Act Rule and Expressio Unius
together to interpret the plain meaning of a statute).
Since the legislature demonstrated the ability to make
profit an explicit factor, we take the omission here to
mean that it is not an element of the wrong.
Given the statutory language inviting development of
the statutory interpretation under the common law of
invasion of privacy, the difference in statutory language
on “for purposes of trade” would not be conclusive by
itself, but courts have recognized this intentional difference
between invasion of privacy claims and misappropriation
claims, refusing to collapse the two into one analysis:
The “pecuniary gain” by PETA and its use of Berosini’s
celebrity for publicity and fund-raising purposes is
not and cannot be, of the personal injury kind of tort
No. 12-1923 17
represented by the appropriation privacy tort. . . . If
there were a “privacy” tort committed here by PETA,
it would necessarily have to be a tort involving the
right of publicity and only the right of publicity, and
not the hurt-feelings, personal injury tort of appropria-
tion.
PETA v. Bobby Berosini, Ltd., 895 P.2d at 1284. The
alleged lack of consent and the profit motive could not
render the alleged intrusion highly offensive.
c. Content of Bogie’s Statements
The third alleged aspect of offensiveness originates in
the substance of Bogie’s own statements. She claims
that capturing her comments to Rivers about deaf
people was highly offensive. The argument runs up
against concepts embedded in privacy law. The offensive-
ness of the intrusion itself cannot be based on the
content or substance captured by virtue of the alleged
intrusion. “The law of privacy is not intended for
the protection of any shrinking soul who is abnormally
sensitive about such publicity.” William L. Prosser,
Privacy, 48 Calif. L. Rev. 383, 397 (1960). Cf. 1 J. Thomas
McCarthy, The Rights of Publicity & Privacy § 5:97 (2d ed.
2011) (explaining that videotaping is not an invasion of
privacy simply because “the fact of the person’s presence
or actions at that public place is embarrassing to that
person”). The fact that Bogie was embarrassed to be
filmed saying something she regrets having said and
now deems offensive does not convert the filming itself
into a highly offensive intrusion. As the district court
18 No. 12-1923
explained, Ҥ 995.50 does not protect one from being
associated with highly offensive material, but rather
from a highly offensive intrusion on privacy.” We
therefore agree with the district court that the complaint
and video show that Bogie cannot meet two essential
elements of a section 995.50(2)(a) claim, and that leave
to amend would be futile.
C. Appropriation Claim
Bogie also claims that defendants misappropriated
her picture, without first obtaining consent, for “ad-
vertising purposes or for purposes of trade” in violation
of Wis. Stat. § 995.50(2)(b) which is “aimed at preserving
the individual’s right of control over the commercial
aspects of one’s identity.” Gaiman v. McFarlane, 2010
WL 897364, at *5 (W.D. Wis. Mar. 12, 2010). This claim
fails as a matter of law because the documentary about
Rivers is clearly subject to the newsworthiness excep-
tion for such claims. Additionally, we think it is clear as
a matter of law that Bogie’s image is merely incidental
to the film, thereby barring her section 995.50(2)(b)
claim. We turn now to the first exception.
1. Newsworthiness or Public Interest Exception
In Wisconsin, “where a matter of legitimate public
interest is concerned, no cause of action for invasion of
privacy will lie.” Van Straten v. Milwaukee Journal
Newspaper-Publisher, 151 Wis. 2d 905, 921 (Wis. App. 1989).
Furthermore, the “question of newsworthiness is a ques-
No. 12-1923 19
tion of law to be determined by the courts.” Lemerond
v. Twentieth Century Fox Film Corp., 2008 WL 918579, at
*2 (S.D.N.Y. Mar. 31, 2008). The newsworthiness or
public interest exception should be construed broadly,
covering “not only descriptions of actual events, but
also articles concerning political happenings, social
trends or any subject of public interest.” Id. (internal
citations omitted). See also De Gregorio v. CBS Inc., 123
Misc. 2d 491, 493 (N.Y. Sup. Ct. 1984) (“The scope of
the subject matter which may be considered of ‘public
interest’ or ‘newsworthy’ has been defined in most
liberal and far-reaching terms.”), quoting Paulsen v.
Personality Posters, 59 Misc. 2d 444, 448 (N.Y. Sup. Ct. 1968)
(dismissing comedian Pat Paulsen’s claim based on
unauthorized sale of posters based on satirical presi-
dential campaign). In Man v. Warner Bros. Inc., the court
found that a movie depicting the Woodstock concert
and festival was covered by the newsworthiness excep-
tion. 317 F. Supp. 50 (S.D.N.Y. 1970).
The complaint and video presented by Bogie herself
make clear that the Rivers documentary is a matter of
public interest and falls within this broadly drawn and
inclusive category. One review explained: “The film
offers a rare glimpse of the comedic process and the
crazy mixture of self-doubt and anger that often fuels it.
A unique look inside America’s obsession with fame
and celebrity.” The review concluded: “Ultimately, Joan
engenders strong feelings in people . . . they love her,
they hate her . . . Joan’s story is universal as it speaks
to aging in a culture obsessed with youth, and exposes
20 No. 12-1923
the fleeting nature of fame by looking at the exception
to the rule.” Joint App. 28-29 (ellipses in original).2
Lemerond presented facts similar to this case. 2008 WL
918579, at *3 n.1. The plaintiff sued under New York
Civil Rights Law § 51 (which is equivalent to
Wis. Stat. § 995.50(2)(b)) alleging unlawful use of his
image in the popular film Borat. The film includes a
scene in which the fictional character Borat approached
the (non-fictional) plaintiff on a street corner in New
York City. Borat said, “Hello, nice to meet you. I’m
new in town. My name a Borat.” The plaintiff, “without
further provocation, begins to run away in apparent
terror, screaming ‘Get away!’ and ‘What are you doing?’ ”
Id. at *1. This objectively embarrassing clip of the
plaintiff spanned thirteen seconds and was included in
the film. Despite the inclusion of this objectively embar-
rassing clip, the district court dismissed the appropria-
tion claim due to the fact that the film Borat was news-
worthy and therefore exempt from the ambit of section
51. Id. at *3.
Similarly, the headlines segment in the Tonight Show
with Jay Leno, which highlights pieces from the news
2
While the district court’s order did not address this
possible exception in its entirety, the newsworthiness excep-
tion was fully briefed in the defendants’ motion to dismiss
and we therefore act within our discretion to “affirm on
any ground that the record fairly supports and that appellee
has not waived.” Burns v. Orthotek, Inc. Employees’ Pension Plan
& Trust, 657 F.3d 571, 575 (7th Cir. 2011) (citation omitted).
No. 12-1923 21
that are humorous by virtue of their mistakes or embar-
rassing errors, was held newsworthy in Walter v. NBC
Television Network Inc., 811 N.Y.S.2d 521, 523 (N.Y. App.
2006) (“A performance involving comedy and satire
may fall within the ambit of the newsworthiness
exception even if the performance is not related ‘to a
legitimate news broadcast [or event].’ ”) (alteration in
original) (internal citations omitted). See also Messenger v.
Gruner Jahr Printing & Publ’g, 706 N.Y.S.2d 52, 57 (N.Y.
2000) (holding that no appropriation claim may
lie where “plaintiff’s photograph is used to illustrate
a newsworthy article”). The public’s interest in Rivers’s
long career and fame in general clearly puts this case
on par (at least legally) with films about Woodstock and
the fictional Borat. The documentary therefore falls
safely within the bounds of the newsworthiness excep-
tion and thus the appropriation claim under sec-
tion 995.50(2)(b) fails as a matter of law.
2. Incidental Use Exception
The appropriation claim also fails for another, independ-
ent reason. At the time Wisconsin enacted section
995.50, New York law recognized the incidental use
exception. See, e.g., Moglen v. Varsity Pajamas Inc., 213
N.Y.S.2d 999, 1001 (N.Y. App. 1961) (“It has been
held that a mere incidental commercial use of a
person’s name or photograph is not actionable under
the Civil Rights Law.”). Wisconsin courts, heeding the
direction of section 3, therefore incorporated this
common law exception into the statute. See Hagen v.
22 No. 12-1923
Dahmer, 1995 WL 822644, at *5 n.4 (E.D. Wis. Oct. 13, 1995)
(“Even the incidental use of a name is insufficient to
constitute an invasion of the right to privacy. See Ladany
v. William Morrow Co., 465 F. Supp. 870, 881 (S.D.N.Y.
1978) (construing sections 50 and 51 of the Civil Rights
Act, New York’s right to privacy statute).”).
For use of a person’s name for advertising or
trade purposes to be actionable under Wisconsin law,
“there must be a substantial rather than an incidental
connection between the use and the defendant’s com-
mercial purpose.” Stayart v. Yahoo! Inc., 2011 WL 3625242,
at *2 (E.D. Wis. Aug. 17, 2011). In other words, there
must be a “direct and substantial connection between
the appearance of plaintiff’s name or likeness and the
main purpose and subject of the work.” Netzer v.
Continuity Graphic Associates Inc., 963 F. Supp. 1308, 1326
(S.D.N.Y. 1997) (internal citation omitted).
Bogie argues, though, that the statute itself does not
include any exception for incidental appropriation of a
person’s name or image for commercial purposes.
As explained above, the statutory language does not
limit the application of the exception in the way
Bogie claims since subsection 3 of the statute
mandates that it “shall be interpreted in accordance with
the developing common law.” 3 Wisconsin lower courts
3
Bogie questions the origin of the incidental use exception.
Judge Adelman, however, endorsed the exception in Stayart
v. Yahoo! Inc., 2011 WL 3625242, at *2 (E.D. Wis. Aug. 17, 2011),
(continued...)
No. 12-1923 23
have recognized this aspect of the statute and embraced
its direction: “[B]ecause the legislature has expressly
directed in § 995.50(3) that the statute be ‘interpreted in
accordance with the developing common law of pri-
vacy,’ ” that is “presumably something the legislature
anticipated would ultimately be done by the supreme
court.” Habush v. Cannon, 2012 WL 2345137, at *1 (Wis.
App. June 21, 2012), cert. denied, 822 N.W.2d 883 (Wis.
2012) (table).
The issue is whether we can decide as a matter of
law whether the sixteen-second clip of Bogie in the
Rivers documentary is incidental. Case law under
New York and Wisconsin law provides strong support
for the conclusion that the use here was minimal and
thus incidental and can thus be decided as a matter of
law. Preston v. Martin Bregman Productions, Inc. dismissed
an intrusion of privacy claim based on the incidental
use exception when a woman appeared in a motion
picture for nine seconds in which she was portrayed as
a prostitute. 765 F. Supp. 116, 119-20 (S.D.N.Y. 1991). See
also Candelaria v. Spurlock, 2008 WL 2640471 (E.D.N.Y.
July 3, 2008) (granting motion to dismiss based, in part,
on incidental use exception where plaintiff appeared
in Supersize Me documentary for three to four seconds
3
(...continued)
citing the Endejan comment, 1978 Wis. L. Rev. 1029, 1047-48,
which in turn cited New York and California decisions that
are properly considered as part of the common law develop-
ment of Wisconsin privacy law. We predict that the Wis-
consin Supreme Court would adopt the incidental use excep-
tion and would find it applicable here.
24 No. 12-1923
captured by hidden camera). In Man v. Warner Brothers, a
professional performer sued for invasion of privacy
based on the inclusion of forty-five seconds of his stage
performance at Woodstock. The court found, in part, that
the forty-five second performance was “surely de
minimus” and therefore incidental to the purpose of
the film as a whole and thus also subject to the incidental
use exception. 317 F. Supp. 50, 53 (S.D.N.Y. 1970).
There is no indication here that the exchange between
Rivers and plaintiff Bogie was used to advertise the
documentary film. If a forty-five second perfor-
mance at Woodstock in a film about Woodstock was
incidental — a case where the performer was supple-
menting and participating in the subject of the film —
surely the district court was correct in finding that
a sixteen-second clip of an autograph session in an
eighty-two minute documentary about Joan Rivers was
also incidental. Bogie’s misappropriation claim there-
fore fails as a matter of law based on both the incidental
use exception and the newsworthiness exception. Leave
to amend could not avoid these exceptions, so dismissal
with prejudice was appropriate. We affirm the district
court’s decision on this claim as well.
The judgment of the district court is A FFIRMED.
1-17-13