Category Archives: Right of Publicity

Borat movie plaintiff not successful in image appropriation case

[Brian Beckham is a contributor to Internet Cases and can be contacted at brian.beckham [at] gmail dot com.]

Lemerond v. 20th Century Fox, No. 07-4635, 2008 WL 918579 (S.D.N.Y. March 31, 2008)

In the movie Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan, the fictional Kazakh character (alter ego of comedian Sacha Cohen) journeys to America — all the while videotaping his interactions with unsuspecting people. One scene shows Borat greeting plaintiff Lemerond (“Hello nice to meet you. I’m new in town. My name a Borat”), then promptly running off in the opposite direction screaming (“Get away! What are you doing?”). (Those who have not seen the movie should note that the text does not capture the awkwardness of the exchange). The 13-second clip is shown twice in the full-length film, as well as in a movie trailer (but in the trailer the plaintiff’s face is blurred).

Plaintiff Lemerond filed suit under New York Civil Rights Law section 51 and New York common law for the unlawful use of his image. Defendant 20th Century Fox filed a 12(b)(6) motion to dismiss the suit for failure to state a claim. The court granted the motion.

Since New York does not recognize a common law right of privacy (the related right of publicity, like a trademark must be used in commerce to identify the source of goods or services — celebrities would normally enjoy such a right), the court decided the plaintiff’s suit on the basis of whether his likeness was used for “advertising purposes or purposes of the trade” without written permission. The most significant question was whether his appearance in the clips and trailer was for advertising purposes.

The court offered what might be considered a strained reading of the New York statute. It first cited to case law that held the statute was limited to “nonconsensual commercial appropriations of the name, portrait, or likeness of a living person.” It then pointed to another case which held that the nonconsensual use of a person’s image to depict “newsworthy events or matters of public interest” is protected by the statute. The court then quoted yet another case stating that this newsworthiness exception broadly covered “social trends, or any subject of public interest” and went on to observe that “public interest” and “newsworthy” have been defined in the most liberal and far reaching terms. Accordingly, the court found that Borat’s antics fit “squarely” within the newsworthiness / social commentary exception of the New York statute, stating that

[T]he movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewers. As its core, however, Borat attempts an ironic commentary of ‘modern’ American culture…challeng[ing] its viewers to confront, not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from ‘average’ Americans.

In a footnote, the court approvingly cited a 1970 case in pointing out that “the mere fact that defendants are spurred by the profit motive and engaged in the commercial exploitation of [a] motion picture does not negate their right to depict a matter of public interest or to advertise the picture by the showing of a ‘trailer’.”

Perhaps an open question is when, if ever, a New York news reporter or movie producer would need permission to use a non-celebrity’s image in his or her reporting, movie, or advertising, i.e., on a subject not necessarily in the public interest.

Court sides with the late James Brown in right of publicity case against Corbis

Brown v. ACMI Pop Div., — N.E.2d —-, No. 06-0870, 2007 WL 2214544 (Ill. App. Aug. 2, 2007) [Download the opinion]

The Appellate Court of Illinois recently addressed some questions arising at the sometimes murky border between copyright and the right of publicity. At issue was whether Corbis, the online stock photography company, violated the late singer James Brown’s right of publicity by offering to license the copyright in photos of him, even though he had not consented to the use by Corbis of his name or image.

Corbis moved to dismiss under 735 ILCS 5/2-619 (which is much like a motion for summary judgment), arguing that the offering of copyright licenses through the website was not an unauthorized commercial use, and therefore not a violation of Brown’s right of publicity under the Act and at common law. The court denied the motion, and Corbis sought interlocutory review with the Appellate Court. On appeal, the court affirmed the trial court’s denial of the motion to dismiss.

Corbis argued that Brown’s allegations were “premised on an unprecedented legal theory that a copyright for a photograph of an individual cannot be licensed unless the publicity rights are obtained by the licensor, not the end user, without regard to the ultimate use of the photograph.” Citing to earlier Illinois cases in which the name and image of certain well-known figures had been used in novels and in news coverage, Corbis claimed that the use of the image was a “vehicle of information,” much like a news report.

Brown argued that Corbis’s use of the photos was not as a mere “vehicle of information,” but were being sold for commercial purposes, as merchandise or a good. But Corbis sought to distinguish its activity as a “service,” namely, licensing the “incorporeal image,” which is “purely intangible.” Corbis also asserted that permitting Brown to charge a fee for permission to use his image for news reporting (many of Corbis’s customers were news media outlets) would violate the First Amendment. Moreover, the Right of Publicity Act specifically exempts use of images for noncommercial purposes, such as news reporting.

In affirming the denial of the motion to dismiss, the court observed the “vast difference of opinion regarding the interpretation of the definition of what Corbis sells and the legal effect of such sales.” Accordingly, the court determined, a material and genuine disputed question of fact remained, so the trial court’s refusal to dismiss the matter was appropriate.

Publication of photo on website not a “continuing violation” in right of publicity case

This post is by Greg Smith, a contributor to Internet Cases. [Bio]

In Blair v. Nevada Landing Partnership, a casino worker sued his former employer, claiming that the casino used a photograph of him in various marketing materials and later, without authorization, on the casino’s website. Although the plaintiff consented to the photograph when it was taken, he complained about its use after he quit his job.

The plaintiff claimed that the casino misappropriated his likeness, and filed an action in Illinois state court, alleging violations of the state’s Right of Publicity Act. The trial court dismissed the action as time-barred, and the plaintiff sought review. The Appellate Court affirmed.

The court began by analyzing when the limitations began to run. Said another way, it looked to determine when the cause of action “accrued.” The photograph was taken in 1994, and about six months later, it appeared on various flyers and brochures, signs and billboards, casino restaurant menus, and calendars and postcards for sale in the casino gift shop. Some time later, the photo appeared on the casino’s website. The plaintiff did not file suit until September 2004.

The court noted that in tort cases, the limitations period begins to run when the plaintiff can first file the lawsuit. Conduct of a defendant falling under the “continuing violation” exception, however, can toll (i.e., delay) the time when the limitations period begins. If there is a continuing violation, the statute of limitations does not begin to run until the tortious acts cease. But the continuing violation exception does not apply if the alleged conduct stems from a “single overt act.” In such cases, the statute begins to run on the date of the single act.

The court declined to apply to continuing violation exception:

We do not believe that the defendants’ act of publishing the plaintiff’s picture in various mediums around the casino falls under the continuing violation exception. Rather, we believe that the use of the plaintiff’s picture in different means such as on the billboard in the casino pavilion, in the casino’s restaurant menu, and on the defendants’ website, constituted a single overt act.

The court cautioned that application of this so-called “first publication rule” is not without its limitations. “[A] republication of the plaintiff’s likeness can constitute a new cause of action if the publication is altered so as to reach a new audience or promote a different product.” Lehman v. Discovery Communications, Inc., 332 F.Supp.2d 534, 539 (E.D.N.Y.2004).

But in this case, even though the casino used the plaintiff’s photograph in different formats over time, it committed only a single overt act for statute of limitations purposes. The uses were all made with the same goal, namely, to attract customers to the casino. Accordingly, a suit filed nearly a decade after the photo was first used was clearly time-barred.

Blair v. Nevada Landing Partnership, — N.E.2d —-, 2006 WL 3594284 (Ill. App. 2 Dist., December 8, 2006)