SAVELY v. MTV MUSIC TELEVISION et al
Filing
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OPINION fld. Signed by Susan D. Wigenton on 7/18/11. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 11-1021
(SDW) (MCA)
MICHAEL SAVELY,
Plaintiff,
v.
OPINION
MTV MUSIC TELEVISION, VIACOM
d/b/a MTV NETWORKS, JOHN DOES (1-5)
(said names being fictitious), and ABC
CORP. (said entities being fictitious),
July 18, 2011
Defendants.
WIGENTON, District Judge.
Before the Court is defendant MTV Music Television, Viacom d/b/a MTV
Networks, John Does, and ABC Corp.‟s (“Defendants” or “MTV”) motion to dismiss the
complaint of plaintiff Michael Savely (“Plaintiff” or “Savely”) pursuant to Federal Rule
of Civil Procedure 12(b)(6) (“Motion to Dismiss”).
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Venue
is proper and the case was removed to this Court under 28 U.S.C. § 1441(a). This Court,
having considered the parties‟ submissions, decides this matter without oral argument
pursuant to Federal Rule of Civil Procedure 78.
For the reasons stated below, Defendants‟ Motion to Dismiss is GRANTED as to
Counts I and II, but DENIED as to Count III.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff is a drummer who performs daily in New York City subways
entertaining subway patrons and the public at large. (Compl. ¶¶ 6-8.) Sometime in
November 2010, several representatives of Defendants, who were filming for MTV,
approached Plaintiff while he was performing his routine on a New York City subway
platform. (Id. ¶¶ 12-14.) Defendants‟ representatives asked Plaintiff if they could film
him drumming and use the footage in a film that MTV was making. Plaintiff requested
to see a contract form, which the representatives provided. After reviewing the contract,
Plaintiff decided that he was not comfortable with being filmed and declined the offer.
(Id. ¶ 16.) Plaintiff gave the contract back to the representatives and told them that he did
not consent to being filmed. (Id. ¶ 17.)
Approximately three weeks later, in December 2010, after two individuals
approached Savely and informed him that they saw his performance on MTV, Savely
found out that MTV had filmed him playing drums and used the footage in a program
about rapper Nicki Minaj1 entitled “Nicki Minaj: My Time Now.” (Id. ¶¶ 25, 28.) Prior
to one segment in the program, there is a clip showing Savely playing the drums on a
New York City subway platform (“Footage”). (Id. ¶ 27.)
Plaintiff asserts that following the release of the program, he received criticism
from fans and supporters for his involvement in the project. (Compl. ¶ 34.) Since the
airing of the program, the parents of several of Savely‟s students have terminated his
services. (See id. ¶ 35.)
He also noticed a drop in the number of his clients, and has
observed a decrease in his t-shirt sales with his image and art. (Id. ¶¶ 35-36.)
1
Ms. Minaj is referred to throughout the Complaint as “Nickey Manaj,” and by Defendants in their
submissions interchangeably as “Nicki Manaj” and “Nicki Minaj.”
2
On February 2, 2011, Savely filed a complaint against MTV in New Jersey state
court in Hudson County for the following claims of invasion of privacy: (i) appropriation
of name, likeness or identity; (ii) publication of private facts; and (iii) false light
(“Complaint”). On February 23, 2011, MTV removed the case to federal court in New
Jersey pursuant to 28 U.S.C. § 1441. On March 22, 2011, MTV filed the present Motion
to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted.
LEGAL STANDARD
When considering a motion to dismiss a complaint for failure to state a claim
upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6),
the Court must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515
F.3d 224, 233 (3d Cir. 2008) (citation omitted) (internal quotation marks omitted).
A
pleading is sufficient if it alleges “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiff must put forth enough
information to “give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Phillips, 515 F.3d at 231 (alteration in original) (citations omitted)
(internal quotation marks omitted).
While a court will accept well-pleaded allegations as true for purposes of the
motion, it will not accept unsupported conclusions, unwarranted inferences, or sweeping
legal conclusions cast in the form of factual allegations. See Miree v. De Kalb Cnty., Ga.,
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433 U.S. 25, 27 n.2 (1977); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1429-30 (3d Cir. 1997) (holding that a court does not need to credit “bald assertions” or
“legal conclusions” of a complaint when deciding a motion to dismiss). Further, “[a]
court may dismiss a complaint for failure to state a claim, based on a time-bar, where „the
time alleged in the statement of a claim shows that the cause of action has not been
brought within the statute of limitations.‟” Bieregu v. Ashcroft, 259 F. Supp. 2d 342, 355
n.11 (D.N.J. 2003) (citation omitted).
DISCUSSION
Invasion of Privacy
The Restatement (Second) of Torts provides that “[o]ne who intentionally
intrudes, physically or otherwise, upon the solitude or seclusion of another or his private
affairs or concerns, is subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person.” RESTATEMENT (SECOND) OF
TORTS § 652B (1977).
Generally, Defendants argue that Plaintiff‟s Complaint should be dismissed for
the following reasons:
(i) [I]t is based upon events that took place in public; (ii) the events at
issue were aired exactly as they occurred; (iii) Savely had no reasonable
expectation of privacy when performing on a New York City subway
platform; and (iv) the airing of four seconds of Savely‟s drum routine
during an hour-long documentary was not a commercial use.
(Def.‟s Br. 2.)
However, for the reasons discussed below, the Court finds that Plaintiff has
sufficiently pled one of his three claims, specifically, invasion of privacy - false light. As
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required, this Court has accepted all of Plaintiff‟s factual allegations as true for the
purpose of deciding the Motion to Dismiss. Each of Plaintiff‟s invasion of privacy
claims are addressed below.
Invasion of Privacy – Appropriation of Name, Likeness or Identity
“One who appropriates to his own use or benefit the name or likeness of another
is subject to liability to the other for invasion of his privacy.” RESTATEMENT (SECOND)
OF
TORTS § 652C. To establish a prima facie case of misappropriation of likeness, the
plaintiff must establish four elements: “(1) the defendant appropriated the plaintiff‟s
likeness, (2) without the plaintiff‟s consent, (3) for the defendant‟s use or benefit, and (4)
damage.” Hart v. Elec. Arts, Inc., 740 F. Supp. 2d 658, 665 n.5 (D.N.J 2010) (citations
omitted). Plaintiff includes facts in his Complaint to support the first two elements - that
Defendants used his likeness and that Plaintiff did not give consent. Plaintiff also asserts
that he incurred damages as a result of Defendants actions to satisfy the fourth element.
Notably, regarding the third element, “[u]nder New Jersey common law, defendant[s]
would be liable for the tort of misappropriation of likeness only if defendant‟s use of
plaintiff‟s likeness was for a predominantly commercial purpose, i.e., if defendant was
seeking to capitalize on defendant‟s likeness for purposes other than the dissemination of
news or information.” Castro v. NYT Television, 370 N.J. Super. 282, 297 (N.J. Super.
Ct. App. Div. 2004) (second alteration in original) (emphasis added) (quoting Telado v.
Time-Life Books, Inc., 643 F. Supp. 904, 909-10 (D.N.J. 1986)).
As the Restatement (Second) of Torts explains, a predominantly commercial
purpose is an essential element of the tort:
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No one has the right to object merely because his name or his appearance
is brought before the public, since neither is in any way a private matter
and both are open to public observation. It is only when the publicity is
given for the purpose of appropriating to the defendant‟s benefit the
commercial or other values associated with the name or the likeness that
the right of privacy is invaded. The fact that the defendant is engaged in
the business of publication, for example of a newspaper, out of which he
makes or seeks to make a profit, is not enough to make the incidental
publication a commercial use of the name or likeness. Thus a newspaper,
although it is not a philanthropic institution, does not become liable under
the rule stated in this Section to every person whose name or likeness it
publishes.
RESTATEMENT (SECOND) OF TORTS § 652C cmt. d. Applying this standard, the court in
Castro v. NYT Television dismissed the plaintiff‟s complaint for failure to state a claim
where the complaint merely asserted that “„[d]efendants appropriated plaintiffs‟
likenesses, images and/or names for commercial profit and advantage.‟” 370 N.J. Super.
at 298. The Castro court held that such a complaint was deficient because it rested on “a
conclusion of law, not an allegation of fact that could support this conclusion.” Id.
Similar to the complaint in Castro, the Complaint in the instant matter is deficient
as it asserts conclusions of law, unsupported by allegations of fact regarding the
misappropriation of likeness claim.
Indeed, the Complaint merely states that
“[d]efendants, without obtaining Plaintiff‟s written authorization or consent, knowingly,
intentionally, wrongfully and illegally used Plaintiff‟s image and likeness in the
production of the . . . television show and broadcast the same on national television.”
(Compl. ¶ 40.)
Such an allegation fails to provide facts that could explain how
Defendants‟ use of Plaintiff‟s image was for a predominantly commercial purpose.
Although Plaintiff alleges that the Footage was broadcasted on national television
without his consent, the Complaint does not make reference to a commercial purpose
(seemingly other than noting the Footage was broadcasted). (Id. ¶¶ 40-42.)
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Plaintiff has not sufficiently pled that the use of his likeness by Defendants was
for a “predominantly commercial purpose” or for a commercial benefit “or other values
associated with the name or the likeness that the right of privacy is invaded.” See Castro,
370 N.J. Super. at 297. Indeed, “one reason for the imposition of tort liability for
commercial appropriation of a person‟s name of likeness . . . is to avoid the unjust
enrichment that would result from uncompensated use of the name or likeness of another
person.” Id. at 299.
Therefore, while it is possible that Plaintiff‟s misappropriation of likeness claim
could be pled sufficiently if amended, it is not in the present Complaint. See generally
Hart, 740 F. Supp. 2d at 668 (noting that plaintiff could sufficiently plead the
predominantly commercial purpose element if the complaint were amended). Thus,
Defendant‟s Motion to Dismiss as to Count I, for misappropriation of likeness, is granted
and Plaintiff is hereby granted 30 days leave to amend the Complaint pursuant to Federal
Rule of Civil Procedure 15(a)(2).
Invasion of Privacy – Publication of Private Facts
“The invasion of privacy by unreasonable publication of private facts occurs
when it is shown that „the matters revealed were actually private, that dissemination of
such facts would be offensive to a reasonable person, and that there is no legitimate
interest of the public in being apprised of the facts publicized.‟” Romaine v. Kallinger,
109 N.J. 282, 297 (N.J. 1988) (quoting Bisbee v. John C. Conover Agency, Inc., 186 N.J.
Super. 335, 340 (N.J. Super. Ct. App. Div. 1982)); see also RESTATEMENT (SECOND) OF
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TORTS § 652D.2 For an invasion of privacy action, whether the published facts are
actually private is an important element. Indeed, “[t]he thrust of this aspect of the tort is,
in other words, that a person‟s private, personal affairs should not be pried into.” Bisbee,
186 N.J. Super. at 340.
For example, in Bisbee, the court held that there was no
publication of private facts when defendant published a photograph of plaintiff‟s house
because it “was taken from the street, a public thoroughfare, and merely represented a
view which [was] available to any bystander.” See id. at 340-41.
Thus, “there is no
wrong where defendant did not actually delve into plaintiff‟s concerns, or where
plaintiff‟s activities are already public or known.” 3 Id. at 340.
Given the law on the publication of private facts, Plaintiff has not sufficiently pled
that Defendant‟s actions gave rise to the tortious publication of private facts. Similar to
the photograph of plaintiff‟s house in Bisbee, the Footage of Plaintiff in the instant matter
was taken while visible to the public at large. Indeed, as currently pled in the Complaint,
the Footage merely gave publicity to what was already public. Plaintiff has not asserted
that a “private fact” was made public. Therefore, Defendant‟s Motion to Dismiss as to
Count II, publication of private facts, is granted. Plaintiff is hereby granted 30 days leave
to amend the Complaint pursuant to Federal Rule of Civil Procedure 15(a)(2).
2
According to the Restatement (Second) of Torts,
One who gives publicity to a matter concerning the private life of another is subject to
liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern
to the public.
RESTATEMENT (SECOND) OF TORTS § 652D.
3
Although the Bisbee court uses this language to refer specifically to the tort of unreasonable intrusion on
seclusion, it has equal force when applied to the tort of publication of private facts because both torts
require—as a prerequisite—that plaintiff‟s activities or affairs are actually, in fact, private.
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Invasion of Privacy - False Light
New Jersey law on the invasion of privacy by false light is consistent with the
Restatement (Second) of Torts, which provides:
One who gives publicity to a matter concerning another that places the
other before the public in a false light is subject to liability to the other for
invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive
to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the other would
be placed.
RESTATEMENT (SECOND)
OF
TORTS §652E; Cibenko v. Worth Publishers, Inc., 510 F.
Supp. 761, 766 (D.N.J. 1981) (noting that New Jersey law on invasion of privacy by false
light is consistent with the Restatement (Second) of Torts).
While there is overlap between the torts of defamation and false light, it is not
“necessary to the action for invasion of privacy that the plaintiff be defamed. It is enough
that he is given unreasonable and highly objectionable publicity that attributes to him
characteristics, conduct or beliefs that are false, and so is placed before the public in a
false position.” RESTATEMENT (SECOND) OF TORTS §652E cmt. b. Ultimately, whether
the communication “is capable of bearing a particular meaning which is highly offensive
to a reasonable person” is a question for the Court. Cibenko, 510 F. Supp. at 766.
Notably, in the instant matter, Plaintiff does not argue that his actions were altered
or changed, but rather that the Footage “consists of poor quality images and sounds to the
extent that it reflects poorly on Plaintiff‟s talent as a drummer and performer.” (Compl. ¶
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32.) Further, Plaintiff claims that Defendants‟ “intrusion” portrayed him in a “false,
unfavorable and disparaging light.” (Id. ¶ 50.)
Defendants argue that the false light claim fails because the meaning Plaintiff
attributes to his appearance is unreasonable. (See Def.‟s Reply Br. 1.)
Further,
Defendants argue that the Footage was not distorted in any way, and the images of Savely
are not distinctly linked to Minaj or any substantive themes of the film.
The film
allegedly chronicles Nicki Minaj‟s rise in the rap industry and life growing up in Queens,
New York. However, for a claim of false light, the defendants‟ actions need not be
defamatory, but rather “must be something that would be objectionable to the ordinary
reasonable man.” Canessa v. J.I. Kislak, Inc., 97 N.J. Super. 327, 334 (N.J. Super. Ct.
Law Div. 1967).
Plaintiff alleges that he did not consent to being filmed because he had concerns
regarding how his name and likeness would be depicted, and was worried about the
Footage being connected to artists and institutions that could tarnish his reputation.
Plaintiff claims to generate a significant amount of his income through drumming lessons
he provides for children. (Compl. ¶ 21.) “Plaintiff understands that the reason many of
the parents of the students he teaches employ his services is because they can trust him to
provide their children with something modern yet not corrupt.” (Id. ¶ 22.) Plaintiff states
the following in his Complaint: “Ms. M[i]naj dresses provocatively, uses profanity and
glories a specific lifestyle contrary to that of Plaintiff and, more importantly, to that of
Plaintiff‟s students and their parents.” (Id. ¶ 31.) Plaintiff also expressed concern that
being associated with the “„wrong‟ artist,” would cause him to lose significant future
business. (Id. ¶ 23.) Further, regarding the damage element of his cause of action,
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Plaintiff alleges that he suffered losses as a result, including a decline in his student base
and sales. (Id. ¶¶ 35-36.) Thus, given the context and circumstances, Plaintiff has
sufficiently alleged facts that if proven to be true, could support a claim for false light.
Plaintiff‟s claim of false light is sufficiently pled and Defendants‟ Motion to Dismiss will
be denied as to this count.
CONCLUSION
Plaintiff has sufficiently pled facts in his Complaint to state a cause of action for
false light. He has provided notice of this claim and the grounds upon which it rests. He
has not, however, sufficiently pled facts in his Complaint to state causes of action for
misappropriation of likeness or publication of private facts.
For the reasons stated above, the Court GRANTS Defendants‟ Motion to Dismiss
as to Counts I (misappropriation of likeness) and II (publication of private facts), but
DENIES Defendants‟ Motion to Dismiss as to Count III (false light). Plaintiff is granted
30 days leave to amend the Complaint.
s/Susan D. Wigenton, U.S.D.J.
Orig: Clerk
Cc:
Madeline Cox Arleo, U.S.M.J.
Parties
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