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[NOTE: This case has been edited for classroom use by the omission of text, citations, and footnotes. See this alternate source for the full opinion.]
U.S. District Judge Dean D. Pregerson
This matter comes before the Court on the motions of the plaintiff, Bret Michaels ("Michaels"), and the intervenor, Pamela Anderson Lee ("Lee") (collectively, the "plaintiffs"), for a preliminary injunction to prevent dissemination of a videotape ("the Tape") in which Michaels and Lee claim a copyright. Dissemination of the Tape by defendant Internet Entertainment Group, Inc. ("IEG") is currently prohibited by this Court's Temporary Restraining Order ("TRO"), issued February 27, 1998. IEG has consented to several extensions of the TRO.
The Court, having considered the declarations and exhibits submitted by the parties, the parties' written and oral arguments, and the applicable legal authorities, concludes that the plaintiffs have made the requisite showing of likelihood of success on the merits and irreparable injury on their copyright claims. Therefore, the Court preliminarily enjoins defendant IEG from distributing the Tape.
In addition, the Court finds that the plaintiffs have made the requisite showing of likelihood of success on the merits of their claim for violation of the state law right to publicity, as well as the possibility of irreparable injury. The Court therefore enjoins IEG from using the plaintiffs' names, likenesses or identities for the purpose of advertising, selling, marketing, or soliciting purchases of goods or services.
Finally, the Court finds that the plaintiffs have made the requisite showing of likelihood of success on the merits of their claim for violation of the right to privacy, as well as the possibility of irreparable injury. The Court therefore enjoins IEG from publishing, copying, distributing or otherwise disseminating the Tape.
. . . .
A. Factual and Procedural Background
Michaels is a musician, best known as the lead singer of the rock band "Poison." Michaels asserts that he is now engaged in a second career as a feature film director. Lee is a well-known television and film actor.
Defendant IEG is a corporation involved in the distribution of adult entertainment material through a subscription service on the Internet.
On or about October 31, 1994, Michaels and Lee recorded the Tape, which depicts them having sex.
On December 31, 1997, Michaels received a letter from IEG claiming that IEG had acquired the Tape and all rights necessary to publish the Tape.
On January 12, 1998, Michaels wrote to IEG through counsel to advise IEG that Michaels had not authorized any distribution of the Tape, and notifying IEG that any publication of the Tape would violate Michaels's copyright therein, as well as his common law and statutory rights to privacy and publicity involving his name and likeness. The letter denied that any third party had the right to convey Michaels's interest in the Tape. The letter included a demand that IEG cease and desist from attempts to disseminate or exploit the Tape.
On January 22, 1998, Michaels registered the Tape with the Register of Copyrights as an audiovisual work entitled "Private Home Tape" and authored by Michaels.
Michaels filed this action on January 23, 1998, alleging five claims: (1) copyright infringement against IEG; (2) false designation of origin under the Lanham Act against IEG; (3) state-law invasion of privacy based on publicity of the Tape over Westwood One's radio affiliates against all defendants; (4) violation of the California common law right of publicity against all defendants; and (5) violation of the California statutory right of publicity under California Civil Code section 3344 against all defendants. In addition, Michaels's complaint includes a sixth cause of action which is a prayer for injunctive relief on all claims.
Also on January 23, 1998, Michaels applied ex parte for a temporary restraining order to prohibit the defendants from duplicating, publishing, promoting, marketing or advertising the Tape. The application alleged that IEG announced that it would publish the Tape on its Internet subscription service, "ClubLove," on Monday, January 26, 1998. The Court issued the TRO on January 23, 1998. . . .
. . . .
A. Legal Standard For Preliminary Injunction
In the Ninth Circuit, the party seeking a preliminary injunction must show either (1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted, or (2) the existence of serious questions governing the merits and that the balance of hardships tips in its favor. . . .
. . . .
C. Right to Publicity
Under California law, the plaintiffs own the right to exploit their names and likenesses for commercial gain. The common law of California recognizes this right of publicity in a person's name, likeness and identity. The California legislature has created a statutory right of publicity in a person's "name, voice, signature, photograph, or likeness." Cal. Civ. Code § 3344(a). The statutory right complements, rather than codifies, the common law right. This distinction is important because the common law right protects a broader range of interests against a broader range of infringing conduct than does the statutory right.
Under California law, the plaintiffs may seek to protect their rights of publicity through an action for damages. The plaintiffs may also seek to enjoin others from exploiting their names or likenesses at all.
1. Copyright Preemption
IEG contends that the claim for violation of the right to publicity is preempted by the Copyright Act. The Copyright Act of 1976 (the "Act") explicitly preempts "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright" as defined by the Act. 17 U.S.C. § 301(a).
The Copyright Act sets forth a two-part test for determining whether a state law claim is preempted. First, the work on which the state law claim is 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 are 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).
In order to apply the second prong, courts focus on whether the state claim has an "extra element" that differentiates it from the rights protected by federal law. . . .
IEG correctly states that the state law right to publicity action is preempted where the conduct alleged to violate the right consists only of copying the work in which the plaintiff claims a copyright. A right to publicity claim is not preempted, however, where the claim contains elements that are different in kind from copyright infringement.
Here, the plaintiffs have alleged that the defendants have used their names, likenesses and identities on radio, television and the Internet to advertise the imminent distribution of the Tape. This conduct is unrelated to the elements of copyright infringement, which are concerned only with distribution of the Tape itself.
The Court therefore rejects the contention that the claims for right to publicity are preempted by the Copyright Act.
2. 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 v. Superior Court (National Enquirer), 198 Cal. Rptr. 342, 347 (Ct. App. 1983). The statutory cause of action under section 3344 requires 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. Id.
The first element, use of the plaintiffs' names and identities, is satisfied by evidence that IEG used the plaintiffs' names and bodily descriptions to promote the tape on television and radio.
The second element, commercial advantage, is satisfied by IEG's statements regarding the nature of its business. IEG is a subscription service with approximately 100,000 members, each of whom pay $ 14.95 per month. IEG's president estimated that up to one-third of its paying members would cancel their subscriptions if IEG did not deliver the Tape.
The third element, lack of consent, is not seriously contested. IEG's assertion that Michaels or Lee secretly licensed it to distribute the Tape is not supported by any evidence and is controverted by Michaels's and Lee's declarations and deposition testimony. If IEG had come forward with evidence of consent, this element might require an evidentiary hearing in order for the Court to weigh the credibility of conflicting testimony. Under these circumstances, however, the evidence of lack of consent is uncontroverted.
The fourth element, injury, is satisfied by two showings. First, if IEG's membership revenue has increased due to its use of the plaintiffs' names and likenesses, IEG has deprived the plaintiffs of money they could have made by exploiting their right to publicity on their own or through licensees. Second, the plaintiffs have presented evidence that publicity in association with pornography has damaged their attempts to establish and maintain careers in mainstream entertainment.
Lee has submitted a declaration by entertainment lawyer Henry Holmes, who states that in his opinion, Lee's prospects as an actor and endorser of products will be damaged by publicity in association with pornography.
The Court also finds that the statutory elements are satisfied. IEG knew that it was using the plaintiffs' names and likeness in connection with promotion of the Tape. The use of their names and likenesses was directly connected with promotion of the Tape.
In light of the foregoing, the Court concludes that the plaintiffs have demonstrated a likelihood of success on the merits of their claim for violation of the California common law and statutory right to publicity.
3. Irreparable Injury
Several courts have held that a celebrity's property interest in his name and likeness is unique, and cannot be adequately compensated by money damages.
The plaintiffs have submitted evidence that they have invested years of effort in establishing their public personae, and that their ability to exploit their investments will be irreparably harmed by exploitation of their names and likeness in connection with the marketing of the Tape. The Court concludes based on this evidence that the plaintiffs have made the requisite showing of irreparable injury.
4. Necessity to Tailor Relief To Avoid Invalid Prior Restraint
While the plaintiffs have an exclusive right to exploit their names and likenesses for commercial purposes, they do not have an exclusive right to the use of their names and likenesses in the publication of matters of public interest. California's publicity statute specifically exempts "use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign." Cal. Civ. Code § 3344(d). Courts applying the common law right of publicity have recognized that the First Amendment requires a similar exemption for uses in connection with matters of public interest.
The plaintiffs are entitled to an injunction against uses of their names or likenesses to sell the Tape. The injunction may not reach the use of their names or likenesses to report or comment on matters of public interest. Nor may it reach the use of their names or likenesses to attract attention to IEG as a news medium.
Crafting an injunction to prevent irreparable injury arising from violation of the plaintiffs' rights to publicity requires "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. Where the relief sought is damages, the plaintiff's property rights can be protected at minimal risk to free expression. Where, as here, the plaintiffs ask the Court to impose a prior restraint, the risk to free expression is at its highest. The words "promotion, marketing, and advertising" in this preliminary injunction therefore apply only to the use of the plaintiffs' names, likenesses or identities to sell the Tape. This limitation is required to prevent the imposition of a prior restraint on IEG's ability to comment on matters of public interest.
"Promotion, marketing, and advertising" are to be understood as a form of commercial speech, that is speech which "proposes a commercial transaction." Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989). This distinction between speech that proposes a commercial transaction, and speech that comments on matters of public interest has been applied regularly to distinguish protected speech from actionable misuse of a person's name or likeness for commercial gain. . . .
D. Right to Privacy
California recognizes a tort cause of action for violation of the right to privacy. Four distinct torts are included under the rubric of right to privacy: (1) public disclosure of private facts; (2) intrusion upon the plaintiff's solitude or into his private affairs; (3) false light publicity; and (4) appropriation of the plaintiff's name and likeness. The fourth branch of the tort is analyzed extensively above under the right to publicity claim. Michaels and Lee have also asserted the first and second branches of the privacy tort, public disclosure of private facts and intrusion into private affairs.
The elements of the tort of public disclosure of private facts are (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern. The elements of the tort of intrusion into public affairs are similar. The intrusion into private affairs need not be physical, and in order to be actionable must be offensive to a reasonable person.
Both the public disclosure and intrusion torts are subject to a newsworthy privilege, which protects the First Amendment freedom to report on matters of public concern. Newsworthiness is defined broadly to include not only matters of public policy, but any matter of public concern, including the accomplishments, everyday lives, and romantic involvements of famous people.
The privilege to report newsworthy information is not without limit. "Where the publicity is so offensive as to constitute a morbid and sensational prying into private lives for its own sake, it serves no legitimate public interest and is not deserving of protection." Diaz v. Oakland Tribune, Inc., 188 Cal. Rptr. 762, 767 (1983) (internal quotation marks omitted).
1. Likelihood of Success on the Merits
Here, distribution of the Tape on the Internet would constitute public disclosure. The content of the Tape--Michaels and Lee engaged in sexual relations--constitutes a set of private facts whose disclosure would be objectionable to a reasonable person.
IEG makes three related contentions based on Lee's status as a "sex symbol." First, IEG contends that matters regarding sex should not be considered private with regard to Lee because her acting career is in part based on sex. Second, IEG contends that because a foreign Internet source has already released part of the Tape, the facts it contains are no longer private. Third, IEG contends that Lee's status as a sex symbol, and Michael's status as a rock star make the sex acts depicted on the Tape newsworthy.
a. Do Sex Symbols Have Privacy?
IEG contends that because Lee has appeared nude in magazines, movies and publicly distributed videotapes, the facts contained on the Tape depicting her having sex are no longer private. IEG's contention unreasonably blurs the line between fiction and reality. Lee is a professional actor. She has played roles involving sex and sexual appeal. The fact that she has performed a role involving sex does not, however, make her real sex life open to the public.
IEG contends that the wide distribution of a different videotape, one depicting sexual relations between Lee and her husband Tommy Lee, negates any privacy interest that Lee might have in the Tape depicting sexual relations with Michaels. The facts depicted on the Tommy Lee tape, however, are different from the facts depicted on the Michaels Tape. Sexual relations are among the most personal and intimate of acts. The Court is not prepared to conclude that public exposure of one sexual encounter forever removes a person's privacy interest in all subsequent and previous sexual encounters.
It is also clear that Michaels has a privacy interest in his sex life. While Michael's voluntary assumption of fame as a rock star throws open his private life to some extent, even people who voluntarily enter the public sphere retain a privacy interest in the most intimate details of their lives.
The Court notes that the private matter at issue here is not the fact that Lee and Michaels were romantically involved. Because they sought fame, Lee and Michaels must tolerate some public exposure of the fact of their involvement. The fact recorded on the Tape, however, is not that Lee and Michaels were romantically involved, but rather the visual and aural details of their sexual relations, facts which are ordinarily considered private even for celebrities. . . .
In short, the Court concludes that the private facts depicted on the Michaels Tape have not become public either by virtue of Lee's professional appearances as an actor, or by dissemination of the Tommy Lee videotape.
b. Publication of a 148-Second Section of the Tape on the Dutch Internet Site
IEG presents evidence that a 148-second clip from the Tape was posted on the Internet on or about April 16, 1998. IEG contends that the publication of this clip converts the intimate activities depicted on the Tape to matters of public knowledge, and that, therefore, the plaintiffs no longer have a privacy interest to assert in the Tape.
. . . [E]xposure of a small portion of the Tape began to occur ten days ago. The Court cannot conclude from this recent publication that the contents of the 148-second clip are now matters of public knowledge. . . . Here, the plaintiffs assert a privacy interest in all of the intimate activity depicted on the Tape. The plaintiffs' privacy interest in the unreleased portions of the Tape is undiminished.
The Court also notes that the ability of the plaintiffs to assert a privacy interest in the 148-second segment of the Tape does not affect the preliminary injunctive relief to which the plaintiffs are entitled. While the plaintiffs' privacy interest in the 148-second clip might be diminished, the plaintiffs' copyright in this portion of the Tape is unaffected. Any loss of privacy interest therefore provides no basis for relaxing this preliminary injunction's prohibition on copying, reproducing, publishing, disseminating, distributing or circulating the 148-second portion of the Tape. Additionally, prior publication of the 148-second segment does not negate the plaintiffs' right to exploit their names, likenesses, and identities for their own benefit. The publication of the 148-second segment therefore provides no basis for modifying the prohibition on marketing, advertising or promoting the Tape.
c. Newsworthiness Privilege
In order to determine whether the contents of the Tape are covered by the privilege for reporting private but newsworthy information, the Court must 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 voluntarily acceded to a position of public notoriety. At trial or at summary judgment, the burden is on the plaintiffs to prove that the information they seek to protect is not newsworthy.
The first factor, the social value of the facts published, weighs against a finding of newsworthiness. It is difficult if not impossible to articulate a social value that will be advanced by dissemination of the Tape.
The second factor, depth of intrusion, also weighs against a finding of newsworthiness. This factor is to be applied with an eye toward community mores as to the depth of intrusion. At trial, it will be for the finder of fact to determine the state of community mores regarding the depth of intrusion. For purposes of this motion, the Court determines that the plaintiffs are likely to convince the finder of fact that sexual relations are among the most private of private affairs, and that a video recording of two individuals engaged in such relations represents the deepest possible intrusion into such affairs.
The third factor, voluntary accession to fame, weighs in favor of a finding of newsworthiness. Michaels and Lee declare that they have cultivated fame throughout their careers. In Lee's case, her fame arises in part from television and movie roles based on sex and sexual appeal.
The first two factors weigh heavily against a finding of newsworthiness for the contents of the Tape. The third factor weighs somewhat in favor of a finding of newsworthiness for the contents of the Tape. Weighing the factors together, the Court concludes that the plaintiffs have demonstrated a likelihood of success in meeting their burden to show that the contents of the Tape are not covered by the newsworthiness privilege.
The Court notes, however, a critical distinction which IEG has attempted to blur in its papers. The fact that the Tape exists and that it is the focus of this dispute is newsworthy. While the fact of the Tape's existence is somewhat intrusive into the plaintiffs' privacy, this intrusion is outweighed by the strong social public interest in litigation concerning individuals' right to privacy. Although this preliminary injunction prohibits IEG from violating the plaintiffs' right to privacy by disseminating the contents of the Tape, the injunction does not restrict IEG's ability to participate in public discussion about the Tape or this litigation.
2. Irreparable Injury
By definition, an actionable disclosure of private facts must be highly offensive to a reasonable person. The injury inflicted is therefore to the plaintiffs' "human dignity and peace of mind." 2 J. Thomas McCarthy, Rights of Publicity & Privacy § 11.7[A] (1997). Although monetary damages are available for such injuries, they are difficult to quantify, and such injuries are to some extent irreparable. Furthermore, the privacy of the acts depicted on the Tape cannot be restored by monetary damages after the Tape becomes public. The nature of the Internet aggravates the irreparable nature of the injury. Once the Tape is posted on IEG's web site, it will be available for instant copying and further dissemination by IEG's subscribers.
In light of the foregoing, the Court concludes that the plaintiffs are entitled to a preliminary injunction prohibiting the dissemination of the Tape in order to prevent a violation of the plaintiffs' state law right of privacy in the contents of the Tape.
. . . .
The Court has determined that the plaintiffs have established a likelihood of success on the merits of their actions for copyright infringement, violation of the right to publicity and violation of the right to privacy.
IT IS HEREBY ORDERED that, pending final judgment or dismissal of this action, defendant IEG and its agents, officers, employees, attorneys, and those acting in concert with them are temporarily restrained from:
A bond in the amount of $ 50,000 shall be deemed adequate security for the payment of such costs and damages that may be incurred by the defendants if the relief herein is found to have been improvidently granted. Lee is directed to provide security for one-half of the $ 50,000 bond.
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