5 F. Supp. 2d 823
Decided April 27, 1998
DEAN D. PREGERSON, United States District Judge.
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.
The Court orders that a $50,000 bond 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.
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.
D. Right to Privacy
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."
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 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. For this reason, IEG's reliance on Carlisle v. Fawcett Publications, is misplaced. Carlisle, like Eastwood, involved publicity about the fact of a famous person's romantic involvement, as well as some of the details of that involvement. Neither case, however, involved graphic depictions of the most intimate aspects of the relationships.
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.
In Sipple and Lee, however, all of the matters in which the plaintiffs asserted privacy were already well-known before the defendants re-published the information. Here, however, exposure 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. Additionally, in Sipple and Lee the previously published information corresponded exactly to the information in which the plaintiffs asserted a privacy interest. 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. Id. 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 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." 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.
CO259--Cyberlaw
Copyright © 2009 Dale A. Herbeck
Last update: 15 January 2009