IP Law Daily First Amendment bars Bobby Brown’s right of publicity claims against Whitney Houston documentarists
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Wednesday, August 7, 2019

First Amendment bars Bobby Brown’s right of publicity claims against Whitney Houston documentarists

By Robert Margolis, J.D.

Publicity rights claim by Estate of Bobbi Kristina Brown also dismissed.

The First Amendment bars claims by singer Bobby Brown and the Estate of the late Bobbi Kristina Brown that the producers and networks behind a Whitney Houston documentary violated the Browns’ rights of publicity by using footage of them in the film, a federal district court in New York has held. The court dismissed the Browns’ claims under California and Georgia right of publicity law, as well as the Lanham Act. It also dismissed claims against the BBC for lack of personal jurisdiction and declined to exercise supplemental jurisdiction over other state law claims (Brown v. Showtime Networks Inc, August 2, 2019, McMahon, C.).

Footage of Brown. Bobby Brown is the internationally famous musician known for his work as a solo artist and as part of New Edition. He is also famous for being the ex-husband of Whitney Houston, with whom he had a daughter, the late Bobbi Kristina Brown. In 2004, Brown (through his since-dissolved production company) created a reality television program, Being Bobby Brown, witha Georgia production company B2. Brown’s production company and B2 entered into an agreement whereby footagerelated to the project would be kept confidential, unless both parties consented.

Whitney Houston documentary. In 2016, Showtime and the BBC began to make a documentary about Whitney Houston. Nick Broomfield, the film’s director and producer, sought to interview Brown, but Brown declined. In 2017 they released Whitney: Can I Be Me, which Showtime distributed to air in the United States. The film includes about 30 minutes of footage of Brown and Bobbi Kristina, all of it derived from Being Bobby Brown. Brown and Bobbi Kristina’s Estate (the "Estate") contended that use of the footage was without their permission and violates their publicity rights because their personas were used in the film itself, the film’s credits, and the marketing of the film.

Motions to dismiss. The BBC moved to dismiss for lack of personal jurisdiction, while the remaining defendants moved for dismissal for failure to state a claim under Rule 12(b)(6).

No general jurisdiction. Brown and the Estate argued that the BBC was subject to both general and specific jurisdiction under New York’s long-arm statute. The court first addressed the plaintiffs’ contention that the court could exercise general jurisdiction over the BBC due to the following acts by the BBC: (1) it broadcasts two channels (BBC America and BBC World News) in New York, under contracts with New York cable companies; (2) it has subsidiaries in New York; (3) it promoted its involvement with the film in New York; (4) it allegedly committed the intentional tort of tortious interference with contractual relations in New York; and (5) it has appeared in litigation in New York in three prior cases unrelated to the facts of this case. The court found none of these reasons sufficient to exercise general jurisdiction.

The court highlighted how the U.S. Supreme Court in Daimler AG v. Bauman, 571 U.S. 117 (2014), held that a corporation is subject to general jurisdiction only in its place of incorporation and principal place of business, except in "exceptional cases." An "exceptional case" is where "that corporation’s affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum state." Daimler, 571 U.S. at 139. As the district court read Daimler, it is "extraordinarily unlikely" that even "systematic and continuous" contacts can meet the "essentially at home" test. None of the activities that Brown and the Estate cited sufficed, the court held.

For one thing, a BBC subsidiary, not the BBC itself, is responsible for broadcasting channels in New York. But even if the BBC itself was responsible, that would not lead to general jurisdiction, since that would provide for such jurisdiction over a broadcaster in every state where it had contracts with local cable providers. Further, neither marketing in a state or the existence of subsidiaries in a state is grounds for general jurisdiction. Allegations of the commission of a tort in a state, even if true, relate to specific not general jurisdiction. Finally, appearance in unrelated prior litigation in federal district court in New York (in cases that predated Daimler) does subject a defendant to general jurisdiction in all cases.

No specific jurisdiction. The court also rejected the plaintiffs’ arguments for specific jurisdiction over the BBC. No tort was committed against them in New York. The tort argued by plaintiffs, tortious interference, was not committed in New York because the BBC did not broadcast in New York or license the footage from B2 in New York. Nor could plaintiffs establish that the alleged publicity torts committed outside of New York harmed them in New York, since the harm from a publicity violation is felt by victims in the states where they are located, and Brown is a California resident while the Estate is located in Georgia. Further, neither the BBC nor its subsidiary actually broadcast or distributed the Houston documentary in the United States, but only in the United Kingdom.

Right of publicity claims. Brown brought right of publicity claims under California Civil Code § 3344 and common law, which have similar elements. While Brown alleged all the elements of a publicity rights violation, the court agreed with the defendants that the First Amendment immunizes them from liability because the documentary is both an expressive work and a report of a matter within the public interest. Motion pictures, even documentaries, are well-established forms of expression protected by the First Amendment, and there can be little question that a documentary about internationally known Whitney Houston, "a world-famous musician who had a lasting impact on popular culture," would be a matter of public interest. Brown too is a well-known entertainer, so there is public interest in him as well. Indeed, in Brown’s complaint he refers to himself as a "legend" and "international superstar," the court pointed out.

The court also rejected Brown’s argument that since he did not sign a release form, the use of footage is actionable. Such a release is not required when the documentary is protected by the First Amendment, the court held. While documentarists often enter into agreements with persons portrayed in their films for a variety of reasons, including to avoid getting sued, no such agreement is required where the First Amendment is implicated, the court pointed out. And Brown’s argument that the use of his persona to promote the documentary constitutes unprotected commercial speech was wrong, according to the court, since the First Amendment also protects advertising where it merely promotes a protected work.

The Estate’s right of publicity claim was similarly barred by the First Amendment, since Georgia law recognizes a "newsworthiness" exception to the right of publicity, the court held. Houston’s life and familiar relationships, including with her daughter, are sufficiently newsworthy to meet the requirements for this exception.

Lanham Act. The First Amendment similarly provides a defense to Brown’s Lanham Act claim that use of his name and likeness in the film and its marketing created consumer confusion over whether Brown endorsed it, the court held. The court analyzed the claim under the two-part "Rogers test" from Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), which holds the Lanham Act inapplicable to "artistic works" so long as the defendant’s use of a mark or identifying material is (1) "artistically relevant" to the work, and (2) not "explicitly misleading" as to the source of the work’s content. Here, there could be no question that Brown’s appearance in a documentary about his ex-wife is "artistically relevant" to that film. And the fact that Brown’s production company appeared in the credits as a source of material was insufficient to create confusion in the public, given that it was one of many sources and the public is not likely to even identify the production company with Brown.

Supplemental jurisdiction. Having dismissed the federal claim, and without diversity jurisdiction, the court declined to exercise supplemental jurisdiction over the remaining state law claims.

This case is No. 1:18-cv-11078-CM.

Attorneys: Christopher Lloyd Brown (Brown & Rosen LLC) for Robert Brown. Samuel Bayard (Davis Wright Tremaine LLP) for Showtime Networks Inc. and British Broadcasting Corp.

Companies: Showtime Networks, Inc.; British Broadcasting Corp.; Passion Pictures Corp.; B2 Entertainment, LLC; Simmons Shelley Entertainment, LLC

MainStory: TopStory PublicityRights NewYorkNews

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