Joan Rivers Sued for Invasion of Privacy
By: Anny Mok
The Seventh Circuit affirmed the district court’s dismissal of a lawsuit filed by Ann Bogie against Joan Rivers for invasion of privacy and misappropriation of her image. Bogie attended a stand-up comedy performance featuring Rivers at the Lake of the Torches Casino in Wisconsin. The comedian made offensive jokes about Helen Keller, Wisconsin, and its citizens. One particular attendee, who had a deaf son, was offended and heckled Rivers during the show. This brief exchange was filmed and featured in a documentary called Joan Rivers: A Piece of Work.
After the performance, Bogie gained entry to the backstage area where she got an autograph and had a sixteen-second conversation with Rivers. Bogie expressed her frustration with the audience member who interrupted the performance. Joan Rivers was more sympathetic towards the heckler. The brief exchange was all filmed and included in the documentary. The sixteen-second conversation was part of the film’s eighty-two minutes. It was 0.3 percent of the entire film.
Bogie disapproved of the film’s footage of her conversation with Rivers. She alleged that it portrayed her as giving approval of River’s offensive remarks about deaf people and the people of Wisconsin. She claims that the distribution of the film invaded her privacy and misappropriated her image for commercial purposes without her consent. She sought compensatory damages and an injunction against further distribution of the film.
The lower court dismissed the suit under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. The court ruled that there was no invasion of privacy because there was no reasonable expectation of privacy in the backstage area and a reasonable person would not consider the alleged intrusion highly offensive. It also ruled that the misappropriation claim fails because it fell within two common law exceptions: (1) newsworthiness or public interest in the information, and (2) incidental use. The Seventh Circuit affirmed the dismissal.
There are two elements to an invasion of privacy claim: (1) the intrusion occurred in a place that a reasonable person would consider private, and (2) the intrusion would be highly offensive to a reasonable person. The court found that the conversation occurred in a crowded backstage area where a camera and cameraperson were clearly within close proximity to Bogie and Rivers. These facts led the court to conclude that no reasonable person would have an expectation of privacy in such a situation or be highly offended by the distribution of the film.
The tort of misappropriation is aimed to preserve a person’s right to control the commercial aspects of their identity. Bogie alleges that her consent was not obtained before the film’s distribution. One exception to misappropriation liability is if there is a legitimate public interest or newsworthiness in the information obtained. The court construed this exception broadly and found that there was a public interest in Joan River’s work. Another exception is if the commercial use of the person’s name or likeness was incidental, or in other words, the use of the person’s likeness was not a substantial part of the use and commercial purpose. The court found that there was no evidence the brief exchange was used to advertise for the documentary. It was just sixteen seconds out of an eighty-two minute documentary. Thus the use was only incidental, barring a misappropriation claim.