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IP/Entertainment Case Law Updates

Best v. Berard

In right of publicity action relating to reality TV show Female Forces, court grants defendants’ motion to dismiss after finding that depiction of plaintiff’s arrest and its surrounding circumstances were matters of public concern protected by the First Amendment.

Defendants A Day With, Inc. and The Grief Company produce a television show called Female Forces, an unscripted reality television series that follows female police officers as they perform their duties and interact with members of the public. Defendant City of Naperville participates in the Female Forces program pursuant to a contract which grants the Naperville Police Department the right to review a rough cut of each episode and insist on the removal of material that it chooses. Plaintiff Eran Best was driving in Naperville when she was pulled over and placed under arrest by defendant police officer Stacey Berard because she was driving with a suspended driver’s license. Once Best arrived at the Naperville police station, a Female Forces producer approached her and urged her to sign a written consent form to allow the footage of her arrest to be used on the television show.

Despite the fact that Best refused to sign the consent form, footage of the events surrounding her arrest was broadcast during an episode of Female Forces. The footage includes a field sobriety test and Best’s arrest, including the moment when she is placed in handcuffs. Best’s face is visible and her voice is audible throughout the footage. At one point while Officer Berard is speaking to the camera, the camera focuses on a dashboard computer, on which information about Best – including her date of birth, height, weight, driver’s license number, and brief descriptions of previous arrests and traffic stops – was displayed. From December 7, 2008, to December 14, 2008, the Female Forces episode featuring Best was broadcast over thirty times. On December 14, 2009, Best filed suit against the defendants alleging violations of her federal constitutional rights to privacy and freedom from unreasonable search and seizure, unauthorized use of her identity for commercial purposes, invasion of privacy, intentional infliction of emotional distress, and violation of the federal Driver’s Privacy Protection Act. Defendants moved to dismiss Best’s state law claims under the Illinois Right of Publicity Act (IRPA), for invasion of privacy, and intentional infliction of emotional distress, on First Amendment grounds.

The court initially considered Best’s claim that the media defendants violated the Illinois Right of Publicity Act by using her identity for commercial purposes without her consent. The IRPA, instructed the court, defines a commercial purpose as “the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, good, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.” The IRPA exempts from liability the use of an individual’s identity for non-commercial purposes, including any news or public affairs.

In support of their motion to dismiss, defendants argued that the First Amendment precludes the application of the IRPA to Female Forces. The First Amendment’s “core purposes,” stated the court, are implicated when the government – either directly or through a legal standard that imposes civil liability – “imposes sanctions on the publication of truthful information of public concern.” Privacy concerns give way when balanced against the interest in publishing matters of public importance.

The court agreed with defendants and found that their depiction of Best’s arrest and its surrounding circumstances were protected by the First Amendment. First, the court held that the status of Female Forces as an entertainment program, as opposed to a pure news broadcast, does not alter the First Amendment analysis. Second, the court rejected Best’s argument that her arrest for the “de minimis” crime of driving under a suspended license was not a matter of public concern. Although the court acknowledged that Best’s argument had some force, the court found no authority to support Best’s distinction. The court noted that an arrest on criminal charges and facts concerning prior arrests or citations were legitimate matters of public concern even if Best’s conduct was toward the lower end of the spectrum of criminality.

Finally, the court considered whether the IRPA should be construed in a manner that does not conflict with the First Amendment. IRPA exempts from liability the “use of an individual’s identity for non-commercial purposes,” including any news or public affairs. The court held that the IRPA’s public affairs exception may be reasonably interpreted to cover the use of Best’s identity in an entertainment program that conveys truthful footage of an arrest and thus implicates a matter of public concern. Accordingly, the court granted defendants’ motion to dismiss Best’s IRPA claim and concluded that defendants’ broadcast of the Female Forces episode is exempt from the IRPA’s coverage.

Finding that its First Amendment analysis also warranted dismissal of Best’s claims for invasion of privacy and intentional infliction of emotional distress, the court deferred its dismissal of those counts pending Best’s written submission in opposition.

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