Plaintiff Ann Bogie brought suit against defendants Joan Rivers, her production company, and others, asserting claims for invasion of privacy and misappropriation of her image under Wisconsin law, based on the inclusion of a film clip in a documentary about Rivers of a brief conversation between plaintiff and Rivers backstage after one of Rivers’ comedy shows, which plaintiff had attended. The district court granted defendants’ motion to dismiss both claims with prejudice for failure to state a claim. The Seventh Circuit affirmed, finding that no set of facts could exist consistent with plaintiff’s complaint that could support her claims under Wisconsin law.
Bogie attended a comedy performance by defendant Joan Rivers (sued under her full name, Joan Alexandra Molinsky Sanger Rosenberg) and immediately after Rivers exited the stage, approached Rivers in the backstage area of the Lake of the Torches Casino to have Rivers autograph a copy of her book. Plaintiff and Rivers had a brief conversation about a heckler in the audience who had a deaf son and had taken offense at a joke referring to Helen Keller. A 16-second film clip of the exchange, filmed allegedly without Bogie’s consent, was included in an 82-minute documentary about Rivers, which was sold nationwide.
To prevail on her claim under Wisconsin law for invasion of privacy, plaintiff must plead and prove two elements: (1) her conversation with Rivers was “in a place that a reasonable person would consider private;” and (2) the alleged intrusion on her privacy through filming was “highly offensive to a reasonable person.” The Seventh Circuit concluded that the complaint and the film attached to it showed that both elements were lacking as a matter of law.
Plaintiff argued that the district court lacked sufficient evidentiary basis for finding that no reasonable person could have had an expectation of privacy in the backstage area. The court disagreed, based on its review of the video. Noting that plaintiff must establish a reasonable expectation of privacy in either the area or the items in the area based on the context, facts, and circumstances, the court found that no reasonable person would expect privacy in the situation at issue – being invited backstage to get a celebrity autograph, in the presence of security personnel (which plaintiff should have expected and did encounter) and a camera crew (which must have also been visible to plaintiff while they were filming both women).
Plaintiff argued that three factors supported a finding that the intrusion of the camera was highly offensive: she was filmed without her consent, the filming was motivated by profit, and the filming captured her “private expression of scorn,” displaying her insensitivity to the heckler’s deaf son. Noting that the intrusion must be the result of conduct that a reasonable person would find highly objectionable – based on the degree of intrusion, the context, conduct and circumstances, as well as the motives and objectives of intruder, the setting, and the expectations of those whose privacy is invaded – the court found that none of the factors supported a claim for invasion of privacy under Wisconsin law.
Bogie’s first proposed factor, the lack of consent, does not advance her claim, according to the court, as the court already assumed lack of consent and restating it as a factor that should increase the offensiveness of the alleged intrusion adds nothing to the analysis. “To be actionable at all, the filming would need to occur without the plaintiff’s consent or at least exceed the scope of the plaintiff’s valid consent,” and “[w]ithout more, it does not add to a conclusion that the intrusion could have been highly offensive.” The court likewise rejected Bogie’s argument that the intrusion was highly offensive because the filming was motivated by profit, noting that the invasion of privacy statutory provision did not include the language “for purposes of trade” (the functional equivalent of “for profit”), whereas the provision governing misappropriation claims did include this language. The court concluded that a profit motive was not an element of a privacy claim. Finally, the court found that plaintiff’s argument that the offensiveness of the alleged intrusion could be based on the alleged offensive nature of her own statements runs counter to privacy law. The offensiveness of the intrusion itself cannot be based on the content or substance captured by the alleged intrusion. The court concluded: “The fact that Bogie was embarrassed to be filmed saying something she regrets having said and now deems offensive does not convert the filming itself into a highly offensive intrusion.”
The court of appeals also affirmed the district court’s dismissal of plaintiff’s misappropriation claim, finding, as a matter of law, that the documentary about Rivers is clearly subject to the newsworthiness exception. Citing to case law in which courts have applied the newsworthiness exception to bar misappropriation claims, the court concluded: “The public’s interest in Rivers’s long career and fame in general clearly puts this case on par (at least legally) with films about Woodstock and the fictional Borat. The documentary therefore falls safely within the bounds of the newsworthiness exception and thus the appropriation claim under section 995.50(2)(b) fails as a matter of law.”
The court also found that the use of plaintiff’s image was merely incidental to the film and therefore not actionable under Wisconsin law. The court rejected plaintiff’s argument that the Wisconsin statute did not expressly include an incidental use exception because the statutory language specifically directed that the law “shall be interpreted in accordance with the developing common law,” and lower courts in Wisconsin had specifically recognized the exception. Because no evidence existed that the exchange between Rivers and plaintiff was used to advertise the documentary film and plaintiff’s image appeared for 16 seconds in the context of an 82-minute documentary film about Rivers’ life and career, the court concluded, as a matter of law, that the use was incidental.