Skip to content

IP/Entertainment Case Law Updates

Robert Brown v. Showtime Networks, Inc.

District court dismisses lawsuit against Showtime and BBC, finding that complaint on behalf of Bobby Brown and Estate of Bobbi Kristina Brown failed to state Lanham Act and state right of publicity claims, and declining to exercise supplemental jurisdiction over state contract and tortious interference claims.

Plaintiffs Robert “Bobby” Brown and the Estate of Bobbi Kristina Brown, the deceased daughter of Bobby Brown and Whitney Houston, brought this action against Showtime Networks Inc., BBC and others, alleging that Showtime and BBC used unauthorized footage of the Browns in a documentary film on the life of Whitney Houston titled Whitney: Can I Be Me. On defendants’ motions to dismiss, the district court dismissed the only federal claim, asserted under the Lanham Act, and Brown’s California right of publicity claim. While the court denied, for failure to state a claim, Showtime’s motion to dismiss the remaining state law claims for breach of contract and tortious interference with contract, it declined to exercise federal jurisdiction over them. The court also granted BBC’s motion to dismiss for lack of personal jurisdiction. 

Brown alleged that defendants used his name, likeness and persona both in the film and in the marketing of the film without his consent, violating his right of publicity under both California’s right of publicity statutes and common law. Defendants countered—and the court agreed—that Whitney: Can I Be Me is an expressive work and a report on a matter of public interest, and is immune from suit under the First Amendment. Under the First Amendment, a right of publicity cause of action may not be maintained against “expressive works, whether factual or fictional.” The court held that the documentary film fell within this protected category, and therefore both Brown’s common-law and statutory claims based on the use of the footage in the film failed and were barred by the First Amendment. Noting that “[a]dvertisements of expressive works are not actionable where the advertisements are ‘merely an adjunct of the protected [work] and promote only the protected [work],’” the court also found that defendants’ use of any footage in marketing or promoting the film was protected under the First Amendment.  

The Estate of Bobbi Kristina Brown also alleged that Showtime violated the Estate’s right of publicity under Georgia common law by using Bobbi Kristina’s name, likeness and persona in the film without the Estate’s consent and for its own personal gain. Showtime asserted an affirmative defense under Georgia law grounded in the First Amendment, similar to that under California law. The court held that Showtime did not use Bobbi Kristina’s name, likeness, voice or persona related to the manufacture, sale or advertising of any commercial products; that the life of pop icon Whitney Houston is certainly a matter of “public interest”; and that her familial relationships are integral in depicting her life story.  

Brown also alleged that defendants violated Section 43(a)(1)(A) of the Lanham Act by using his name and likeness in the film and credits, and that the marketing and promotion of the film caused consumer confusion as to the origin of the film and falsely suggested Brown’s endorsement. The court applied the Rogers v. Grimaldi test and found that the use of Brown’s likeness was artistically relevant to the film, and that Brown failed to plead facts showing defendants were explicitly misleading as to the source or content of the film, and dismissed this count. In regard to the artistic relevance prong, the court found that the use of Brown’s name and likeness was artistically relevant to the film. As to the explicitly misleading prong, the court concluded that Brown’s allegations of confusion were not plausible, let alone “particularly compelling.”

To support his claim of tortious interference with contract, Brown alleged that he had entered into an agreement with defendant B2 to create the reality television show Being Bobby Brown in March 2004, and that the other defendants had tortiously interfered with this agreement by obtaining unauthorized Being Bobby Brown footage from B2 and using approximately 30 minutes of it in Whitney: Can I Be Me. The court noted that “it is not enough that a defendant engaged in conduct with a third party that happened to constitute a breach of the third party’s contract with the plaintiff; instead, a plaintiff must allege facts showing that ‘the defendant’s objective was to procure such a breach.’” While the pleading was ambiguous as to whether defendants knew of the existence of the B2 agreement, at the motion to dismiss stage the court must draw every inference in favor of Brown, leaving open a question of fact that could be fleshed out in discovery. 

As to BBC’s motion to dismiss, the court found that the pleadings supplied no basis for personal jurisdiction over BBC. To determine whether personal jurisdiction exists over a nondomiciliary, courts engage in a two-step inquiry. First, courts apply the long-arm statute of the forum state to see whether it permits the exercise of personal jurisdiction over defendants. If the laws of the forum state permit jurisdiction, courts then consider whether the exercise of jurisdiction comports with constitutional due process.

Under New York’s long-arm statute, there are two ways to establish personal jurisdiction over a defendant: (1) general jurisdiction and (2) specific jurisdiction. General jurisdiction allows a court to hear any and all claims against a defendant. The district court cited to the U.S. Supreme Court’s 2014 decision in Daimler AG v. Bauman, in which the Court held that other than in an “exceptional case,” a corporation is subject to all-purpose jurisdiction only in its place of incorporation and its principal place of business. For the exceptional case, the court must determine whether that corporation’s affiliations with the state are so continuous and systematic as to render it essentially “at home” in the forum state.  

The district court found no general jurisdiction over BBC because BBC was not incorporated in New York; was not qualified to do business in New York; does not pay taxes in New York; and has no offices, employees or property in New York. Further, even if the court were to accept that BBC, rather than its subsidiaries, broadcasts its television channels in New York, this was not sufficient for the exercise of general jurisdiction. If it were, then any state into which BBC programming is broadcast pursuant to contracts with in-state cable providers could exercise general jurisdiction over BBC. Second, the existence of BBC’s New York subsidiary (BBC Studios) did not confer general jurisdiction over the parent corporation. Third, BBC’s alleged marketing and promotion of Whitney: Can I Be Me in New York is insufficient to warrant the exercise of general jurisdiction. Fourth, the commission of a tort in a state does not suffice to confer general jurisdiction over a party; at most, such conduct suffices for specific jurisdiction. Fifth, BBC’s appearance in prior litigation in three New York cases fails to establish general jurisdiction. In sum, with the Second Circuit cautioning against adopting “an overly expansive view of general jurisdiction” following Daimler, the mere facts that BBC airs television programming in New York and has a subsidiary in New York were insufficient to confer general jurisdiction in a state that is neither BBC’s state of incorporation nor its principal place of business.

The district court also held there was no specific jurisdiction over BBC. The court can exercise specific jurisdiction over BBC only if doing so complies with both New York’s long-arm statute and constitutional due process. New York’s long-arm statute provides that a court may exercise personal jurisdiction if it (1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or (3) commits a tortious act outside the state causing injury to persons or property within the state, except as to a cause of action for defamation of character arising from certain acts.

Relying on the same arguments that they asserted with respect to general jurisdiction, Brown and the Estate argued that the court should exercise specific jurisdiction over BBC because BBC contracts with cable providers to air its own television programming in New York. The court rejected this argument, however, holding plaintiffs did not identify any nexus between BBC’s “television deals” with cable providers and the claims they assert here in connection with the airing of Whitney: Can I Be Me. 

Brown and the Estate next argued that the court may exercise specific jurisdiction over BBC because BBC tortiously interfered with Brown’s contract with B2 by airing a film, Whitney: Can I Be Me, that used unauthorized footage from Being Bobby Brown. Plaintiffs did not plead any facts, however, to suggest that BBC committed the tort in New York, or that they were injured within New York. Lastly, the court also denied specific jurisdiction because Brown and the Estate did not allege that BBC’s ownership of property in New York gave rise to their lawsuit.

Finally, the court declined to exercise supplemental jurisdiction. Since complete diversity did not exist between the parties at the time the lawsuit was filed—the Estate of Bobbi Kristina Brown and several of defendants are all citizens of the state of Georgia—the only basis for federal jurisdiction was the Lanham Act claim asserted against all defendants. As this count had been dismissed, the court did not possess original subject matter jurisdiction over the remaining state law claims. This left the court the discretion to decline to exercise supplemental subject matter jurisdiction. 

Summary prepared by David Grossman and Lisa Rubin

Download our Intellectual Property/Entertainment Cases of Interest mobile app using the links below.