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IP/Entertainment Case Law Updates

Love v. Simmons

District court dismisses defamation lawsuit filed by woman who appeared in Kanye West’s 2003 “Through the Wire” music video and again in 2022 Netflix documentary, finding that while her portrayal may have been unflattering, it was not defamatory because it was accurate depiction of her at time she was filmed.

Plaintiff Cynthia Love filed suit against Netflix and filmmakers Ivy Simmons Jr. and Chike Antoine Ozah, the directors of the 2022 documentary Jeen-yuhs: A Kanye Trilogy, about the career of rapper Kanye West. Love appeared in the 2003 music video for West’s debut hit single, “Through the Wire,” which was also directed by Simmons and Ozah. In the opening of the “Through the Wire” video, Love is shown dancing and stumbling around a barbeque restaurant before asking West for some change. In her complaint, Love says she was portrayed in the music video as “intoxicated, drunk and/or stoned, addicted and/or living in an addiction-fueled lifestyle, inebriated, vagrant and/or possibly homeless, broke, impoverished, disheveled, and desperate.” She was paid $20 for her appearance in the music video. Love says that in the 19 years since the release of “Through the Wire,” she has turned her life around, remained sober for nearly two decades, reformed relationships with friends and family, and held multiple long-term jobs. But Love’s troubled past reemerged with the release of Jeen-yuhs, where, over the course of the three-episode documentary, she is shown for less than two minutes, both in clips of the “Through the Wire” video and behind-the-scenes footage from the video shoot. Love’s complaint alleges that defendants are liable for defamation per se, defamation per quod, false light, violations of her right of publicity under Illinois statutory law, intentional infliction of emotional distress, civil conspiracy, quantum meruit and unjust enrichment. Defendants moved to dismiss Love’s complaint.

Addressing Love’s defamation claims, the court explained that defamation per se and defamation per quod have the same elements, but defamation per se differs in that the alleged defamatory statements are defamatory on their face, “so obviously and materially harmful to the plaintiff that injury to his reputation may be presumed.” Both causes of action require the alleged defamatory statements to be false. Pointing to her current rehabilitated life, Love claimed that her portrayal in the “Through the Wire” video, as shown in the Jeen-yuhs documentary, is false. But the court rejected that theory, stating that “a defamation claim fails if the allegedly defamatory statement is a historical truth, even if it is not a current truth.” The court found that Jeen-yuhs accurately reflected a past event without suggesting that Love currently maintains the same behaviors depicted in the “Through the Wire” video. Holding that defendants had not made any false statements about Love, the court dismissed the defamation claims.

Love’s false light claims faced similar criticism by the court. For a false light claim under Illinois law, a plaintiff must show that “(1) [s]he was placed in a false light before the public by the defendant; (2) the false light would be offensive to a reasonable person; and (3) the defendant acted with actual malice.” Again, the court concluded that Love had been accurately portrayed in the “Through the Wire” video and that the use of that and other contemporaneous footage in Jeen-yuhs did not change the fact that it was a truthful depiction of Love at the time. In the court’s words, “[t]he fact that the light might have been unflattering doesn’t mean that it was false. It’s a false light claim, not an unflattering light claim.” Accordingly, the court dismissed Love’s false light claims.

Next, the court analyzed Love’s claims that defendants violated her right of publicity under the Illinois Right of Publicity Act, which “prohibits use of an individual’s identity for commercial purposes without written consent,” with “commercial purposes” being defined in part as the public use of an individual’s identity in connection with the sale or advertisement of products or services. Defendants conceded that they had not obtained Love’s consent to appear in Jeen-yuhs, but they argued that they are not liable because their conduct was protected by the “audio-visual works” and “public affairs” statutory exemptions. The “audio-visual work” exemption states that liability under Illinois’ right of publicity act does not attach where there is a “use of an individual’s identity in an attempt to portray, describe, or impersonate that individual in a … film … or other audio, visual, or audio-visual work, provided that the [work] does not constitute in and of itself a commercial advertisement for a product, merchandise, goods, or services.” The court found that Jeen-yuhs falls within the “audio-visual work” exemption, rejecting Love’s argument that the exemption does not apply because defendants made money from the film. As for whether defendants were shielded by the “public affairs” exemption, which says that the right of publicity act does not apply to uses of an individual’s identity for “non-commercial purposes, including any news, public affairs, or sports broadcast or account, or any political campaign,” the court held that while Jeen-yuhs may be a matter of public concern, it has a commercial purpose and thus the exemption does not apply. Nevertheless, because the court found that the “audio-visual work” exemption applied, the court dismissed Love’s right of publicity claims.

With regard to Love’s intentional infliction of emotional distress claims, the court recounted that to establish such a claim, a plaintiff must show that “(1) the defendants’ conduct was extreme and outrageous; (2) the defendants knew that there was a high probability that their conduct would cause severe emotional distress; and (3) the conduct in fact caused severe emotional distress.” The court focused on the element requiring “extreme and outrageous” conduct, noting that even defamatory statements—which were not found here—rarely rise to the higher standard of “extreme and outrageous” conduct. While recognizing that the truthful portrayal of an individual may, in some circumstances, be very distressing to that person, the court held that defendants’ conduct did not come close to “extreme and outrageous.” The court dismissed Love’s intentional infliction of emotional distress claims.

Love’s remaining claims were also dismissed. The court held that her civil conspiracy claim failed because it was “not a separate and distinct tort in Illinois,” requiring some predicate act that was tortious or unlawful. Because the court dismissed all of Love’s other claims, it also dismissed the civil conspiracy claim. The court also dismissed Love’s unjust enrichment claim, holding that it is not a cause of action but rather a theory of recovery that “does not stand on its own.” With the dismissal of all other claims, the court dismissed Love’s unjust enrichment claim as well.

Summary prepared by David Grossman and Kyle Petersen

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