In June 2016, Titi Pierce sued Warner Bros. Entertainment Inc. for false light invasion of privacy, misappropriation of likeness, defamation and intentional infliction of emotional distress over a segment of the “Ellen DeGeneres Show” called “What’s Wrong with These Signs? in which DeGeneres makes jokes about signs from around the country. In the relevant part of the segment, DeGeneres read a sign for “Nipple Convalescent Home” and asks “What boob named that place?” That sign is followed by Pierce’s real estate yard sign that displayed her name, Titi Pierce, and her phone number. DeGeneres pronounced Pierce’s first name as “Tĭ-tē” rather than Pierce’s preferred pronunciation of “Tē-tē,” and then stated, “Sounds like she might have spent some time in that Nipple home.” As a result, Pierce said she suffered a flood of harassing phone calls, text messages and social media messages making fun of her name. After the initial broadcast of the segment, Pierce twice asked Warner Bros. to blur her phone number in future screenings. However, the segment aired a second time without blurring her phone number, which resulted in further harassment to Pierce.
Warner Bros. moved to dismiss the claims. The district court agreed, holding that Pierce failed to state a claim regarding her four causes of action. First, the district court considered whether DeGeneres made a false and defamatory statement about Pierce when she pronounced her name as “Tĭ-tē” rather than “Tē-tē.” The district court concluded that DeGeneres’ statement was so “unambiguously humorous” that it fell under the First Amendment’s protection of statements of “rhetorical hyperbole.”
The district court held that no reasonable person would believe that Warner Bros. implied defamatory facts about Pierce. Specifically, it found that the segment was meant to advance a joking purpose and that DeGeneres’ statements should not have been taken literally. Further, the name of the segment implies that there is something incorrect or humorous about the signs, and DeGeneres also purposefully mispronounces Pierce’s first name in the context of other obvious mispronunciations. As to the association of Pierce’s name with the “Nipple Convalescent Home,” it is unreasonable for an individual to think that Pierce did in fact spend time in such a home, said the district court. Furthermore, the pronunciation of her first name was not demonstratively false because the letter “i” can be pronounced in multiple ways.
Second, the district court dismissed Pierce’s claim for false light invasion of privacy because Warner Bros.’ conduct was constitutionally protected “rhetorical hyperbole,” and constitutionally protected statements cannot form the basis for a false light invasion of privacy claim. Third, it dismissed the claim for misappropriation of likeness because Pierce willingly made her personal information open to public observation. Under Georgia law, a prima facie case for misappropriation of likeness is established only when a party shows the appropriation of another’s name and likeness without consent, for the financial gain of the appropriator. However, information that is open to public observation cannot be appropriated without consent. The district court rejected Pierce’s argument that because she is a private citizen, it is irrelevant whether the information disclosed was open to the public. The standard applies to both private and public citizens, the court pointed out.
Fourth, the district court found that Pierce failed to state a claim for intentional infliction of emotional distress. Pierce argued that Warner Bros. directed conduct at her by airing the segment a second time despite her asking Warner Bros. to blur her phone number on the sign due to the harassment she experienced after the first airing of the segment. The district court held that because public broadcasts are not directed at a particular individual, Pierce failed to state a claim for intentional infliction of emotional distress.
Finally, the district court denied Pierce leave to amend her complaint because the complaint would still properly be dismissed as amended. Pierce moved to amend her complaint to (1) clarify that she pleads false light invasion of privacy in the alternative to defamation, and (2) add allegations relating to her misappropriation of likeness claim. The district court held that the first suggested amendment is futile because the claim would still be dismissed under the First Amendment. It further held that the second proposed amendment is futile because Pierce “failed to plead facts sufficient to find appropriation, which is a necessary element of the misappropriation of likeness tort.”
Summary prepared by Jonathan Zavin and Ava Badiee