The filmmakers of 2015’s Straight Outta Compton, the biopic chronicling the career of hip-hop sensation N.W.A., scored a key victory in the Central District of California last Wednesday in the case of Heller v. NBCUniversal, Inc. et al. The filmmakers were sued last year by Gerald Heller, N.W.A.’s former manager, who claimed (among other things) that the filmmakers misappropriated his likeness by depicting him without his permission in the movie. In its order on the filmmakers’ Motions to Dismiss and Strike, the Court dismissed Heller’s misappropriation claim without leave to amend, finding that the film was shielded by the First Amendment.
The right of publicity can be defined as the right to control the commercial use of one’s name, likeness or other recognizable aspects of one’s persona. However, an inherent tension exists between claims for right of publicity and the First Amendment. As such, and as was made clear by the court in Heller (last week) and in Sarver v. Chartier (last month in The Hurt Locker case), when considering an artistic work giving rise to right of publicity claims, many of the defenses are rooted in First Amendment concerns. Courts have taken several approaches when facing a First Amendment defense, and those approaches continue to evolve.
As the Heller court simply put, “[a]s all recognize . . . no cause of action will lie for the publication of matters in the public interest.” Order, p. 11 (citation and quotations omitted). According to the Court, the public interest defense – rooted in the First Amendment – allows filmmakers to “depict matters in the public arena without fear of liability.” Id., p. 12. The Court determined that Straight Outta Compton involved matters of public interest, including the conflicting portrayals regarding Heller’s “tumultuous relationship with the ‘hugely successful’ N.W.A.” and his role in N.W.A.’s rise to stardom. Id., pp. 9-12. As such, the First Amendment insulated the defendants from Heller’s misappropriation claim. Id., p. 12.
The public interest/newsworthiness privilege remains a very strong defense in right of publicity claims. See also Montana v. San Jose Mercury News, Inc., 40 Cal. Rptr. 2d 639, 640 (1995) (no liability for common law right of publicity claims arising from newspaper selling posters, where posters contained pages previously published in the newspaper and which depicted Super Bowl victories by Joe Montana and the 49ers, because the content constituted “matters in the public interest”); Dora v. Frontline Viceo, Inc., 18 Cal. Rptr. 2d 790, 792-93 (1993) (documentary on surfing featuring well-known surfer was protected because it was a “fair comment on real life events which have caught the popular imagination”) (citations and quotations omitted).
Further, the “newsworthy” defense applies to both the common law and statutory causes of action for right of publicity. Estate of Fuller v. Maxfield & Oberton Holdings, LLC, 906 F.Supp.2d 997, 1010 (N.D. Cal. 2012). And the scope of matters that fall within the public interest is extremely broad. Indeed, “a publication is newsworthy if some reasonable members of the community could entertain a legitimate interest in it.” Shulman v. Group W. Prods., Inc., 18 Cal.4th 200, 225 (1998); see also Dora, 18 Cal. Rptr. 2d at 794 (“[T]he public is interested in and constitutionally entitled to know about things, people, and events that affect it.”). As a result, courts consistently have found that this defense extends to a wide-array of subject matters, ranging from topics found in popular culture to factual news. See, e.g., Michaels v. Internet Entm’t Grp. Inc., 1998 WL 882848, *4 (C.D. Cal. Sept. 11, 1998) (finding romantic connections in celebrities are newsworthy); Arenas v. Shed Media U.S. Inc., 881 F.Supp.2d 1181, 1191-92 (C.D. Cal. 2011) (finding celebrity’s family life was matter of public concern and “[e]ntertainment features receive the same constitutional protection as factual news reports”) (citations and quotations omitted).