BY DIANA PALACIOS AND ALONZO WICKERS IV
In a detailed order that strongly affirmed the First Amendment rights of documentarians, on Aug. 2, 2019, the U.S. District Court for the Southern District of New York dismissed a lawsuit brought by Bobby Brown—the bad boy of rhythm and blues—arising from the documentary “Whitney: Can I Be Me,” which chronicles the life of the singer and actress Whitney Houston. The court also granted BBC’s separate motion to dismiss for lack of personal jurisdiction.
Brown brought the action against Showtime Networks Inc., BBC, and others, alleging that the defendants violated his right of publicity under California law and violated the Lanham Act by using his name and image without his permission in the documentary, its credits, and related marketing. The estate of Bobbi Kristina Brown, the deceased daughter of Brown and Houston, joined the lawsuit claiming that her depiction in the documentary violated Georgia’s right-of-publicity law.
The district court dismissed the claims with prejudice. It held that Brown’s right-of-publicity claim “is barred under the First Amendment, because Whitney: Can I Be Me qualifies both as an expressive work and as a report on a matter of public interest.” The court also rejected Brown’s objection that he never signed a “video release form” authorizing the use of his likeness in the documentary because “no such agreement is necessary where, as here, the film and its portrayal of Brown are protected under the First Amendment.”
Similarly, the court dismissed the estate’s right-of-publicity claim because the use of Bobbi Kristina Brown’s likeness in the documentary was “newsworthy” and therefore not actionable pursuant to the First Amendment. As the court explained, “the use of a newsworthy person’s name and likeness is protected, and this includes the use of a person’s identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses.”
As for Brown’s Lanham Act claim, the court applied the test first articulated in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) “to balance the First Amendment interest in free expression against the public’s interest in being free from consumer confusion about affiliation and endorsement.” Under the Rogers test, the Lanham Act is inapplicable to “artistic works” if a mark, including a person’s name or likeness, is (1) “artistically relevant” to the work and (2) not “explicitly misleading.” Applying Rogers, the court dismissed the claim, finding that the use of Brown’s name and likeness was artistically relevant to the documentary because Brown played a major role in Houston’s life. It also rejected the allegation that consumers were misled by his company name appearing in the credits because the name appeared for just eight seconds with many other archival sources. Nor did the court find it likely that the marketing strategy for the documentary was created with the hope that reviews for the documentary would mention Brown, as he alleged.
Brown also pled a tortious interference claim premised on his contract with the production company for the reality show “Being Bobby Brown,” claiming that unaired footage from the show was used in the documentary despite a confidentiality provision in his contract. While the court found Brown had sufficiently alleged this claim, it declined to exercise supplemental jurisdiction over it.
As to BBC’s motion to dismiss, the court found that there was no basis for personal jurisdiction over BBC, which was not responsible for the production of the documentary and merely distributed it in the United Kingdom, and whose subsidiaries in New York were not involved in the documentary’s production or distribution.