Jan. 28, 2013 – A Wisconsin woman sued comedian Joan Rivers for including a short exchange between the two in a documentary film. But a federal appeals court has ruled that Rivers did not violate the woman’s privacy rights or misappropriate her image.
Ann Bogie saw Rivers’ stand-up comedy show at the Lake of the Torches Casino in Lac du Flambeau. After the show, Rivers autographed a book for Bogie and spoke with her for 16 seconds. The exchange was video-taped, and used in a documentary film on Rivers called Joan Rivers: A Piece of Work, released in 2010.
The two spoke about a heckler who lashed out at Rivers during the show. Rivers had a made a joke about Helen Keller, who was deaf. The audience member, who had a deaf son, took offense to the joke. Rivers responded about the importance of comedy to deal with tough issues, and embarked on a short diatribe against the heckler, calling him several names.
In their conversation, Bogie supported Rivers. In her lawsuit against Rivers, however, Bogie said the documentary portrays her as approving Rivers’ condescending remarks.
Bogie alleged that Rivers and her production company violated her right to privacy by filming a personal and private conversation and misappropriated her image by using it in the documentary, which was distributed nationwide. She sought damages and an injunction against further distribution of the film.
The U.S. District Court for the Western District of Wisconsin dismissed the case. In Bogie v. Rivers, No. 12-1923 (Jan. 17, 2013), the U.S. Court of Appeals for the Seventh Circuit affirmed.
Under Wis. Stat. sections 995.50(2)(a) and (b), an intrusion of privacy occurs if “highly offensive to a reasonable person, in a place that a reasonable person would consider private,” or someone uses the name, portrait or picture of any living person, without having first obtained the written consent of the person, for advertising purposes or for purposes of trade.
Conversation Not Invasion of Privacy
Bogie could not survive a motion to dismiss the privacy claim under section 995.50(2)(a), the panel ruled, because her conversation with Rivers did not take place in a private place.
The panel noted that the conversation took place backstage, in a relatively crowded area, and the cameraman and other security people were in close proximity. “No reasonable person would expect privacy in that situation,” wrote Judge David Hamilton.
In addition, the panel ruled that capturing the video was not highly offensive. “The fact that Bogie was embarrassed to be filmed saying something she regrets having said and now deems offensive does not convert the filming itself into a highly offensive intrusion,” Hamilton wrote.
The Newsworthiness Exception to Misappropriation
Rivers did not violate 995.50(2)(b) by using Bogie’s image in the documentary, the panel ruled, because “the documentary about Rivers is clearly subject to the newsworthiness exception for such claims,” Judge Hamilton explained. The panel also ruled Bogie’s “misappropriation” claim failed because her image depicted in the documentary was “incidental” to the film.
Wisconsin bars invasion of privacy claims in matters of legitimate public interest, the panel explained. “The complaint and video presented by Bogie herself make clear that the Rivers documentary is a matter of public interest,” the panel concluded.
The panel noted that Wisconsin construes its privacy law in accordance with developing common law, especially the common law of New York, because Wisconsin’s privacy statute is modeled on New York’s privacy statute. Thus, the panel cited similar New York cases.
In one, a plaintiff alleged unlawful use of his image in the film Borat, an arguably strange movie released in 2006. But the court dismissed the claim under the newsworthiness exception.
A New York court also applied the newsworthiness exception to dismiss claims against NBC for allowing Jay Leno to highlight news clippings that contain embarrassing errors. In that case, the court said that comedy and satire may fall within the newsworthiness exception.
Finally, the panel ruled that the “incidental use exception” also barred Bogie’s misappropriation claims against Rivers and her production company because New York recognized the exception when Wisconsin enacted its privacy law. The exception bars misappropriation claims unless there’s a substantial connection between image use and commercial purpose.
“Case law under New York and Wisconsin law provides strong support for the conclusion that the use here was minimal and thus incidental and can thus be decided as a matter of law,” wrote Judge Hamilton, noting that Bogie’s appearance was just a small fraction of the film.
