Seventh Circuit Affirms Dismissal of Invasion of Privacy and Misappropriation Claims Against Joan Rivers
Ann Bogie attended a stand-up comedy show featuring Joan Rivers at a casino in Wisconsin. During the performance, Rivers told a joke about Helen Keller and was heckled by an offended audience member who had a deaf son. The exchange was filmed and included in a documentary entitled Joan Rivers: A Piece of Work that was sold nationwide.
After the performance, Bogie gained entry to a backstage area where Rivers had exited that was closed to the general public. Bogie asked Rivers to sign a copy of Rivers' book and the two engaged in a brief conversation in which "Bogie expressed frustration with the heckler and sympathy for Rivers." (The Seventh Circuit quotes the full conversation in its opinion.) The brief conversation was filmed, presumptively without Bogie's permission, and included in the documentary. The film showed that there were at least three other individuals in close proximity to Bogie and Rivers during this conversation, which lasted 16 seconds, representing 0.3 percent of the 82-minute film.
Bogie sued Rivers and others for invasion of privacy and misappropriation of her image under Wisconsin law (which, it turns out, is modeled in part on New York law). The district court dismissed Bogie's claims with prejudice on the defendants' motion to dismiss for failure to state a claim after viewing the film and Bogie appealed.
After agreeing with the district court that Bogie's invasion of privacy claim could be decided as a matter of law based on viewing the scene in the film, the Seventh Circuit likewise agreed that both of her claims were subject to dismissal with prejudice.
As to Bogie's invasion of privacy claim, the Seventh Circuit concluded that Bogie could not prove that her conversation with Rivers occurred in a place (the backstage area) that a reasonable person would consider private:
[Bogie] voluntarily approached a celebrity just after a public performance. Any reasonable person would expect to encounter some kind of a security presence, and indeed here that presence was visible. Furthermore, the camera crew must have also been visible to Bogie as they were filming both Rivers and, of course, Bogie. Courts have found that even performers themselves cannot count on a reasonable expectation of privacy in their own backstage areas.
The Seventh Circuit also concluded that Bogie could not prove that the alleged intrusion into her privacy would be highly offensive to a reasonable person, an objective test. "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."
The Seventh Circuit also affirmed the dismissal with prejudice of Bogie's misappropriation claim, concluding that the documentary was subject to the newsworthiness exception to such claims and that the 16-second clip of Bogie was merely incidental.
The case cite is Bogie v. Rosenberg, Appeal No. 12-1923 (7th Cir. Jan. 17, 2013).