Ann Bogie v. Joan AlexandraSanger

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1923

A NN B OGIE,

Plaintiff-Appellant,

v.

JOAN A LEXANDRA M OLINSKY

S ANGER R OSENBERG a/k/a JOAN R IVERS,

IFC F ILMS LLC, B REAK T HRU F ILMS, INC.,

R ICKI S TERN , A NNIE S UNDBERG , and SETH K EAL,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 11-cv-0324—William M. Conley, Chief Judge.

A RGUED S EPTEMBER 24, 2012—D ECIDED JANUARY 17, 2013

Before B AUER, F LAUM, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. Plaintiff Ann Bogie appeals

the district court’s dismissal of her claims under Wis-

consin law for invasion of privacy and misappropriation

of her image. The claims are based on Bogie’s attendance

at a comedy performance by defendant Joan Rivers, sued

2 No. 12-1923

here under her full name, Joan Alexandra Molinsky

Sanger Rosenberg. Shortly after the show, Bogie ap-

proached Rivers in the backstage area of the Lake of the

Torches Casino in Lac du Flambeau, Wisconsin. After

autographing a copy of her book, Rivers had a brief

conversation with Bogie. This sixteen-second exchange

was filmed (we must assume without Bogie’s consent)

and included in a documentary film on Rivers that

was sold nationwide.

Bogie has sued Rivers, her production company, and

others for invasion of privacy and misappropriation

of her image under Wis. Stat. § 995.50(2)(a)-(b). The case

was filed in state court but was removed to federal

court under diversity jurisdiction. The district court

granted defendants’ motion to dismiss both claims with

prejudice for failure to state a claim. Bogie appeals.

Because we agree with the district court that no set

of facts could exist consistent with the complaint

that would allow these claims to survive, we affirm

the judgment.

I. Factual and Procedural Background

A. Plaintiff’s Allegations and the Film

Bogie attended a stand-up comedy show featuring

Rivers. During the performance, Rivers told a joke about

the deaf and blind Helen Keller, offending an audience

member who had a deaf son. The audience member

heckled Rivers, and the two had a brief but sharp exchange

that was also captured on film and was part of the docu-

mentary. Immediately after the show, Rivers exited to a

No. 12-1923 3

backstage area closed to the general public. Bogie gained

entry to this backstage area and asked Rivers to sign a

copy of her book. Bogie engaged Rivers in a short conver-

sation during which Bogie expressed frustration with

the heckler and sympathy for Rivers. Rivers responded

with an expression of sympathy for the heckler. The

conversation went as follows:

Bogie: Thank you. You are so . . . I never laughed so

hard in my life.

Rivers: Oh, you’re a good laugher and that makes

such a difference.

Bogie: Oh, I know. And that that rotten guy . . . .

Rivers: Oh, I’m sorry for him.

Bogie: I was ready to get up and say . . . tell him to

leave.

Rivers: He has a, he has a deaf son.

Bogie: I know.

Rivers: That’s tough.

Bogie: But he’s gotta realize that this is comedy.

Rivers: Comedy.

Bogie: Right.

The film shows there were at least three other individuals

present during this exchange: a uniformed security

guard and two other men who appeared to work for or

were at least associated with Rivers. They were all

within a few feet of both Bogie and Rivers.

4 No. 12-1923

The interaction was filmed and included in the docu-

mentary entitled Joan Rivers: A Piece of Work. Bogie’s

conversation lasted sixteen seconds in the film’s eighty-

two minutes, or 0.3 percent of the entire film. The docu-

mentary was distributed and sold nationwide, including

in Wisconsin. It enjoyed a positive reception and signifi-

cant press coverage, touted for shedding light not only

on Rivers’s long career but also on the public’s obsession

with show business generally.

Plaintiff Bogie alleges that she was portrayed in the

film as having approved of condescending and dis-

paraging remarks by Rivers toward Wisconsin, its

citizens, and the heckler. Bogie’s complaint alleges that

her privacy was invaded by the distribution of the film

and that the film misappropriated her image for com-

mercial purposes without her consent. Bogie seeks com-

pensatory damages and an injunction against further

distribution of the film.

B. The District Court Decision and the Standard of Review

The district court granted the defendants’ motion

to dismiss under Federal Rule of Civil Procedure 12(b)(6)

for failure to state a claim upon which relief could be

granted. The video recording of the documentary was

incorporated in Bogie’s complaint, and the district court

relied on its viewing of the video to decide the case. The

district court ruled that no reasonable person in plain-

tiff’s position could have considered the backstage area

private, nor could the alleged intrusion have been con-

sidered highly offensive by a reasonable person. Bogie’s

No. 12-1923 5

invasion of privacy claim under section 995.50(2)(a) thus

failed as a matter of law. The district court also found

that the appropriation claim under section 995.50(2)(b)

failed because it was subject to at least two separate

common law exceptions: the newsworthiness or public

interest exception, and the incidental use exception.

The court concluded that amendment of the complaint

would have been futile as to either claim, so its dis-

missal was with prejudice.

We review de novo a district court’s dismissal of a

claim pursuant to Rule 12(b)(6), construing the allega-

tions in the complaint in the light most favorable to the

non-moving party and giving that party the benefit of

reasonable inferences from those allegations. Citadel

Group Ltd. v. Washington Regional Medical Center, 692

F.3d 580, 591 (7th Cir. 2012); Reger Development v. National

City Bank, 592 F.3d 759,763 (7th Cir. 2010). “Under the

federal rules’ notice pleading standard, a complaint

must contain only a ‘short and plain statement of the

claim showing that the pleader is entitled to relief.’ Fed. R.

Civ. P. 8(a)(2).” Wigod v. Wells Fargo Bank, N.A., 673

F.3d 547, 555 (7th Cir. 2012).

When a complaint fails to state a claim for relief, the

plaintiff should ordinarily be given an opportunity, at

least upon request, to amend the complaint to correct

the problem if possible. See Fed. R. Civ. P. 15(a); Bausch

v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010)

(reversing dismissal with prejudice); Foster v. DeLuca,

545 F.3d 582, 584-85 (7th Cir. 2008) (reversing dismissal

with prejudice where district court did not explain

6 No. 12-1923

reason for denying leave to amend). Leave to amend

need not be granted, however, if it is clear that any amend-

ment would be futile. Garcia v. City of Chicago, 24 F.3d

966, 970 (7th Cir. 1994).

C. District Court’s Review of the Video on Motion to Dismiss

Bogie incorporated the video recording into her

original complaint both by reference and by physically

attaching the video recording to the amended com-

plaint. The video shows in real time the content and

context of the alleged wrongs. Bogie’s complaint

alleges that she was “back stage in a place that the public

was prohibited from entering, and which a reasonable

person, including the Plaintiff, would consider private.”

The district court viewed the recording and weighed

its content against the complaint’s allegations. In con-

sidering a motion to dismiss under Rule 12(b)(6), district

courts are free to consider “ ‘any facts set forth in

the complaint that undermine the plaintiff’s claim.’ ”

Hamilton v. O’Leary, 976 F.2d 341, 343 (7th Cir. 1992),

quoting R.J.R. Services Inc. v. Aetna Casualty & Surety

Co., 895 F.2d 279, 281 (7th Cir. 1989). The freedom

includes exhibits attached to the complaint, Fed. R. Civ.

P. 10(c), or documents referenced in the pleading if

they are central to the claim, Citadel Group Ltd., 692 F.3d

at 591. “Taking all facts pleaded in the complaint as

true and construing all inferences in the plaintiff’s favor,

we review the complaint and all exhibits attached to

the complaint.” Forrest v. Universal Savings Bank, F.A., 507

F.3d 540, 542 (7th Cir. 2007); see also Brownmark Films, LLC

No. 12-1923 7

v. Comedy Partners, 682 F.3d 687, 690-91 (7th Cir. 2012)

(stating that it would make “eminently good sense” to

extend incorporation-by-reference doctrine to video

recording of television show that allegedly infringed

copyright, but reserving decision on issue).

When an exhibit incontrovertibly contradicts the al-

legations in the complaint, the exhibit ordinarily controls,

even when considering a motion to dismiss. Forrest

v. Universal Savings Bank, F.A., 507 F.3d at 542 (“Where

an exhibit and the complaint conflict, the exhibit

typically controls.”). Cf. Associated Builders, Inc. v. Alabama

Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (“If the

appended document, to be treated as part of the

complaint for all purposes under Rule 10(c), Fed. R. Civ.

P., reveals facts which foreclose recovery as a matter of

law, dismissal is appropriate.”). As we said in Brown-

mark Films, it makes “eminently good sense” to apply

these principles to video recordings attached to

or referenced in a complaint, and we do so here. See

682 F.3d at 690-91. Because Wisconsin privacy law turns

in part on the reasonable expectation an individual

would have in the environment in question, we agree

with the district court that the entire first claim can be

resolved as a matter of law by observing the scene in

the video.

When an exhibit contradicts the allegations in the

complaint, ruling against the non-moving party on a

motion to dismiss is consistent with our obligation to

review all facts in the light most favorable to the non-

moving party. We have explained that, “[s]uch an

8 No. 12-1923

analysis is no different than that involved in contract

disputes in which a plaintiff attaches a contract to the

complaint and makes an allegation that the contract on

its face clearly disputes.” Northern Indiana Gun & Outdoor

Shows, Inc. v. City of South Bend, 163 F.3d 449, 456 (7th

Cir. 1998). That is not to say that a plaintiff cannot con-

tradict the apparent meaning or significance of a

document or other exhibit. Consider, for example, a

complaint alleging that the plaintiff’s signature on the

attached contract or other instrument was obtained by

fraud or coercion. But a plaintiff whose case relies on

contradicting such an attachment needs to explain her

position.

II. Legal Analysis

A. The Language and Legislative History of Section 995.50

and Subsection 3

Because Wisconsin substantive law applies to plain-

tiff’s claims, our task is to interpret the state’s law as

we predict the state’s highest court would. E.g., Pisciotta

v. Old National Bancorp, 499 F.3d 629, 634-35 (7th Cir.

2007); see generally Erie Railroad Co. v. Tompkins, 304 U.S.

64 (1938). Before a more detailed analysis of plaintiff’s

claims for invasion of privacy, it may be useful to

highlight an unusual aspect of applicable Wisconsin law

of invasion of privacy. Subsection 3 of Wis. Stat. § 995.50

provides in part that the right of privacy “shall be inter-

preted in accordance with the developing common law

of privacy . . . with due regard for maintaining freedom

No. 12-1923 9

of communication, privately and through the public

media.” In drafting section 995.50, the Wisconsin legisla-

ture used New York’s privacy statute as a model. Judith

Endejan, Comment, The Tort of Misappropriation of Name

or Likeness Under Wisconsin’s New Privacy Law, 1978 Wis.

L. Rev. 1029, 1034 & n.30 (1978). The text of subsection

995.50(2)(b) duplicates nearly verbatim New York Civil

Rights Law § 50, so “[c]ase law under the New York

privacy statute may be particularly useful because sub-

section (2)(b) was modeled after the New York law.” Id.

at 1041 (internal citations omitted). Sound analysis

of Wisconsin privacy law as codified in section 995.50

therefore includes consideration of the developing com-

mon law of privacy in Wisconsin, as well as in other

jurisdictions, especially in New York. See, e.g., Fischer v.

Mt. Olive Lutheran Church, 207 F. Supp. 2d 914, 928 (W.D.

Wis. 2002) (explaining that earlier codification of section

995.50 stated: “ ‘[t]he right of privacy recognized in

this section shall be interpreted in accordance with the

developing common law of privacy,’ which supports a

reading in accordance with the general common law as

reflected by the Restatement”).

B. Invasion of Privacy

We now turn to the claims Bogie presents on appeal, first

to the invasion of privacy claim. To prevail on this claim,

Bogie must allege and ultimately prove two things: (1) her

conversation with Rivers was “in a place that a rea-

sonable person would consider private;” and (2) the

alleged intrusion on her privacy through filming was

10 No. 12-1923

“highly offensive to a reasonable person.” Wis. Stat.

§ 995.50(2)(a). The complaint and the film attached to it

show that both elements are lacking as a matter of law.1

1. Reasonable Expectation of Privacy

Bogie claims on appeal that the district court lacked

a sufficient evidentiary basis for finding that no

reasonable person could have had an expectation of

privacy backstage. In evaluating situations in which

there could be a reasonable expectation of privacy, we

consider the context, facts, and circumstances. Bogie

must have had a reasonable expectation of privacy

either in the area itself or in the items in the area. K.H.

Doe v. Saftig, 2011 WL 1792967, at *14 (E.D. Wis.

May 11, 2011).

As the district court noted, the conversation “occurred

in what appears to be a relatively crowded backstage

area, with the din of chatter in the background. The

camera, and thus the camera person, appear to be in

1

Subsection 1 of section 995.50 grants relief based on the

ensuing subsections only to “one whose privacy is

unreasonably invaded.” If this element of unreasonableness

is read to apply to the entire statute (i.e. to subsections 2 and 3),

then Bogie would also have to show the unreasonableness

of the invasion itself as an independent element. The Wiscon-

sin Supreme Court recently declined to decide this issue on

certification by the state’s Court of Appeals. See Habush v.

Cannon, 822 N.W.2d 883 (Wis. 2012) (table). We also need not

answer the question in this case.

No. 12-1923 11

close proximity to Rivers and Bogie.” Furthermore, as

defendants point out in their brief, the “autograph ses-

sion” and conversation took place immediately after

Rivers exited the stage in the plain view and company

of four other individuals. Joint App., Ex. A 1:07:06-50.

After the autograph session, Rivers left the casino as

even more people appeared on camera in the back-

stage area.

Bogie must therefore establish that a reasonable

person could have an expectation of privacy when

visiting a celebrity performer’s backstage area where the

general public, of which Bogie was a member, was not

allowed, but where at least several others were present.

(This case does not concern a private dressing room or

the like.) The Restatement of Torts explains that the

invasion of privacy tort protects people from “one who

intentionally intrudes, physically or otherwise, upon the

solitude or seclusion of another or his private affairs or

concerns.” Restatement (Second) of Torts § 652B. Cf.

Munson v. Milwaukee Bd. of School Directors, 969 F.2d 266,

271 (7th Cir. 1992) (dismissing claim as frivolous for

failure to allege reasonable expectation of privacy where

surveilling party did not trespass on private property).

The record does not indicate how Bogie obtained

access to the backstage area beyond the assertion in

Bogie’s brief in the district court that she was invited

back. Assuming that Bogie was invited backstage, that

would not advance her claim of a reasonable expectation

of privacy. The film shows that any such invitation was

to obtain a backstage autograph from a celebrity in the

12 No. 12-1923

presence of several security personnel and a film crew.

No reasonable person would expect privacy in that situ-

ation.

Bogie argues that this question cannot be decided fairly

on a motion to dismiss and that she needs discovery

for further factual development. She cites a multitude of

cases saying that disputes involving a reasonable expec-

tation of privacy are fact-sensitive and context-dependent.

We endorse that common sense proposition, but it

does not help Bogie in this case. Her argument that

“Segment 12 reveals remarkably little about the back-

stage environment” is not persuasive when the film

shows the environment at issue. We do not mean to

suggest that under Rule 12(b)(6) a plaintiff’s pleadings

cannot ever override or provide relevant context to a

video recording. We also recognize that any photograph

or film shows only one perspective on a scene, so that

additional perspectives, such as eyewitness testimony

or photographs or films from different angles or dif-

ferent times, might reveal additional facts that would

change the legal analysis. See generally Scott v. Harris,

550 U.S. 372, 378-81 (2007) (directing entry of summary

judgment based on video recording of disputed police

chase); id. at 389-91 (Stevens, J., dissenting) (drawing

different conclusions from watching video recording).

Also, “[a] party who appeals from a Rule 12(b)(6) dis-

missal may elaborate on her allegations so long as the

elaborations are consistent with the pleadings.” Wigod

v. Wells Fargo Bank, N.A., 673 F.3d at 555. Bogie’s com-

plaint and her arguments on appeal, however, have not

identified any potential basis for undermining the

No. 12-1923 13

district court’s reasoning about the expectation of pri-

vacy. This failure to identify additional facts that

could create a reasonable expectation of privacy or a

highly offensive invasion of this privacy makes amend-

ment of the complaint a futile exercise that the district

court rightly denied.

In dismissing on the pleadings an invasion of privacy

claim brought by a public official who was filmed at a

casino, another federal court observed that a casino is not

a place where a reasonable person would expect

privacy, such as one’s home. Indeed, any person in a

casino in Las Vegas would expect to be filmed and

observed by the establishment’s security. Ms. Harris

clearly would expect persons to pass her by and

observe her gambling. Accordingly, there was no

invasion of her private space and no intrusion into

her legitimately private activities that revealed inti-

mate personal facts.

Harris v. City of Seattle, 2003 WL 1045718, at *5 (W.D. Wash.

Mar. 3, 2003). Here, although Bogie was backstage

rather than at a slot machine, the reasoning is still

relevant. She voluntarily approached a celebrity just

after a public performance. Any reasonable person

would expect to encounter some kind of a security pres-

ence, and indeed here that presence was visible. Fur-

thermore, 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. People for the

Ethical Treatment of Animals a/k/a PETA v. Bobby Berosini,

14 No. 12-1923

Ltd., 895 P.2d 1269, 1282 (Nev. 1995) (finding no

reasonable expectation of privacy where “Gesmundo

filmed activities taking place backstage at the Stardust

Hotel, an area where Gesmundo had every right to be,

and the filming was of a subject that could be seen and

heard by any number of persons”). The point applies

with more force to backstage visitors. The video and

complaint show as a matter of law that the actual cir-

cumstances of the backstage area did not support a rea-

sonable expectation of privacy.

2. Highly Offensive to a Reasonable Person

To succeed in her section 995.50(2)(a) claim, Bogie

must also show that the alleged intrusion into her

privacy would be highly offensive to a reasonable per-

son. “The question of what kinds of conduct will be

regarded as a ‘highly offensive’ intrusion is largely a

matter of social conventions and expectations.” J. Thomas

McCarthy, The Rights of Publicity and Privacy, § 5.1(A)(2)

(1993); Gillund v. Meridian Mutual Insurance Co., 323 Wis. 2d

1, 20 (Wis. App. 2009) (describing the evaluation of what

is highly offensive as an objective test). In conducting

this evaluation, we consider

the degree of intrusion, the context, conduct and

circumstances surrounding the intrusion as well as

the intruder’s motives and objectives, the setting

into which he intrudes, and the expectations of

those whose privacy is invaded.

PETA v. Bobby Berosini, Ltd., 895 P.2d at 1282 (citations

omitted). The intrusion must be the “result of conduct

No. 12-1923 15

to which the reasonable man would strongly object.”

Restatement (Second) of Torts § 652B cmt. d (1977).

Bogie relies on three factors to argue the intrusion of the

camera was highly offensive: she was filmed without her

consent, the filming was motivated by profit, and the

filming captured her “private expression of scorn,” dis-

playing her insensitivity to the heckler’s deaf son.

We consider each in turn.

a. Lack of Consent

Bogie’s first proposed factor, the lack of consent, does

not advance her claim. We have assumed lack of consent

at this stage in the proceedings. Restating it as a factor

that should increase the offensiveness of the alleged

intrusion adds nothing to the analysis. To be actionable

at all, the filming would need to occur without the plain-

tiff’s consent or at least exceed the scope of the plaintiff’s

valid consent. Put differently, consent operates here

more as an affirmative defense than as an element of

the tort; lack of consent is a makeweight of sorts and

does not do anything more than make Bogie’s claim

theoretically possible. Without more, it does not add to

a conclusion that the intrusion could have been highly

offensive.

b. Profit Motive

Bogie’s second factor, that the filming was motivated

by profit, is resolved by sensitive attention to the statu-

16 No. 12-1923

tory language. Subsection (2)(b) includes the factor

“for purposes of trade,” which is tantamount to “for

profit,” while subsection (2)(a) does not contain equivalent

language. We assume that where the legislature has

intentionally included an element in one subsection of a

statute, its exclusion in a different part of the statute is

also intentional. See, e.g., Crandon v. United States, 494

U.S. 152, 163-64 (1990) (where Congress used “unambigu-

ous language” in other sections to cover preemploy-

ment payments, “the absence of comparable language

in § 209(a) indicates that Congress did not intend to

broaden the pre-existing coverage to that provision”); see

also James J. Brudney & Corey Ditslear, Canons of Con-

struction & the Elusive Quest for Neutral Reasoning, 58 Vand.

L. Rev. 1, 12-13 (2005) (discussing appropriate applica-

tion of the canons Whole Act Rule and Expressio Unius

together to interpret the plain meaning of a statute).

Since the legislature demonstrated the ability to make

profit an explicit factor, we take the omission here to

mean that it is not an element of the wrong.

Given the statutory language inviting development of

the statutory interpretation under the common law of

invasion of privacy, the difference in statutory language

on “for purposes of trade” would not be conclusive by

itself, but courts have recognized this intentional difference

between invasion of privacy claims and misappropriation

claims, refusing to collapse the two into one analysis:

The “pecuniary gain” by PETA and its use of Berosini’s

celebrity for publicity and fund-raising purposes is

not and cannot be, of the personal injury kind of tort

No. 12-1923 17

represented by the appropriation privacy tort. . . . If

there were a “privacy” tort committed here by PETA,

it would necessarily have to be a tort involving the

right of publicity and only the right of publicity, and

not the hurt-feelings, personal injury tort of appropria-

tion.

PETA v. Bobby Berosini, Ltd., 895 P.2d at 1284. The

alleged lack of consent and the profit motive could not

render the alleged intrusion highly offensive.

c. Content of Bogie’s Statements

The third alleged aspect of offensiveness originates in

the substance of Bogie’s own statements. She claims

that capturing her comments to Rivers about deaf

people was highly offensive. The argument runs up

against concepts embedded in privacy law. The offensive-

ness of the intrusion itself cannot be based on the

content or substance captured by virtue of the alleged

intrusion. “The law of privacy is not intended for

the protection of any shrinking soul who is abnormally

sensitive about such publicity.” William L. Prosser,

Privacy, 48 Calif. L. Rev. 383, 397 (1960). Cf. 1 J. Thomas

McCarthy, The Rights of Publicity & Privacy § 5:97 (2d ed.

2011) (explaining that videotaping is not an invasion of

privacy simply because “the fact of the person’s presence

or actions at that public place is embarrassing to that

person”). 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. As the district court

18 No. 12-1923

explained, Ҥ 995.50 does not protect one from being

associated with highly offensive material, but rather

from a highly offensive intrusion on privacy.” We

therefore agree with the district court that the complaint

and video show that Bogie cannot meet two essential

elements of a section 995.50(2)(a) claim, and that leave

to amend would be futile.

C. Appropriation Claim

Bogie also claims that defendants misappropriated

her picture, without first obtaining consent, for “ad-

vertising purposes or for purposes of trade” in violation

of Wis. Stat. § 995.50(2)(b) which is “aimed at preserving

the individual’s right of control over the commercial

aspects of one’s identity.” Gaiman v. McFarlane, 2010

WL 897364, at *5 (W.D. Wis. Mar. 12, 2010). This claim

fails as a matter of law because the documentary about

Rivers is clearly subject to the newsworthiness excep-

tion for such claims. Additionally, we think it is clear as

a matter of law that Bogie’s image is merely incidental

to the film, thereby barring her section 995.50(2)(b)

claim. We turn now to the first exception.

1. Newsworthiness or Public Interest Exception

In Wisconsin, “where a matter of legitimate public

interest is concerned, no cause of action for invasion of

privacy will lie.” Van Straten v. Milwaukee Journal

Newspaper-Publisher, 151 Wis. 2d 905, 921 (Wis. App. 1989).

Furthermore, the “question of newsworthiness is a ques-

No. 12-1923 19

tion of law to be determined by the courts.” Lemerond

v. Twentieth Century Fox Film Corp., 2008 WL 918579, at

*2 (S.D.N.Y. Mar. 31, 2008). The newsworthiness or

public interest exception should be construed broadly,

covering “not only descriptions of actual events, but

also articles concerning political happenings, social

trends or any subject of public interest.” Id. (internal

citations omitted). See also De Gregorio v. CBS Inc., 123

Misc. 2d 491, 493 (N.Y. Sup. Ct. 1984) (“The scope of

the subject matter which may be considered of ‘public

interest’ or ‘newsworthy’ has been defined in most

liberal and far-reaching terms.”), quoting Paulsen v.

Personality Posters, 59 Misc. 2d 444, 448 (N.Y. Sup. Ct. 1968)

(dismissing comedian Pat Paulsen’s claim based on

unauthorized sale of posters based on satirical presi-

dential campaign). In Man v. Warner Bros. Inc., the court

found that a movie depicting the Woodstock concert

and festival was covered by the newsworthiness excep-

tion. 317 F. Supp. 50 (S.D.N.Y. 1970).

The complaint and video presented by Bogie herself

make clear that the Rivers documentary is a matter of

public interest and falls within this broadly drawn and

inclusive category. One review explained: “The film

offers a rare glimpse of the comedic process and the

crazy mixture of self-doubt and anger that often fuels it.

A unique look inside America’s obsession with fame

and celebrity.” The review concluded: “Ultimately, Joan

engenders strong feelings in people . . . they love her,

they hate her . . . Joan’s story is universal as it speaks

to aging in a culture obsessed with youth, and exposes

20 No. 12-1923

the fleeting nature of fame by looking at the exception

to the rule.” Joint App. 28-29 (ellipses in original).2

Lemerond presented facts similar to this case. 2008 WL

918579, at *3 n.1. The plaintiff sued under New York

Civil Rights Law § 51 (which is equivalent to

Wis. Stat. § 995.50(2)(b)) alleging unlawful use of his

image in the popular film Borat. The film includes a

scene in which the fictional character Borat approached

the (non-fictional) plaintiff on a street corner in New

York City. Borat said, “Hello, nice to meet you. I’m

new in town. My name a Borat.” The plaintiff, “without

further provocation, begins to run away in apparent

terror, screaming ‘Get away!’ and ‘What are you doing?’ ”

Id. at *1. This objectively embarrassing clip of the

plaintiff spanned thirteen seconds and was included in

the film. Despite the inclusion of this objectively embar-

rassing clip, the district court dismissed the appropria-

tion claim due to the fact that the film Borat was news-

worthy and therefore exempt from the ambit of section

51. Id. at *3.

Similarly, the headlines segment in the Tonight Show

with Jay Leno, which highlights pieces from the news

2

While the district court’s order did not address this

possible exception in its entirety, the newsworthiness excep-

tion was fully briefed in the defendants’ motion to dismiss

and we therefore act within our discretion to “affirm on

any ground that the record fairly supports and that appellee

has not waived.” Burns v. Orthotek, Inc. Employees’ Pension Plan

& Trust, 657 F.3d 571, 575 (7th Cir. 2011) (citation omitted).

No. 12-1923 21

that are humorous by virtue of their mistakes or embar-

rassing errors, was held newsworthy in Walter v. NBC

Television Network Inc., 811 N.Y.S.2d 521, 523 (N.Y. App.

2006) (“A performance involving comedy and satire

may fall within the ambit of the newsworthiness

exception even if the performance is not related ‘to a

legitimate news broadcast [or event].’ ”) (alteration in

original) (internal citations omitted). See also Messenger v.

Gruner Jahr Printing & Publ’g, 706 N.Y.S.2d 52, 57 (N.Y.

2000) (holding that no appropriation claim may

lie where “plaintiff’s photograph is used to illustrate

a newsworthy article”). The public’s interest in Rivers’s

long career and fame in general clearly puts this case

on par (at least legally) with films about Woodstock and

the fictional Borat. The documentary therefore falls

safely within the bounds of the newsworthiness excep-

tion and thus the appropriation claim under sec-

tion 995.50(2)(b) fails as a matter of law.

2. Incidental Use Exception

The appropriation claim also fails for another, independ-

ent reason. At the time Wisconsin enacted section

995.50, New York law recognized the incidental use

exception. See, e.g., Moglen v. Varsity Pajamas Inc., 213

N.Y.S.2d 999, 1001 (N.Y. App. 1961) (“It has been

held that a mere incidental commercial use of a

person’s name or photograph is not actionable under

the Civil Rights Law.”). Wisconsin courts, heeding the

direction of section 3, therefore incorporated this

common law exception into the statute. See Hagen v.

22 No. 12-1923

Dahmer, 1995 WL 822644, at *5 n.4 (E.D. Wis. Oct. 13, 1995)

(“Even the incidental use of a name is insufficient to

constitute an invasion of the right to privacy. See Ladany

v. William Morrow Co., 465 F. Supp. 870, 881 (S.D.N.Y.

1978) (construing sections 50 and 51 of the Civil Rights

Act, New York’s right to privacy statute).”).

For use of a person’s name for advertising or

trade purposes to be actionable under Wisconsin law,

“there must be a substantial rather than an incidental

connection between the use and the defendant’s com-

mercial purpose.” Stayart v. Yahoo! Inc., 2011 WL 3625242,

at *2 (E.D. Wis. Aug. 17, 2011). In other words, there

must be a “direct and substantial connection between

the appearance of plaintiff’s name or likeness and the

main purpose and subject of the work.” Netzer v.

Continuity Graphic Associates Inc., 963 F. Supp. 1308, 1326

(S.D.N.Y. 1997) (internal citation omitted).

Bogie argues, though, that the statute itself does not

include any exception for incidental appropriation of a

person’s name or image for commercial purposes.

As explained above, the statutory language does not

limit the application of the exception in the way

Bogie claims since subsection 3 of the statute

mandates that it “shall be interpreted in accordance with

the developing common law.” 3 Wisconsin lower courts

3

Bogie questions the origin of the incidental use exception.

Judge Adelman, however, endorsed the exception in Stayart

v. Yahoo! Inc., 2011 WL 3625242, at *2 (E.D. Wis. Aug. 17, 2011),

(continued...)

No. 12-1923 23

have recognized this aspect of the statute and embraced

its direction: “[B]ecause the legislature has expressly

directed in § 995.50(3) that the statute be ‘interpreted in

accordance with the developing common law of pri-

vacy,’ ” that is “presumably something the legislature

anticipated would ultimately be done by the supreme

court.” Habush v. Cannon, 2012 WL 2345137, at *1 (Wis.

App. June 21, 2012), cert. denied, 822 N.W.2d 883 (Wis.

2012) (table).

The issue is whether we can decide as a matter of

law whether the sixteen-second clip of Bogie in the

Rivers documentary is incidental. 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. Preston v. Martin Bregman Productions, Inc. dismissed

an intrusion of privacy claim based on the incidental

use exception when a woman appeared in a motion

picture for nine seconds in which she was portrayed as

a prostitute. 765 F. Supp. 116, 119-20 (S.D.N.Y. 1991). See

also Candelaria v. Spurlock, 2008 WL 2640471 (E.D.N.Y.

July 3, 2008) (granting motion to dismiss based, in part,

on incidental use exception where plaintiff appeared

in Supersize Me documentary for three to four seconds

3

(...continued)

citing the Endejan comment, 1978 Wis. L. Rev. 1029, 1047-48,

which in turn cited New York and California decisions that

are properly considered as part of the common law develop-

ment of Wisconsin privacy law. We predict that the Wis-

consin Supreme Court would adopt the incidental use excep-

tion and would find it applicable here.

24 No. 12-1923

captured by hidden camera). In Man v. Warner Brothers, a

professional performer sued for invasion of privacy

based on the inclusion of forty-five seconds of his stage

performance at Woodstock. The court found, in part, that

the forty-five second performance was “surely de

minimus” and therefore incidental to the purpose of

the film as a whole and thus also subject to the incidental

use exception. 317 F. Supp. 50, 53 (S.D.N.Y. 1970).

There is no indication here that the exchange between

Rivers and plaintiff Bogie was used to advertise the

documentary film. If a forty-five second perfor-

mance at Woodstock in a film about Woodstock was

incidental — a case where the performer was supple-

menting and participating in the subject of the film —

surely the district court was correct in finding that

a sixteen-second clip of an autograph session in an

eighty-two minute documentary about Joan Rivers was

also incidental. Bogie’s misappropriation claim there-

fore fails as a matter of law based on both the incidental

use exception and the newsworthiness exception. Leave

to amend could not avoid these exceptions, so dismissal

with prejudice was appropriate. We affirm the district

court’s decision on this claim as well.

The judgment of the district court is A FFIRMED.

1-17-13