California Right of Publicity Law Firm – Surfs Up in Dora v. Frontline!
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This case involves a right of publicity case brought by a local surfing legend in Malibu, California. This case shows that all cases involving the use of another persons name, image and likeness (even without their consent) are not necessarily unlawful.
Case: Dora v. Frontline Video, Inc., 18 Cal. Rptr. 2d 790 (C.D. Cal. 1993).
Court: Superior Court of Los Angeles County
Plaintiff-Appellant Mickey Dora sued Frontline Video, Inc. for common law and statutory appropriation of name or likeness arising from a video documentary profiling the Malibu surfing scene in the 1950s.
In the 1950s, Mickey Dora was a “legendary figure in surfing” who surfed at Malibu Beach. Mr. Dora introduced evidence that his “exploits at Malibu… are the folklore of the sport.” At issue was a video documentary entitled “The Legends of Malibu” which chronicled some of the public personalities in Malibu in the early days of surfing. Mr. Dora appears in that program but he was not the only surfer featured. At one point, the audio of an interview with Mr. Dora was played as photos of Mr. Dora flashed on the screen. Mr. Dora contends that he was neither interviewed nor photographed by Frontline Video, and that he did not consent to his name, photograph, likeness, or voice being used.
Mr. Dora brought suit in 1990, seeking damages for the unauthorized use of his name, voice, and likeness. Frontline Video filed a motion for summary judgment, arguing that Mr. Dora's consent was not required because the program was:
(1) a sports broadcast
(2) a news account and a publication of matters in the public interest,
(3) truthful and therefore protected by the Constitution.
The trial court granted the motion for summary judgment. Mr. Dora challenged all of Frontline Video's contentions.
Was Mr. Dora a public figure and the content of the Frontline Video “public affairs” such that no violation could be found under California right of publicity law?
RULE OF LAW:
The right of publicity, is “in essence that the reaction of the public to name and likeness which may be fortuitous or which may be managed or planned, endows the name and likeness of the person involved with commercially exploitable opportunities.” An appropriation of name and likeness is one that “brings injury to the feelings, that concerns one's own peace of mind, and that is mental and subjective.”
Public interest attaches to people who by their accomplishments or mode of living create a bona fide attention to their activities. Such matters are not “restricted to current events; magazines and books, radio and television may legitimately inform and entertain the public with the reproduction of past events, travelogues and biographies.”
Attorney Steve Tip: This is a key phrase, because if the Plaintiff suing in a ROP case is a “bona fide” person that “brings attention to their activities” (ex. a famous local celebrity everyone knows), this could defeat a Plaintiff's claims of misappropriation.
The Case holding also discussed:
“Civil Code section 3344, subdivision (a) states: “Any person who knowingly uses another's name, voice, … photograph, or likeness, in any manner, on or in products, merchandise, or goods, … without such person's prior consent, … shall be liable for any damages sustained by the person or persons injured as a result thereof.” Subdivision (d) of section 3344 states: “For purposes of this section, a use of a name, voice, … photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, … shall not constitute a use for which consent is required under subdivision (a).”
To begin with, while Mr. Dora did not make an explicit allegation of which type of appropriation he was alleging, the Court assumed that Mr. Dora's suit alleged appropriation of name and likeness based on his declaration that he “just wish[ed] to be left alone.”
The Court concluded that the public interest in the subject matter of the program gave rise to a constitutional protection against liability. Because the people who were a part of the era depicted in the program contributed to the development of a world-famous and celebrated lifestyle, the Court thought it feasible that the real-life events have “caught the popular imagination.”
Mr. Dora argued that the Frontline Video documentary did not meet the standard of California's criteria for newsworthiness, which considers:
“(a) The social value of the facts published;
(b) the depth of the intrusion into ostensibly private affairs,
(c) the extent to which an individual voluntarily acceded to a position of public notoriety.”
The Court rejected this argument because these factors go to a finding of public disclosure of private facts, which Mr. Dora did not allege.
Nonetheless, the Court decided to consider these factors in light of Mr. Dora's case. The Court found “social value” in the program due to its previous finding that its contents were “in the public interest.” The Court found that any intrusions into his private affairs was limited and noted that while Mr. Dora may have avoided the limelight, his exploits caused the limelight to seek him out.
The Court further stated that there can be “no privacy in that which is already public,” referring to the fact that all of Frontline's footage showed Mr. Dora at a public beach. As to Mr. Dora's claims about the interview, the Court couldn't give them credence because he never stated that it was a private recording or given for restricted use. Mr. Dora also objected to the cover of the program which displayed scantily clad women. The Court dismissed this objection as irrelevant.
The Statutory Cause of Action
The Court confronted the issue of whether the program could be considered a “public affair.” It acknowledged that it was not convinced that “public affairs” were merely those topics that might be covered on public television or public radio. However, it believed that surfing was a phenomenon with significant economic effect, because it affected purchases, travel, and the housing market. It also found that surfing touched on popular culture. Because of these findings, it was comfortable categorizing the contents of the documentary as “public affairs.”
The Court found that the use of a plaintiff's image, likeness, and voice in a surfing documentary was not a violation of his right to publicity because the documentary covered a subject that was considered a “public affair” and therefore constitutionally protected.
This Blog was authored by Ms. Claudia Lin, U.S.C. law student.
Contact a California Right of Publicity Lawyer
Our firm has never lost a right of publicity claim. We have a track record of recovery for prominent clients who find their name, image, or likeness appropriated without consent. We can also help defend ROP claims using California Anti-SLAPP law, First Amendment defense, and case law precluding recovery for sports broadcasts and other grounds. If you need a consultation just give us a call at (877) 276-5084.