Daly v. Viacom, Inc.

• Decision Date: 06 August 2002
• Docket Number: No. 01-3343 MMC.,01-3343 MMC.
• Citation: 238 F.Supp.2d 1118
• Parties: Diana Lynn DALY, an individual; Plaintiff, v. VIACOM, INC. et. al., Defendants.
• Court: U.S. District Court — Northern District of California

238 F.Supp.2d 1118

Diana Lynn DALY, an individual; Plaintiff, v. VIACOM, INC. et. al., Defendants.

No. 01-3343 MMC.

United States District Court, N.D. California.

August 6, 2002.

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R. Michael Lieberman, Michael Lieberman Law Offices, San Francisco, CA, for Plaintiff.

Thomas R. Burke, Davis Wright Tremaine LLP, San Francisco, CA, Kelli L. Sager, Susan E. Seager, Davis Wright Tremaine LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; VACATING HEARING

(Docket Nos. 90, 98, 114)

CHESNEY, District Judge.

Before the Court is defendant Viacom International Inc.'s ("Viacom") motion to dismiss, filed April 12, 2002, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff Diana Lynn Daly has filed opposition, to which Viacom replied. Also before the Court are the parties' supplemental memoranda in support of and in opposition to Viacom's earlier filed special motion to strike pursuant to California Code of Civil Procedure § 425.16.¹ Plaintiff filed separate oppositions to the motions, to which Viacom replied. Having considered the papers filed in support of and in opposition to the motions, the Court finds the matters appropriate for decision on the papers, VACATES the hearing scheduled for June 28, 2002, and rules as follows.

I. Motion to Dismiss

A. Background

The instant action arises from the filming, distribution and promotional advertising of the television program "Bands on the Run." On August 1, 2001, plaintiff filed a complaint alleging seven causes of action: statutory and common law commercial misappropriation, intrusion, false light, defamation, infliction of emotional distress and unfair business practices. On November 29, 2001, plaintiff filed a First Amended Complaint ("FAC"), in which plaintiff added a cause of action for Fraud. Viacom thereafter moved to dismiss plaintiff's FAC. By order filed January 23, 2002, the Court granted in part and denied in part Viacom's motion to dismiss. On February 22, 2002, plaintiff filed a Second Amended Complaint ("SAC"). By the instant motion, Viacom moves to dismiss plaintiff's SAC.

B. Legal Standard

A motion to dismiss under Rule 12(b)(6) cannot be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). Dismissal is disfavored, however, and should be granted only in "extraordinary" cases. See United States v. Redwood City, 640 F.2d 963, 966 (9th Cir.1981).

Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1989). Material which is properly submitted as part of the complaint may, however, be considered. See id. In addition, documents specifically referred to in a complaint, though not physically attached to the pleading, may be considered where authenticity is unquestioned. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994).

In analyzing a motion to dismiss, the Court must accept as true all material allegations in the complaint and construe them in the light most favorable to the nonmoving party. See NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Factual allegations may be disregarded, however, if contradicted by documents to which the court may properly refer. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987). Conclusory allegations, unsupported by the facts alleged, need not be accepted as true. See Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir.1992).

C. Analysis

1. Statutory and Common Law Misappropriation

Plaintiff's First Cause of Action (Invasion of Privacy by Commercial Appropriation in Violation of Civil Code Section 3344) and Second Cause of Action (Invasion of Privacy by Commercial Appropriation) allege claims against Viacom for statutory and common law misappropriation, respectively. In support of these claims, plaintiff alleges that defendant "invaded plaintiff's right to privacy by appropriating plaintiff's photograph and likeness and using plaintiff's photograph and likeness in a nationwide magazine, billboard and television advertisement campaign for defendant's television program entitled Bands on the Run" and "without plaintiff's prior valid consent." (Second Amended Compl. ("SAC") ¶ 9.) As noted in the Court's prior order of January 23, 2002, California Civil Code § 3344 prohibits the use of "another's name, voice, signature, photograph, or likeness ... for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent." Cal. Civ.Code § 3344(a). Prior consent is not required, however, if the use is "in connection with any news, public affairs, or sports broadcast or account, or any political campaign." Cal. Civ.Code § 3344(d). Similarly, to assert a common law cause of action for commercial misappropriation, plaintiff must plead: "(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury." See Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir.2001) (citing Eastwood v. Superior Court, 149 Cal.App.3d 409, 417, 198 Cal. Rptr. 342 (1983)). As with the statutory cause of action, a defense under the First Amendment is provided where the publication or dissemination of matters is "in the public interest." See Montana v. San Jose Mercury News, Inc., 34 Cal.App.4th 790, 793, 40 Cal.Rptr.2d 639 (1995) ("[N]o cause of action will lie for the publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it.").

In Viacom's prior motion to dismiss, Viacom argued that Bands on the Run was a "public affairs" and "public interest" program that could not be held liable for statutory or common law misappropriation. The Court found that Viacom had not meet its burden of demonstrating that the show was a "public affairs" and "public interest" program as a matter of law and, therefore, denied Viacom's motion to dismiss plaintiff's statutory and common law misappropriation claims. (See Order filed January 23, 2002.)

By the instant motion, Viacom seeks dismissal of these claims on the ground that Bands on the Run is an "expressive work" that is subject to the protections of the First Amendment "[r]egardless of whether it is categorized as `news,' `public affairs,' or purely entertainment." (See Mot. at 16.) According to Viacom, because Bands on the Run is an expressive work, "any advertisement showing the content of the program, including those containing plaintiff's likeness, [] are immunized from any misappropriation claims." (See Mot. at 16-17.)

Under the First Amendment, a cause of action for appropriation of another's "name and likeness may not be maintained" against "expressive works, whether factual or fictional." See Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, 871-72, 160 Cal.Rptr. 352, 603 P.2d 454 (1979) (Bird, J. concurring); Comedy III Prod., Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 398, 106 Cal.Rptr.2d 126, 21 P.3d 797 (2001) (holding expressive works do not loose "constitutional protections because they are for purposes of entertaining rather than informing").² "Whether the publication involved was factual and biographical or fictional," privacy rights have "not been held to outweigh the value of free expression." See Guglielmi, 25 Cal.3d at 871-72, 160 Cal.Rptr. 352, 603 P.2d 454 (holding First Amendment barred claims based on use of Rudolph Valentino's name and likeness in fictional television program). "[E]ntertainment is entitled to the same constitutional protection as the exposition of ideas." See id. at 867, 160 Cal.Rptr. 352, 603 P.2d 454; Comedy III Prod., 25 Cal.4th at 398, 106 Cal. Rptr.2d 126, 21 P.3d 797. Likewise, advertisements of expressive works are not actionable where the advertisements are "merely an adjunct of the protected [work] and promote only the protected [work]." See Cher v. Forum Int'l Inc., 692 F.2d 634, 639 (9th Cir.1982); Guglielmi, 25 Cal.3d at 871-72, 160 Cal.Rptr. 352, 603 P.2d 454 (holding advertisement not actionable where advertisement "was merely an adjunct to the exhibition of the film" and did "not ... promote anything but the film").

Here, it is undisputed that Bands on the Run is an expressive work subject to the protections of the First Amendment and that the advertising in question was merely to promote the program. Although plaintiff attempts to distinguish the authority cited by Viacom on the ground that those cases involved celebrities, plaintiff has failed to cite any authority demonstrating that noncelebrities are treated differently than celebrities for purposes of this analysis. See J. Thomas McCarthy, The Rights of Publicity and Privacy §§ 4:3, 5:60 (2001) (explaining law of appropriation does not draw a distinction between celebrities and noncelebrities when determining liability; distinction is relevant only to damages). As Bands on the Run is an expressive work protected by the First Amendment, plaintiff cannot state a misappropriation claim based on the use of her likeness in the program or the advertisements for the program.

Accordingly, plaintiff's First and Second Causes of Action are hereby DISMISSED.

2. Public Disclosure of Private Facts

In her Third Cause of Action (Invasion of Privacy by Public Disclosure of Private Facts), plaintiff alleges that "defendants, knowingly and...