Dora v. Frontline Video, Inc.

• Decision Date: 30 April 1993
• Docket Number: No. B065165,B065165
• Citation: 18 Cal.Rptr.2d 790,15 Cal.App.4th 536
• Court: California Court of Appeals Court of Appeals
• Parties: , 26 U.S.P.Q.2d 1705, 21 Media L. Rep. 1398 Mickey DORA, Plaintiff and Appellant, v. FRONTLINE VIDEO, INC., Defendant and Respondent.

Page 790

18 Cal.Rptr.2d 790

15 Cal.App.4th 536, 26 U.S.P.Q.2d 1705, 21 Media L. Rep. 1398

Mickey DORA, Plaintiff and Appellant, v. FRONTLINE VIDEO, INC., Defendant and Respondent.

No. B065165.

Court of Appeal, Second District, Division 2, California.

April 30, 1993.

Cooney & Fineman and Lee Fineman, Sherman Oaks, for plaintiff and appellant.

Law Offices of James R. Rogers and John Boyce Jr., Del Mar, for defendant and respondent.

NOTT, Associate Justice.

Appellant Mickey Dora sued Frontline Video, Inc. ("Frontline"), among others, ¹ for common law and statutory appropriation of name or likeness. He appeals from a summary judgment granted in favor of respondent. We affirm.

FACTS AND PROCEDURAL HISTORY

In the 1950's, appellant surfed at Malibu Beach. According to respondent's evidence in support of its summary judgment motion, appellant was a "legendary figure in surfing" and his "exploits at Malibu ... are the folklore of the sport."

In 1987, respondent produced a video documentary entitled "The Legends of Malibu" ("the program"). The program is, for the most part, a documentary that chronicles the events and public personalities at Malibu in the early days of surfing. Footage of famous surfers, including appellant, taken during that time appears in the program. Many of those people were interviewed for their on-camera reminiscences. The program also contains the audio portion of an interview of appellant, which is heard in the background as the viewer sees appellant in photographs. Appellant states in a declaration that he was neither interviewed nor photographed by respondent, and that he did not consent to his name, photograph, likeness, or voice being used.

Appellant brought this suit in 1990, seeking damages for the unauthorized use of his name, voice, and likeness. Respondent filed a motion for summary judgment, arguing that appellant's consent was not required because the program is (1) a sports broadcast, (2) a news account and a publication of matters in the public interest, and (3) truthful and therefore protected by the Constitution. The trial court accepted respondent's arguments and granted the motion. On appeal, appellant challenges each of respondent's contentions.

DISCUSSION

Respondent Was Not Required to Obtain Appellant's Consent for the Program And Summary Judgment Was Proper

I. The Standard of Review

The summary judgment procedure aims to discover whether there is evidence requiring the fact-weighing process of a trial. (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 703, 284 Cal.Rptr. 555; Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 366, 212 Cal.Rptr. 395.) In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. (M.B. v. City of San Diego, supra, 233 Cal.App.3d at p. 703, 284 Cal.Rptr. 555.) The reviewing court conducts a de novo examination to determine whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law. (Ibid.)

As stated above, appellant's action relies on alternative theories, one for appropriation under the Civil Code, the other for appropriation under the common law. We find that summary judgment was proper in both instances. We begin with the common law analysis.

II. Appellant's Common Law Cause of Action

The law of privacy comprises four distinct kinds of invasion of four different interests. (Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 819, 160 Cal.Rptr. 323, 603 P.2d 425.) The interest asserted by appellant in this case is described as " '[a]ppropriation, for the defendant's advantage, of the plaintiff's name or likeness.' " (Ibid., quoting Prosser, Privacy (1960) 48 Cal.L.Rev. 383, 389, emphasis omitted.) Appropriation itself has two aspects. The difference between the two is found not in the activity of the defendant, but in "the The first type of appropriation is the right of publicity, as was at issue in Lugosi, which 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." (Lugosi v. Universal Pictures, supra, 25 Cal.3d 813, 824, 160 Cal.Rptr. 323, 603 P.2d 425.) The other is the appropriation of the name and likeness that brings injury to the feelings, that concerns one's own peace of mind, and that is mental and subjective. (Stilson v. Reader's Digest Assn., Inc. (1972) 28 Cal.App.3d 270, 273, 104 Cal.Rptr. 581, hg. den. Dec. 20, 1972.)

nature of the plaintiff's right and the nature of the resulting injury." (McCarthy, The Rights of Publicity and Privacy (1992) § 5.8(C), p. 5-67.)

In this case, it seems that appellant's suit is for violation of the second type of appropriation. This we glean not from the complaint, which is general and vague, but from appellant's declaration, in which he states: "I just wish to be left alone." Because we believe that in this case the analysis under both theories would be the same, we need not put too fine a point on it. ² Whether appellant is considered a celebrity or not, whether he is seeking damages for injury to his feelings or for the commercial value of his name and likeness, we conclude that the public interest in the subject matter of the program gives rise to a constitutional protection against liability. (See Maheu v. CBS, Inc., supra, 201 Cal.App.3d at p. 676, 247 Cal.Rptr. 304.)

Though both celebrities and non-celebrities have the right to be free from the unauthorized exploitation of their names and likenesses, every publication of someone's name or likeness does not give rise to an appropriation action. 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, is not ordinarily actionable. (Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 421, 198 Cal.Rptr. 342; see Zacchini v. Scripps-Howard Broadcasting Co. (1977) 433 U.S. 562, 574, 97 S.Ct. 2849, 2856, 53 L.Ed.2d 965 [the right of publicity does not prevent reporting on newsworthy facts]; Time, Inc. v. Hill (1967) 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456 ["The guarantees for speech and press are not the preserve of political expression or comment upon public affairs...."].) Public interest attaches to people who by their accomplishments or mode of living create a bona fide attention to their activities. (Carlisle v. Fawcett Publications, Inc., (1962) 201 Cal.App.2d 733, 746, 20 Cal.Rptr. 405.)

Furthermore, matters in the public interest 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." (Ibid.; but see Johnson v. Harcourt, Brace, Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 890-891, 118 Cal.Rptr. 370.)

The program in question in this case is a documentary about a certain time and place in California history and, indeed, in American legend. The people who were a part of that era contributed, willingly or unwillingly, to the development of a lifestyle that has become world-famous and celebrated in popular culture. Although any one of them as individuals may not have had a particular influence on our time, as a group they had great impact. This is the point of the program, and it seems a fair comment on real life events "which have caught the popular imagination." (Smith v. National Appellant contends that the program does not meet the California criteria for newsworthiness restated in Maheu v. CBS, Inc., supra, 201 Cal.App.3d at p. 675, 247 Cal.Rptr. 304: " '(a) The social value of the facts published; (b) the depth of the intrusion into ostensibly private affairs; and (c) the extent to which an individual voluntarily acceded to a position of public notoriety. [Citations.]' " Those factors, however, relate not to a cause of action for appropriation of name and likeness, but to one for the public disclosure of private facts. (Id. at pp. 674-675, 247 Cal.Rptr. 304.) As stated in Maheu, " 'even a tortious invasion of privacy is exempt from liability if the publication of private facts is truthful and newsworthy.' " (Id. at p. 675, 247 Cal.Rptr. 304.) Appellant did not sue respondent for disclosing private facts, and he has not persuaded us that the three-part standard quoted above should be applied in this case.

Broadcasting Co. (1956) 138 Cal.App.2d 807, 814, 292 P.2d 600.)

Even if we were to apply the Maheu standard, however, our ruling would not change. We find that the program has public interest, which gives it "social value." Though that value might be limited, so is the level of intrusion into appellant's private affairs. Indeed, beyond stating that the program "erroneously characterizes me and contains prevarications about me" appellant's evidence does nothing to establish that any private facts were disclosed. From our viewing of the program, we find in it little, if anything, of a private nature about appellant. The third point, whether appellant voluntarily became a well-known surfer, is less clear. Appellant seems to have spent a good deal of energy avoiding the limelight. As he states in his declaration, he did not cooperate with photographers and was out of the country for 20 years. Sometimes, though, those who do not seek the public eye are nevertheless sought out by it. As stated in Carlisle, a person may by his or her own activities or by the force of circumstances become a public personage and thereby relinquish a part of their right of privacy " 'to the extent that the public has a legitimate interest in his [or her] doings, affairs or character.' " (Carlisle v. Fawcett Publications, Inc., supra, 201 Cal.App.2d at p. 747, 20 Cal.Rptr. 405, quoting Werner v. Times-Mirror Co. (1961) 193 Cal.App.2d 111, 117, 14 Cal.Rptr. 208.)...