Paisley Park Enterprises v. Uptown Productions, 99 Civ. 1439(LAK).

• Decision Date: 29 June 1999
• Docket Number: No. 99 Civ. 1439(LAK).,99 Civ. 1439(LAK).
• Citation: 54 F.Supp.2d 347
• Parties: PAISLEY PARK ENTERPRISES, INC., et al., Plaintiffs, v. UPTOWN PRODUCTIONS d/b/a Uptown, et ano., Defendants.
• Court: U.S. District Court — Southern District of New York

54 F.Supp.2d 347

PAISLEY PARK ENTERPRISES, INC., et al., Plaintiffs, v. UPTOWN PRODUCTIONS d/b/a Uptown, et ano., Defendants.

No. 99 Civ. 1439(LAK).

United States District Court, S.D. New York.

June 29, 1999.

Michael Elkin, Teena Kim, Thelen Reid & Priest LLP, New York City, for plaintiffs.

David Lee Evans, C. Alex Hahn, Hanify & King, Syracuse, NY, for defendants.

MEMORANDUM OPINION

KAPLAN, District Judge.

This matter now presents the question whether the Court should permit defendants to videotape the deposition of one of the plaintiffs, Prince Rogers Nelson, better known to music fans as Prince or The Artist Formerly Known As Prince, and, if so, on what terms. The parties have presented the matter to the Court by letters and argued it via telephone conference call. They have agreed to submit the matter for binding decision by the Court without a more elaborate record and to abide by the result without seeking any appellate remedies.

Facts

Nelson, the parties contend, is a well known entertainer and celebrity who, among other things, associates his persona with a symbol for which he claims to have registered copyright. In addition to his more immediate entertainment activities, Nelson or those associated with him operate a web site. Defendants publish Uptown, an unofficial "fan" magazine, and operate a web site, both devoted to Nelson. Without getting into detail unnecessary to resolution of the issue now before the Court, plaintiffs here sue defendants for copyright and trademark infringement and on other theories, the gist of the case being that the defendants are improperly making unauthorized use of Nelson's name, likeness, photographs and other intellectual property. More broadly, plaintiffs contend that defendants have "created an entire business based on exploiting [Nelson]'s image and persona to their own economic benefit." Defendants have counterclaimed for abuse of process and declaratory relief. On or about May 21, 1999, defendants noticed Nelson's deposition. The notice provided that the examination would be recorded on videotape and audiotape.

Plaintiffs acknowledge that defendants are entitled to a live deposition of Nelson. They resist only its videotaping, arguing that defendants' real motive for videotaping Nelson's testimony is to generate more content for their conventional and web publishing activities, more publicity for themselves, and greater economic returns. In short, they apprehend that any videotape of the deposition will be used "to usurp from the public figure [Nelson] the very business opportunities that give rise to the interest [that would be] reported about." In other words, they contend that a videotape would serve no legitimate litigation purpose, that the effort to create such a record of the deposition is commercially motivated, and that the creation and dissemination of such a tape would undermine plaintiffs' own commercial interests — interests for which they seek the Court's protection.

There is a substantial factual basis for plaintiffs' concerns. Attachment A to plaintiffs' letter to the Court demonstrates that this lawsuit is a principal focus of the defendants' web site. The pleadings, defendants' notice of Nelson's deposition, and press releases concerning the case all are on line. Moreover, when asked during the conference call whether defendants would agree that they would not disseminate or make other non-litigation use of a videotape of the deposition, defendants' counsel responded that he was not authorized to do so. Thus, there is every reason to believe that defendants' motive in seeking to videotape the deposition is at least in part to generate notoriety for themselves and their business ventures by making non-litigation use of the videotape, although the Court to be sure has no basis for questioning their counsel's representation that he believes that the videotape would be useful at trial as well.

Discussion

Rule 30(b)(2) of the Federal Rules of Civil Procedure provides that:

"The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by non-stenographic means." (Emphasis added)

The rule thus permits both video- and audio taping of depositions absent contrary order of the Court.

In this case, two factors arguably cut in favor of the defendants. Nelson, unlike the former CIA director who succeeded in blocking the videotaping of his deposition in Westmoreland v. CBS, Inc.,¹ is the plaintiff who invoked the judicial process to begin with, not a non-party witness dragged unwillingly into a dispute between others. Second, the Court accepts that there is at least some bona fide litigation purpose to the video recording of Nelson's testimony. These considerations, however, do not necessarily sweep the field.

To begin with, it is readily apparent that the defendants intend to use any videotape for purposes entirely unrelated to the litigation as well as for the lawsuit itself. Rule 30(b)(2) was amended to permit videotaped depositions as a matter of routine in recognition of the fact that videotapes are a means of presenting deposition testimony to juries that is superior to readings from cold, printed records.² It was not intended to be a vehicle for generating content for broadcast and other media.³ Hence, defendants' likely use of any videotape for purposes unrelated to the resolution of the dispute that is the subject of this lawsuit cuts in plaintiffs' favor.

More broadly, there is another public interest at stake here. The judicial branch of government, insofar as it deals with civil cases, is a system for the resolution of what usually are private disputes.⁴ While many members of the public have an interest in every imaginable detail about the life of a rock star, virtually all have an interest in ensuring that everyone in our society have access to a fair and impartial judicial system without having to pay too high a price of admission in the form of the surrender of personal privacy. Thus, courts must be vigilant to...