Smith v. Nbc Universal
| Decision Date | 29 October 2007 |
| Docket Number | No. 06 Civ. 5350(SAS).,06 Civ. 5350(SAS). |
| Citation | 524 F.Supp.2d 315 |
| Parties | Jonathan E. SMITH, Plaintiff, v. NBC UNIVERSAL, a corporation, d/b/a NBC Universal Television Group a/k/a NBC Universal Television and d/b/a Sci Fi Channel, MG Perin, Inc., a Corporation, Universal Television Networks, and Does I-XX, inclusive, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Elliot J. Stein, Esq., Stevens & Lee, P.C., Princeton, NJ, for Plaintiff.
Harry W. Lipman, Esq., Rottenberg Lipman Rich, P.C., New York City, for Defendants.
Jonathan E. Smith holds the copyright to a video of orcas attacking him during a performance at Sea World (the "Video"). Smith has filed suit against NBC Universal, MG Perin Inc., Universal Television Networks ("UTN"), and twenty unknown persons for unlicensed reproduction of the Video and for various violations of state law. This action was originally filed in the Southern District of California, and was moved to this Court pursuant to section 1404 of title 28 of the United States Code. MG Perin and UTN have stipulated that they violated Smith's copyright to the Video. Defendants now move for partial summary judgment, asking this Court to dismiss all claims against NBC Universal and to dismiss all state law claims against all defendants. For the reasons stated below, the motion is granted. Smith's claims under the Copyright Act are not affected by this decision.
In the mid-1980s, Smith worked as an animal trainer at Sea World in San Diego, California,2 Where he participated in performances with orcas3 before live audiences.4 During a performance on March 4, 1987, two orcas attacked Smith (the "Attack").5 The incident was reported in the news.6
An audience member, Mr. Chiang-Shek, recorded the performance (and thus the Attack) using a camcorder. The Video is approximately five minutes long.7 On March 12, 1987, Chiang-Shek visited Smith in the hospital, gave him a copy of the Video and also assigned the copyright to him.8 Smith registered the Video with the U.S. Copyright Office (registration number PAU 1-130-720).9
Smith subsequently licensed the Video to Channel 39, a local ABC affiliate in San Diego, which broadcast the attack on-air.10 Smith received three hundred dollars for this license.11 Smith also granted Channel 39 an interview to discuss the attack. In 1988, Smith licensed the Video to the Fox Broadcasting Company program A Current Affair and granted an interview in connection with the program (the "Fox Interview"), for which Smith was paid five hundred dollars.12 Smith does not hold the copyright to the Fox Interview.13
In the mid-1980s, Showboat Productions PTY Ltd. ("Showboat") produced a television series entitled The Extraordinary. Showboat and MG Perin agreed that MG Perin would be the exclusive distributor of The Extraordinary in the United States. As part of an episode that addressed orca attacks (the "Episode"), Showboat included several portions of the Fox Interview and thirtyseven seconds of the Video. The Episode identifies Smith by name, and he is clearly visible throughout the excerpts from the Fox Interview.
In 1994, MG Perin syndicated The Extraordinary, and it was broadcast on Fox. In 1996, Smith filed suit in the United States District Court for the Southern District of California alleging copyright infringement and supplemental state law claims. On September 16, 1996, the action settled pursuant to an agreement wherein Fox and MG Perin "agree[d] never to duplicate, display, distribute or perform" the Video and refrain from showing any portion of the Video again without a license from Smith.14 Since that date, Plaintiff has filed other suits related to unlicensed airings of the Video.15
On August 19, 2003, in violation of the Settlement Agreement, MG Perin granted UTN a license to broadcast ten episodes of The Extraordinary,16 including the Episode.17 MG Perin did not have Smith's authorization to grant a license to air the Video,18 and thus violated Smith's copyright.19 MG Perin received $200,000 in consideration for this license. UTN aired the episode on June 14, 2004, and in doing so, violated Smith's copyright.20
Smith filed the instant action in the Southern District of California on February 13, 2006.21 On July 7, 2006, that court granted Defendants' motion to transfer venue to this Court. On April 3, 2007, Smith amended the Complaint to add UTN as a defendant.22
Smith alleges that the Episode was broadcast on the Sci Fi channel, which he claims is operated by NBC.24 Smith has also named as defendants twenty unknown persons who are "responsible in some manner" for the alleged violations.25 Smith has alleged reproduction, distribution, and display of copyrighted works and preparation of derivative works in violation of sections 106(1), 106(3), 106(5) and 106(2) of title 17 of the United States Code.26 MG Perin and UTN have conceded that they violated Smith's copyright to the Video.27 Smith has also alleged violations of his common law and statutory rights of publicity,28 as, well as violations of his common law privacy rights.29 These claims are brought against all defendants. Smith has also accused MG Perm of breach of contract based on the alleged breach of the Settlement Agreement,30 and MG Perin has stipulated to the breach.31
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."32 An issue of fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"33 A fact is material when it "`might affect the outcome of the suit under the governing law.'"34 "It is the movant's burden to show that no genuine factual dispute exists."35
In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it must do more than show that there is "`some metaphysical doubt as to the material facts,'"36 and it "`may not rely on conclusory allegations or unsubstantiated speculation.'"37 However, "`all that is required [from a non-moving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at tria.'"38
In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party's favor.39 However, "[i]t is a settled rule that [c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.'"40 Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party."41
Smith's state law claims are governed by California law. Because this claim was originally filed in California and was transferred in accordance with section 1404(a), when interpreting state law, this Court will apply the law that would have been applied by the United States District Court for the Southern District of California.42 However, with respect to federal law, this Court is bound by the precedent of the Second Circuit.43
The California Supreme Court has explained that
The law of privacy comprises four distinct kinds of invasion of four different interests.... Without any attempt to exact definition, these four torts may be described as follows: 1. Intrusion upon the plaintiff's seclusion or solitude or into his private affairs. 2. Public disclosure of embarrassing private facts about the plaintiff. 3. Publicity which places the plaintiff in a false light in the public eye. 4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.44
Smith has asserted violations of the first, second and fourth of these rights.
California common law recognizes a right against "Thntrusion upon the plaintiff's seclusion or solitude or into his private affairs.'"45 The tort has two elements: "(1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person."46 Further, the intrusion must be intentional.47
Intrusion requires the plaintiff to demonstrate that 48
The cause of action for disclosure of private facts under California common law has four elements: "(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern."49
Thus, "[i]f the information reported has previously become part of the `public domain' or the intrusion into an individual's private life is only slight, publication will be privileged even though the social utility of the publication may be minimal."50 Similarly, the Supreme Court has explained that "the interests in privacy fade when the information involved already appears on the public record."51
California's right to publicity consists of the right "to prevent others from misappropriating the economic value generated by [a] celebrity's fame through the merchandising of...
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