Opinion
01 Civ. 4375 (RCC) (KNF)
September 30, 2003
OPINION AND ORDER ACCEPTING REPORT AND RECOMMENDATION
I. Introduction
Jeremiah Cummings ("Plaintiff") filed this action, pro se, against Sony Music Entertainment Inc. ("Defendant") alleging it engaged in the unauthorized use of his image, name and vocals on eight compact disc recordings performed by the musical group, Harold Melvin The Blue Notes. The case is now before the Court on Defendant's motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).
As recommended in the Report and Recommendation, the Court concludes that Plaintiff has failed to state a cause of action alleging that Defendant engaged in the unauthorized use for commercial purposes of Plaintiff s name and voice.
Although originally assigned to Judge Whitman Knapp, this case was recently reassigned to this Court. (See Dkt. No. 14.)
In a Report and Recommendation, dated August 27, 2003 ("Report"), Magistrate Judge Kevin Nathaniel Fox recommended that Defendant's motion to dismiss be granted in part and denied in part. First, the Report concluded that plaintiff's claims concerning five compact discs, which were released prior to May 10, 2000, are time barred under New York law and should be dismissed. The Report recommended that plaintiff's claims with respect to three of the compact discs, released after May 10, 2000, are not time barred and thus should not be dismissed. Second, the Report concluded that Defendant had not sustained its burden of demonstrating that Plaintiff can prove no set of facts to support his claim brought under Florida's right of publicity statute and to support his common law invasion of privacy claim. The Report therefore recommended that Defendant's motion to dismiss these claims be denied. Third, the Report concluded that because the First Amendment provides no right to use an individual's identity without his consent as a vehicle for the promotion of a commercial product, Defendant's argument to dismiss premised on the First Amendment should be denied. Finally, the Report recommended that the Court deny Defendant's motion to dismiss the complaint on the ground that Plaintiff failed to comply with Federal Rule of Civil Procedure 8.
In particular, these five compact discs are: Collector's Item, Wake Up Everybody, If You Don't Know Me By Now: The Best of Harold Melvin The Blue Notes, Blue Notes Ballads, and Super Hits.
These three compact discs are: The Ultimate Blue Notes, My Blue Heaven and For Real.
The Court applies Florida substantive law to plaintiff's claims, which is the law of plaintiff's domicile. See Rogers v. Grimaldi, 875 F.2d 994, 1001 (2d Cir. 1989) ('"Right of publicity claims are governed by the substantive law of the plaintiff's domicile because rights of publicity constitute personalty."). Nevertheless, New York law applies to questions of procedure, such as Defendant's statute of limitations argument.
Thereafter, Defendant filed timely objections to the Report. In light of a question recently certified to the Florida Supreme Court addressing Florida's right of publicity law, see Tyne v. Time Warner Entertainment Co., 336 F.3d 1286, 1291 (11th Cir. 2003), Defendant objects to the Report's recommendation that Defendant's use of Plaintiff s "likeness" on three compact disc covers is actionable under Florida law. Defendant, however, does not request that this Court reject the Report and dismiss plaintiff's complaint outright, but rather moves to stay the case until the Florida Supreme Court answers the certified question. Defendant contends that a stay is warranted because there exists a "substantial likelihood" that the Florida Supreme Court's construction of Florida's right of publicity law will impact this case. (See Dkt. No. 17: Def.'s Objections, at 5.) For the reasons that follow, Defendant's request for a stay is denied and the Report is adopted in is entirety.
II. Discussion
As a threshold matter, the Court notes that neither party objected to the Report's recommendation that the Court: (1) dismiss plaintiff's claims concerning the five compact discs released prior to May 10, 2000 as time barred under New York law; (2) deny Defendant's motion to dismiss on First Amendment grounds; and (3) deny Defendant's motion to dismiss on the ground that Plaintiff failed to comply with Federal Rule of Civil Procedure 8. The Court has reviewed these recommendations and is satisfied that there is no clear error on the face of the record. Accordingly, the Court accepts and adopts those portions of the Report.
In light of Defendant's objection, the Court has reviewed de novo the Report's recommendation that it deny Defendant's motion to dismiss plaintiff's right of publicity and invasion of privacy claims. Fed.R.Civ.P. 72(b). Having done so, for the reasons that follow, the Court accepts and adopts the Report's recommendation.
Florida's statutory right of publicity law provides that:
(1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by . . . [s]uch person. . . . (2) In the event the consent required in subsection (1) is not obtained, the person whose name, portrait, photograph, or other likeness is so used . . . may bring an action to enjoin such unauthorized publication . . . and to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages.
Defendant maintains that the Report erroneously relied on Gritzke v. M.R.A. Holding, LLC, 2002 WL 32107540, at *1 (N.D. Fla. Mar. 15, 2002), in recommending that Defendant's motion to dismiss be denied. Instead, Defendant asserts that: (1) Tyne is more akin to the circumstances of this case and (2) in light of the question certified in Tyne, the Florida Supreme Court may clarify the scope of Florida's right of publicity law in Defendant's favor. Defendant therefore requests that this case be stayed until the Florida Supreme Court renders a decision in Tyne. To address Defendant's objection, the Court now examines the Tyne case.
In Tyne, survivors of individuals killed aboard the fishing vessel the Andrea Gail, sued the producers and distributors of the movie The Perfect Storm for violations of Florida's right of publicity statute and for invasion of privacy. The Tyne plaintiff's alleged these violations stemmed from defendants depicting the lives and deaths of their deceased family members in the movie, without seeking permission from them or compensating them in any way. The district court granted defendants summary judgment, reasoning that "plaintiff's have presented no evidence showing that their names and likenesses were used'to directly promote' The Perfect Storm:" Tyne v. Time Warner Entm't Co., 204 F. Supp.2d 1338, 1342 (M.D. Fla. 2002). Thus, the district court narrowly interpreted section 540.08 and concluded that it extended only to the promotion of a product, and not to the use of an individual's name or likeness in an expressive medium. Id. at 1341 (stating that "using an individual's name or likeness in a publication is not actionable under § 540.08."). In reaching this conclusion, the Tyne district court heavily relied on Loft v. Fuller, 408 So.2d 619 (4th Dist. 1982), in which a Florida court of appeals likewise held that the section 540.08 is triggered only when "a person's name or likeness is used for commercial trade or advertising purposes. The use of [an individual's] name in [a] publication. and the use of his name in the subsequent movie do not constitute commercial trade or advertising as those terms are used in the statute." Id. at 621.
Appealing to the Eleventh Circuit, the Tyne plaintiff's asserted the district court's application of the statute, although it aligned withLoft, would result in section 540.08 covering only the promotion or advertising of a product, thus rendering the statute's use of the term "any commercial . . . purpose" mere surplusage. Put another way, theTyne plaintiff's asserted that if section 540.08 were read to solely prevent the unauthorized use of a name to promote a product, it would render the term "commercial" meaningless. Confronted with this novel question as to section 540.OS's proper interpretation and the applicability of the Loft decision to Tyne, the Eleventh Circuit certified the following question to the Florida Supreme Court: "To what extent does Section 540.08 of the Florida Statutes apply to the facts of [Tyne]."Tyne, 336 F.3d at 1291.
Despite Defendant's protestations, the facts underlying plaintiff's claims are distinguishable from the facts underlying Tyne. Here, plaintiff's remaining claims allege that Defendant violated section 540.08 when it featured plaintiff's photograph on the outside cover of the compact discs The Ultimate Blue Notes, My Blue Heaven and For Real. In comparison, the Tyne plaintiff's alleged that Time Warner engaged in the unauthorized use of individuals' likeness when it depicted the life of these individuals in a motion picture. This fact is of utmost importance in a section 540.08 case, because as the Eleventh Circuit noted in Tyne, courts have only extended Florida's right of publicity statute to protect individuals from the unauthorized use of their names or likeness solely in the context of an advertisement or promotion. See id. at 1290. As the Eleventh Circuit noted, the Florida courts have thus far construed section 540.08 narrowly. Tyne therefore now raises the question of whether section 540.08 ought to be more broadly construed, such that it would apply not only to uses that "directly promote [a] product or service," but also to uses for "any commercial purpose." Id. at 1291. If the Florida Supreme Court were to broadly interpret section 540.08, the Tyne plaintiff's may properly assert that by depicting the lives and deaths of their deceased family members in a movie, without consent, the producers and distributors violated Florida's right of publicity statute.
The Court concludes that whatever the outcome in Tyne, plaintiff's remaining claims will remain unaffected. As the Report concluded, even under the narrow reading currently applied to section 540.08, plaintiff's claims withstand Defendant's motion to dismiss. For instance, plaintiff's claims parallel those underlying Gritzke, where a Florida college student was videotaped exposing her breasts as part of a Mardi Gras crowd. See 2002 WL 32107540, at * 1 (N.D. Fla. Mar. 15, 2002). A picture of the student's indiscretions was then disseminated on a videotape package of a video entitled, "Girls Gone Wild." See id In denying the defendant's motion to dismiss the student's complaint, the district court held that because the student "squarely alleged that defendant published her photograph in Florida for commercial and advertising purposes — specifically on the package of defendant's videotape" without her permission, she had stated a claim under section 540.08. See id. The Report concluded, and the Court agrees, that as in Gritzke, Sony made Plaintiff the focus of the compact disc's promotion by displaying his likeness on their packages. Accordingly, the Report rightly concluded that by placing plaintiff's likeness on merchandise marketed by Defendant, without plaintiff's permission, Defendant has publicly used plaintiff's photograph for commercial purposes. The Court therefore concludes that even under the narrow reading of section 540.08 — not challenged in Tyne — Plaintiff states a claim under Florida's right of publicity statute. Accordingly, Defendant's motion for a stay and Defendant's earlier motion to dismiss plaintiff's section 540.08 claims are denied.
Defendant also believes that the Florida Supreme Court may hold that section 540.08 is wholly inapplicable to expressive medium, such as the movie produced in Tyne or the compact discs at issue here. (See Dkt. No. 17: Def.'s Objections, at 1.) Defendant asserts that should the Florida Supreme Court so rule, dismissal of plaintiff's remaining claims would be warranted. Having considered the Tyne case and the precise question certified to the Florida Supreme Court, Defendant's assertion appears speculative, at best. The Court concludes that ordering a stay of this case based upon Defendant's mere speculation and guesswork as to what the Florida Supreme Court might hold, would prejudice plaintiff's right to timely prosecute his remaining claims.
Finally, as stated in the Report, under Florida law, the common law claim of invasion of privacy tracks the elements of section 540.08. For the reasons discussed above, Defendant's motion to dismiss plaintiff's invasion of privacy claims is also denied.