Armstrong v. Eagle Rock Entertainment, Inc.

Page 779

655 F.Supp.2d 779

Ralphe ARMSTRONG, Plaintiff, v. EAGLE ROCK ENTERTAINMENT, INC., Defendant.

Case No. 09-CV-11704.

United States District Court, E.D. Michigan, Southern Division.

September 10, 2009.

Order Denying Reconsideration November 17, 2009.

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Jeffrey P. Thennisch, Hattem A. Beydoun, Dobrusin and Thennisch, Pontiac, MI, for Plaintiff.

Brian D. Wassom, Herschel P. Fink, Honigman, Miller, Detroit, MI, for Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S "MOTION FOR JUDGMENT ON THE PLEADINGS, MOTION FOR SUMMARY JUDGMENT IN THE ALTERNATIVE"

ROBERT H. CLELAND, District Judge.

Pending before the court is a "Motion for Judgment on the Pleadings, Motion for Summary Judgment in the Alternative," filed by Defendant Eagle Rock Entertainment, Inc. ("Eagle Rock") on July 2, 2009. Having reviewed the briefs, the court concludes a hearing on this motion is unnecessary. See E.D. Mich. LR 7.1(e)(2). For the reasons stated below, the court will grant Defendant's motion.

I. INTRODUCTION

The subject of this dispute is a DVD entitled, "Mahavishnu Orchestra, Live at Montreux, 1984, 1974," which includes video and still pictures of Plaintiff Ralphe Armstrong, a professional bass player and a member of the Mahavishnu Orchestra in 1974. On April 6, 2009, Armstrong filed an action against Eagle Rock in the Oakland County Circuit Court, asserting claims for common law right of publicity (Count I), false designation of origin under Section 43(a) of the Lanham Act (Count II), common law right of privacy (Count III), and unjust enrichment (Count IV). On May 5, 2009, Defendant filed a notice of removal in this court, and subsequently filed a "Motion for Judgment on the Pleadings, Motion for Summary Judgment in the Alternative." The parties stipulated to a dismissal of Count I and Count IV, and on August 27, 2009, a "Stipulated Order of Partial Voluntary Dismissal" was issued dismissing these counts with prejudice. Accordingly, only the claim for "false designation of origin under Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a))" and the claim for violation of Plaintiff's right to privacy "stemming from the Defendant's asserted misappropriation" of Plaintiff's "name, image, and likeness" remain before the court. (Pl.'s Resp. at 1.)

II. BACKGROUND

Plaintiff is a professional musician, playing both the upright bass and bass guitar. (Armstrong Aff. ¶ 4.) He has an extensive music catalog, which includes working with other musicians and groups on at least thirty-eight separate works. (Id. ¶ 9.) He has performed, recorded, and collaborated with many well-known artists, including Aretha Franklin, B.B. King, Carlos Santana, Curtis Mayfield, Herbie Hancock, Sting, and The Temptations, among others. (Id. ¶ 10.) He has served as a spokesman and appeared in advertisements for Gibson, a manufacturer of musical instruments. (Id. ¶ 12.) Throughout his career, Armstrong has received many awards, including a "Gold Record" award from the Recording Industry Association of America (Pl.'s Ex. F), a "Special Tribute" from the Michigan legislature (Pl.'s Ex. G), and induction into the Gibson Guitar Hall of Fame (Pl.'s Ex. E).

In 1974, at the age of seventeen, Armstrong played the bass guitar with Mahavishnu Orchestra at the Montreux Jazz Festival in Switzerland. (Armstrong Aff. ¶ 6.) The Mahavishnu Orchestra is a "world-renown[ed] jazz-rock fusion group" led by John McLaughlin, and Armstrong played with the group from 1974 to 1976. (Id.) The Montreux Jazz Festival, "a prestigious gathering of eclectic musical artists," has been held in Switzerland each year since 1967. (Def.'s Mot. at 1). "Each annual Montreux Jazz Festival since 1967 has been recorded by Montreux Sounds or its predecessor." (Roy Aff. ¶ 6.) Armstrong, however, alleges that he "did not consent to any audio or video recordation of [his] person while performing, engaging, or participating in the 1974 Montreux Performance." (Armstrong Aff. ¶ 6.) Further, he alleges that he "did not sign or agree to any type of consent document or arrangement relating to the recordation." (Id.) Armstrong does admit to seeing the video cameras, but he states that he did not think he was being recorded and thought that he was "only being simulcast on other screens at the Montreux Festival and possibly televised on Swiss Television." (Id. ¶ 7.)

Eagle Rock produces and sells a two-disc DVD, entitled "Mahavishu Orchestra[,] Live at Montreux[,] 1984[,] 1974," which "depicts performances by the `Mahavishnu Orchestra' musical group at the Montreux Jazz Festivals held in 1974 and 1984." (Roy Aff. ¶ 3.) Montreux Sounds SA owns the performance copyrights. (Def.'s Ex. A.) "The owners of the copyright to the recordings on the DVD Set have given Eagle Rock permission to publish those recordings." (Roy Aff. ¶ 4.) Armstrong appears on the 1974 disc playing bass guitar with the Mahavishnu Orchestra. (Id. ¶ 5.) He also appears on a photograph on the back cover of the DVD and in two photographs in the "liner notes contained within the DVD set packaging." (Id. ¶ 7.) The back cover of the DVD, above the picture containing Armstrong, states,

Founded in 1967, the MONTREUX JAZZ FESTIVAL has established itself as one of the most prestigious annual music events in the world. The extraordinary list of artists who have played there is drawn from across the musical spectrum and from around the world. Now, with the consent of the festival and artists, Eagle Vision is making these concerts available on DVD for the first time.

(Def.'s Ex. A.) Armstrong denies ever giving his consent to this DVD and brought an action seeking an injunction and an accounting of profits and other damages. (Armstrong Aff. ¶ 8.) Eagle Rock filed a motion for judgment on the pleadings and/or summary judgment based on the First Amendment and the Copyright Act.

III. STANDARD¹

Under Federal Rule of Civil Procedure 56, summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). "In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor." Sagan v. United States, 342 F.3d 493, 497 (6th Cir.2003). "Where the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial, entry of summary judgment is appropriate." Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

The court does not weigh the evidence to determine the truth of the matter, but rather, to determine if the evidence produced creates a genuine issue for trial. Sagan, 342 F.3d at 497 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The moving party must first show the absence of a genuine issue of material fact. Plant v. Morton Int'l, Inc., 212 F.3d 929, 934 (6th Cir.2000) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548). The burden then shifts to the nonmoving party, who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). He must put forth enough evidence to show that there exists a genuine issue to be decided at trial. Plant, 212 F.3d at 934 (citing Anderson, 477 U.S. at 256, 106 S.Ct. 2505). Summary judgment is not appropriate when "the evidence presents a sufficient disagreement to require submission to a jury." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505 (1986).

The existence of a factual dispute alone does not, however, defeat a properly supported motion for summary judgment— the disputed factual issue must be material. See id. at 252, 106 S.Ct. 2505 ("The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict— whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'" (alteration in original) (citation omitted)). A fact is "material" for purposes of summary judgment when proof of that fact would establish or refute an essential element of the claim or a defense advanced by either party. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) (citation omitted).

IV. DISCUSSION

A. Common Law Right to Privacy

The common-law right to privacy encompasses four types of invasion of privacy. Battaglieri v. Mackinac Center for Public Policy, 261 Mich.App. 296, 680 N.W.2d 915, 919 (2004). The type of invasion-of-privacy claim brought by Plaintiff is "[a]ppropriation, for the defendant's advantage, of the plaintiff's name or likeness."² Id. Unlike the other privacy torts "appropriation does not require falsity." Bowens v. Aftermath Entertainment, No. 250984, 2005 WL 900603, at *1 (Mich.Ct. App. Apr. 19, 2005). Also, unlike the other privacy torts, the right protected by the appropriation tort is not "plaintiff's right `to be let alone.'" Arnold v. Treadwell, No. 283093, 2009 WL 2136909, at *4 (Mich. Ct.App. July 16, 2009). Instead, the right protected "`is in the nature of a property right,' which the tort recognizes as being violated whenever `the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit.'" Battaglieri, 680 N.W.2d at 919 (quoting Restatement (Second) of Torts § 652C, cmt. b). "[A]ny unauthorized use of a plaintiff's name or likeness, however inoffensive in itself, is actionable if that use results in a benefit to another." Id. Based on these principles, Michigan courts have set...