Love v. Simmons

1

CYNTHIA LOVE, Plaintiff, v. CLARENCE IVY SIMMONS, JR., et al., Defendants.

No. 23-cv-2392

United States District Court, N.D. Illinois, Eastern Division

February 27, 2024

MEMORANDUM OPINION AND ORDER

Steven C. Seeger United States District Judge

Today Kanye West is one of the most famous - some might say infamous - artists in the music industry. But back in 2003 West was a little-known, up-and-coming rapper. And he got his big start from a setback. West shattered his jaw in a car accident. While recuperating in the hospital, with his jaw wired shut, inspiration struck.

West recorded a mixtape for a track called “Through the Wire.” The song became a break-out hit. It was West's debut solo single, and it jumpstarted his career.

The “Through the Wire” music video, recorded in 2003 was a hit, too. It has millions of views on YouTube. It took home the Video of the Year honor at the 2004 Source Hip Hop Awards.

That video is where Plaintiff Cynthia Love comes into the picture literally and figuratively. Love makes a short appearance in the “Through the Wire” music video. She does a little hoppity spin-dance in a barbecue restaurant, before asking West for some change. She looks unsteady, and sounds slurred. It is hard to tell if West looks impressed.

Decades later, clips of Love from that music video, plus previously unreleased footage, appeared in a 2022 docuseries released on Netflix, called “Jeen-yuhs: A Kanye Trilogy.” “Jeen-yuhs” has three parts, each about 90 minutes long. Footage of Love appears for less than two minutes.

Love takes issue with how she was portrayed in the clips taken in that BBQ restaurant decades ago. So she sued Netflix, along with documentarians Clarence Ivy Simmons, Jr. and Chike Antoine Ozah. She brought a host of tort claims. Defendants, in turn, moved to dismiss.

For the reasons stated below, the motion to dismiss is granted.

Background

At the motion-to-dismiss stage, the Court must accept as true the well-pleaded allegations of the complaint. See Lett v. City of Chicago, 946 F.3d 398, 399 (7th Cir. 2020). The Court “offer[s] no opinion on the ultimate merits because further development of the record may cast the facts in a light different from the complaint.” Savory v. Cannon, 947 F.3d 409, 412 (7th Cir. 2020).

The case is about a music video by Kanye West. If you're reading this opinion, and you haven't been living under a rock, you know who he is. West is one of the most well-known artists in the music industry. He's inescapable. And he's from Chicago.

West has gotten into some hot water over the years by opening his mouth. But his career began with his mouth shut - wired shut.

West shattered his jaw in an accident, and the hospital wired his jaw shut. The wire, it seems, spoke to him. He wrote a song called “Through the Wire,” which became his breakout hit.^[1] He got hit by a car, and then by an idea.

West promoted the song with a music video. The video begins with a nod to his wired jaw: “Last October grammy nominated producer KANYE WEST was in a nearly fatal car accident. His jaw was fractured in three places. Two weeks later he recorded this song with his mouth still wired shut . . . so the world could feel his pain!” Channelzerotv, Kanye West -Through The Wire, YouTube (Oct. 3, 2006), https://www.youtube.com/watch?v=uvb-1wjAtk4. (ellipsis in original). Along the way, the video shows clips of the medical staff wiring his mouth shut.

West recorded the video in 2003. See Cplt., at ¶¶ 12, 22 (Dckt. No. 1-1). The video garnered a lot of attention. It has tens of millions of views on YouTube.^[2]

Plaintiff Cynthia Love appears in the “Through the Wire” music video. The music video opens with Love dancing in the lobby of Original Leon's Bar-B-Q, a Chicago restaurant, for about 12 seconds. “Dancing” might be a strong word. She spins around, and seems to stumble a little. She doesn't look particularly adroit on her feet. And her speech sounds a bit slurred.

Love was paid $20 for her appearance. Id. at ¶ 14. Love says that she was in an altered state when filming the video. Id. at ¶ 15.

Defendants Clarence Ivy Simmons, Jr. and Chike Antoine Ozah were behind the camera when Love was filmed. Simmons and Ozah, known professionally as “Coodie and Chike,” made the “Through the Wire” video. Id. at ¶ 6. According to Love, Simmons and Ozah chose to feature her in the video because of her altered state. Id. at ¶ 16.

More recently, Simmons and Ozah created a docuseries about West, titled “Jeen-yuhs: A Kanye Trilogy.” Id. at ¶ 7. The docuseries was released on Netflix in February 2022, meaning 19 years after the making of the “Through the Wire” music video. Id. at ¶¶ 11, 18.

“Jeen-yuhs” features footage of Love from the “Through the Wire” video. Id. at ¶ 19. “Jeen-yuhs” also includes previously unreleased footage of Love at the barbecue restaurant. Id. Love appears briefly in episodes 1 and 2 of the trilogy.

Episode 1 shows West and Love in the lobby of the barbecue joint. Love jokes around with West about the making of the video. See “Jeen-yuhs” Documentary (Ep. 1), at 1:13:22 -1:14:03 (Dckt. No. 12-1). She does a more extended, elaborate “old-school” dance, apparently inspired by a Jay-Z music video for Izzo (H.O.V.A.). Hear generally Jay-Z, Izzo (H.O.V.A.) (2001).

As she twirls around, Love is laughing all the while. “We working on a new video.... It's yours. It's Kanye West's video.” See “Jeen-yuhs” Documentary (Ep. 1), at 1:13:22 -1:13:55 (Dckt. No. 12-1).

Love asks West for some change, he obliges, and she says, “God bless you, baby. Thank you for real.” Id. She gives West a hug. Id. The conversation ends after less than a minute. Episode 1 includes no commentary about Love from West or the narrator. Id.

Episode 2 includes a clip from the “Through the Wire” music video release party in 2003. See “Jeen-yuhs” Documentary (Ep. 2), at 1:04:43 - 1:04:52 (Dckt. No. 12-1). Footage from the video plays on a large screen at the party. The party itself happened two decades ago. Id.

According to the complaint, “Jeen-yuhs” captures Love's “darkest moments.” See Cplt., at ¶ 22 (Dckt. No. 1-1). It pictures her as “intoxicated, drunk and/or stoned, addicted and/or living in an addiction-fueled lifestyle, inebriated, vagrant and/or possibly homeless, broke, impoverished, disheveled, and desperate.” Id. at ¶ 20.

Since that day in the barbecue restaurant, Love has turned things around. She has stayed sober for almost two decades, renewed relationships with family and friends, and held down long-term jobs. Id. at ¶ 22. People learned about her checkered past for the first time after seeing “Jeen-yuhs.” Id.

Love filed suit against Netflix, Simmons, Ozah in Illinois state court. Id. Defendants removed the case to federal court. See Notice of Removal, at 1 (Dckt. No. 1).

Love brings 22 claims. For the most part, she filed the same claims against each Defendant. Basically, there are seven different claims against each defendant (7 x 3 = 21), plus a conspiracy claim against all three, for a total of 22 claims.

Counts I, II, and III allege defamation per se. See Cplt., at 4-8 (Dckt. No. 1-1). So, Count I is a defamation per se claim against Simmons, and Count II is a defamation per se claim against Ozah, and so on.

Counts IV, V, and VI allege defamation per quod. Id. at 8-10.

Counts VII, VIII, and IX are false light claims. Id. at 10-14.

Counts X, XI, and XII allege unlawful publicity in violation of the Illinois Right of Publicity Act, 765 ILCS 1075.^[3] Id. at 14-17.

Counts XIII, XIV, and XV allege intentional infliction of emotional distress. Id. at 17 20.

Count XVI alleges that Netflix, Simmons, and Ozah were in a civil conspiracy. Id. at 20.

Counts XVII, XVIII, and XIX are for quantum meruit. Id. at 20-23.

Finally, Counts XX, XXI, XXII are for unjust enrichment. Id. at 23-25.

Defendants moved to dismiss each of the counts for failure to state a claim. See Mtn. to Dismiss, at 1 (Dckt. No. 11).

Legal Standard

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not the merits of the case. See Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a motion to dismiss, the Court must accept as true all well-pleaded facts in the complaint and draw all reasonable inferences in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive, the complaint must give the defendant fair notice of the basis for the claim, and it must be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

When reviewing a motion to dismiss under Rule 12(b)(6), the court may consider “the complaint itself, documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). “When an exhibit incontrovertibly contradicts the allegations in the complaint, the exhibit ordinarily controls, even when considering a motion to dismiss.” Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013).

And that principle extends to video recordings attached to or referenced in a complaint. Id.; see also Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 691 (7th Cir. 2012).

Analysis

Before diving in, the Court offers an overarching observation. Love's claims center around her appearance in “Jeen-yuhs.” The “Jeen-yuhs” series features...