Wednesday, January 21, 2009
Court Dismisses Suit Over Television Appearance as SLAPP
By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal yesterday struck a lawsuit by a man who sued for misappropriation of his persona after he appeared on an episode of a “reality” television show about musician Gene Simmons of the rock band KISS as a strategic lawsuit against public participation.
In an unpublished opinion, Div. Seven affirmed Los Angeles Superior Court Judge Haley J. Fromholz’s dismissal of Steven Greenstein’s claim against the alleged producer and distributor of “Gene Simmons Family Jewels” for compensation based on Greenstein’s appearance in the program.
A production company headed by Leslie Greif hired Greenstein’s production company to film a segment of the documentary-style 30-minute television show following Simmons when he made an appearance in New Orleans for the Mardi Gras Parade.
Greenstein claimed Greif had told him he would not be able to appear on camera, but once Simmons arrived in New Orleans, Greenstein interacted with Simmons several times before the cameras while acting as an escort for Simmons and his entourage.
Greenstein testified that he knew that his interactions with Simmons were being filmed for the television show, and he wore a microphone so that his voice could be recorded. He also reviewed the raw footage at the end of each day to ensure the quality of the work performed by the camera crew.
As part of his production duties, Greenstein prepared a sign to be held up at all times during filming which stated that the television show was being videotaped and informing persons in its vicinity that they may be photographed.
“Your presence in this area shall be deemed consent to photograph you, to record your voice, and to exploit such image, photographs and sound recordings in this program and other programs in all media, worldwide, in perpetuity,” the sign stated.
The sign was intended to inform the public that filming was taking place in a public area, and anyone who was filmed had to sign a release for their appearance, Greenstein claimed.
Although Greif and another producer testified that they had seen Greenstein sign a release, Greenstein asserted that he had never done so because he believed that he would have to be compensated if he appeared in the final version of the episode and did not sign a release.
Over a year after the New Orleans filming was completed, a representative from Greif’s company asked Greenstein to provide a signed release but Greenstein refused.
Greenstein claimed that his attorney attempted to negotiate a release in exchange for compensation but received no response. Greenstein did not introduce any evidence of discussions with the show’s producers either before or during filming about his unwillingness to sign a release unless he was paid.
A&E Television Networks subsequently broadcast the episode in which Greenstein appeared. Greenstein did not receive any payment for his appearance on the program and filed suit against Greif’s company and the network for the alleged unauthorized use of his persona.
The defendants filed a special motion to strike the complaint, which the trial court granted, finding that the action arose from a protected activity because the television show concerned an issue of public interest and Greenstein had consented to the use of his persona in the program.
Writing for the appellate court, Justice Laurie D. Zelon explained that Simmons was clearly a public figure and the television program about his celebrity lifestyle was therefore an issue of public interest. The fact that the show was a reality-based series as opposed to a traditional news program did not preclude it from receiving constitutional protection, Zelon added.
Although Greenstein was not a public figure, Zelon reasoned that he had knowingly and willingly become involved in an issue of public interest when he was filmed interacting with Simmons and his entourage.
“The purpose of the television program was to show the audience what happened when a film crew followed a celebrity as he went about his unscripted daily activities,” Zelon wrote. “By voluntarily interacting with Simmons as the cameras were rolling, Greenstein interjected himself into an issue of public interest.”
As for the lack of a release, Zelon explained that neither the statutory nor common law cause of action for misappropriation requires consent be given in writing.
Apart from Greenstein’s assertion that the sign he prepared that was displayed at all times during the New Orleans filming was not intended to be a substitute for a written release, Zelon noted Greenstein did not offer any evidence as to what the defendants’ intent was in having him display the sign or the basis for his claimed belief that the sign could not constitute consent.
Based on the plain wording of the sign, which stated that an individual’s presence in the area was deemed consent, Zelon concluded the sign was sufficient establish Greenstein had consented to appearing in the episode.
Even in the absence of the sign, Zelon noted Greenstein conduct in interacting with Simmons, wearing a microphone during filming, and reviewing the raw footage in which he appeared evidenced his consent.
Because Greenstein did not set forth sufficient facts to demonstrate his lack of consent, Zelon concluded, he could not prove a probability of prevailing on the merits of his common law or statutory misappropriation claims and so the trial court’s grant of the special motion to strike was proper.
Presiding Justice Dennis M. Perluss and Justice Fred Woods joined Zelon in her opinion.
Timothy A. Hall and Stephanie R. Ables of the Law Offices of Hall & Lim represented Greenstein, while Walter R. Sadler and Thomas J. Peistrup of Leopold, Petrich & Smith represented the Greif Company and A&E.
The case is Greenstein v. The Greif Company, B200962.
Copyright 2009, Metropolitan News Company