Dora v. Frontline Video, Inc.
93 Cal. Daily Op. Serv. 3209, 18 Cal. Rptr. 2d 790, 15 Cal.App.4th 536 (1993)
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Rule of Law:
The use of a person's name or likeness in a work concerning a matter of public interest, such as a historical documentary, is constitutionally protected and does not constitute an actionable appropriation, either at common law or under a statutory right of publicity that exempts uses related to "public affairs."
Facts:
- In the 1950s, Mickey Dora became a 'legendary figure' in the surfing community at Malibu Beach.
- Dora's exploits and presence at Malibu became part of the 'folklore of the sport.'
- In 1987, Frontline Video, Inc. produced a video documentary titled 'The Legends of Malibu,' which chronicled the history and personalities of the early surfing era at that location.
- The documentary included historical footage, photographs, and audio of an interview featuring Dora.
- Dora did not consent to Frontline Video's use of his name, photograph, likeness, or voice for the documentary.
Procedural Posture:
- Mickey Dora sued Frontline Video, Inc. in a California trial court for common law appropriation and for violating California's statutory right of publicity.
- Frontline Video, Inc. filed a motion for summary judgment, arguing its use of Dora's likeness was constitutionally protected and statutorily exempt.
- The trial court granted the summary judgment motion in favor of Frontline Video, Inc.
- Mickey Dora (appellant) appealed the trial court's judgment to the California Court of Appeal.
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Issue:
Does the use of a person's name, voice, and likeness in a documentary about a topic of public interest, without that person's consent, constitute a tortious appropriation or violate a statutory right of publicity?
Opinions:
Majority - Nott, J.
No. The use of a person's name, voice, and likeness in a documentary about a topic of public interest does not constitute a tortious appropriation or statutory violation because such expression is protected. Under the common law, publications concerning matters of public interest are constitutionally protected against appropriation claims. The court found that the subject of the documentary—the Malibu surfing scene—was a matter of public interest because it chronicled a lifestyle that had a significant cultural and economic impact. This protection is not limited to current events but extends to historical biographies and documentaries. Under California Civil Code § 3344, which provides a statutory right of publicity, there is an explicit exception for uses in connection with 'news, public affairs, or sports broadcast or account.' The court interpreted 'public affairs' broadly to include subjects of general public interest that are not necessarily political or hard news, concluding that a documentary about the cultural phenomenon of surfing falls squarely within this exception.
Analysis:
This case significantly clarifies the 'public interest' or 'newsworthiness' defense to the tort of appropriation and the statutory right of publicity. It establishes that documentary films, even if commercially produced, are afforded robust First Amendment protection when they cover topics of cultural or historical significance. By interpreting the statutory term 'public affairs' broadly, the decision provides considerable legal protection to creators of biographical and historical works, allowing them to incorporate the likenesses of individuals central to a story without consent. This precedent solidifies the principle that the right of publicity must yield to the public's right to receive information about matters of cultural and social importance.
