Joan Rivers Wins Privacy Dispute at Appeals Court

A woman who approached the comedian and appeared briefly in her 2010 documentary didn't have a reasonable expectation of privacy.
Dee Cercone/Everett Collection/Newscom

What do Jay Leno, Sacha Baron Cohen and Morgan Spurlock all have in common?

They've all beaten lawsuits from non-famous individuals who unwittingly found themselves shown on TV and film.

Now add comedian Joan Rivers to this list.

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On Thursday, the 7th Circuit Court of Appeals affirmed a lower court's dismissal of a suit from a woman who appeared for sixteen seconds -- or 0.3 percent, according to judicial math -- in the documentary Joan Rivers: A Piece of Work.

Ann Bogie, the plaintiff, sued Rivers, IFC Films and others for invading her privacy and misappropriating her image.

In the documentary, Rivers gives one of her stand-up routines and makes a joke about Helen Keller. (She said that she doesn't like children but would make an exception for Keller "because she didn't talk.") One audience member, who had a deaf son, took offense and heckled her.

After the concert ended, Rivers was approached by Bogie backstage, and the two had a conversation that was captured on film. Bogie told Rivers that she "never laughed so hard" in her life. She mentioned that "rotten guy" -- referring to the heckler -- and, after Rivers expressed sympathy for the heckler, Bogie responded, "I was ready to get up and say ...'Tell him to leave.'"

Bogie apparently regretted those comments and sued.

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But the appellate court says that her privacy claim won't fly.

"[Bogie] voluntarily approached a celebrity just after a public performance," the appeals judges writes. "Any reasonable person would expect to encounter some kind of security presence, and indeed here that presence was visible. Furthermore, the camera crew must have also been visible to Bogie as they were filming both Rivers and, of course, Bogie. Courts have found that even performers themselves cannot count on a reasonable expectation of privacy in their own backstage areas."

Speaking of expectations, the fact that film producers often get non-famous people who appear on film to sign consent forms seems to have conditioned people to expect that a lack of a signed document means that there's no right to film them. But, increasingly, courts are making clear that's not the case. Indeed, those consent waivers appear to be done out of extra-special caution.

Warner Bros. was once sued over a Woodstock  documentary by a stage performer who appeared for 45 seconds in the film. NBC was once sued over a segment of The Tonight Show with Jay Leno that features people making (supposedly) humorous and embarrassing mistakes. Sacha Baron Cohen was once sued by a man who screamed "Get away!" after he introduced himself, "Hello, nice to meet you. I'm new in town. My name a Borat."

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What these cases have in common is that courts have found they fit the "newsworthiness exception" to misappropriation of image claims. The Rivers documentary qualifies, too.

"The public's interest in Rivers' long career and fame in general clearly puts this case on par (at least legally) with films about Woodstock and the fictional Borat," says the appeals court, with its own film criticism in parentheses.

Finally, Rivers also gets the same respect given to Spurlock when he was sued for including a woman for three-to-four seconds in Supersize Me on a hidden camera and the same leeway given to Warner Bros. over its Woodstock film.

"Surely the district court was correct in finding a sixteen-second clip of an autograph session in a eighty-two-minute documentary about Joan Rivers was also incidental."

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