Judge Rules Bobby Brown's Consent Not Needed for Showtime's Whitney Houston Doc

Can I Be Me Still - Publicity - H 2017
David Corio/SHOWTIME

In the course of producing dramatized versions of real events, producers often make "life rights agreements" with subjects. But once again, while these producers may prefer the peace of mind of not being sued and gaining the cooperation of those featured, there's really no such thing as "life rights."

The reminder comes in a lawsuit brought by Bobby Brown and his daughter's estate against Showtime and BBC over a Whitney Houston documentary titled Can I Be Me? In a complaint in New York federal court, the Browns objected to footage that was used without their consent. They claimed a violation of their right of publicity as well as the Lanham Act.

In a decision Friday, U.S. District Court Judge Colleen McMahon dismisses the lawsuit.

After a lengthy discussion over whether the court has jurisdiction over BBC (she ultimately rules no), McMahon gets to the right of publicity claims and the defendants' First Amendment arguments.

"Whitney: Can I Be Me, by virtue of being an expressive work, is protected under the First Amendment," writes the judge. "Here, Defendants and the film's directors, producers, and associated creative staff drew upon the raw materials of Whitney Houston's life story and created a film depicting that story. Courts applying California law have consistently held that films and television programs based on true events are constitutionally protected expressive works."

She also finds the film to be protected as a "matter of public interest," ruling that "appropriation of a celebrity's likeness may be important to uninhibited debate on public issues, particularly debate about culture and values."

As for Brown's objection that he never signed a "video release form" authorizing the use of his likeness in the motion picture, McMahon responds that no such agreement is needed.

"It is true that producers of films and television programs often enter into agreements with individuals portrayed in those works for a variety of reasons, including obtaining access to the person's recollections or 'story' the producers would not otherwise have, or a desire to avoid litigation for payment of a reasonable fee," states the opinion. "But no acquisition agreement is required where First Amendment concerns are implicated. The cases on which Plaintiffs rely in their opposition memorandum are inapposite. Each of them involves the misappropriation of a celebrity's persona, likeness and/or voice for use in commercial advertisements."

The judge dismisses Lanham Act claims after finding that Brown's appearance in a film about his ex-wife has "artistic relevance" and there's nothing explicitly misleading. The producers "specifically identify the persons responsible for the film, and Bobby Brown is not among them," writes the judge, adding that none of the reviews of the film in evidence stated a mistaken belief that Brown endorsed it.

Brown also pled contract and tortious interference claims premised on his deals for the Bravo reality series Being Bobby Brown. He says unauthorized footage from that series wound up in the Whitney Houston documentary despite contractual restrictions.

Those claims under state law don't immediately fail on the merits, but the federal judge declines to exercise jurisdiction over them. Brown is free to pursue them in a state court.

Here's the full decision.