The legal concept of invasion of privacy by false light could end up leaving the music network MTV in the dark.

In Savely v. MTV Music Television, the Federal District Court for the District of New Jersey denied MTV’s motion to dismiss a suit filed by a street musician. The musician asserted that he did not consent to having footage of his performance included in a documentary the network aired. Savely v. MTV Music Television, 2011 WL 2923691 (D.N.J.).  

Michael Savely, a drummer who performs daily as “Mike Alaska” on New York subway platforms, claimed that he was approached by MTV representatives during one of his routines last November. The representatives asked whether they could film his performance for use in an upcoming documentary. Savely reviewed a contract with which the representatives presented him. He then returned the contract; declined their offer to use footage of him; and told them he did not consent to being filmed. In spite of his refusal, a four-second clip of Savely’s performance was included in a program about the life and career of rap artist Nicki Minaj that debuted on November 28, 2010.

Savely filed suit against MTV asserting three claims of invasion of privacy. The Court granted MTV’s motion to dismiss two of Savely’s claims: (a) invasion by appropriation of name, likeness or identity and (b) invasion by publication of private facts. (A motion to dismiss generally allows a court to throw out prior to trial claims that are without legal merit).

However, the Court denied MTV’s motion to dismiss Savely’s other claims that the network invaded his privacy by false light. According to Savely, the inclusion of the footage of him in the documentary associated him with Minaj, an artist that he said – through her profane lyrics and provocative attire – glorified a lifestyle that was contrary to the image that he chose for himself as a performer and music teacher (drum lessons).

Under New Jersey law, the invasion of privacy can occur under a number of different circumstances. One of them is when “[o]ne who gives publicity to a matter concerning another…places the other before the public in a false light. This breaks down into two elements:

  1. the false light in which the other was placed would be highly offensive to a reasonable person and
  2. the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

See Cibenko v. Worth Publishers, Inc., 510 F.Supp. 761, 766 (D.N.J. 1981).

Savely asserted that the unprofessional quality and sounds of the footage included in the documentary reflected poorly on him. He also asserted that as a performer, the implied association between Minaj and him portrayed him in a false, unfavorable and disparaging light. In support of this assertion, Savely cited the facts that  the use of the footage caused (a) his fans to criticize him; (b) the parents of his students to terminate his teaching services;  and (c) sales of t-shirts with his image to decline. He said that part of his reason for declining MTV’s offer to be included in the documentary was his fear that association with the “wrong” artist would cost him significant business.

MTV argued, in part, that the footage of Savely was not distorted in any way and that images of him were not distinctly linked to Minaj or any substantive themes of the documentary. However, the Court noted that a claim of invasion of privacy by placing the other before the public in a false light would not require that MTV’s action defamed Savely, but instead merely that the network’s action was “something that would be objectionable to the ordinary reasonable man.” Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 334 (Law Div.1967).

The Court’s decision to deny MTV’s motion to dismiss does not mean the network is guilty for invading Savely’s right to privacy. Instead, it allows Savely’s claim that he was publicized in a false light to continue because the facts he alleged, if proven to be true, could support his claim. Additionally, the Court noted, the question of whether the documentary is capable of bearing a particular meaning that is highly offensive to a reasonable person is one for the Court to decide.

The Court’s decision not to deny MTV’s motion to dismiss is significant for entertainment companies and individuals that record the image and likeness of people for use during those individuals’ projects. Savely’s suit demonstrates the significance of receiving consent from those who are included during a television broadcast, movie or similar medium and the consequences of including those who refuse consent.


© 2011 Nissenbaum Law Group, LLC

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