Escolar Documentos
Profissional Documentos
Cultura Documentos
Defendants, Harpo Films, Inc., The Weinstein Company, LLC, and Metro-Goldwyn-
their motion to dismiss the Complaint of Plaintiff, David Wayne Semien, for failure to state a
INTRODUCTION
The Complaint alleges that Defendants violated the right of publicity of Melvin B.
Tolson, Sr., the alleged protagonist of the 2007 film, The Great Debaters, and that Mr. Tolsons
right of publicity is now owned by his heirs.1 Plaintiffs right of publicity claim fails as a
matter of law for three separate and independent reasons. First, the right of publicity claim is a
tort claim that prescribed no later than 2008. Second, any alleged right of publicity was personal
to Mr. Tolson, and thus, cannot be pursued by his heirs. Third, the First Amendment bars claims
against filmmakers and others who create expressive works, including motion pictures, about
real-life individuals without their (or their heirs) permission. Thus, Plaintiffs right of publicity
1
Complaint at 16.
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Plaintiffs unjust enrichment claim fails because unjust enrichment is only available
where the law provides no other remedy, and here, Plaintiff has pleaded another remedy, for
violation of the alleged right of publicity. Even where that other remedy is prescribed or
otherwise barred by law, as is the case here, an unjust enrichment claim is not available.
BACKGROUND
In 2007, Defendants produced and distributed a motion picture, The Great Debaters,
about a debate team at historically-black Wiley College in Marshall, Texas, in the 1930s.2 The
debate team, which Mr. Tolson coached, successfully competed against debate teams from white
colleges and universities in the segregated South.3 Mr. Tolson died in 1966.4
In 2017, almost 10 years after The Great Debaters was released theatrically, Plaintiff
Mr. Tolsons sons and the legal guardian or agent for various other relatives of Mr. Tolson.5
ARGUMENT
1418392, *1 n. 2 (E.D. La. June 23, 2004).6 Thus, Plaintiffs alleged right of publicity claim is
2
Complaint at 2-3, 5-7.
3
Complaint at 3.
4
Complaint at 2.
5
Complaint at 1, 2.
6
Louisiana courts have neither explicitly adopted nor specifically precluded a right of publicity.
Prudhomme v. Procter & Gamble, 800 F.Supp. 390, 396 (E.D. La. 1992); see Richard v. Wal-Mart
Stores, 2007 WL 1521467, *3 (W.D. La. 5/21/07) (noting that the law is unclear); Capdeboscq
(same). Defendants reserve for another day the question of the extent to which a right of publicity
might exist in Louisiana for living celebrities. Defendants also reserve the right to argue all
applicable defenses to any such right, including but not limited to defenses based on societys right to
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subject to a one-year prescriptive period. See La. C.C. art. 3492: Delictual actions are subject to
a liberative prescription of one year. This prescription commences to run from the day injury or
damage is sustained.
Here, prescription began to run no later than in December of 2007, when The Great
Debaters was released theatrically.7 The Complaint alleges that Mr. Tolsons family members
attended the premiere of the film in Los Angeles, California, so they undoubtedly were aware of
any potential claim at that time.8 The prescriptive period ended one year after it began, in
December 2008. But Plaintiff did not file the Complaint until more than nine years later, in
March 2017. Thus, Plaintiffs alleged right of publicity claim is clearly prescribed on the face of
the Complaint.
B. Any right of publicity claim was personal to Mr. Tolson and cannot be
pursued by his heirs.
Any right of publicity claim that Mr. Tolson might have had would have been personal to
him and cannot be pursued by his heirs. The Court in Tatum v. New Orleans Aviation Bd., 102
So.3d 144 (La.App. 4th Cir.), writ denied, 100 So.3d 838 (La. 2012), , addressed a similar claim
for the alleged improper use of an image of [the plaintiffs] late mother. Id. at 146. The Court
held that the sons claim is a personal right that belonged only to the late [mother]. Nothing in
Louisiana law, statutorily or jurisprudentially, gives [the plaintiff] the authority to assert this
right on behalf on his deceased mother, especially as [the plaintiffs mother] did not herself
assert this right during her lifetime. See also Sal Litvinoff, 6 Louisiana Civil Law Treatise:
The Law of Obligations, 4.11 at n. 1 (West Group 2015) (citing Tatum to illustrate the
be informed about legitimate subjects of public interest. The law is clear, however, as this
memorandum demonstrates, that Louisiana does not recognize a post-mortem right of publicity.
7
Complaint at 2. Because Mr. Tolsons family knew that a movie about Mr. Tolson was being made
before its theatrical release, the prescriptive period may have begun running even earlier.
8
Complaint at 13.
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distinction in Louisiana between strictly personal rights, held only by a certain person and not
by his successors, and real or heritable rights); Prima v. Darden Restaurants, 78 F.Supp.2d 337,
346 (D. N.J. 2000) (because Louisiana couches this right [of publicity] in terms of the right of
privacy, it appears that the right is a personal right and, as such, does not survive the death of the
individual); McCarthy, Thomas J., 2 Rights of Publicity & Privacy 8:64 (2d ed.). These
authorities clearly show that Plaintiff is barred, as a matter of law, from pursuing a right of
Plaintiffs Complaint cites two New York right-of-publicity cases to allege that Mr.
Tolsons heirs may assert his right of publicity claim.9 But those cases, Factors, Etc. v. Pro Arts,
Inc., 579 F.2d 215 (2d Cir. 1978), and Price v. Hal Roach Studios, 400 F.Supp. 836 (S.D. N.Y.
1975), are no longer good law even in New York. In 1984, New Yorks highest court, the New
York Court of Appeals, held that the states right-of-publicity statute preempted the common-law
right of publicity and foreclosed a post-mortem right of publicity claim. Stephano v. News
Group Publications, 474 N.E.2d 580, 583-584 (1984). The Second Circuit Court of Appeals and
the federal district court for the Southern District of New York have recognized expressly that
their decisions in Factors and Price did not survive Stephano, and that publicity rights in New
York are not descendible. Pirone v. MacMillan, Inc., 894 F.2d 579, 586 (2d Cir. 1990); Jim
Henson Productions v. John T. Brady & Assocs., 867 F.Supp. 175, 190 (S.D. N.Y. 1994).
Louisiana law is clear that any right of publicity is personal, and thus, claims for alleged
violation of the right of publicity cannot be pursued by the heirs of the deceased, or by their
9
Complaint at 16.
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C. The First Amendment bars claims against filmmakers who create motion
pictures about real-life individuals without their or their heirs permission.
Not only is Plaintiffs post-mortem right of publicity claim prescribed on its face and not
descendible, it also is barred by the First Amendment and the Free Speech Clause of article I, 7
of the Louisiana Constitution. The Free Speech Clauses of the federal and state constitutions bar
right of publicity claims seeking recovery against creators of expressive works such as films.
In a case applying Louisiana law, a federal court in this district held that the parents of a
murder victim did not state a claim against the publisher of a true crime tabloid that published
a story about their sons murder. Mahaffey v. Official Detective Stories, Inc., 210 F.Supp. 251
(W.D. La. 1962). The Court dismissed the plaintiffs claims because the publication of a
newsworthy event of public interest is privileged and the article was published for reader
interest and was not used to promote or publicize a particular product or service. Under these
circumstances, plaintiffs may not successfully contend that they are entitled to recover because
Indeed, other federal courts, including the Fifth Circuit, repeatedly have held that
constitutional free-speech protections defeat right of publicity and related claims arising from the
use of real-life individuals names, likenesses, and life stories in motion pictures and similar
expressive works. See, e.g., Matthews v. Wozencraft, 15 F.3d 432, 439-40 (5th Cir. 1994) (we
conclude that Wozencrafts novel falls within the protection of the First Amendment); Moore v.
The Weinstein Company, 545 Fed.Appx. 405, 409 (6th Cir. 2013) (First Amendment provides
v. dePasse, 267 F.3d 457, 462 (6th Cir. 2001) (use of plaintiffs fictionalized likenesses in a
work protected by the First Amendment and the advertising incidental to such uses did not give
rise to a claim for relief under the plaintiffs rights of publicity); Thoroughbred Legends v. Walt
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Disney Co., 2008 WL 616253, *11 (N.D. Ga. Feb. 12, 2008) (First Amendment protection of
freedom of expression defeats claim that defendants unlawfully appropriated their likenesses
through their characters in the film Ruffian); Seale v. Gramercy Pictures, 949 F.Supp. 331,
337 (E.D. Pa. 1996) (Defendants' use of plaintiffs name and likeness in movie was for the
purpose of First Amendment expression); Hicks v. Casablanca Records, 464 F.Supp. 426, 433
(S.D. N.Y. 1978) (the first amendment protection usually accorded novels and movies
outweighs whatever publicity rights plaintiffs may possess); Tyne v. Time Warner
Entertainment, 901 So.2d 802, 808 (Fla. 2005) (First Amendment overrules statutory right of
publicity claim over motion picture); Guglielmi v. Spelling-Goldberg Productions., 603 P.2d
454, 460 (Cal. 1979) (Bird, J. concurring) (the range of free expression would be meaningfully
In Matthews, the Fifth Circuit rejected an undercover narcotics officers right of publicity
claim against his ex-wife, whose book about their descent into drug addiction was made into the
film Rush. Even assuming that the plaintiff had a cognizable claim based on the use of his name,
likeness, and biographical information, the Fifth Circuit concluded that the film was
for the sale of goods or services. 15 F.3d at 440 (quoting Rogers v. Grimaldi, 875 F.2d 994,
1004 (2d Cir. 1989)). The First Amendment compelled this result regardless of whether Rush is
Numerous other cases have reached the same result. In Ruffin-Steinback v. dePasse, 82
F.Supp.2d 723, 731 (E.D. Mich. 2000), aff'd, 267 F.3d 457 (6th Cir.2001), the district court
dismissed the plaintiffs right of publicity claim arising from the use of their names and
likenesses in a television miniseries about the musical group The Temptations. 82 F.Supp.2d at
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730. The Sixth Circuit affirmed, holding that the use of the plaintiffs fictionalized likenesses
was protected by the First Amendment and specifically pointing out the absence of case authority
Another federal court dismissed Bobby Seales right of publicity claim arising from a
film about his role in the Black Panthers, explaining that the First Amendment protected the
fictitious people and events with historical people and events. Seale, 949 F.Supp. at 337.
Relying on these same First Amendment principles, courts have dismissed right of
publicity claims arising from: (1) the motion picture Soul Men, which allegedly used the persona
of singer Sam Moore, Moore, 545 Fed.Appx. at 409; (2) the motion picture Ruffian, which
chronicled the career of a famous thoroughbred race horse and her handlers, Thoroughbred
Legends, 2008 WL 616253 at *11; (3) the motion picture Agatha, which imagined the events
during Agatha Christies mysterious disappearance in the 1920s, Hicks, 464 F.Supp. at 433; (4)
the motion picture The Perfect Storm, which recounted the tragic deaths of the crew of a fishing
boat, Tyne, 901 So.2d at 808; and (5) a documentary about professional football, Dryer v. Natl
Football League, 55 F.Supp.3d 1181, 1188 (D. Minn. 2014) (holding that expressive works are
While these courts applied various tests to determine the scope of First Amendment
protection, they all reached the same conclusion: the use of real-life persons names, likenesses,
and life stories in motion pictures is constitutionally protected against right of publicity and
related claims.
Plaintiffs theory of liability would have a profoundly chilling effect on free speech.
Filmmakers would be required to obtain approval from historical figures depicted in motion
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pictures (or from their heirs), who could veto controversial or unflattering portrayals. Such a
rule of law could have prevented the production of recent Oscar-winning or -nominated films
such as Spotlight, The Big Short, Selma, The Social Network, The Hurt Locker, and Hidden
Figures, all of which feature portrayals of real-life individuals. The chilling effect would not be
limited to motion pictures. Under Plaintiffs theory of liability, authors would not have been
able to publish unauthorized books about figures ranging from Hillary Clinton (Hillarys Choice)
and John McCain (Game Change) to Nick Saban (Saban: The Making of a Coach) and Lance
As Matthews, Ruffin-Steinbeck, Moore, Seale, and other cases confirm, the First
Amendment defeats any claim by Plaintiff arising from Defendants use of Mr. Tolsons name,
2. Plaintiffs unjust enrichment claim is barred because the law provides another
remedy, which Plaintiff also has pleaded.
Article 2298 of the Louisiana Civil Code sets out the law of unjust enrichment: A person
who has been enriched without cause at the expense of another person is bound to compensate
that person. . . . The remedy declared here is subsidiary and shall not be available if the law
provides another remedy for the impoverishment or declares a contrary rule. (Emphasis added).
The unjust enrichment remedy is only applicable to fill a gap in the law where no express
remedy is provided. Walters v. MedSouth Record Mgmt., LLC, 38 So.3d 241, 242 (La. 2010).
This Court has stated that unjust enrichment is a remedy of last resort, available only when no
other remedy is available. Wiggins v. Chesapeake Energy Corp., 2012 WL 3597131, *2 (W.D.
A plaintiff who pleads a tort claim cannot recover for unjust enrichment. Walters, 38
So.3d at 242 (plaintiffs original petition alleges he suffered harm as a direct result of the
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negligent and tortious conduct of defendant. Having pled a delictual action, we find plaintiff is
precluded from seeking to recover under unjust enrichment); see also Marseilles Homeowners
Condo. Assn, Inc. v. Broadmoor, L.L.C., 111 So.3d 1099, 1105 (La.App. 4th Cir. 2013),
(pleading tort claim under Products Liability Act in and of itself precludes recovery under a
claim of unjust enrichment); Gallant Investments, Ltd. v. Illinois Cent. R. Co., 7 So.3d 12, 18
(La.App. 1st Cir. 2009), (any equitable action for unjust enrichment is precluded by the
An unjust enrichment claim fails even if recovery under the alternate remedy at law is
unavailable because of prescription. It is of no moment that plaintiffs tort claims have been
held to be prescribed. The mere fact that a plaintiff does not successfully pursue another
available remedy does not give the plaintiff the right to recover under the theory of unjust
enrichment. Walters, 38 So.3d at 242; Dugas v. Thompson, 71 So.3d 1059, 1068 (La.App. 4th
Cir. 2011) (rejecting unjust enrichment claim where the plaintiff pled tort of conversion, that
Court found to be prescribed). The reason for this is clear: To find that [plaintiff] now has no
other remedy and to provide it one under unjust enrichment would be tantamount to allowing any
plaintiff who let his cause of action prescribe . . . recover under an enrichment theory. Jim
Walter Homes, Inc. v. Jessen, 732 So.2d 699, 706 (La.App. 3d Cir. 1999).
Here, Plaintiff has expressly pled a delictual claim for violation of the right of publicity.10
He therefore cannot also assert a claim for unjust enrichment. Walters; Marseilles Homeowners;
Gallant Investments. This is true even though Plaintiffs right of publicity claim is prescribed.
Walters, Dugas.
10
Complaint, 16.
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Moreover, any unjust enrichment claim would be barred by the same constitutional
principles that bar a right of publicity or similar claim. The First Amendment protects expressive
works such as The Great Debaters from claims brought by the films subjects or their heirs,
CONCLUSION
Plaintiffs right of publicity claim prescribed no later than 2008 and, in any event, cannot
be pursued by his heirs. Moreover, the First Amendment protects Defendants rights of free
expression to produce and distribute The Great Debaters and bars both of Plaintiffs claims. In
addition, Plaintiffs unjust enrichment claim is without merit because Plaintiff pleaded a tort
urge the Court to grant their motion to dismiss and dismiss the Complaint, with prejudice, at
Plaintiffs costs.
Respectfully submitted,
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CERTIFICATE OF SERVICE
I hereby certify that I have on this 13th day of June, 2017 electronically filed the
foregoing with the Clerk of Court by using the CM/ECF system which will send notice of
electronic filing to all counsel of record.
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