Ann Bogie v. Joan AlexandraSanger
705 F.3d 603
7th Cir.2013Background
- Bogie attended a Rivers stand-up show and later entered a backstage area for a book autograph.
- A sixteen-second exchange between Bogie and Rivers was filmed and included in a nationwide documentary.
- Bogie sued Rivers, her production company, and others in Wisconsin for invasion of privacy and misappropriation of her image under Wis. Stat. § 995.50(2)(a)-(b).
- The district court dismissed both claims with prejudice under Rule 12(b)(6), viewing the video on motion to dismiss.
- The documentary was distributed nationwide, including in Wisconsin, and Bogie claims the film portrayed her as approving of Rivers’ remarks about Wisconsin.
- The Seventh Circuit reviews de novo the district court’s 12(b)(6) dismissal and incorporates video exhibits where central to the claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privacy intrusion in backstage area | Bogie contends privacy was breached in a private backstage area. | Rivers and affiliates argue no reasonable expectation of privacy existed backstage. | Dismissed; no reasonable expectation of privacy as a matter of law. |
| Whether intrusion was highly offensive | The filming was a highly offensive intrusion. | Intrusion not highly offensive given context and consent/appearance of security. | Dismissed; intrusion not highly offensive as a matter of law. |
| Misappropriation under 995.50(2)(b) and newsworthiness | Documentary used Bogie’s image for commercial purposes without consent. | Film falls within newsworthiness/public interest; incidental use applies; image incidental. | Newsworthiness exception applies; misappropriation claim fails. |
| Incidental use exception | Even incidental use of name/image should be actionable. | Use was incidental and not directly tied to Bogie’s commercial rights. | Incidental use exception applies; misappropriation claim fails. |
| Judicial treatment of video on motion to dismiss | Video should not be dispositive at the pleadings stage. | Video can be considered on a Rule 12(b)(6) motion if central to the claim. | Video properly incorporated; controls for the purposes of ruling on the pleadings. |
Key Cases Cited
- Forrest v. Universal Savings Bank, F.A., 507 F.3d 540 (7th Cir. 2007) (consideration of attached exhibits in Rule 12(b)(6) is appropriate)
- Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir. 2012) (extending incorporation-by-reference to video exhibits)
- PETA v. Bobby Berosini, Ltd., 895 P.2d 1269 (Nev. 1995) (incorporates the concept that profit motive can be non-actionable for privacy)