Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
RACHEL HELLER, *
*
Plaintiff, *
* v. * 1:23-CV-04595-ELR *
ABC NEWS, INC., et al., *
*
Defendants. *
*
_________
O R D E R
_________
There are several matters pending before the Court. The Court sets out its reasoning and conclusions below.
I. Background
In this case, Plaintiff Rachel Heller brings various claims against Defendants ABC News, Inc. (“ABC”), Glass Entertainment Group LLC (“Glass”), and Hulu, LLC, regarding the “unwanted intrusion and misappropriation of her image and likeness” in a three (3)-part docuseries that was produced by Defendants Glass and ABC and streamed by Defendant Hulu. See Am. Compl. pp. 1–4 [Doc. 28]. Plaintiff *2 “was the innocent victim of repeated sexual abuse by Spencer Herron, one of her teachers, while she attended” Kell High School in Cobb County, Georgia. Id. at p. 1. “Plaintiff reported Herron’s sexual abuse to authorities in Cobb County which led to Herron’s arrest, conviction, and time served in prison.” Id. at p. 2. “After Herron’s arrest, Herron’s then-wife, Jenifer [Faison], discovered that Herron had had sexual relations with approximately sixty (60) women during their seven (7) years of marriage.” Id. “These and other facts regarding Plaintiff and [Faison’s] ordeals led to a podcast series produced by Defendant Glass,” which is titled “Betrayal” (the “Betrayal Podcast”). Id.
“During the production of the Betrayal Podcast,” Defendant Glass asked to interview Plaintiff about her experiences with Herron “and to use some or all of a recording of her voice from that interview” for the podcast. Id. ¶ 9. On or about December 17, 2021, Defendant Glass presented Plaintiff with an appearance release (the “Podcast Appearance Release”) that “would have given [Defendant] Glass considerable and extensive rights to the use of [Plaintiff’s] name, voice, image, likeness, and biographical information[,]” had she signed it. Id. ¶ 12. But Plaintiff refused to agree to the Podcast Appearance Release because it struck her as too broad. Id. ¶ 13. Instead, Plaintiff reached an oral agreement with Defendant Glass (the “Podcast Agreement”) that she would participate in the interview and allow it to be recorded “only upon [Defendant Glass’ express agreement] that the audio *3 recording of the interview would be used solely for the podcast.” Id. Defendant Glass “agreed to [Plaintiff’s condition]” and the Podcast Agreement is “memorialized at the beginning of the recording of the interview[.]” Id.
The Betrayal Podcast was released in April 2022 and amassed millions of downloads. Id. ¶ 16. Defendants Glass and ABC thereafter decided to adapt the Betrayal Podcast into a TV docuseries (the “Docuseries”) that would be streamed by Defendant Hulu. Id. ¶¶ 16–18. Faison, Herron’s ex-wife, was “heavily involved” in the production of the Docuseries and “often acted” as Defendant Glass’ agent. Id. ¶ 19–20.
Unrelated to the production of the Betrayal Podcast or Docuseries, the University of North Georgia (“UNG”) invited Plaintiff and Faison “to give presentations on their respective ordeals involving [] Herron to a criminal justice class” at UNG on November 17, 2022 (the “UNG Presentation”). Id. ¶ 21. Approximately two (2) weeks before the UNG Presentation, Plaintiff met with Faison and learned from Faison that Defendant Glass planned to film the UNG Presentation for the Docuseries. Id. ¶ 22. During that meeting, Plaintiff expressed reluctance about being filmed, and Faison told Plaintiff that she should not be concerned because Plaintiff “would have the ultimate say as to whether the recording of her would be used” in the Docuseries. Id. Specifically, Faison told Plaintiff: [W]e [Faison and Defendant Glass] would never be able to use footage of you if you didn’t sign a release. So, if we are at that event and the *4 camera like is getting a wide shot and you’re in it or filming it, we should either, if you’re not okay with them [Defendant Glass] filming it knowing that you hadn’t made a decision, then we [Faison and Plaintiff] should split our speeches so maybe I’ll come do mine and then you do yours just so we are not standing next to each other the whole time.
Id.
Defendant Glass was aware before the filming of the UNG Presentation that Plaintiff has not consented to Defendant Glass’ use of her name, voice, image, or likeness in the Docuseries and that Faison had communicated that it was “safe” for Plaintiff “to go forth with filming” because Plaintiff would have the “ultimate say” regarding use of “her name, voice, image, or likeness” in the Docuseries. See id. ¶ 25. Plaintiff alleges that her conversation with Faison created an oral agreement (the “Docuseries Agreement”) because she “would not have participated in the filming . . . if she had not been assured by Faison, acting as agent for [Defendant] Glass, that she was in full control of whether any of her [part of the] presentation would appear in the [] Docuseries.” See id. ¶ 24. During the UNG Presentation, Defendant Glass filmed Plaintiff’s presentation and filmed Faison’s presentation in such a way that Plaintiff was not in the background or beside Faison during Faison’s presentation. Id. This manner of filming “gave [Plaintiff] additional assurances that she would have the ultimate say as to whether [Defendant] Glass would use [Plaintiff’s] name, voice, image, and likeness in the [] Docuseries.” Id. ¶ 26. *5 Immediately after filming the UNG Presentation, Kayce McCue, a producer of the Docuseries, handed Plaintiff an “On-Camera Release and a Non-Exclusive License Agreement” for Plaintiff to sign “in the event she decided to permit [Defendant] Glass to use the filming of her presentation at UNG in the [] Docuseries.” Id. ¶ 32. Plaintiff objected to several portions of that agreement, so McCue sent Plaintiff an amended agreement on December 6, 2022. Id. ¶ 33. Plaintiff declined to sign the amended agreement. See id. ¶¶ 34–36.
In two (2) different phone calls on December 21, 2022, and February 13, 2023, “McCue confirmed to [Plaintiff] that [Defendant] Glass would not use her voice, image, or likeness in the [] Docuseries unless [Plaintiff] agreed to such use in writing.” Id. ¶ 35. First, during the December 21, 2022 call, Plaintiff told McCue that she did not want to participate in the Docuseries. Id. ¶ 38. The next day, McCue sent Plaintiff a text message that said, “I just wanted to say thank you for taking the time to speak with me the past few weeks, and to reiterate that I understand and respect your decision.” Id. ¶ 39. Second, during the February 13, 2023 call, Plaintiff asked McCue if her interview from the Betrayal Podcast would be used in the Docuseries. Id. ¶ 40. McCue said the interview would only be used “if you are comfortable with that.” Id. Plaintiff never gave permission to Defendant Glass to use her interview from the Betrayal Podcast in the Docuseries. Id.
*6 Thereafter, Jon Hirsch, Senior Vice President & Executive Producer for Defendant Glass and Executive Producer and the Director of the Docuseries, “sent numerous text messages to [Plaintiff] trying to engage her in a conversation regarding the use of her voice, image, and likeness in the [] Docuseries, including the possibility of an interview.” Id. ¶ 41. On March 14, 2023, Plaintiff sent Hirsch a text message that stated:
I have been aware of your attempts to communicate with me and decided to take my time to respond.
To put it simply, my decision to not participate in this production still stands.
As a rape and sexual abuse victim, I hope that no one in my position would ever have to go through what you people put me through. I am on no one else’s timeline but my own. I will not hop, skip, or jump for money, an interview, or some credit.
Actions speak louder than words and the fact that I was notified last of any needed involvement in this production and on top of that giving me a deadline to speak about the rape and abuse I endured says all I need to know about this production. I also refuse to work with Jenifer Faison or any person who can look me in the eye and question if they were also groomed as an adult who went through a completely different set of circumstances than what my 15[-]year[-]old self had to go through and then tell me in my face that I was just “another woman” while pretending to care in front of the cameras.
I do not consent to the following . . . being broadcasted or used in any manner whatsoever:
• Any correspondence I have had with Jenifer Faison (recorded calls, texts, emails, etc.);
*7 • Any correspondence between me and anyone else from this production including you and Kayce (recorded calls, texts, emails, etc.);
• Any footage/images taken of me from this production or from Jenifer Faison;
• Any intellectual property I had created including my powerpoint on Educator Sexual Misconduct;
• Any information I have shared with Jenifer Faison in particular regarding my case;
• I was groomed by Spencer Herron but I will not be manipulated by Jenifer Faison or anyone for that matter anymore.
Id. ¶ 42.
Nearly four (4) months later, on July 7, 2023, Hirsch responded to Plaintiff’s text message with the following message: “I [] wanted to give you a heads up that a decision was made to include some of the publicly available materials regarding your story. This includes some of the [Betrayal P]odcast audio and a bit of the [UNG P]resentation.” Id. ¶ 44. Less than one week later, on July 11, 2023, Defendant Hulu began streaming the Docuseries. Id. ¶ 47. Plaintiff was “prominently featured” in the Docuseries as well as Defendant Hulu’s marketing of the same. Id. ¶ 48. Episode 3 of the Docuseries contains multiple video clips of Plaintiff speaking at the UNG Presentation, as well as multiple audio clips of Plaintiff’s interview from the Betrayal Podcast. [See Doc. 23, Exhibit A].
*8 On October 9, 2023, Plaintiff initiated the instant case. See Compl. [Doc. 1]. Defendant Glass filed a motion to dismiss on December 4, 2023, and Defendants ABC and Hulu filed a separate motion to dismiss that same day. [Docs. 20, 22]. Thereafter, Plaintiff timely filed an Amended Complaint. See Am. Compl. By her Amended Complaint, Plaintiff brings a claim against all Defendants for appropriation of her likeness. See Am. Compl. ¶¶ 50–62. She also brings claims for breach of contract, specific performance, and promissory estoppel against Defendant Glass stemming from both the alleged Podcast Agreement and Docuseries Agreement. Id. ¶¶ 63–92. Additionally, Plaintiff alleges a claim for unjust enrichment claim against Defendants ABC and Hulu. Id. ¶¶ 93–95. Plaintiff seeks injunctive relief, “damages in amounts to be proven at trial,” punitive damages, and attorneys’ fees against all Defendants. Id. ¶¶ 96–97. Plaintiff alleges this Court has subject matter jurisdiction over this matter because the action is *9 between citizens of different states and the amount in controversy exceeds $75,000. Id. ¶ 5.
On January 17, 2024, Defendant Glass filed its “Motion to Dismiss the Amended Complaint” [Doc. 31] and Defendants ABC and Hulu filed their “Motion to Dismiss the Amended Complaint.” [Doc. 32]. Plaintiff timely opposed both motions. [Docs. 33, 34]. Having been fully briefed, Defendants’ motions are ripe for the Court’s review. The Court begins with the relevant legal standard.
II. Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, a complaint must “contain
sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible
on its face.’” See Ashcroft v. Iqbal,
When considering a Rule 12(b)(6) motion to dismiss, the Court must accept
as true the allegations set forth in the complaint, drawing all reasonable inferences
in the light most favorable to the plaintiff. See Twombly,
III. Discussion
The Court begins with Defendant Glass’ arguments to dismiss Plaintiff’s breach of contract claims [5] before turning to Defendants’ arguments related to Plaintiff’s claims for specific performance, promissory estoppel, appropriation of likeness, unjust enrichment, and punitive damages. [6]
*12 A. Breach of Contract
Defendant Glass moves to dismiss Plaintiff’s breach of contract claims as to the alleged Podcast Agreement and Docuseries Agreement for failure to allege any recoverable damages flowing from those agreements. To assert a claim for breach of contract under Georgia law, a plaintiff must show: “(1) a valid contract, (2) a material breach of its terms, and (3) resultant damages to the party who has the right to complain about the breached contract.” Frone v. JP Morgan Chase & Co., 695 F. App’x 468, 470 (11th Cir. 2017). Applying Georgia law, the Eleventh Circuit has held that “failure to sufficiently plead damages is dispositive,” resulting in the dismissal of breach of contract claims. See id.
Regarding both the Podcast Agreement and the Docuseries Agreement, Plaintiff alleges (1) she was “harmed” by Defendant Glass’ breaches, (2) she “has suffered irreparable harm” from Defendant Glass’ breaches, and (3) “[t]o the extent that” Plaintiff’s harm from Defendant Glass’ breaches of those agreements “may be calculated, the monetary amount of [Plaintiff’s] harm will be proven at trial.” Am. Compl. ¶¶ 72–24. Plaintiff does not respond to or otherwise dispute Defendant *13 Glass’ argument that such allegations are conclusory and insufficient to state a claim for breach of contract. [See generally Doc. 33].
Upon review and consideration, the Court agrees with Defendant Glass that
Plaintiff fails to sufficiently allege damages flowing from the alleged breaches of
either the Podcast Agreement or the Docuseries Agreement. The Amended
Complaint is devoid of non-conclusory allegations that Plaintiff suffered pecuniary
damages resulting from any purported breach of contract by Defendant Glass. See
generally Am. Compl.; see, e.g., Jean-Pierre v. Home Am. Mortg., Inc., Civil Action
No. 1:13-CV-1777-ODE-JSA, 2014 WL 12857984 (N.D. Ga. Jan. 22, 2014)
(dismissing breach of contract claim where plaintiff only alleged damages “in an
amount to be proven at trial”), report and recommendation adopted, 2014 WL
12859278 (Mar. 4, 2014); see also Bank of Am., N.A. v. Corporex Realty & Inv.,
LLC,
B. Specific Performance
Defendant Glass contends that Plaintiff’s specific performance claims as to
the Podcast Agreement and Docuseries Agreement fail as a matter of law because
the Amended Complaint does not “adequately establish the existence or breach of
*15
either” agreement. [Docs. 31-1 at 22–23; 36 at 13]. “Specific performance is an
equitable remedy available when the damages recoverable at law would not be an
adequate compensation for nonperformance” of an enforceable contract. U.S. Bank,
Nat’l Ass’n as Tr. of Cabana Series IV Tr. v. Carrington Mortg. Servs., LLC, 2022
WL 2062651, at *4 (Ga. Ct. App. June 8, 2022) (citing Simpson v. Pendergast, 659
S.E.2d 716 (Ga. Ct. App. 2008)); see Hibbard v. McMillan,
1. The Podcast Agreement
As a preliminary matter, the Court must establish what materials it may properly consider regarding the Podcast Agreement. Defendant Glass contends that the Court should consider an audio recording (the “Sound Check Recording”) that it *16 submitted to the Court as an attachment to its original motion to dismiss. [See Docs. 20-3; 23, Exhibit C; 31-1 at 19]. Defendant Glass asserts that the Sound Check Recording is a true and correct digital copy of the recording that Plaintiff references in her allegation that the Podcast Agreement is “memorialized at the beginning of the recording of [her] interview, which is presumably in [Defendant Glass’] possession.” [See Doc. 31-1 at 19]; Am. Compl. ¶ 13.
Ordinarily, if a court “considers materials outside of the complaint, [it] must
convert the motion to dismiss into a summary judgment motion.” SFM Holdings,
Here, Plaintiff contends that the Sound Check Recording submitted by
Defendant Glass “is not a complete recording of the pre-interview discussion
*17
between [Defendant] Glass and [Plaintiff].” [Doc. 33 at 4 n.3]. According to the
Amended Complaint, “at the beginning of the recording of the interview” between
Plaintiff and Defendant Glass, Defendant Glass expressly agreed that the audio
recording would be used “solely” for the Betrayal Podcast. Am. Compl. ¶ 13. No
such express agreement is contained in the Sound Check Recording. [See Doc. 23,
Exhibit C]. Because Plaintiff disputes that the Sound Check Recording reflects the
entirety of her discussion with Defendant Glass, the Court finds that Plaintiff
sufficiently disputes the authenticity of the Sound Check Recording. See
Kalpakchian,
Having established that the Sound Check Recording is not presently within the scope of the Court’s review, the Court now addresses Defendant Glass’ argument that Plaintiff fails to adequately allege the existence and any breach of the Podcast Agreement. Plaintiff alleges that she agreed to participate in the recorded interview for the Betrayal Podcast and “only upon [Defendant Glass’ express agreement] that the audio recording [] would be used solely for the [Betrayal P]odcast.” Am. Compl. ¶ 13. Defendant Glass allegedly “agreed to [Plaintiff’s condition]” as “memorialized *18 at the beginning of the recording of the interview[.]” Id. In the instant motion to dismiss, Defendant Glass relies entirely on the Sound Check Recording (which the Court declines to consider at this juncture) to argue that the Podcast Agreement “did not place any limitations on [Defendant Glass’] right to use the taped interview.” [See, e.g., Doc. 31-1 at 18]. However, because the Court declines to consider the Sound Check Recording and must take Plaintiff’s allegations as true and construe them in the light most favorable to Plaintiff, the Court rejects Defendant Glass’ position. Hill, 321 F.3d at 1335. Defendant Glass offers no other meaningful contentions in support of dismissing Plaintiff’s claim for specific performance based on the Podcast Agreement. Thus, the Court denies Defendant Glass’ motion to dismiss Plaintiff’s claim for specific performance as to the Podcast Agreement. 2. The Docuseries Agreement
Next, Defendant Glass argues Plaintiff fails to sufficiently allege that the Docuseries Agreement is enforceable. [See Doc. 31-1 at 20–23]. Pursuant to O.C.G.A. § 13-3-1, a valid contract includes three (3) elements: (1) subject matter of the contract; (2) consideration; and (3) mutual assent by all parties to all contract terms. Thompson v. Floyd, 713 S.E.2d 883, 890 (Ga. 2011). To allege an enforceable agreement, a complaint
must set forth a contract of such certainty and completeness that either
party may have a right of action upon it. The requirement of certainty
extends not only to the subject matter and purpose of the contract, but
also to the parties, consideration, and even the time and place of
*19
performance where these are essential. A contract cannot be enforced
in any form of action if its terms are incomplete or incomprehensible.
Freebirds LLC v. Coca-Cola Co., 883 S.E.2d 388, 395 (Ga. Ct. App. 2023); see
Super Valu Stores, Inc. v. First Nat. Bank of Columbus, Ga.,
Here, the Amended Complaint sets forth the following allegations. Plaintiff “expressed reluctance” about being filmed for the Docuseries when she met with Faison on November 5, 2022. Am. Compl. ¶ 22. As a result, Faison told Plaintiff she “should not be concerned because [Plaintiff] would have the ultimate say as to whether the recording of [Plaintiff] would be used in the [] Docuseries.” Id. “Faison’s representation that [Plaintiff] would have the ultimate say as to whether she would appear in the [] Docuseries led [Plaintiff] to go forward with the filming” of the UNG Presentation. Id. ¶ 23. Plaintiff “would not have participated in the filming at UNG if she had not been assured” by Faison “that she was in full control of whether any of her presentation would appear in the [] Docuseries.” Id. ¶ 24. Plaintiff alleges that Defendant Glass was aware of “Faison’s representation to [Plaintiff] that it was safe for [Plaintiff] to go forth with the filming because [Plaintiff] would have the ultimate say” regarding her appearance in the Docuseries.” Id. ¶ 28.
*20
In her response to Defendant Glass’ motion to dismiss, Plaintiff contends that
Faison’s statements constituted an “offer” by Defendant Glass to Plaintiff to the
“unfettered right to decline her permission for [Defendant] Glass to use” the filmed
UNG Presentation in the Docuseries. [Doc. 33 at 22]. In support, she cites case law
stating that “[a]n offer is the manifestation of willingness to enter into a bargain, so
made as to justify another person in understanding that his assent to that bargain is
invited and will conclude it” and “an offeror is the master of his or her offer, and
free to set the terms thereof.” [Id.] (citing Rakusin v. Radiology Assocs. of Atlanta,
P.C.,
The Court disagrees with Plaintiff. Reading the Amended Complaint in the
light move favorable to Plaintiff, Defendant Glass, through Faison (acting as its
agent), promised Plaintiff “the ultimate say” as to whether the recording of her would
be used in the Docuseries. Am. Compl. ¶ 22. That promise was not expressly
contingent on any act or promise by Plaintiff. See generally id. “It is axiomatic that
a contract without consideration is invalid.” State v. Fed. Def. Program, Inc., 882
S.E.2d 257, 279 (Ga. 2022). “[C]onsideration must be stated in the contract or at
least be ascertainable from the contract.” Newell Recycling of Atlanta, Inc. v. Jordan
Jones & Goulding, Inc.,
As relevant here, one form of consideration is bargained-for performance of an act. See O.C.G.A. § 13-3-42. However, “performance of an act” is only considered “bargained-for” if it is sought by the promisor (here, Defendant Glass) and given by the promisee (here, Plaintiff) in exchange for that promise. See id.; see also Fed. Def. Program, 882 S.E.2d at 279. Absent a bargained-for exchange, a promise is gratuitous and unenforceable. See Gotel v. Carter, No. 21-14030, 2022 WL 433704, at *3–4 (11th Cir. Feb. 14, 2022) (applying Georgia law and affirming dismissal of complaint where plaintiff did not allege what she “promised or agreed to do or to forbear from doing” in exchange for defendant’s promise of payment, further noting that plaintiff “did not allege sufficient facts—such as discussions, negotiations, bargained-for terms, or the specific conditions upon which she and [defendant] entered the contract—from which a court could reasonably infer the existence of a valid contract”).
In her response brief, Plain tiff appears to imply that Defendant offered her an
“unfettered right to decline her permission” for Defendant Glass to use the footage
of the UNG Presentation
in exchange for
her participation in the filming itself, but
the Amended Complaint itself is devoid of any such allegation. See generally Am.
Compl. Put differently, the Amended Complaint fails to allege that Defendant Glass
*22
made a “manifestation of willingness to enter into a bargain” because it does not
state what Plaintiff agreed to tender in exchange for Defendant Glass’ promise. See
Rakusin, 699 S.E.2d at 388. Because the terms of any purported Docuseries
Agreement between Defendant Glass and Plaintiff are “incomplete,” the Court
cannot enforce it. See Freebirds,
C. Promissory Estoppel
As an alternative to her breach of contract claims, Plaintiff seeks “damages and other relief” against Defendant Glass pursuant to a theory of promissory estoppel. See Am. Compl. ¶¶ 81–91. Defendant Glass moves to dismiss Plaintiff’s promissory estoppel claims because (1) Plaintiff does not allege reliance damages and (2) Faison’s promise regarding the so-called Docuseries Agreement (hereinafter *23 referred to as the “Docuseries Promise”) is a lay legal opinion “that could not reasonably have been relied upon by [Plaintiff].” [12] [Doc. 31-1 at 23–24].
The Court finds Defendant Glass’ first argument regarding reliance damages unavailing. To state a claim for promissory estoppel, a plaintiff must allege that:
(1) [defendant] made a promise or promises; (2) [defendant] should have reasonably expected [plaintiff] to rely on such promise; (3) [plaintiff] relied on such promise to their detriment; and (4) an injustice can only be avoided by the enforcement of the promise, because as a result of the reliance, [plaintiff] changed [her] position to [her] detriment by surrendering, forgoing, or rendering a valuable right.
Woodstone Townhouses, LLC v. S. Fiber Worx, LLC,
Second, the Court is unmoved by Defendant Glass’ argument as to the
Docuseries Promise that Plaintiff could not “reasonably rely” on a “lay legal
opinion.” [Doc. 31-1 at 23–24]. Defendant Glass claims that Faison’s statement to
Plaintiff that “[w]e would never be able to use footage of you if you didn’t sign a
release” constitutes a lay legal opinion and therefore “could not reasonably have
been relied upon by [Plaintiff] given that ‘all persons are presumed to know the
law.’” [See, e.g., Doc. 31-1 at 24]. But Defendant Glass misses the mark. Plaintiff
does not allege she relied on that statement; rather, she specifically alleges that she
relied on Faison’s statement that “[Plaintiff] would have the ultimate say as to
*25
whether the recording of her would be used in the [] Docuseries.” See Am. Compl.
¶¶ 22–24. In sum, Defendant Glass, through its alleged agent, Faison, promised that
Plaintiff she would have the “ultimate say” as to use of the UNG Presentation
footage in the Docuseries, and Plaintiff claims she relied on that promise to her
detriment. The Court finds these allegations sufficient to state a claim for
promissory estoppel as to the Docuseries Agreement. See Woodstone Townhouses,
D. Appropriation of Likeness
The Court next turns to Plaintiff’s claim for appropriation of likeness. Plaintiff alleges that, by using her voice from the Betrayal Podcast interview in the Docuseries without her consent, Defendants appropriated her voice for their own commercial gain. Am. Compl. ¶¶ 51–52. She also alleges that by using her voice, image, and likeness from the footage of the UNG Presentation without her consent, Defendants appropriated her voice, image, and likeness for their own commercial gain. Id. ¶¶ 53–54. Defendants advance three (3) independent arguments in their motions to dismiss this claim. [See generally Docs. 31-1, 32-1]. First, Defendants argue that the First Amendment bars Plaintiff’s claim because the Docuseries is a *26 newsworthy production of public interest. [See Docs. 31-1 at 11–13; 32-1 at 11–
16]. Second, Defendants argue that Plaintiff’s claim is barred because the Docuseries is an expressive work. [See Docs. 31-1 at 12 n.7, 14; 32-1 at 16–18]. Third, Defendants contend that Plaintiff’s claim fails because no right of privacy or publicity attaches to subject matter that is open to public observation. [See Docs. 31-1 at 12–13; 32-1 at 17].
As summarized by the Georgia Supreme Court in Bullard v. MRA Holding,
LLC, “[a]n appropriation of likeness claim in Georgia is but one of several different
torts relating to the invasion of one’s privacy.”
Thus, the Court must determine (1) whether the Docuseries is a “newsworthy production,” (2) whether the Docuseries is an “expressive work,” (3) if Defendants waived their First Amendment rights that would otherwise shield them from the instant claim, and (4) whether Plaintiff’s instant claim rests only on subject matter that was already generally known and open to the public. The Court addresses these questions in turn.
1. Is the Docuseries a newsworthy production?
Defendants argue that the First Amendment bars Plaintiff’s claim because the
Docuseries is a newsworthy production of public interest. [See Docs. 31-1 at 11–
13; 32-1 at 11–16]. In response, Plaintiff contends that the newsworthiness of
Herron’s abuse was “long since over” by the time she was interviewed for the
Betrayal Podcast and filmed at the UNG Presentation, and the use of her likeness
was “incidental” to any public interest. [See Docs. 33 at 15–17; 34 at 2–7].
*28
The Eleventh Circuit has observed that the right to privacy (which
encompasses appropriation claims) and corresponding right of publicity is in tension
with the First Amendment’s protection of freedom of speech and of the press. Toffoloni,
*30 Upon review and consideration, the Court declines to dismiss Plaintiff’s appropriation claims based on the newsworthy exception. According to the Amended Complaint, Herron was arrested for sexual abuse in 2018, “which led to [his] arrest, conviction, and time served in prison.” See Am. Compl. at p. 2. Several years later, on July 11, 2023, Defendant Hulu began streaming the Docuseries, produced by Defendants Glass and ABC. Id. ¶¶ 21, 47. Thus, because this is not
such a case where the relevant criminal investigation is ongoing at the time Defendants used Plaintiff’s voice, image, and likeness, the Court declines to dismiss Plaintiff’s claim based on the newsworthiness exception. See Tucker, 397 S.E.2d at 500.
2. Is the Docuseries an expressive work?
As summarized by another judge in this district, “[t]he First Amendment
protection of freedom of expression” restricts appropriation of likeness claims.
Thoroughbred Legends, 2008 WL 616253, at *11; see Nichols v. Moore, 334 F.
*31
Supp. 2d 944, 955–56 (E.D. Mich. 2004) (noting that the First Amendment limits
the right of publicity to the context of speech that proposes a commercial transaction,
which excludes “works of artistic expression such as movies, plays, books, and
songs”); Daly v. Viacom, Inc.,
The use of a person’s identity primarily for the purpose of
communicating information or expressing ideas is not generally
actionable as a violation of the person’s right of publicity. . . . The
interest in freedom of expression also extends to use in entertainment
and other creative works, including both fiction and nonfiction. . . .
Similarly, the right of publicity is not infringed by the dissemination of
an unauthorized print or broadcast biography. Use of another’s identity
in a novel, play, or motion picture is also not ordinarily an infringement.
The fact that the publisher or other user seeks or is successful in
obtaining a commercial advantage from an otherwise permitted use of
another’s identity does not render the appropriation actionable.
*32
Thoroughbred Legends,
However, the Court’s analysis does not stop there. Plaintiff argues that Defendant Glass allegedly waived its First Amendment right to publish her voice, image, and likeness, and Defendants ABC and Hulu are supposedly “bound” by that same waiver. [Docs. 33 at 12, 18; 34 at 1–2].
3. Did Defendants waive their First Amendment rights?
It is well-settled that one’s First Amendment rights can be waived. See, e.g.,
Youngblood-W. v. Aflac Inc.,
Defendants ABC and Hulu assert that Plaintiff fails to allege any facts in support of her position that they are bound by Defendant Glass’ purported waiver. [See Doc. 35 at 1]. The Court agrees. The Amended Complaint states that “no legal contract” exists between Plaintiff and Defendants ABC and Hulu and is devoid of any allegations that Plaintiff ever communicated with those Defendants. See generally Am. Compl. Thus, because Defendants ABC and Hulu’s use of Plaintiff’s *34 likeness is protected by those Defendants’ First Amendment rights, and Plaintiff alleges no facts to support that Defendants ABC or Hulu waived those rights, the Court dismisses Plaintiff’s claim for appropriation of likeness against Defendants ABC and Hulu.
Plaintiff’s claim against Defendant Glass, however, fares differently. Here, Defendant Glass repeats many of the same arguments already discussed above as they apply to Plaintiff’s breach of contract and promissory estoppel claims. [See, e.g., Doc. 36 at 5–10]. However, as discussed above, Plaintiff alleges that Defendant Glass waived its right to use her likeness in the Docuseries by making the Docuseries Promise through its alleged agent, Faison. See Am. Compl. ¶ 22. Plaintiff also
alleges Defendant Glass waived its First Amendment right to freely use her voice
through the Podcast Agreement. See id. ¶ 13. Accordingly, the Court finds Plaintiff
plausibly alleges that Defendant Glass waived its First Amendment rights as to the
publication of Plaintiff’s voice, image, and likeness. See supra, part III.A–C; see
also Cohen,
4. Regardless of waiver, are Plaintiff’s claims based on appropriation of that which is generally known and open to the public?
Finally, Def endant Glass argues that, regardless of any alleged waiver of its First Amendment rights, Plaintiff fails to allege that its use of her voice, image, or likeness falls outside the ambit of matters already open to public observation. [See *35 Doc. 36 at 1–2]. As noted above, that which is “generally known” and “open to the public” cannot be appropriated pursuant to Georgia law. See Pierce, 237 F. Supp. 3d at 1381. Defendant Glass contends that once Plaintiff’s interview for the Betrayal Podcast was released to the public and amassed “more than eight million downloads,” Plaintiff’s previous relationship with (and abuse at the hands of) Herron became “open to public observation.” [Doc. 36 at 2]; see Am. Compl. ¶ 16. Further, Defendant Glass argues that the UNG Presentation footage is “almost entirely duplicative” of Plaintiff’s Betrayal Podcast interview; thus, according to Defendant Glass, the only “new” content in the Docuseries is the likeness of Plaintiff’s face. [Doc. 36 at 3]. Defendant Glass quotes Toffoloni, 572 F.3d at 1206–07, for the
proposition that “[n]o one has the right to object merely because . . . [her] appearance is brought before the public.” [Id.] However, Defendant Glass neglects to include the next sentence from that case in its quoted excerpt. [See id.] In Toffoloni, the Eleventh Circuit made clear that a right to privacy is nonetheless invaded when a person’s “ name or appearance ” is brought before the public “for the purpose of appropriating to the defendant’s benefit the commercial or other values associated with the [person’s] name or the likeness.” See 572 F.3d at 1206–07 (emphasis added).
Here, Plaintiff alleges that Defen dant Glass used her image and likeness in the Docuseries for commercial gain without her consent. See Am. Compl. ¶¶ 53–55. *36 Thus, the Court rejects Defendant Glass’ argument that “the mere depiction of [Plaintiff’s] face in the Docuseries is not actionable.” [See Doc. 36 at 3]; see also Bullard, 740 S.E.2d at 626 (discussing that a claim for appropriation of likeness “does not require the invasion of something secret” and that the elements of an appropriation claim are “(1) the appropriation of another’s name and likeness, whether such likeness be a photograph or other reproduction of the person’s likeness, (2) without consent, and (3) for the financial gain of the appropriator”).
Separately, Defendant Glass contends that the UNG Presentation was “an event that was ‘open to public observation’ because the classrooms of public schools are public forums for purposes of privacy rights.” [Doc. 35 at 3]. Conversely, Plaintiff argues the UNG Presentation was not open to public observation. [see Docs. 33 at 15–17; 34 at 2–7]. Plaintiff contends that although universities and colleges generally allow visitors on campus, “they typically do not permit visitors to attend classes without permission.” [Doc. 34 at 2] (emphasis in original). The Court finds this question to be one of fact more properly suited for summary judgment and *37 is insufficient to warrant dismissal. Accordingly, the Court denies Defendant Glass’ motion to dismiss Plaintiff’s appropriation claim.
E. Unjust Enrichment Plaintiff alleges a single count of unjust enrichment against Defendants ABC and Hulu. See Am. Compl. ¶¶ 93–95. In her response brief, Plaintiff concedes that if her appropriation claim against Defendants ABC and Hulu is dismissed, “the unjust enrichment remedy will go with it.” [Doc. 34 at 7]. Accordingly, because *38 the Court dismisses Plaintiff’s appropriation claim as to Defendants ABC and Hulu, the Court also dismisses her unjust enrichment claim as to those Defendants.
F. Punitive Damages
Plaintiff alleges punitive damages against all Defendants. Because none of Plaintiff’s claims against Defendants ABC and Hulu survive, Plaintiff’s claims for punitive damages against those Defendants are due to be dismissed.
Meanwhile, Plaintiff’s claims for specific performance, promissory estoppel, and appropriation of likeness against Defendant Glass survive. Defendant Glass argues, and Plaintiff does not dispute, that the only claim Plaintiff alleges in the Amended Complaint that supports punitive damages is her appropriation of likeness claim. [See Doc. 31-1 at 24–25; see generally Doc. 33]. In the absence of any other arguments from Defendant Glass on the issue and because Plaintiff’s appropriation of likeness claim survives, her claim for punitive damages survives as well.
IV. Conclusion
For the foregoing reasons, the Court DENIES AS MOOT Defendant Glass’ Motion to Dismiss [Doc. 20] and Defendants ABC and Hulu’s Motion to Dismiss [Doc. 22]. The Court GRANTS IN PART AND DENIES IN PART Defendant Glass’ Motion to Dismiss the Amended Complaint [Doc. 31]. Specifically, the Court GRANTS Defendant Glass’ motion to dismiss as to Plaintiff’s claims for (1) breach of contract as to the Podcast Agreement and Docuseries agreement, (2) specific performance as to the Docuseries Agreement. Thus, the Court DISMISSES those claims. The Court DENIES Defendant Glass’ motion in all other respects. [Doc. 31]. Additionally, the Court GRANTS Defendants ABC and Hulu’s Motion to Dismiss the Amended Complaint. [Doc. 32]. Accordingly, the Court DISMISSES Plaintiff’s claims as to those Defendants and DIRECTS the Clerk to TERMINATE Defendants ABC and Hulu as Party Defendants in this case.
Finally, the Court DIRECTS Defendant Glass to file its answer to the Amended Complaint within fourteen (14) days. See F ED . R. C IV . P. 12(a)(4)(A). The Court DIRECTS Plaintiff to file a notice on the docket properly alleging both her and Defendant Glass’ citizenships within fourteen (14) days. The Court also DIRECTS Defendant Glass and Plaintiff to file a Joint Preliminary Report and Discovery Plan in accordance with this District’s Local Rules within thirty (30) days of the date of this order. See LR 16.2, NDGa.
*40 SO ORDERED , this 16th day of August, 2024.
______________________ Eleanor L. Ross United States District Judge Northern District of Georgia
Notes
[1] For purposes of the present motion only, the Court “accept[s] the allegations in the complaint as true and constru[es] them in the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).
[2] “In ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is
(1) central to the plaintiff's claim, and (2) its authenticity is not challenged.” SFM Holdings, Ltd.
v. Banc of Am. Sec., LLC,
[3] Because the Amended Complaint supersedes Plaintiff’s original Complaint, the Court denies Defendants’ motions to dismiss the original Complaint as moot. [Docs. 20, 22]; Fritz v. Standard Sec. Life Ins. Co. of N.Y., 676 F.2d 1356, 1358 (11th Cir. 1982) (“an amended complaint supersedes the original complaint”).
[4] Plaintiff incorrectly alleges the relevant Parties’ citizenships. See, e.g., Am. Compl. ¶¶ 1, 3
(alleging that Plaintiff “resides” in Georgia and that Defendant Glass is a “domestic limited
liability company formed and existing under the laws of Pennsylvania”). Thus, the Court directs
Plaintiff to file a notice on the docket within fourteen (14) days properly alleging diversity
jurisdiction at the conclusion of this order. See Rolling Greens MHP, L.P. v. Comcast SCH
Holdings L.L.C.,
[5] In the Amended Complaint, Plaintiff alleges a single count of Breach of Contract related to two (2) separate agreements: the Podcast Agreement and the Docuseries Agreement. Am. Compl. ¶¶ 63–75. She does the same for her Specific Performance and Promissory Estoppel counts. Id. ¶¶ 76–92. In doing so, Plaintiff has committed the “sin of not separating into a different count each cause of action or claim for relief.” See Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir. 2015); see also F ED . R. C IV . P. 10(b) (“If doing so would promote clarity, each claim founded on a separate transaction or occurrence . . . must be stated in a separate count[.]”). However, the Court does not find that this deficiency is fatal to Plaintiff’s Amended Complaint such that it must sua sponte direct Plaintiff to replead. Rather, the Amended Complaint “give[s] the defendants adequate notice of the claims against them and the grounds upon which each claim rests.” See Weiland, 792 at 1323; [See Doc. 31-1 at 16] (Defendant Glass arguing the Court “should treat each alleged breach as a separate claim” and addressing them separately in its motion to dismiss). Thus, the Court analyzes Plaintiff’s claims regarding the Podcast Agreement and the Docuseries Agreement separately. See, e.g., Bickerstaff Clay Prod. Co. v. Harris Cnty., Ga. By & Through Bd. of Comm’rs, 89 F.3d 1481, 1484 n.4 (11th Cir. 1996) (construing a complaint to present discrete claims for relief).
[6] The Court notes that Defendant Glass and Plaintiff purport to incorporate by reference sections
of other briefs filed in this case in their instant filings. [See Docs. 33 at 17; 34 at 2; 36 at 10 n.9].
The Court echoes another judge in this district by stating “[t]his presentation of the issues is
problematic for at least two reasons.” Biedermann v. Ehrhart, Civil Action No. 1:20-CV-01388-
JPB,
[7] Defendant Glass also raises several arguments to dismiss Plaintiff’s breach of contract claims based on the supposed non-existence and unenforceability of the contracts at issue. [See generally Doc. 31-1]. The Court addresses those arguments in its discussion of Plaintiff’s specific performance and promissory estoppel claims.
[8] “[W]hen an argument is raised that a claim is subject to dismissal, and the non-moving party fails
to respond to such an argument, such claims are deemed abandoned.” Kijera v. Nielsen, Civil
Action No. 1:18-CV-04100-ELR,
[9] In relation to her breach of contract claims, Plaintiff also alleges that she is entitled to recover
attorneys’ fees and litigation costs because Defendant Glass acted in bad faith and caused Plaintiff
unnecessary trouble and expense. See Am. Compl. ¶ 75. However, Plaintiff’s claim for attorneys’
fees and litigation costs are considered “wholly ancillary” and “not included within the ordinary
species of damages.” Alea London Ltd. v. Am. Home Servs., Inc.,
[10] In a footnote, Defendant Glass makes a passing argument that specific performance of either
purported contract is impracticable since the Docuseries is already streaming on Hulu. [Doc. 31-
1 at 23 n.15]. Because Defendant Glass only raises this argument in a footnote in its motion to
dismiss brief, the Court is not required to consider it. See, e.g., Pinson v. JPMorgan Chase Bank,
Nat’l Ass’n,
[11] Along with the Sound Check Recording, Defendant Glass submits a declaration by Carolyn Hartman, Executive Producer of the Betrayal Podcast, whereby she avers the Sound Check Recording is a true and correct digital copy of Plaintiff’s sound check. See Declaration of Carolyn Hartman ¶ 6 [Doc. 20-2]. Hartman avers that after several minutes, the recording stopped so that the sound engineer could review the audio quality, and then a separate, new digital audio file was created that contains Plaintiff’s actual interview. Id. Defendant Glass only proffers the Sound Check Recording and not the full recording of Plaintiff’s interview. See id.
[12] In a single sentence in its reply brief, Defendant Glass also argues, for the first time, that the
Docuseries Promise is “too vague and not sufficiently definite to support an action for promissory
estoppel under Georgia law.” [Doc. 36 at 14]. However, the Court does not consider that argument
at this juncture. See Rindfleisch v. Gentiva Health Servs., Inc.,
[13] The only Georgia case Defendant Glass offers on this point, Christensen v. Intelligent Systems
Master Limited Partnership, is unpersuasive. In Christensen, the Georgia Court of Appeals
affirmed a jury verdict awarding plaintiff $166,666.66 on plaintiff’s claim of promissory estoppel.
[14] Even if Plaintiff did rely on the above statement identified by Defendant Glass, the Court is unconvinced that a “lay legal opinion” would render Plaintiff’s reliance unreasonable. The cases Defendant Glass cites regarding lay legal opinions all pertain to misrepresentation or fraud claims, which are inapposite to Plaintiff’s promissory estoppel claims. [See Docs. 31-1 at 22; 36 at 8].
[15] “There is no substantive difference between the interests protected by the common law ‘right of
publicity’ and the interests protected by the appropriation prong of [an] invasion of privacy tort.”
Somerson v. World Wrestling Ent., Inc.,
[16] The Court notes that at least one judge in this district has held that the newsworthy exception
also extends to “later production[s] of a dramatization about past newsworthy events.” See
Thoroughbred Legends, LLC v. The Walt Disney Co., Civil Action No. 1:07-CV-1275-BBM,
[17] When discerning where to draw the boundaries of the “timeliness” and “relatedness” limitations
to the newsworthiness exception, the Eleventh Circuit has looked to the Restatement (Second) of
Torts for guidance. See Toffoloni,
[18] Defendants Hulu and ABC also extensively cite portions of Plaintiff’s Betrayal Podcast
interview and UNG Presentation to argue that Plaintiff describes “textbook grooming and predator
behavior.” [See, e.g., Doc. 32-1 at 4–9, 15]. Defendants Hulu and ABC then attempt to use
Plaintiff’s words against her, contending that her story must fall within the newsworthy exception
in order “to inform the public about the broader phenomena of sexual abuse,” which is a matter of
public interest. [Id. at 15]. Put differently, Defendants Hulu and ABC would effectively have the
Court take the sweeping position that any survivor’s account of sexual abuse can be freely
appropriated for commercial gain as a “newsworthy” matter of public interest. [See Doc. 32-1 at
14–15]. In support, Defendants Hulu and ABC cite only two (2) cases—both of which involve
defamation claims raised by individuals accused of sexual assault. [See id.] (citing Coleman v.
Grand,
[19] Plaintiff does not otherwise squarely address Defendants’ arguments that her appropriation of likeness claim should be dismissed because the Docuseries is an expressive work; her sole response to that argument is entirely premised on Defendants’ supposed waiver of their First Amendment rights. [See Doc. 33 at 18 (stating that “whether the Podcast and Docuseries are expressive works . . . [Defendant] Glass waived [its] First Amendment rights”); see also generally Doc. 34].
[20] “The question of waiver of a federally guaranteed constitutional right is, of course, a federal
question controlled by federal law.” Brookhart v. Janis,
[21] Defendant Glass relies, in part, on Fourth Amendment jurisprudence defining public versus private to support its arguments. [See Doc. 36 n.4]. The Court is unpersuaded that such jurisprudence extends to the definition of “generally known” and “open to the public observation” in the context of appropriation claims. The Georgia Supreme Court’s opinion in Bullard is instructive. In Bullard, a fourteen-year-old “exposed her breasts to two unknown men in a parking lot in Panama City, Florida. Bullard was aware that the men were videotaping her at the time and expressed no objection to being videotaped. The two men and Bullard had no discussion about what future use the men might make of the videotape.” 740 S.E.2d at 624. Those men subsequently used a still photo of the video clip of Bullard on the cover of a video box and in television and internet advertisements. Id. The Georgia Supreme Court held that Bullard “states a claim for appropriation of likeness under Georgia law.” Id. at 626. The court reasoned that Bullard’s image was “arguably used without her consent to endorse” a product for defendant’s commercial gain and noted that “any ‘consent’ that Bullard may have given by exposing herself to the two individuals who videotaped her does not amount to consent for those individuals . . . to use her image to endorse a product for their own commercial gain.” Id. at 627. Arguably, a public parking lot is more “open to public observation” than a college classroom; yet, the fact that Bullard’s actions occurred in a public parking lot had no bearing on the Georgia Supreme Court’s analysis of her appropriation claim. See generally id.; e.g., United States v. De La Rosa, 922 F.2d 675 (11th Cir. 1991) (holding that a parking lot, even with a security gate at the entrance, is a public area for purposes of the Fourth Amendment).
[22] Even if Plaintiff’s claim for unjust enrichment was not tied to her appropriation claim (as Plaintiff states that it is), the claim would still be ripe for dismissal. Pursuant to Georgia law, “a claim for unjust enrichment exists where a plaintiff asserts that the defendant induced or encouraged the plaintiff to provide something of value to the defendant; that the plaintiff provided a benefit to the defendant with the expectation that the defendant would be responsible for the cost thereof; and that the defendant knew of the benefit being bestowed upon it by the plaintiff and either affirmatively chose to accept the benefit or failed to reject it.” Campbell v. Ailion, 790 S.E.2d 68, 73 (Ga. Ct. App. 2016). Here, the Amended Complaint is devoid of allegations that Plaintiff ever communicated with Defendants ABC or Hulu, much less that those Defendants induced Plaintiff to do anything. See generally Am. Compl. Thus, Plaintiff fails to plausibly allege an unjust enrichment claim. See Campbell, 790 at 73.