RACHEL HELLER v. GLASS ENTERTAINMENT GROUP, LLC
1:23-CV-04595-ELR
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
January 14, 2025
Presently before the Court is Plaintiff Rachel Heller‘s Motion for Order for Certificate of Immediate Review [Doc. 38], Defendant Glass Entertainment Group LLC‘s (“Glass“) Motion for Reconsideration [Doc. 43], and Plaintiff‘s Motion for Entry of Judgment under
This case concerns Plaintiff‘s various claims against Defendant Glass and former Defendants ABC News, Inc. (“ABC“), and Hulu, LLC, regarding the “unwanted intrusion and misappropriation of her image and likeness” in a three-part docuseries that was produced by Defendant Glass and former Defendant ABC and streamed by former Defendant Hulu. See Compl. [Doc. 1]; Am. Compl. at 1-4 [Doc. 28].
According to the Complaint, Plaintiff “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. Am. Compl. at 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 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. at 2. Various news outlets reported details related to Herron‘s arrest and conviction. [See Doc. 23, Ex. A, Ep. 3 at 1:11-32, 14:07-42]. “These and other facts regarding
During the production of the Betrayal Podcast, Plaintiff reached an oral agreement with Defendant Glass (the “Podcast Agreement“) to participate in a recorded interview “only” upon Defendant Glass‘s express agreement “that the audio recording of the interview would be used solely for the podcast.” See Am. Compl. ¶ 13 (emphasis in original). Defendant Glass “agreed to” Plaintiff‘s condition. Id. The Betrayal Podcast was released in April 2022 and “quickly skyrocketed to the No. 1 podcast in America across all major platforms and amassed more than eight million downloads.” Id. ¶ 16.
Among other things, the Betrayal Podcast details Herron‘s “textbook grooming and predator behavior.” [See, e.g., Doc. 23, Ex. B, Ep. 3 at 17:15-33; Ep. 8 at 13:05-14:59]. It also contains Plaintiff‘s explanation that she agreed to be interviewed “to help with the healing process” and to “defend [her]self to the public eye with [her] own words.” [See id. Ep. 3 at 4:50-5:35]. Additionally, in the Podcast, Plaintiff discusses a civil lawsuit she filed against her school related to Herron‘s abuse and the harmful impact of the school “victim shaming” her in court. [Id. at 29:20-42]. She also reads the letter that she submitted to the parole board urging them to deny Herron parole. [Id. Ep. 8 at 13:05-14:59]. Following the Podcast‘s “enormous success,” Defendant Glass and former Defendant ABC decided to adapt
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“). Am. Compl. ¶ 21. Approximately two weeks before the UNG Presentation, Plaintiff met with Faison and learned 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 that she and Defendant Glass “would never be able to use footage of [Plaintiff] if [she] didn‘t sign a release.” Id. 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 [portion her] presentation would appear” in the Docuseries. See id. ¶ 24.
Plaintiff subsequently initiated this action, alleging six Counts:
- Appropriation of Plaintiff‘s likeness against Defendant Glass and former Defendants ABC and Hulu (Count I);
- Breach of contract against Defendant Glass as to the Podcast Agreement and Docuseries Agreement (Count II);
- Specific performance against Defendant Glass as to the Podcast Agreement and Docuseries Agreement (Count III);
- Promissory estoppel against Defendant Glass as to the Podcast Agreement and Docuseries Agreement (Count IV);
- Unjust enrichment against former Defendants ABC and Hulu (Count V); and
Punitive damages against Defendant Glass and former Defendants ABC and Hulu (Count VI).
Am. Compl. ¶¶ 50-97.
Defendant Glass, individually, and former Defendants ABC and Hulu, jointly, moved to dismiss the Complaint. [Docs. 31, 32]. On August 16, 2024, the Court granted former Defendants ABC and Hulu‘s motion to dismiss in its entirety, thereby dismissing Counts I, V, and VI as to those Defendants and dismissing them as Defendants in this case. [Doc. 37 at 39]. The Court also granted in part and denied in part Defendant Glass‘s motion to dismiss (the “MTD Order“). [Id.] Specifically, the Court granted Defendant Glass‘s motion to dismiss regarding Plaintiff‘s claims for breach of contract as to the Podcast Agreement and Docuseries Agreement (Count II) and specific performance as to the Docuseries Agreement (Count III). [Id.] The Court denied Defendant Glass’ motion in all other respects. [Id.] Accordingly, Plaintiff‘s claims against Defendant Glass for appropriation of Plaintiff‘s likeness (Count I), specific performance as to the Podcast Agreement (Count III), promissory estoppel (Count IV), and punitive damages (Count VI) survived. [See id.]
Subsequently, Defendant Glass filed its Motion for Reconsideration. [Doc. 43]. In that motion, Defendant Glass contends that the Court‘s MTD Order contains a “clear error” of law related to Plaintiff‘s appropriation claim. [Doc. 43-1 at 1]. Plaintiff responded in opposition, and Defendant Glass replied. [Docs. 48; 50].
II. Defendant Glass‘s Motion for Reconsideration
A. Legal Standard
Reconsideration is only appropriate where there is (1) newly discovered evidence, (2) an intervening development or change in controlling law, or (3) a need to correct a clear error of law or fact. See Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D. Ga. 2003); see also Kramer v. Conway, 962 F. Supp. 2d 1333, 1356 (N.D. Ga. 2013). Accordingly, motions for reconsideration should be filed only when “absolutely necessary.” Bryan, 246 F. Supp. 2d at 1258; accord LR 7.2(E), NDGa. They should not be used “as a vehicle to present new arguments or evidence that should have been raised earlier, introduce novel legal theories, or repackage familiar arguments to test whether the Court will change its mind.” Pediatric Med. Devices, Inc. v. Ind. Mills & Mfg., Inc., 961 F. Supp. 2d 1241, 1243 (N.D. Ga. 2013). Whether to grant reconsideration is committed to the sound discretion of the district
B. Discussion
Defendant Glass‘s Motion for Reconsideration concerns the Court‘s application of the “newsworthiness” exception to Georgia‘s invasion of privacy tort and Plaintiff‘s related appropriation of likeness claim. [See generally Doc. 43]. Specifically, Defendant Glass contends that the Court erroneously limited the newsworthiness exception to “contemporaneous news stories” and failed to recognize the broader public interest in the Docuseries. [Doc. 43-1 at 1]. In doing so, Defendant Glass argues, the Court “seemingly narrowed the ‘newsworthiness’ exception to ‘hot news,’ a concept that is inapplicable to this case and inconsistent with Georgia law regarding the right of publicity.”2 [Id. at 1-2]. In its discretion, the Court agrees with Defendant Glass that reconsideration of its MTD Order is necessary to correct an error of law or fact. See Fla. Ass‘n of Rehab. Facilities, Inc., 225 F.3d at 1216.
As relevant here, Plaintiff‘s appropriation of likeness claims falls within one of the “four species of the tort of invasion of privacy.” See Torrance v. Morris Pub. Grp. LLC, 636 S.E.2d 740, 747 (Ga. Ct. App. 2006) (quoting Cabaniss v. Hipsley, 151 S.E.2d 496, 500 (Ga. Ct. App. 1966)). Because the Georgia common law “right to privacy and corresponding right of publicity are necessarily in tension with the First Amendment‘s protection of freedom of speech and of the press” and the Georgia state constitution‘s similar guarantee, “Georgia courts have adopted a ‘newsworthiness’ exception to the right of publicity.” Toffoloni v. LFP Publ‘g Grp., LLC, 572 F.3d 1201, 1207 (11th Cir. 2009); see Waters v. Fleetwood, 91 S.E.2d 344, 346 (Ga. 1956) (noting that the right to privacy may “collide with the right of the public to speak, write, and print matters of public interest“). In other words, the newsworthiness exception exists “due to the fact that [Georgia] law considers that the welfare of the public is better subserved by maintaining the liberty of speech and of the press than by allowing an individual to assert his right of privacy in such a way as to interfere with the free expression of one‘s sentiments and the publication of every matter in which the public may be legitimately interested.” Tucker v. News Publ‘g Co., 397 S.E.2d 499, 500 (Ga. Ct. App. 1990).
Pursuant to the newsworthiness exception, “where an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one‘s legal right of privacy.” Toffoloni, 572 F.3d at 1207 (quoting Waters, 91 S.E.2d at 348). In other words, there are two ways a publication might fall within the newsworthiness exception: (1) the information relates to an incident of public interest, or (2) the information pertains
As to the public investigation category, the Court noted that Georgia courts routinely dismiss invasion of privacy claims when they “involve contemporaneous news stories.” [Doc. 37 at 29 n.16]; see Thoroughbred Legends, LLC v. The Walt Disney Co., No. 1:07-CV-1275-BBM, 2008 WL 616253, at *11 (N.D. Ga. Feb. 12, 2008); Tucker, 397 S.E.2d at 500 (holding that information related to criminal matters is newsworthy “[d]uring the pendency and continuation of the investigation and until such time as the perpetrator of the crime may be apprehended and brought to justice under the rules of our society” (emphasis added)). Because the Docuseries aired several years after Herron‘s arrest, conviction, and sentencing, the Court declined to dismiss Plaintiff‘s appropriation of likeness claim based on the public investigation prong of the Georgia common law newsworthiness exception. [Doc. 37 at 30]. However, Defendant Glass‘s present argument—that the Court failed to recognize the broader public interest in the Docuseries is well-taken. [Doc. 43-1 at 1]. Thus, the Court now considers whether the Docuseries is newsworthy because it relates to an “incident [that] is a matter of public interest.” See Waters, 91 S.E.2d at 348.
For a publication to be newsworthy, the Eleventh Circuit has observed that Georgia courts “consistently indicate[]” that a publication of an “incident of public
in Ramsey v. Georgia Gazette Publishing Company, 164 Ga. App. 693, 297 S.E.2d 94, 96 (1982), the court recognized that the “plaintiff has, albeit unwillingly, become an actor in a public drama.” As such, “[d]issemination of information pertaining to this drama is no violation of the plaintiff‘s right of privacy.” Id. (emphasis added). Correspondingly, we conclude that the Georgia courts would find that dissemination of information that does not pertain to the “drama” at hand may violate an individual‘s right of privacy. Although the Georgia courts have not said that public scrutiny is circumscribed solely to the details of the newsworthy event itself, the Georgia courts have required reasonable timeliness and relatedness boundaries.
Id. at 1210-11 (emphasis in original). These boundaries are not demanding. They only require that “[s]ome reasonable proportion is . . . to be maintained between the event or activity that makes the individual a public figure and the private facts to which publicity is given.”3 Id. at 1211. When published information is “in no conceivable way related to the ‘incident of public concern’ or current ‘drama,‘” the newsworthiness exception does not apply. See id.
In Waters, a newspaper published photographs of a murdered child‘s deceased body, as illustrative of an article about her murder and the subsequent investigation. [The woman‘s] situation is distinct from the situation in Waters. In Waters, the offensive photographs were of the child‘s deceased body, and as such were directly related to the “incident of public interest“—the child‘s death. . . . [Here, the nude photographs of the woman] had no relation to her death. Her aspiring nude modeling career at no time developed into an incident of public concern, and for good reason—[she] sought the destruction of all of those images.
Id. Thus, the Eleventh Circuit held that the nude photographs were “merely incidental” to the biography of the woman‘s life and therefore did not “conceptually”
In contrast, here, Defendant Glass‘s publication of Plaintiff‘s likeness in the Docuseries is conceptually related to the incident of public concern of Herron‘s criminal actions, which have rendered Plaintiff, albeit unwillingly, the subject of public scrutiny. See Toffoloni, 572 F.3d at 1211; Ramsey, 297 S.E.2d at 95; see also Torrance, 636 S.E.2d at 741, 747 (holding that the “circumstances” surrounding the death of a man who drowned were newsworthy and barred plaintiff‘s invasion of privacy claims, which were based on defendant‘s publication of her photograph seven years after the man‘s death in an article discussing that he was a “convicted peeping Tom” and looked through her window the night before his death when she was 17 years old). Accordingly, because Plaintiff‘s likeness has “some reasonable proportion” to the events of Herron‘s criminal activity, Plaintiff‘s likeness in the Docuseries is newsworthy. Toffoloni, 572 F.3d at 1211; Torrance, 636 S.E.2d at 747.
In response to Defendant‘s Motion for Reconsideration, Plaintiff contends that even if her appearance in the Docuseries is newsworthy, the Court should not dismiss her appropriation of likeness claim due to Defendant Glass‘s First Amendment waiver. [Doc. 48 at 5]. The Court‘s MTD Order held that the Complaint “plausibly alleges that Defendant Glass waived its First Amendment rights as to the publication” of Plaintiff‘s UNG Presentation. [See Doc. 37 at 33-34]. Thus, Plaintiff
In reply, Defendant Glass argues that the newsworthiness exception is a distinct feature of Georgia invasion of privacy torts and thus not waivable. [Doc. 50 at 9]. Specifically, Defendant Glass contends that the Georgia newsworthiness exception “exists separate and apart from any defenses that may be available under the First Amendment” because some Georgia courts have dismissed invasion of privacy claims based on newsworthiness without explicit mention of the First Amendment. [See id. at 9-10]. Defendant Glass therefore urges the Court to dismiss Plaintiff‘s appropriation of likeness claim regardless of Defendant Glass‘s alleged First Amendment waiver. [Id.]
The Court is unpersuaded by Defendant Glass‘s argument. The weight of authority suggests that the newsworthiness exception is not a free-standing concept. Rather, it inextricably arises from the First Amendment and the Georgia state constitution‘s protection of the freedom of speech and of the press. See, e.g., Toffoloni, 572 F.3d at 1208 (“[W]here [a] publication is newsworthy, the right to publicity gives way to freedom of the press“); Martin Luther King, Jr., Ctr. for Soc. Change, Inc. v. Am. Heritage Prods., Inc., 296 S.E.2d 697, 703 (Ga. 1982) (“[T]he courts in Georgia have recognized the rights of private citizens . . . not to have their names and photographs used for the financial gain of
III. Plaintiff‘s Motions
Plaintiff filed two motions seeking ways to appeal the Court‘s MTD Order as it pertains to former Defendants ABC and Hulu while this action against Defendant Glass is ongoing. [See Docs. 38, 44]. First, Plaintiff filed her Motion for Certificate
When more than one claim for relief is presented in an action, . . . or when multiple parties are involved, the [district] court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.
The [equities] factor serves to limit
Rule 54(b) certification to instances in which immediate appeal would alleviate some danger of hardship or injustice associated with delay.As these factors will often suggest contrary conclusions,
Rule 54(b) certifications “must be reserved for the unusual case in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early and separate judgment as to some claims or parties.” Recognizing that such circumstances will be encountered only rarely, [the Eleventh Circuit] ha[s] previously counseled district courts to exercise the limited discretion afforded byRule 54(b) conservatively.
Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 166 (11th Cir. 1997) (emphasis added). “[T]he decision to certify is committed to the sound judicial discretion of the district court” and “will not [be] disturb[ed] . . . unless it [is] clearly unreasonable.” Id.
In response, Defendant contends there are substantial reasons to delay in entering judgment against former Defendants ABC and Hulu at this time. [Doc. 47 at 2]. Defendant argues that the judicial administrative interests weigh against a
Upon review, the Count finds that there is just reason for delay and that
IV. Conclusion
For the foregoing reasons, the Court DENIES Plaintiff‘s Motion for Certificate of Immediate Review [Doc. 38] and Motion for Entry of Judgment Pursuant to
Finally, the Court LIFTS THE STAY in this matter. [Doc. 46]. The Court DIRECTS the Parties to file a Joint Preliminary Report and Discovery Plan in
SO ORDERED, this 14th day of January, 2025.
Eleanor L. Ross
Eleanor L. Ross
United States District Judge
Northern District of Georgia