MTV has lost a motion to dismiss a federal privacy suit by a street musician depicted against his wishes in a documentary about rapper Nicki Minaj.
Drummer Michael Savely of Jersey City is suing over MTV’s inclusion of four seconds of footage of him, filmed while he was performing on a New York subway platform.
In Savely v. MTV Music Television, 11-1021, Savely claims his image was hurt by the association with Minaj, who he says uses profanity, dresses provocatively and “glorifies a specific lifestyle” contrary to his and that of children to whom he gives drum lessons.
On Monday, District Judge Susan Wigenton in Newark granted MTV’s motion to dismiss invasion of privacy counts based on misappropriation of likeness and on publication of private facts. But she denied its motion to dismiss a count for invasion of privacy by false light.
Savely, who performs as “Mike Alaska,” twirls his drumsticks and incorporates pyrotechnics in his shows. He says he was performing his routine in the subway last November when he was approached by several men who said they were from MTV. They asked whether they could film him for a documentary and showed him a contract, but he declined the offer and said he did not want to be filmed.
Nonetheless, Savely’s performance was included in a program depicting the life and career of Minaj, which premiered last Nov. 28.
Savely says his business giving drum lessons to children was hurt by the association with Minaj’s unwholesome image. He claims that parents who hire him to teach drumming to their children do so out of confidence that he will “provide their children with something modern yet not corrupt.”
Savely also says his sideline, selling T-shirts with his image, was damaged by the MTV appearance.
His complaint says he received negative feedback on his Facebook page over the MTV appearance, based on fans’ perception that “plaintiff was associated with or supporting Nicki Minaj.”
Wigenton said the misappropriation of likeness count failed because Savely failed to properly plead one of four requisite elements — that MTV had a predominately commercial purpose for its action. He had properly pleaded the three other requisite elements —— that the defendant appropriated his likeness and lacked his consent, and that he was damaged.
Under New Jersey common law, MTV would be liable for the tort of misappropriation of likeness only if it was seeking to capitalize on Savely’s likeness for a predominantly commercial purpose, other than the dissemination of news or information, Wigenton said.
“[W]hile it is possible that Plaintiff’s misappropriation of likeness claim could be pled sufficiently if amended, it is not in the present Complaint,” Wigenton wrote.
Savely’s claim that his privacy was invaded based on publication of private facts failed because the footage was taken while he was visible to the public at large, Wigenton said. The television program merely gave publicity to what was already public, she said.
“[T]here is no wrong where defendant did not actually delve into plaintiff’s concerns, or where plaintiff’s activities are already public or known,” Wigenton wrote, citing Bisbee v. John C. Conover Agency, Inc., 186 N.J. Super. 335 (1982).
But Wigenton declined to dismiss Savely’s claim for invasion of privacy by false light because he sufficiently pleaded facts to state a cause of action for that tort, Wigenton said.
That tort requires the plaintiff to show he is given unreasonable and highly objectionable publicity that attributes to him characteristics, conduct or beliefs that are false, and so is placed before the public in a false position, she said.
MTV’s lawyers, Seth Lapidow and Michael Rowe of Blank Rome in Princeton, argued that the false light claim had to fail because the images of Savely were not distinctly linked to Minaj or any substantive themes of the film. The scene of Savely’s performance and other scenes in the subway were used to introduce a segment in which Minaj returned to New York to buy a home for her family.
But to plead a false light claim, the plaintiff need not show he was defamed, Wigenton said. Rather, the defendant’s actions must be something that would be objectionable to the ordinary, reasonable man, she said.
Wigenton gave Savely’s attorney, Jamison Mark of Mark & Galusha in Basking Ridge, 30 days to file an amended complaint, and Mark says he intends to do so.
“We don’t agree with it but we understand the reasoning behind her decision,” says Mark. “And we do feel that allowing us to amend the complaint is a simple way for the judge to say ‘I’m going to give you a second chance,’” he says.
He says Savely does not want to be tied to Minaj because “he doesn’t want to have that commercial, sell-out feel.”
Lapidow declines to comment on why MTV put Savely in the documentary against his wishes. “Discovery will show us whether there are merits to his claims,” says Lapidow. He added that a false light claim is “very hard to prove” and “this is just the first hurdle.”