## Facts

- Bobby Berosini, a well-known animal trainer and entertainer, performed an orangutan act through his company, Bobby Berosini, Ltd., at the Stardust Hotel in Las Vegas.
- Before going on stage, Berosini used a backstage staging area where he made final preparations with the orangutans.
- The staging area was separated from the rest of the backstage space by a curtain rather than a permanent wall or locked door.
- Berosini asked to be left alone with the animals to avoid interference with his preparations, not because he feared being seen or heard.
- While Berosini was in the curtained area, Ottavio Gesmundo (a dancer in the same show) and other performers could hear loud thumping and the animals’ distress sounds.
- Through thin spots in the curtain, Gesmundo and others could sometimes see Berosini “disciplining” the orangutans.
- Believing the conduct should be stopped, Gesmundo secretly placed a video recorder in the staging area and recorded Berosini striking and roughly handling the animals.
- Gesmundo gave the videotape to People for the Ethical Treatment of Animals (PETA) and the Performing Animal Welfare Society (PAWS), which disseminated the tape and used it in public communications about Berosini and animal treatment.
- After the tape was aired and widely publicized, Berosini and his company sued Gesmundo, PETA, PAWS, and associated individuals for defamation (libel) and invasion of privacy (including intrusion upon seclusion and appropriation of name/likeness), among other theories.
- A jury returned verdicts for Berosini and awarded aggregate damages in the millions of dollars; the defendants appealed.

## Issues

1. Whether the evidence was sufficient to support defamation liability where challenged statements about Berosini were tied to and based on a videotape showing his backstage conduct with the orangutans.
2. Whether the secret videotaping in a curtained backstage staging area constituted intrusion upon seclusion, including whether Berosini had a reasonable expectation of privacy and whether the intrusion was highly offensive.
3. Whether defendants’ publication and use of Berosini’s name and image in connection with the videotape constituted the privacy tort of appropriation under Nevada law.

## Decision

- The Nevada Supreme Court reversed the judgment entered on the jury’s verdicts.
- The court concluded the evidence was insufficient to support libel liability because Berosini did not establish actionable falsity; descriptions and characterizations drawn from the videotape were substantially true or nonactionable expressions based on disclosed facts.
- The court concluded the evidence was insufficient to support intrusion upon seclusion because Berosini failed to show a legally protected expectation of privacy in the curtained staging area and failed to show an intrusion that would be highly offensive to a reasonable person in that setting.
- The court concluded the evidence was insufficient to support appropriation because the use of Berosini’s identity and the footage was tied to publication about a matter of public interest, not a commercial use of his likeness in the sense required for the tort.

## Legal Principles

- Defamation requires proof of a false statement of fact that is defamatory; substantial truth defeats liability.
- Statements that are evaluative characterizations based on disclosed, accurately conveyed facts (such as a video viewers can assess) are less likely to be treated as provably false factual assertions.
- Intrusion upon seclusion requires (1) an intentional intrusion (physical or otherwise) (2) into a private place, conversation, or matter (3) that would be highly offensive to a reasonable person; a plaintiff must show a reasonable expectation of privacy recognized by law.
- A workplace or shared backstage area, separated only by a curtain and partially observable and audible to others, may not support a reasonable expectation of privacy sufficient for the intrusion tort.
- Appropriation (misappropriation of name or likeness) generally targets unauthorized use of identity for a defendant’s own commercial advantage; publication connected to news or other public-interest communication is not the type of use the tort is aimed at.
- An appellate court may reverse a jury verdict where the record lacks legally sufficient evidence on essential elements of the claims.

## Conclusion

In *PETA v. Bobby Berosini, Ltd.*, the Nevada Supreme Court set aside Berosini’s jury award and reversed the judgment, holding that the record did not contain sufficient evidence to sustain defamation or invasion-of-privacy liability arising from a secretly recorded backstage videotape and the subsequent publication of that footage by animal-rights organizations and related individuals.


PETA v. Bobby Berosini, Ltd., 895 P.2d 1269 (1995)