## Facts

- Michael Savely performed as a drummer in New York City subway stations for the public.
- Savely earned much of his income by giving drumming lessons to children and also sold T-shirts bearing his image and art.
- In November 2010, several representatives filming for MTV Music Television and Viacom (MTV) approached Savely on a subway platform while he was performing.
- MTV’s representatives asked to film Savely drumming and to use the footage in an MTV film, and they provided a contract form/release.
- After reviewing the contract, Savely returned it and told the representatives he did not consent to being filmed.
- Savely alleged he was concerned association with the project (and its connections to certain artists and institutions) would harm his reputation, including with students and their parents.
- About three weeks later, Savely learned from others that he appeared on MTV; he then discovered MTV had filmed him and used the clip in a program about rapper Nicki Minaj, titled “Nicki Minaj: My Time Now.”
- The program included a segment that showed Savely drumming on a subway platform (the “Footage”).
- Savely alleged the clip’s image and audio quality made him appear less talented than he is.
- Savely also alleged that, because the program featured Minaj’s provocative dress and profanity, the Footage placed him in a false and disparaging light by implying a connection to, or approval of, a lifestyle inconsistent with his own and with the values of many of his students’ families.
- Savely claimed that after the program aired he received criticism from fans and supporters, lost students when parents terminated lessons, and saw a decline in clients and T-shirt sales.
- Savely filed suit in New Jersey state court asserting three invasion-of-privacy claims under New Jersey law: (1) appropriation of name/likeness, (2) public disclosure of private facts, and (3) false light.
- MTV removed the case to the U.S. District Court for the District of New Jersey and moved to dismiss under Rule 12(b)(6).

## Issues

1. Whether Savely stated a claim for appropriation of name or likeness based on MTV’s use of his image in an entertainment program.
2. Whether Savely stated a claim for public disclosure of private facts where the footage showed him performing in a public subway station.
3. Whether Savely plausibly stated a New Jersey false-light claim based on alleged false implication from the footage’s presentation and placement within the Nicki Minaj program, and MTV’s alleged knowledge or reckless disregard after Savely refused consent.

## Decision

- The court granted MTV’s motion to dismiss as to Count I (appropriation of name/likeness or identity).
- The court granted MTV’s motion to dismiss as to Count II (public disclosure of private facts).
- The court denied MTV’s motion to dismiss as to Count III (false light).
- As to appropriation, the court concluded Savely’s allegations did not fit the tort because the challenged use was within an expressive program rather than use of his identity in advertising or a similar commercial-endorsement context.
- As to private facts, the court concluded the program did not disclose private information because Savely was filmed performing publicly in a subway station.
- As to false light, the court held that, at the pleading stage, Savely plausibly alleged that the broadcast and context could convey a misleading and disparaging implication about him, and that MTV’s conduct after his stated refusal supported an inference of the required fault.

## Legal Principles

- On a Rule 12(b)(6) motion, the court accepts well-pleaded factual allegations as true, disregards legal conclusions, and asks whether the complaint plausibly states a claim for relief.
- New Jersey appropriation of name/likeness generally requires use of the plaintiff’s identity for the defendant’s benefit, typically in a commercial sense such as advertising or endorsement; use within an expressive work, without more, is generally insufficient.
- New Jersey public disclosure of private facts requires publicity of facts that are truly private, highly offensive to a reasonable person, and not of legitimate public concern; conduct performed openly in a public place is not a private fact.
- New Jersey false light requires: (1) publicity about the plaintiff, (2) that places the plaintiff in a false light, (3) that would be highly offensive to a reasonable person, and (4) knowledge or reckless disregard as to the falsity and the false light created.
- A false light may arise from implication, editing, or juxtaposition, even if the individual images are not altered, when the overall presentation can reasonably be understood to convey a misleading impression.

## Conclusion

The District of New Jersey dismissed Savely’s appropriation and private-facts claims because MTV’s program used footage of a public subway performance within an expressive work and did not reveal private information, but it allowed Savely’s false-light claim to go forward because he plausibly alleged that the clip’s quality and placement in the Nicki Minaj program could imply a misleading, disparaging association, and that MTV acted with the required level of fault despite his express refusal to consent.


Savely v. MTV Music TV, Viacom, 2011 U.S. Dist. LEXIS 77621 (2011)