A California appellate court has affirmed a lower court’s dismissal under the anti-SLAPP statute, of a plaintiff’s claim that the defendants misappropriated his image in the course of their broadcast of a reality show.
This appeal arises from Appellant Steven Greenstein’s (“Greenstein”) appearance on a reality-based television program about the life of Gene Simmons (“Simmons”), a well-known musician and member of the rock band, “KISS.” After an episode featuring Greenstein was aired on national television, Greenstein filed suit against the alleged producer and distributor of the program, asserting claims for common law and statutory misappropriation of his persona. In response to Greenstein’s complaint, Respondents The Greif Company and A&E Television Networks (collectively “Respondents”) brought a special motion to strike pursuant to Code of Civil Procedure section 425.16.
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According to Greenstein, Greif originally told him that he would not be able to appear on camera while acting as a segment producer. However, once Simmons arrived in New Orleans, Greenstein acted as an escort for Simmons and his entourage as they travelled from appearance to appearance, resulting in numerous interactions between Simmons and Greenstein as the cameras were rolling. Greenstein knew that his interactions with Simmons were being filmed for the reality television show, and Greenstein himself wore a body microphone so that his voice could be recorded. In addition, Greenstein reviewed the raw footage from New Orleans at the end of each day’s filming to ensure the quality of the work performed by the camera crew.
As part of his production duties, Greenstein prepared a sign to be held up at all times during filming. That sign read as follows: “‘Gene Simmons Reality TV Show’ (working title) (‘program’) is being videotaped in this location for possible network broadcast. [¶] If you are in this area, you may be photographed. Your presence in this area shall be deemed consent to photograph you, to record your voice, and to exploit such image, photographs and sound recordings in this program and other programs in all media, worldwide, in perpetuity. [¶] If you do not want to be photographed, please stay behind the cameras. [¶] Thank you. [¶] Signed, A Day With Inc. (‘Producer’).” According to Greenstein, the sign simply was intended to inform the public that filming was taking place in a public area, and despite the presence of the sign, anyone who was subsequently filmed had to sign a release for their appearance on the program.
Greenstein’s responsibilities as a segment producer also included obtaining written releases from all persons who were filmed as part of the New Orleans segment. Greenstein prepared a release form prior to filming and thereafter collected signed releases from everyone who appeared on camera during the filming, except himself. Greif and another producer, Adam Reed (“Reed”), stated that they personally witnessed Greenstein sign a release while in New Orleans and that Greenstein later claimed he lost the release in Hurricane Katrina. Greenstein, on the other hand, asserted that he never signed any release for his appearance on the show. According to Greenstein, he believed that because he did not sign a release, he would have to be compensated if he appeared in the final cut of the New Orleans segment. However, there is no indication that Greenstein had any discussions with the show’s producers either before or during filming about his unwillingness to sign a release unless he received compensation.
In June 2006, over a year after the New Orleans filming was completed, Reed asked Greenstein to provide a signed release for his appearance on the program. Greenstein refused to do so, however, without first receiving payment. Greenstein’s attorney also contacted A&E Television Networks in an effort to negotiate a written release from Greenstein in exchange for compensation, but received no response. The episode entitled “Shrinkwrapped” was subsequently broadcast on the A&E Network, and as described by the parties, Greenstein was featured prominently in the New Orleans segment. Greenstein did not receive any payment for his appearance on the program.
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Greenstein raises two issues in his appeal. First, he argues that the trial court abused its discretion in sustaining all of Respondents’ evidentiary objections. Second, he asserts that the trial court erred in granting the special motion to strike on its merits. We consider each of these contentions in turn.