black residents for sickle cell anemia, a senior citizens safety program to escort senior citizens to local banks and supermarkets. The Black Panther Party also organized voter registration drives and legal aid services.
Moreover, the Black Panther Party engaged in overt political activity, such as demonstrations and protests. The Plaintiff and the Black Panther Party rejected Dr. Martin Luther King Jr.'s calls for non-violent resistance to physical attack. The Plaintiff stated in his deposition that the Black Panther Party advocated that black people should own guns for "self-defense against the racist power structure or any racist who attacked us." The Plaintiff himself led a group of gun-carrying demonstrators onto the floor of the California State Legislature during a protest march in 1967. Much publicity surrounded the Black Panther Party in the late 1960's following several armed confrontations with police in which several Party members were killed.
Although by 1969 chapters of the Black Panther Party had been organized in several major cities across the country, including Philadelphia, the size and strength of the Party started to decline after 1970. Huey P. Newton had been imprisoned and convicted of manslaughter in the 1967 shooting death of an Oakland police officer. The Plaintiff resigned from the Party in 1974. The Plaintiff attributes the decline of the Black Panther Party to a campaign by the FBI to neutralize and discredit the Party.
The Plaintiff currently lives in Philadelphia, Pennsylvania. He lectures around the country and works, on an unpaid basis, for Temple University as a "community liaison." He has formed a production company called REACH Cinema Productions and is in the process of raising money to produce a major feature film and a documentary film on the Black Panther Party. The Plaintiff has written three books: Seize the Time: The Story of the Black Panther Party and Huey P. Newton, A Lonely Range (the Plaintiff's autobiography), and Barbecuing with Bobby Seale. The Plaintiff has also engaged in commercial advertisements for a well-known brand of ice-cream and for a local bank.
The screenplay for the movie "Panther" was written by filmmaker Melvin Van Peebles and the film was directed by his son, Mario Van Peebles. The film is based on the novel "Panther" written by Melvin Van Peebles. The film was produced and distributed by the Defendants. In May 1995, the film was released in theaters across the country. The film is now available on home video.
The film combines fiction with history. The narrator of the story is a fictitious character named "Judge," who describes his involvement with the Black Panther Party in Oakland, California during the late 1960's. The historical characters of Black Panther Party leaders Bobby Seale, Huey P. Newton, and Eldridge Cleaver are played by actors Courtney B. Vance, Marcus Chong, and Anthony Griffith, respectively. Throughout the film, the fictitious character of Judge describes his involvement in the Black Panther Party and narrates major events in the history of the Black Panther Party as the film reenacts those events.
For example, as heretofore pointed out, the Black Panther Party gained nationwide publicity after Bobby Seale and a group of Party members brandishing shotguns marched onto the floor of the California State Legislature during a protest march in 1967. The film depicts this scene in detail, focusing primarily on the character of Bobby Seale leading other Black Panther Party members, in the full Party uniform of a black leather jacket and black pants, onto the floor of the state assembly room. Moreover, the film reenacts Huey Newton's 1967 shootout with an Oakland police officer, which eventually led to Newton's imprisonment for manslaughter following the officer's death. The film also reenacts the 1968 shootout between the Oakland police and several Black Panther Party members, which shootout lead to the death of Party member "Li'l" Bobby Hutton.
The making of "Panther" is memorialized in the book Panther: A Pictorial History of the Black Panthers and the Story Behind the Film, published by NewMarket Press, New York. The Defendants Polygram Filmed Entertainment Distribution, Inc. and Gramercy Pictures share with others not parties to this action the copyrights to the book. Moreover, the sound-track for the movie has been released on compact-disc (CD/cassette), to which Defendant PolyGram owns the copyright. The CD/cassette is a collection of the songs played throughout the film. It consists of various songs composed by different musicians, including the song "Express Yourself" by "JOE" and the song "We'll Meet Again" by "Blackstreet."
The promotional cover for the home video release of the movie "Panther" contains a photograph of the seven actors who portrayed members of the Black Panther Party in the film. The three people in the middle of the photograph are the actors who portrayed the real-life Black Panther Party leaders Bobby Seale, Huey P. Newton, and Eldridge Cleaver. The Plaintiff's name is mentioned on the cover in connection with a promotion for the film:
A time of tension. Of rioting in the streets. A time of change. In Oakland, California, 1968, The Black Panthers led by Huey Newton and Bobby Seale have armed themselves and are ready to fight for freedom. To the people, they're heroes, but to the FBI they're Public Enemy Number One. Now the Feds will do everything they can -- on the right or wrong side of the law -- to bring them down.
Moreover, two photographs from the film appear on the cover of the musical CD/cassette. The first is the same photograph that appears on the cover for the home video--seven Black Panther members, including the actors who portrayed Seale, Newton, and Cleaver. The second photograph on the CD/cassette cover depicts the scene in the movie where Bobby Seale marched into the assembly room of the California State Legislature in 1967.
As heretofore pointed out, the Plaintiff alleges that the Defendants violated his common-law right of publicity by using, without consent, his name and likeness in connection with the film "Panther"; that the Defendants' portrayal of the Plaintiff, as the chairman of the Black Panther Party in the film, violated his right of privacy by placing him in a "false light"; and that the Defendants's use of the Plaintiff's name and likeness to promote and advertise the film constitutes unfair competition and false advertising in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
The parties do not dispute that the Plaintiff is a well-known public and historical figure due to his role as the co-founder and chairman of the Black Panther Party in 1966. As the Third Circuit recognized in Marcone v. Penthouse Intern. Magazine for Men, 754 F.2d 1072, 1083 (3d Cir.), cert. denied, 474 U.S. 864, 88 L. Ed. 2d 151, 106 S. Ct. 182 (1985): "If a position itself is so prominent that its occupant unavoidably enters the limelight, then a person who voluntarily assumes such a position may be presumed to have accepted public figure status." The Plaintiff's name and his role in the Black Panther Party may be found in most history books discussing the Civil Rights Movement of the 1960's. See, e.g., John Hope Franklin & Alfred A. Moss, Jr., From Slavery to Freedom: A History of African Americans at 518-21 (7th ed. 1994). Moreover, as heretofore pointed out, the Plaintiff presently lectures at colleges and universities throughout the country on the topic of the Black Panther Party and his role in the Party.
The film "Panther" may be categorized as a "docudrama"--"a theatrical or television motion picture presenting a dramatic recreation or adaption of actual events." J. Thomas McCarthy, The Rights of Publicity and Privacy § 8.9[A] n.2 (insert 6/96) (citing cases). Accordingly, Plaintiff's right of publicity and right of privacy claims are limited to the Defendants' use of the Plaintiff's name and likeness in connection with the public and historical events surrounding the Black Panther Party and the Plaintiff's role as co-founder of the Party. The Plaintiff has not alleged a cause of action for defamation or for the tortious publication of matters concerning his private affairs or for the tortious invasion upon his private seclusion, which torts any person including public figures may bring in Pennsylvania as separate causes of actions for invasions of privacy. The Plaintiff's present claims are based on the Defendants' commercial use of Plaintiff's name and likeness in connection with his role as a public and historical figure and for portraying the Plaintiff in a false light to the public. Accordingly, it must be noted that "those who are voluntarily in the public eye, such as celebrities and politicians, clearly have less 'privacy' than others, at least as to legitimate reporting of facts reasonably relevant to their public activities." J. Thomas McCarthy, The Rights of Publicity and Privacy § 5.9[B] (insert 3/96).
I. Plaintiff's common-law claim for infringement of his right of publicity.
In his complaint, the Plaintiff asserts a claim for infringement of his right of publicity on the grounds that the Defendants used, without consent, his name and likeness (use of an actor called Bobby Seale) in the film "Panther," in the pictorial history book, and on the covers of the home video and the musical CD/cassette.
The court is mindful that, "perhaps no aspect of the rights of privacy and publicity has been perceived as being as cloudy and muddled as liability for the use of persons' identities in 'stories,' whether denominated as 'fiction,' 'faction,' or 'docudrama.'" J. Thomas McCarthy, The Rights of Publicity and Privacy § 8.9[A] (insert 6/96). The law in Pennsylvania is no exception.
This court predicts, however, that the Pennsylvania Supreme Court will clarify the law concerning the right of publicity in Pennsylvania by adopting § 46 of the Restatement (Third) of Unfair Competition, which was recently published by the American Law Institute in 1995. Section 46 defines the right of publicity as follows:
§ 46 Appropriation of the Commercial Value of a Person's Identity: The Right of Publicity
One who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for the purposes of trade is subject to liability for the relief appropriate under the rules stated in §§ 48 and 49.