The opinion of the court was delivered by: BRODERICK
The Plaintiff Bobby Seale brings this tort action seeking damages from the Defendants for the production, release, and distribution of the motion picture "Panther." The Defendants are Gramercy Pictures, PolyGram Filmed Entertainment Distribution, Inc., Working Title Group, Inc., and Tribeca Productions, Inc. The Plaintiff contends that the Defendants' portrayal of him in the film "Panther" (by use of an actor called "Bobby Seale" in the film) places him in a "false light" in violation of his common law right of privacy.
A bench trial was held before the court on March 4, 1997 and it concluded on March 11, 1997. For the reasons stated hereinafter, which are Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a), judgment will be entered in favor of Defendants against Plaintiff Bobby Seale.
The Uncontested Factual Background
In 1966 the Plaintiff Bobby Seale along with another young black male named Huey P. Newton formed a "grass-roots" political/social organization in the black community of Oakland, California. They named the organization the "Black Panther Party for Self-Defense," but later shortened the name to the "Black Panther Party" in an effort to portray the party as a true political organization and not as a paramilitary organization. Bobby Seale took the title of the Party's Chairman and Huey P. Newton took the title of the Party's Minister of Defense. One of the Party's first members was a teenager named "Little" Bobby Hutton. A local Californian named Eldridge Cleaver later joined the Party and took the title of the Party's Minister of Information, making him the Party's third highest ranking leader behind Seale and Newton.
Bobby Seale and Huey Newton set forth the platform of the Black Panther Party in a "Ten-Point Program." The Party's Ten-Point Program provided:
1. WE WANT FREEDOM, WE WANT POWER TO DETERMINE THE DESTINY OF OUR BLACK COMMUNITY.
2. WE WANT FULL EMPLOYMENT FOR OUR PEOPLE.
3. WE WANT AN END TO THE ROBBERY BY THE WHITE MAN OF OUR BLACK COMMUNITY.
4. WE WANT DECENT HOUSING FIT FOR SHELTER OF HUMAN BEINGS.
5. WE WANT EDUCATION FOR OUR PEOPLE THAT EXPOSES THE TRUE NATURE OF THIS DECADENT AMERICAN SOCIETY. WE WANT EDUCATION THAT TEACHES US OUR HISTORY AND OUR ROLE IN THE PRESENT DAY SOCIETY.
6. WE WANT ALL BLACK MEN TO BE EXEMPT FROM MILITARY SERVICE.
7. WE WANT AN IMMEDIATE END TO POLICE BRUTALITY AND MURDER OF BLACK PEOPLE.
8. WE WANT FREEDOM FOR ALL BLACK MEN AND WOMEN HELD IN FEDERAL, STATE, COUNTY, AND CITY PRISONS AND JAILS.
9. WE WANT ALL BLACK PEOPLE WHEN BROUGHT TO TRIAL, TO BE TRIED IN COURT BY A JURY OF THEIR PEER GROUP OR PEOPLE FROM THEIR BLACK COMMUNITIES, AS DEFINED BY THE CONSTITUTION OF THE UNITED STATES.
10. WE WANT LAND, BREAD, HOUSING, EDUCATION, CLOTHING, JUSTICE AND PEACE.
In order to effectuate its goals, the Party implemented a number of "community survival programs." For example, the Party started a free breakfast program for neighborhood children, a program to test black residents for sickle-cell anemia, and a senior citizens safety program to escort the elderly to local banks and supermarkets. The Party was also involved in educating Oakland's black residents on issues relating to voter registration and legal aid services.
As heretofore pointed out, the Party's Ten-Point Program called for "an immediate end to police brutality and murder of black people." The Party encouraged Oakland's black residents to purchase guns in order to stem what the Party considered to be excessive brutality and racism on the part of the Oakland police. In the Party's litany of beliefs, it was stated:
Members of the Black Panther Party openly carried guns in public. The evidence presented at the trial showed that some of the guns which Bobby Seale and Huey Newton first collected were given to them by a Black Panther Party sympathizer named Richard Aoki. Most of the Party's guns, however, were purchased by Seale and Newton at local hardware stores in Oakland and San Francisco.
In an attempt to stem what the Party considered to be excessive brutality and racism on the part of the Oakland police, the Party implemented a program to "patrol" the Oakland police department. The Black Panther Party patrols consisted of several armed Party members following and observing the Oakland police carrying out their duties. The Party members were dressed in the Black Panther Party uniform, which consisted of a black leather jacket, black pants, a blue turtle-neck shirt, and a black beret. At trial, Bobby Seale acknowledged during his testimony that the Party's broader aim in conducting the police patrols was "to capture the imagination of [the] people so we could better organize them and organize what I call unifying the black community vote."
Huey Newton was in law school at the time he co-founded the Black Panther Party and, according to the testimony of Bobby Seale, Newton carefully ensured that the Party's operations and tactics were in strict compliance with the law. For example, in 1966 Newton advised all members of the Party that under California law it was legal to carry a gun in public, so long as the gun was not concealed or pointed at another person. Accordingly, Newton mandated that Party members on patrol must never point their guns at a police officer.
By 1968 a difference of opinion emerged among the Party's top three leaders over what role violence should play in the Black Panther Party's actions following the assassination of Martin Luther King, Jr. on April 4, 1968. Bobby Seale and Huey Newton continued to adhere to the established Black Panther Party position that members should only use violence as a means of self-defense and should not instigate violence against anyone, including the police. Eldridge Cleaver, however, advocated that the time had come for Party members to engage in armed combat with the police by initiating violence against the police.
The schism in the leaders' beliefs on the propriety of initiating violence against the police manifested itself in the days immediately following Martin Luther King, Jr.'s assassination. Two days after King's death, several members of the Black Panther Party, including Eldridge Cleaver and Little Bobby Hutton, engaged in a shoot-out with the police. Little Bobby Hutton was killed and Eldridge Cleaver was wounded. Neither Bobby Seale nor Huey Newton was involved in the shoot-out.
The day after Eldridge Cleaver's shoot-out with the police, Bobby Seale led a Black Panther Party rally at a local park where he stated that both he and Huey Newton continued to adhere to the established Party policy which denounced the initiation of violence against the police and denounced acts of rioting. Seale continued to maintain, however, that Party members should own guns for self-defense. Testimony was presented at trial that, to this day, many people credit Bobby Seale with maintaining the peace in Oakland's black community in the days of unrest which followed Martin Luther King, Jr.'s assassination.
Bobby Seale testified that following the death of Martin Luther King, Jr., the membership of the Black Panther Party continued to increase due to his efforts to organize local chapters and branches of the Black Panther Party throughout the country. According to Seale's account, the membership of the Black Panther Party grew nationwide to over five-thousand members.
Bobby Seale resigned from the Black Panther Party in 1974. He has written two books dealing with his involvement in the Black Panther Party: Seize the Time: The Story of the Black Panther Party and Huey P. Newton and A Lonely Rage (his autobiography). He currently lives in the Philadelphia area and derives the majority of his income from lecturing at colleges and universities on the topic of the Black Panther Party. He has formed a production company named "REACH Cinema" and is in the process of raising money to produce a documentary film on the Black Panther Party. Bobby Seale testified that several years ago he appeared in commercial advertisements for a well-known brand of ice-cream and for a local bank.
The issues in this case concern the motion picture "Panther," which was released in May 1995 by Defendants Gramercy Pictures, PolyGram Filmed Entertainment Distribution, Inc., Working Title Group, Inc., and Tribeca Productions, Inc. The screenplay for the film was written by filmmaker Melvin Van Peebles and is based on his novel of the same title. Melvin Van Peebles and his son Mario Van Peebles produced the film, and they chose Preston Holmes to assist them in the film's production.
The film's producers retained the services of two consultants to work on the film -- J. Tarika Lewis and Ula Taylor, Ph.D. Ms. Lewis was the first woman to join the Black Panther Party and continues to reside in the Oakland area. Dr. Taylor is an Assistant Professor of African-American Studies at the University of California at Berkeley and teaches courses dealing with the history of the Black Panther Party. Ms. Lewis and Dr. Taylor were retained by the film's producers for the purpose of ascertaining that certain scenes in the film accurately portrayed the Black Panther Party and its leaders. Both Ms. Lewis and Dr. Taylor testified at trial as defense witnesses.
The film "Panther" integrates actors playing the roles of fictitious characters with actors playing the roles of the true leaders of the Black Panther Party. The narrator of the film is a fictitious character named "Judge," who chronicles for the audience his involvement in the Black Panther Party in Oakland, California during the late 1960's. In the film's opening scene, the audience hears the voice of the "Judge" character state:
The Black Panthers. The people still ask me how it all started. How things went so far. Like a lot of questions about the Panthers, there are different answers, different beginnings.
The role of Bobby Seale is played by actor Courtney B. Vance. The role of Huey Newton is played by actor Marcus Chong. The role of Eldridge Cleaver is played by actor Anthony Griffith.
Throughout the film, the fictitious character "Judge" interacts with the actors playing the roles of the Black Panther Party leaders Seale, Newton, and Cleaver. The film reenacts several historically documented events of the Black Panther Party, such as the Black Panther Party's May 1967 protest march onto the floor of the California State Legislature and Huey Newton's October 1967 shoot-out with an Oakland police officer, in which the officer was killed and Newton was subsequently jailed.
Discussion of the Law Re: Bobby Seale's False Light Claims
The Plaintiff Bobby Seale contends that the Defendants' portrayal of him in "Panther" (by use of an actor called "Bobby Seale" in the film) places him in a "false light" in violation of his common law right of privacy.
The Parties do not dispute that the Plaintiff is a well-known public figure in connection with his activities as the co-founder and Chairman of the Black Panther Party. 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 role in the Black Panther Party may be found in historical textbooks dealing with the Civil Rights Movement. See, e.g., John Hope Franklin & Alfred A. Moss, Jr. From Slavery to Freedom: A History of Africans Americans at 518-21 (7th ed. 1994). Moreover, the Plaintiff presently lectures at colleges and universities throughout the country on the topic of the Black Panther Party and holds himself out to the public on his Internet Web-Site as: "Bobby Seale -- The Revolutionary Humanist."
The Defendant's expert, film maker Robert Burger, testified that the film "Panther" is best categorized under the film genre of "docudrama." He testified that the "key" to making a docudrama is to capture the "essence" of an historical event and not necessarily to recreate for the audience every historical detail of that event. Mr. Burger testified that such major motion pictures as "Ghandi" and "JFK" are appropriately classified as docudramas. The Plaintiff's expert Warren Bass, Ph.D, a Professor of Film and Media Arts at Temple University, likewise testified that the film "Panther" is a "docudrama."
The court finds that the film "Panther" is a "docudrama" and not a "documentary" film. A docudrama is a "motion picture presenting a dramatic recreation or adaptation of actual events." J. Thomas McCarthy, The Rights of Publicity and Privacy § 8.9[A] n.2 (insert 6/96) (citation omitted). It "is a dramatization of an historical event or lives of real people, using actors or actresses. Docudramas utilize simulated dialogue, composite characters, and a telescoping of events occurring over a period into a composite scene or scenes." Davis v. Costa-Gavras, 654 F. Supp. 653, 658 (S.D.N.Y. 1987). By contrast, a documentary film "is a non-fictional story or series of historical events portrayed in their actual location; a film of real people and real events as they occur. A documentary maintains strict fidelity to fact." Id.
As heretofore stated, the film "Panther" does not purport to maintain strict fidelity to fact; it integrates fictitious characters with actors portraying the roles of the real-life leaders of the Black Panther Party. "Panther" primarily represents a work of entertainment as opposed to a ...