Virginia State Court Dismisses Right-Of-Publicity Claim Involving Oscar and Emmy Nominated Documentary Film
A Virginia Circuit court dismissed a right of publicity claim against the makers of the short documentary Edith + Eddie, finding that the film depicts a matter of public interest and therefore falls under the newsworthiness exception to the Virginia right-of-publicity statute. Barber v. Kartemquin Films Ltd., Case No. CL18001993 (Va. Cir. Ct. Aug. 8, 2018).
The film is a short documentary exploring the relationship between 95 and 96-year-old newlyweds struggling to keep their autonomy while a court-appointed guardian and daughter direct the choices in their lives. It explores the degradation of rights that occurs as people age and exposes the reach of a legal guardian's powers and influence over those in their care. The film was nominated for an Academy Award for Best Documentary-Short Subject, as well as a 2018 News & Documentary Emmy for Outstanding Short Documentary.
Following her mother Edith's death, the daughter sued the filmmakers for use of her and her mother's names and likenesses without their written consent. The suit alleged violations of Virginia's right-of-publicity statute against Kartemquin Educational Films, the film's director, and their production company—all of which were represented by Holland & Knight attorneys Christine Walz, Cindy Gierhart, and Kevin D'Olivo.
Virginia does not recognize a common law right of privacy and permits only a limited cause of action for the use of one's name or likeness without permission "for the purposes of trade or advertising," pursuant to Virginia Code § 8.01-40. Virginia courts have held that reports of newsworthy events or matters of public interest such as those depicted in Edith + Eddie are exempt from the statute.