NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MICHAEL SAVELY,

 Plaintiff,

 v.

MTV MUSIC TELEVISION, VIACOM 

d/b/a MTV NETWORKS, JOHN DOES (1-5) 

(said names being fictitious), and ABC 

CORP. (said entities being fictitious),

 

 Defendants.

 Civil Action No. 11-1021

 (SDW) (MCA)

 OPINION

 July 18, 2011

WIGENTON, District Judge.

Before the Court is defendant MTV Music Television, Viacom d/b/a MTV 

Networks, John Does, and ABC Corp.‟s (“Defendants” or “MTV”) motion to dismiss the 

complaint of plaintiff Michael Savely (“Plaintiff” or “Savely”) pursuant to Federal Rule 

of Civil Procedure 12(b)(6) (“Motion to Dismiss”).

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Venue 

is proper and the case was removed to this Court under 28 U.S.C. § 1441(a). This Court, 

having considered the parties‟ submissions, decides this matter without oral argument 

pursuant to Federal Rule of Civil Procedure 78. 

For the reasons stated below, Defendants‟ Motion to Dismiss is GRANTED as to 

Counts I and II, but DENIED as to Count III.

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FACTUAL AND PROCEDURAL HISTORY

Plaintiff is a drummer who performs daily in New York City subways

entertaining subway patrons and the public at large. (Compl. ¶¶ 6-8.) Sometime in 

November 2010, several representatives of Defendants, who were filming for MTV,

approached Plaintiff while he was performing his routine on a New York City subway 

platform. (Id. ¶¶ 12-14.) Defendants‟ representatives asked Plaintiff if they could film 

him drumming and use the footage in a film that MTV was making. Plaintiff requested 

to see a contract form, which the representatives provided. After reviewing the contract, 

Plaintiff decided that he was not comfortable with being filmed and declined the offer. 

(Id. ¶ 16.) Plaintiff gave the contract back to the representatives and told them that he did 

not consent to being filmed. (Id. ¶ 17.)

Approximately three weeks later, in December 2010, after two individuals 

approached Savely and informed him that they saw his performance on MTV, Savely 

found out that MTV had filmed him playing drums and used the footage in a program

about rapper Nicki Minaj1entitled “Nicki Minaj: My Time Now.” (Id. ¶¶ 25, 28.) Prior 

to one segment in the program, there is a clip showing Savely playing the drums on a 

New York City subway platform (“Footage”). (Id. ¶ 27.)

Plaintiff asserts that following the release of the program, he received criticism 

from fans and supporters for his involvement in the project. (Compl. ¶ 34.) Since the 

airing of the program, the parents of several of Savely‟s students have terminated his 

services. (See id. ¶ 35.) He also noticed a drop in the number of his clients, and has 

observed a decrease in his t-shirt sales with his image and art. (Id. ¶¶ 35-36.) 

 

1 Ms. Minaj is referred to throughout the Complaint as “Nickey Manaj,” and by Defendants in their 

submissions interchangeably as “Nicki Manaj” and “Nicki Minaj.”

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On February 2, 2011, Savely filed a complaint against MTV in New Jersey state 

court in Hudson County for the following claims of invasion of privacy: (i) appropriation 

of name, likeness or identity; (ii) publication of private facts; and (iii) false light

(“Complaint”). On February 23, 2011, MTV removed the case to federal court in New 

Jersey pursuant to 28 U.S.C. § 1441. On March 22, 2011, MTV filed the present Motion 

to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a 

claim upon which relief can be granted. 

LEGAL STANDARD

When considering a motion to dismiss a complaint for failure to state a claim 

upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), 

the Court must “accept all factual allegations as true, construe the complaint in the light 

most favorable to the plaintiff, and determine whether, under any reasonable reading of 

the complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 

F.3d 224, 233 (3d Cir. 2008) (citation omitted) (internal quotation marks omitted). A 

pleading is sufficient if it alleges “a short and plain statement of the claim showing that 

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiff must put forth enough 

information to “give the defendant fair notice of what the . . . claim is and the grounds 

upon which it rests.” Phillips, 515 F.3d at 231 (alteration in original) (citations omitted) 

(internal quotation marks omitted). 

While a court will accept well-pleaded allegations as true for purposes of the 

motion, it will not accept unsupported conclusions, unwarranted inferences, or sweeping 

legal conclusions cast in the form of factual allegations. See Miree v. De Kalb Cnty., Ga., 

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433 U.S. 25, 27 n.2 (1977); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 

1429-30 (3d Cir. 1997) (holding that a court does not need to credit “bald assertions” or 

“legal conclusions” of a complaint when deciding a motion to dismiss). Further, “[a] 

court may dismiss a complaint for failure to state a claim, based on a time-bar, where „the 

time alleged in the statement of a claim shows that the cause of action has not been 

brought within the statute of limitations.‟” Bieregu v. Ashcroft, 259 F. Supp. 2d 342, 355

n.11 (D.N.J. 2003) (citation omitted). 

DISCUSSION

Invasion of Privacy

The Restatement (Second) of Torts provides that “[o]ne who intentionally 

intrudes, physically or otherwise, upon the solitude or seclusion of another or his private 

affairs or concerns, is subject to liability to the other for invasion of his privacy, if the 

intrusion would be highly offensive to a reasonable person.” RESTATEMENT (SECOND) OF 

TORTS § 652B (1977).

Generally, Defendants argue that Plaintiff‟s Complaint should be dismissed for 

the following reasons: 

(i) [I]t is based upon events that took place in public; (ii) the events at 

issue were aired exactly as they occurred; (iii) Savely had no reasonable 

expectation of privacy when performing on a New York City subway 

platform; and (iv) the airing of four seconds of Savely‟s drum routine 

during an hour-long documentary was not a commercial use. 

(Def.‟s Br. 2.) 

However, for the reasons discussed below, the Court finds that Plaintiff has 

sufficiently pled one of his three claims, specifically, invasion of privacy - false light. As 

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required, this Court has accepted all of Plaintiff‟s factual allegations as true for the 

purpose of deciding the Motion to Dismiss. Each of Plaintiff‟s invasion of privacy 

claims are addressed below. 

Invasion of Privacy – Appropriation of Name, Likeness or Identity

“One who appropriates to his own use or benefit the name or likeness of another 

is subject to liability to the other for invasion of his privacy.” RESTATEMENT (SECOND)

OF TORTS § 652C. To establish a prima facie case of misappropriation of likeness, the 

plaintiff must establish four elements: “(1) the defendant appropriated the plaintiff‟s 

likeness, (2) without the plaintiff‟s consent, (3) for the defendant‟s use or benefit, and (4) 

damage.” Hart v. Elec. Arts, Inc., 740 F. Supp. 2d 658, 665 n.5 (D.N.J 2010) (citations 

omitted). Plaintiff includes facts in his Complaint to support the first two elements - that 

Defendants used his likeness and that Plaintiff did not give consent. Plaintiff also asserts 

that he incurred damages as a result of Defendants actions to satisfy the fourth element. 

Notably, regarding the third element, “[u]nder New Jersey common law, defendant[s] 

would be liable for the tort of misappropriation of likeness only if defendant‟s use of 

plaintiff‟s likeness was for a predominantly commercial purpose, i.e., if defendant was 

seeking to capitalize on defendant‟s likeness for purposes other than the dissemination of 

news or information.” Castro v. NYT Television, 370 N.J. Super. 282, 297 (N.J. Super. 

Ct. App. Div. 2004) (second alteration in original) (emphasis added) (quoting Telado v. 

Time-Life Books, Inc., 643 F. Supp. 904, 909-10 (D.N.J. 1986)). 

As the Restatement (Second) of Torts explains, a predominantly commercial 

purpose is an essential element of the tort:

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No one has the right to object merely because his name or his appearance 

is brought before the public, since neither is in any way a private matter 

and both are open to public observation. It is only when the publicity is 

given for the purpose of appropriating to the defendant‟s benefit the 

commercial or other values associated with the name or the likeness that 

the right of privacy is invaded. The fact that the defendant is engaged in 

the business of publication, for example of a newspaper, out of which he

makes or seeks to make a profit, is not enough to make the incidental 

publication a commercial use of the name or likeness. Thus a newspaper, 

although it is not a philanthropic institution, does not become liable under 

the rule stated in this Section to every person whose name or likeness it 

publishes. 

RESTATEMENT (SECOND) OF TORTS § 652C cmt. d. Applying this standard, the court in 

Castro v. NYT Television dismissed the plaintiff‟s complaint for failure to state a claim 

where the complaint merely asserted that “„[d]efendants appropriated plaintiffs‟ 

likenesses, images and/or names for commercial profit and advantage.‟” 370 N.J. Super.

at 298. The Castro court held that such a complaint was deficient because it rested on “a 

conclusion of law, not an allegation of fact that could support this conclusion.” Id. 

Similar to the complaint in Castro, the Complaint in the instant matter is deficient 

as it asserts conclusions of law, unsupported by allegations of fact regarding the 

misappropriation of likeness claim. Indeed, the Complaint merely states that 

“[d]efendants, without obtaining Plaintiff‟s written authorization or consent, knowingly, 

intentionally, wrongfully and illegally used Plaintiff‟s image and likeness in the 

production of the . . . television show and broadcast the same on national television.” 

(Compl. ¶ 40.) Such an allegation fails to provide facts that could explain how 

Defendants‟ use of Plaintiff‟s image was for a predominantly commercial purpose. 

Although Plaintiff alleges that the Footage was broadcasted on national television 

without his consent, the Complaint does not make reference to a commercial purpose 

(seemingly other than noting the Footage was broadcasted). (Id. ¶¶ 40-42.)

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Plaintiff has not sufficiently pled that the use of his likeness by Defendants was 

for a “predominantly commercial purpose” or for a commercial benefit “or other values 

associated with the name or the likeness that the right of privacy is invaded.” See Castro,

370 N.J. Super. at 297. Indeed, “one reason for the imposition of tort liability for 

commercial appropriation of a person‟s name of likeness . . . is to avoid the unjust 

enrichment that would result from uncompensated use of the name or likeness of another 

person.” Id. at 299.

Therefore, while it is possible that Plaintiff‟s misappropriation of likeness claim 

could be pled sufficiently if amended, it is not in the present Complaint. See generally 

Hart, 740 F. Supp. 2d at 668 (noting that plaintiff could sufficiently plead the 

predominantly commercial purpose element if the complaint were amended). Thus, 

Defendant‟s Motion to Dismiss as to Count I, for misappropriation of likeness, is granted 

and Plaintiff is hereby granted 30 days leave to amend the Complaint pursuant to Federal 

Rule of Civil Procedure 15(a)(2). 

Invasion of Privacy – Publication of Private Facts

“The invasion of privacy by unreasonable publication of private facts occurs 

when it is shown that „the matters revealed were actually private, that dissemination of 

such facts would be offensive to a reasonable person, and that there is no legitimate 

interest of the public in being apprised of the facts publicized.‟” Romaine v. Kallinger, 

109 N.J. 282, 297 (N.J. 1988) (quoting Bisbee v. John C. Conover Agency, Inc., 186 N.J.

Super. 335, 340 (N.J. Super. Ct. App. Div. 1982)); see also RESTATEMENT (SECOND) OF 

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TORTS § 652D.

2

 For an invasion of privacy action, whether the published facts are 

actually private is an important element. Indeed, “[t]he thrust of this aspect of the tort is, 

in other words, that a person‟s private, personal affairs should not be pried into.” Bisbee, 

186 N.J. Super. at 340. For example, in Bisbee, the court held that there was no 

publication of private facts when defendant published a photograph of plaintiff‟s house 

because it “was taken from the street, a public thoroughfare, and merely represented a 

view which [was] available to any bystander.” See id. at 340-41. Thus, “there is no 

wrong where defendant did not actually delve into plaintiff‟s concerns, or where 

plaintiff‟s activities are already public or known.”

3

 Id. at 340. 

Given the law on the publication of private facts, Plaintiff has not sufficiently pled 

that Defendant‟s actions gave rise to the tortious publication of private facts. Similar to

the photograph of plaintiff‟s house in Bisbee, the Footage of Plaintiff in the instant matter 

was taken while visible to the public at large. Indeed, as currently pled in the Complaint,

the Footage merely gave publicity to what was already public. Plaintiff has not asserted 

that a “private fact” was made public. Therefore, Defendant‟s Motion to Dismiss as to 

Count II, publication of private facts, is granted. Plaintiff is hereby granted 30 days leave 

to amend the Complaint pursuant to Federal Rule of Civil Procedure 15(a)(2). 

 

2 According to the Restatement (Second) of Torts,

One who gives publicity to a matter concerning the private life of another is subject to 

liability to the other for invasion of his privacy, if the matter publicized is of a kind that 

(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern 

to the public.

RESTATEMENT (SECOND) OF TORTS § 652D.

3 Although the Bisbee court uses this language to refer specifically to the tort of unreasonable intrusion on 

seclusion, it has equal force when applied to the tort of publication of private facts because both torts 

require—as a prerequisite—that plaintiff‟s activities or affairs are actually, in fact, private. 

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Invasion of Privacy - False Light 

New Jersey law on the invasion of privacy by false light is consistent with the 

Restatement (Second) of Torts, which provides: 

One who gives publicity to a matter concerning another that places the 

other before the public in a false light is subject to liability to the other for 

invasion of his privacy, if 

(a) the false light in which the other was placed would be highly offensive 

to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the 

falsity of the publicized matter and the false light in which the other would 

be placed.

RESTATEMENT (SECOND) OF TORTS §652E; Cibenko v. Worth Publishers, Inc., 510 F. 

Supp. 761, 766 (D.N.J. 1981) (noting that New Jersey law on invasion of privacy by false 

light is consistent with the Restatement (Second) of Torts). 

While there is overlap between the torts of defamation and false light, it is not 

“necessary to the action for invasion of privacy that the plaintiff be defamed. It is enough 

that he is given unreasonable and highly objectionable publicity that attributes to him 

characteristics, conduct or beliefs that are false, and so is placed before the public in a 

false position.” RESTATEMENT (SECOND) OF TORTS §652E cmt. b. Ultimately, whether

the communication “is capable of bearing a particular meaning which is highly offensive 

to a reasonable person” is a question for the Court. Cibenko, 510 F. Supp. at 766. 

Notably, in the instant matter, Plaintiff does not argue that his actions were altered 

or changed, but rather that the Footage “consists of poor quality images and sounds to the 

extent that it reflects poorly on Plaintiff‟s talent as a drummer and performer.” (Compl. ¶ 

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32.) Further, Plaintiff claims that Defendants‟ “intrusion” portrayed him in a “false, 

unfavorable and disparaging light.” (Id. ¶ 50.)

Defendants argue that the false light claim fails because the meaning Plaintiff

attributes to his appearance is unreasonable. (See Def.‟s Reply Br. 1.) Further, 

Defendants argue that the Footage was not distorted in any way, and the images of Savely 

are not distinctly linked to Minaj or any substantive themes of the film. The film 

allegedly chronicles Nicki Minaj‟s rise in the rap industry and life growing up in Queens, 

New York. However, for a claim of false light, the defendants‟ actions need not be 

defamatory, but rather “must be something that would be objectionable to the ordinary 

reasonable man.” Canessa v. J.I. Kislak, Inc., 97 N.J. Super. 327, 334 (N.J. Super. Ct. 

Law Div. 1967). 

Plaintiff alleges that he did not consent to being filmed because he had concerns 

regarding how his name and likeness would be depicted, and was worried about the 

Footage being connected to artists and institutions that could tarnish his reputation. 

Plaintiff claims to generate a significant amount of his income through drumming lessons 

he provides for children. (Compl. ¶ 21.) “Plaintiff understands that the reason many of 

the parents of the students he teaches employ his services is because they can trust him to 

provide their children with something modern yet not corrupt.” (Id. ¶ 22.) Plaintiff states 

the following in his Complaint: “Ms. M[i]naj dresses provocatively, uses profanity and 

glories a specific lifestyle contrary to that of Plaintiff and, more importantly, to that of 

Plaintiff‟s students and their parents.” (Id. ¶ 31.) Plaintiff also expressed concern that

being associated with the “„wrong‟ artist,” would cause him to lose significant future 

business. (Id. ¶ 23.) Further, regarding the damage element of his cause of action, 

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Plaintiff alleges that he suffered losses as a result, including a decline in his student base 

and sales. (Id. ¶¶ 35-36.) Thus, given the context and circumstances, Plaintiff has 

sufficiently alleged facts that if proven to be true, could support a claim for false light. 

Plaintiff‟s claim of false light is sufficiently pled and Defendants‟ Motion to Dismiss will 

be denied as to this count.

CONCLUSION

Plaintiff has sufficiently pled facts in his Complaint to state a cause of action for 

false light. He has provided notice of this claim and the grounds upon which it rests. He 

has not, however, sufficiently pled facts in his Complaint to state causes of action for 

misappropriation of likeness or publication of private facts. 

For the reasons stated above, the Court GRANTS Defendants‟ Motion to Dismiss 

as to Counts I (misappropriation of likeness) and II (publication of private facts), but 

DENIES Defendants‟ Motion to Dismiss as to Count III (false light). Plaintiff is granted 

30 days leave to amend the Complaint.

s/Susan D. Wigenton, U.S.D.J.

Orig: Clerk

Cc: Madeline Cox Arleo, U.S.M.J.

Parties 

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