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in Filmmaking
on Feb 25, 2009

From the law firm Frankfurt, Kurnit, Klein and Selz comes a press release announcing the New York State Court dismissal of case brought against doc filmmaker Elizabeth Chai Vasarhelyi’s Youssou Ndour: I Bring What I Love. It’s great to see a filmmaker challenging such a seemingly frivolous lawsuit and winning.

Excerpted from the press release:

The film centers on the controversy surrounding Grammy-award winning musician Youssou Ndour’s release of his acclaimed album “Egypt.” Plaintiff, a former attorney for Mr. Ndour, appears briefly in archival footage taken at a press conference.

“Vexatious right of publicity claims often hamstring documentary filmmakers,” said Jessie Beeber of Frankfurt Kurnit, the law firm that represented Ms. Vasarhelyi. “This decision should empower documentary filmmakers everywhere.”

“It’s a First Amendment ruling that documentary filmmakers and other artists can be proud of,” said Ms. Vasarhelyi.

Plaintiff had asked the court for a preliminary injunction against the film, and sued for damages, including punitive damages. Ms. Vasarhelyi opposed the injunction and moved to dismiss the complaint. Through her lawyers, she argued that the documentary was protected by the First Amendment — that is, covered by the “newsworthiness” exception to the New York right of publicity statute (NY Civ. Rts. Law Secs. 50, 51) and made only “incidental” use of Plaintiff’s image.

The Supreme Court of New York, County of New York, agreed. It found the documentary film to be “a matter of public interest” and held that “the existence of a profit motive “’does not convert a newsworthy article or television show into a trade purpose, since it is the content of the material which determines whether it is newsworthy'” (citing cases). In addition, the court found that the press conference (for the artist’s first platinum album) was “relevant to the musician’s story” and deemed plaintiff’s nine-second appearance (in a 102 minute film) to be an “incidental use” of plaintiff’s image.

“I am very pleased that Mr. Diokhane’s baseless suit against an important film has been dismissed,” said Mr. Ndour.

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