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Defendants, Harpo Films, Inc., The Weinstein Company, LLC, and Metro-Goldwyn-

Mayer Distribution Co. (collectively, “Defendants”), submit this memorandum in support of

their motion to dismiss the Complaint of Plaintiff, David Wayne Semien, for failure to state a

claim upon which relief can be granted.


The Complaint alleges that Defendants violated the right of publicity of Melvin B.

Tolson, Sr., the alleged protagonist of the 2007 film, The Great Debaters, and that Mr. Tolson’s

right of publicity “is now owned by his heirs.”1 Plaintiff’s right of publicity claim fails as a

matter of law for three separate and independent reasons. First, the right of publicity claim is a

tort claim that prescribed no later than 2008. Second, any alleged right of publicity was personal

to Mr. Tolson, and thus, cannot be pursued by his heirs. Third, the First Amendment bars claims

against filmmakers and others who create expressive works, including motion pictures, about

real-life individuals without their (or their heirs’) permission. Thus, Plaintiff’s right of publicity

claim fails to state a claim on which relief can be granted.

Complaint at ¶ 16.

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Plaintiff’s unjust enrichment claim fails because unjust enrichment is only available

where the law provides no other remedy, and here, Plaintiff has pleaded another remedy, for

violation of the alleged right of publicity. Even where that other remedy is prescribed or

otherwise barred by law, as is the case here, an unjust enrichment claim is not available.


In 2007, Defendants produced and distributed a motion picture, The Great Debaters,

about a debate team at historically-black Wiley College in Marshall, Texas, in the 1930s.2 The

debate team, which Mr. Tolson coached, successfully competed against debate teams from white

colleges and universities in the segregated South.3 Mr. Tolson died in 1966.4

In 2017, almost 10 years after The Great Debaters was released theatrically, Plaintiff

filed a Complaint against Defendants, purporting to be the Succession Representative of one of

Mr. Tolson’s sons and the legal guardian or agent for various other relatives of Mr. Tolson.5


1. Plaintiff’s right of publicity claim fails on three independent grounds.

A. Plaintiff’s right of publicity claim is barred by the one-year prescriptive
period for torts.

An alleged violation of the right of publicity is a tort. Capdeboscq v. Francis, 2004 WL

1418392, *1 n. 2 (E.D. La. June 23, 2004).6 Thus, Plaintiff’s alleged right of publicity claim is

Complaint at ¶¶ 2-3, 5-7.
Complaint at ¶ 3.
Complaint at ¶ 2.
Complaint at ¶¶ 1, 2.
Louisiana courts have neither “explicitly adopted” nor “specifically precluded” a right of publicity.
Prudhomme v. Procter & Gamble, 800 F.Supp. 390, 396 (E.D. La. 1992); see Richard v. Wal-Mart
Stores, 2007 WL 1521467, *3 (W.D. La. 5/21/07) (noting that the law is unclear); Capdeboscq
(same). Defendants reserve for another day the question of the extent to which a right of publicity
might exist in Louisiana for living celebrities. Defendants also reserve the right to argue all
applicable defenses to any such right, including but not limited to defenses based on society’s right to

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subject to a one-year prescriptive period. See La. C.C. art. 3492: “Delictual actions are subject to

a liberative prescription of one year. This prescription commences to run from the day injury or

damage is sustained.”

Here, prescription began to run no later than in December of 2007, when The Great

Debaters was released theatrically.7 The Complaint alleges that Mr. Tolson’s family members

attended the premiere of the film in Los Angeles, California, so they undoubtedly were aware of

any potential claim at that time.8 The prescriptive period ended one year after it began, in

December 2008. But Plaintiff did not file the Complaint until more than nine years later, in

March 2017. Thus, Plaintiff’s alleged right of publicity claim is clearly prescribed on the face of

the Complaint.

B. Any right of publicity claim was personal to Mr. Tolson and cannot be
pursued by his heirs.

Any right of publicity claim that Mr. Tolson might have had would have been personal to

him and cannot be pursued by his heirs. The Court in Tatum v. New Orleans Aviation Bd., 102

So.3d 144 (La.App. 4th Cir.), writ denied, 100 So.3d 838 (La. 2012), , addressed a similar claim

“for the alleged improper use of an image of [the plaintiff’s] late mother.” Id. at 146. The Court

held that the son’s claim “is a personal right that belonged only to the late [mother]. Nothing in

Louisiana law, statutorily or jurisprudentially, gives [the plaintiff] the authority to assert this

right on behalf on his deceased mother, especially as [the plaintiff’s mother] did not herself

assert this right during her lifetime.” See also Saúl Litvinoff, 6 Louisiana Civil Law Treatise:

The Law of Obligations, § 4.11 at n. 1 (West Group 2015) (citing Tatum to illustrate the

be informed about legitimate subjects of public interest. The law is clear, however, as this
memorandum demonstrates, that Louisiana does not recognize a post-mortem right of publicity.
Complaint at ¶ 2. Because Mr. Tolson’s family knew that a movie about Mr. Tolson was being made
before its theatrical release, the prescriptive period may have begun running even earlier.
Complaint at ¶ 13.

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distinction in Louisiana between “strictly personal” rights, held “only by a certain person and not

by his successors,” and real or heritable rights); Prima v. Darden Restaurants, 78 F.Supp.2d 337,

346 (D. N.J. 2000) (because “Louisiana couches this right [of publicity] in terms of the right of

privacy, it appears that the right is a personal right and, as such, does not survive the death of the

individual”); McCarthy, Thomas J., 2 Rights of Publicity & Privacy § 8:64 (2d ed.). These

authorities clearly show that Plaintiff is barred, as a matter of law, from pursuing a right of

publicity claim on behalf of Mr. Tolson.

Plaintiff’s Complaint cites two New York right-of-publicity cases to allege that Mr.

Tolson’s heirs may assert his right of publicity claim.9 But those cases, Factors, Etc. v. Pro Arts,

Inc., 579 F.2d 215 (2d Cir. 1978), and Price v. Hal Roach Studios, 400 F.Supp. 836 (S.D. N.Y.

1975), are no longer good law even in New York. In 1984, New York’s highest court, the New

York Court of Appeals, held that the state’s right-of-publicity statute preempted the common-law

right of publicity and foreclosed a post-mortem right of publicity claim. Stephano v. News

Group Publications, 474 N.E.2d 580, 583-584 (1984). The Second Circuit Court of Appeals and

the federal district court for the Southern District of New York have recognized expressly that

their decisions in Factors and Price did not survive Stephano, and that publicity rights in New

York are not descendible. Pirone v. MacMillan, Inc., 894 F.2d 579, 586 (2d Cir. 1990); Jim

Henson Productions v. John T. Brady & Assocs., 867 F.Supp. 175, 190 (S.D. N.Y. 1994).

Louisiana law is clear that any right of publicity is personal, and thus, claims for alleged

violation of the right of publicity cannot be pursued by the heirs of the deceased, or by their

purported representative, such as Plaintiff here.

Complaint at ¶ 16.

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C. The First Amendment bars claims against filmmakers who create motion
pictures about real-life individuals without their or their heirs’ permission.

Not only is Plaintiff’s post-mortem right of publicity claim prescribed on its face and not

descendible, it also is barred by the First Amendment and the Free Speech Clause of article I, § 7

of the Louisiana Constitution. The Free Speech Clauses of the federal and state constitutions bar

right of publicity claims seeking recovery against creators of expressive works such as films.

In a case applying Louisiana law, a federal court in this district held that the parents of a

murder victim did not state a claim against the publisher of a “true crime” tabloid that published

a story about their son’s murder. Mahaffey v. Official Detective Stories, Inc., 210 F.Supp. 251

(W.D. La. 1962). The Court dismissed the plaintiffs’ claims because the “publication of a

newsworthy event of public interest is privileged” and “the article was published for reader

interest and was not used to promote or publicize a particular product or service. Under these

circumstances, plaintiffs may not successfully contend that they are entitled to recover because

of a ‘commercialization’ of the events.” Id. at 253.

Indeed, other federal courts, including the Fifth Circuit, repeatedly have held that

constitutional free-speech protections defeat right of publicity and related claims arising from the

use of real-life individuals’ names, likenesses, and life stories in motion pictures and similar

expressive works. See, e.g., Matthews v. Wozencraft, 15 F.3d 432, 439-40 (5th Cir. 1994) (“we

conclude that Wozencraft’s novel falls within the protection of the First Amendment”); Moore v.

The Weinstein Company, 545 Fed.Appx. 405, 409 (6th Cir. 2013) (“First Amendment provides

an additional hurdle” that “fundamentally constrains” right of publicity claim); Ruffin-Steinback

v. dePasse, 267 F.3d 457, 462 (6th Cir. 2001) (“use of plaintiffs’ fictionalized likenesses in a

work protected by the First Amendment and the advertising incidental to such uses did not give

rise to a claim for relief under the plaintiffs’ rights of publicity); Thoroughbred Legends v. Walt

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Disney Co., 2008 WL 616253, *11 (N.D. Ga. Feb. 12, 2008) (“First Amendment protection of

freedom of expression” defeats claim that defendants “unlawfully appropriated their likenesses

through their characters in the film ‘Ruffian’”); Seale v. Gramercy Pictures, 949 F.Supp. 331,

337 (E.D. Pa. 1996) (“Defendants' use of plaintiff’s name and likeness in movie was for the

purpose of First Amendment expression”); Hicks v. Casablanca Records, 464 F.Supp. 426, 433

(S.D. N.Y. 1978) (“the first amendment protection usually accorded novels and movies

outweighs whatever publicity rights plaintiffs may possess”); Tyne v. Time Warner

Entertainment, 901 So.2d 802, 808 (Fla. 2005) (First Amendment overrules statutory right of

publicity claim over motion picture); Guglielmi v. Spelling-Goldberg Productions., 603 P.2d

454, 460 (Cal. 1979) (Bird, J. concurring) (“the range of free expression would be meaningfully

reduced if prominent persons . . . were forbidden topics” for filmmakers).

In Matthews, the Fifth Circuit rejected an undercover narcotics officer’s right of publicity

claim against his ex-wife, whose book about their descent into drug addiction was made into the

film Rush. Even assuming that the plaintiff had a cognizable claim based on the use of his name,

likeness, and biographical information, the Fifth Circuit concluded that the film was

constitutionally protected “so long as it [was] not ‘simply a disguised commercial advertisement

for the sale of goods or services.’” 15 F.3d at 440 (quoting Rogers v. Grimaldi, 875 F.2d 994,

1004 (2d Cir. 1989)). The First Amendment compelled this result regardless of “whether Rush is

viewed as an historical or a fictional work.” 15 F.3d at 440.

Numerous other cases have reached the same result. In Ruffin-Steinback v. dePasse, 82

F.Supp.2d 723, 731 (E.D. Mich. 2000), aff'd, 267 F.3d 457 (6th Cir.2001), the district court

dismissed the plaintiffs’ right of publicity claim arising from the use of their names and

likenesses in a television miniseries about the musical group The Temptations. 82 F.Supp.2d at

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730. The Sixth Circuit affirmed, holding that the use of the plaintiffs’ fictionalized likenesses

was protected by the First Amendment and specifically pointing out the absence of case authority

supporting the plaintiffs’ claim. 267 F.3d at 462.

Another federal court dismissed Bobby Seale’s right of publicity claim arising from a

film about his role in the Black Panthers, explaining that the First Amendment protected the

defendants’ “creation, production, and promotion of a motion picture . . . which integrates

fictitious people and events with historical people and events.” Seale, 949 F.Supp. at 337.

Relying on these same First Amendment principles, courts have dismissed right of

publicity claims arising from: (1) the motion picture Soul Men, which allegedly used the persona

of singer Sam Moore, Moore, 545 Fed.Appx. at 409; (2) the motion picture Ruffian, which

chronicled the career of a famous thoroughbred race horse and her handlers, Thoroughbred

Legends, 2008 WL 616253 at *11; (3) the motion picture Agatha, which imagined the events

during Agatha Christie’s mysterious disappearance in the 1920s, Hicks, 464 F.Supp. at 433; (4)

the motion picture The Perfect Storm, which recounted the tragic deaths of the crew of a fishing

boat, Tyne, 901 So.2d at 808; and (5) a documentary about professional football, Dryer v. Nat’l

Football League, 55 F.Supp.3d 1181, 1188 (D. Minn. 2014) (holding that expressive works are

categorically protected against right of publicity claims).

While these courts applied various tests to determine the scope of First Amendment

protection, they all reached the same conclusion: the use of real-life persons’ names, likenesses,

and life stories in motion pictures is constitutionally protected against right of publicity and

related claims.

Plaintiff’s theory of liability would have a profoundly chilling effect on free speech.

Filmmakers would be required to obtain approval from historical figures depicted in motion

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pictures (or from their heirs), who could veto controversial or unflattering portrayals. Such a

rule of law could have prevented the production of recent Oscar-winning or -nominated films

such as Spotlight, The Big Short, Selma, The Social Network, The Hurt Locker, and Hidden

Figures, all of which feature portrayals of real-life individuals. The chilling effect would not be

limited to motion pictures. Under Plaintiff’s theory of liability, authors would not have been

able to publish unauthorized books about figures ranging from Hillary Clinton (Hillary’s Choice)

and John McCain (Game Change) to Nick Saban (Saban: The Making of a Coach) and Lance

Armstrong (Crash Landing) without violating those persons’ rights of publicity.

As Matthews, Ruffin-Steinbeck, Moore, Seale, and other cases confirm, the First

Amendment defeats any claim by Plaintiff arising from Defendants’ use of Mr. Tolson’s name,

likeness, and biographical information in The Great Debaters.

2. Plaintiff’s unjust enrichment claim is barred because the law provides another
remedy, which Plaintiff also has pleaded.

Article 2298 of the Louisiana Civil Code sets out the law of unjust enrichment: “A person

who has been enriched without cause at the expense of another person is bound to compensate

that person. . . . The remedy declared here is subsidiary and shall not be available if the law

provides another remedy for the impoverishment or declares a contrary rule.” (Emphasis added).

“The unjust enrichment remedy is ‘only applicable to fill a gap in the law where no express

remedy is provided.’” Walters v. MedSouth Record Mgmt., LLC, 38 So.3d 241, 242 (La. 2010).

This Court has stated that “unjust enrichment is a remedy of last resort, available only when no

other remedy is available.” Wiggins v. Chesapeake Energy Corp., 2012 WL 3597131, *2 (W.D.

La. Aug. 20 2012) (same, quoting Walters).

A plaintiff who pleads a tort claim cannot recover for unjust enrichment. Walters, 38

So.3d at 242 (“plaintiff’s original petition alleges he suffered harm as a ‘direct result of the

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negligent and tortious conduct’ of defendant. Having pled a delictual action, we find plaintiff is

precluded from seeking to recover under unjust enrichment”); see also Marseilles Homeowners

Condo. Ass’n, Inc. v. Broadmoor, L.L.C., 111 So.3d 1099, 1105 (La.App. 4th Cir. 2013),

(pleading tort claim under Products Liability Act “in and of itself precludes recovery under a

claim of unjust enrichment”); Gallant Investments, Ltd. v. Illinois Cent. R. Co., 7 So.3d 12, 18

(La.App. 1st Cir. 2009), (“any equitable action for unjust enrichment is precluded by the

availability of the unambiguously-pleaded delictual action”).

An unjust enrichment claim fails even if recovery under the alternate remedy at law is

unavailable because of prescription. It is “of no moment that plaintiff’s tort claims have been

held to be prescribed. The mere fact that a plaintiff does not successfully pursue another

available remedy does not give the plaintiff the right to recover under the theory of unjust

enrichment.” Walters, 38 So.3d at 242; Dugas v. Thompson, 71 So.3d 1059, 1068 (La.App. 4th

Cir. 2011) (rejecting unjust enrichment claim where the plaintiff pled tort of conversion, that

Court found to be prescribed). The reason for this is clear: “To find that [plaintiff] now has no

other remedy and to provide it one under unjust enrichment would be tantamount to allowing any

plaintiff who let his cause of action prescribe . . . recover under an enrichment theory.” Jim

Walter Homes, Inc. v. Jessen, 732 So.2d 699, 706 (La.App. 3d Cir. 1999).

Here, Plaintiff has expressly pled a delictual claim for violation of the right of publicity.10

He therefore cannot also assert a claim for unjust enrichment. Walters; Marseilles Homeowners;

Gallant Investments. This is true even though Plaintiff’s right of publicity claim is prescribed.

Walters, Dugas.

Complaint, ¶ 16.

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Moreover, any unjust enrichment claim would be barred by the same constitutional

principles that bar a right of publicity or similar claim. The First Amendment protects expressive

works such as The Great Debaters from claims brought by the film’s subjects or their heirs,

regardless of the label placed on the cause of action.


Plaintiff’s right of publicity claim prescribed no later than 2008 and, in any event, cannot

be pursued by his heirs. Moreover, the First Amendment protects Defendants’ rights of free

expression to produce and distribute The Great Debaters and bars both of Plaintiff’s claims. In

addition, Plaintiff’s unjust enrichment claim is without merit because Plaintiff pleaded a tort

remedy in addition to his unjust enrichment claim.

No further amendment can cure Plaintiff’s defective claims. Defendants accordingly

urge the Court to grant their motion to dismiss and dismiss the Complaint, with prejudice, at

Plaintiff’s costs.

Respectfully submitted,


/s/ Mary Ellen Roy
Mary Ellen Roy, T.A. (La. Bar #14388)
Dan Zimmerman (La. Bar #2202)
365 Canal Street, Suite 2000
New Orleans, Louisiana 70130-6534
Telephone: (504) 566-1311
Telecopier: (504) 568-9130


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I hereby certify that I have on this 13th day of June, 2017 electronically filed the
foregoing with the Clerk of Court by using the CM/ECF system which will send notice of
electronic filing to all counsel of record.

/s/ Mary Ellen Roy

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