Remember the good old days when Jennifer Lopez made headlines for harmless things like bold fashion choices and a semi-legendary backside? These days, though, it seems like J-Lo makes news less for her talents as an actress/singer/Paula Abdul replacement, and more for her divorces. In the midst of swirling gossip about the demise of her marriage to Marc Anthony, J-Lo has been battling in court, trying to stop her first husband, waiter-turned-chef-turned-professional celebrity-ex/litigant Ojani Noa, from selling the rights to a series of home videos made during their short-lived marriage. (This is, in fact, the second time Noa has tried to sell rights to the story of his ill-fated marriage to the Puerto Rican starlet; apparently, a permanent injunction and a $500,000 damages award didn’t teach him a lesson).
Some quarters of the Internet were no doubt crushed to hear that, unlike last time, Noa is now reportedly hawking home videos of a rather G-rated variety. And while the newest headlines about J. Lo’s ongoing battle with Noa vaguely trumpeted a J-Lo victory, behind the A-list names in the headline (or rather, the one A-list name and the ex-husband of the A-list name) was a legal issue only a lawyer could love — whether the dispute between Lopez and Noa would have to proceed via private binding arbitration or in court (Lopez succeeded in pushing the case to arbitration, shielding any salacious tidbits that might come out of this nasty battle from public view). But of course, the idea of the public release of celebrity home videos (whether G or XXX rated) always piques the interest of our voyeur culture.
Of course, J-Lo is in a better position than many celebrities trying to keep their private lives private, in that her long and sordid legal history with Noa has created a paper trail of contractual agreements between the two on which she can now rely (more on that later). But putting aside the quirkier aspects of the Lopez/Noa dispute, the general question remains: can a famous celebrity like J-Lo stop a gold-digging ex from profiting off home videos made during the relationship?
We start with the proposition that home videos, whether sexual or not, contain accurate footage of private and/or intimate moments — e.g., birthday parties, Thanksgiving dinners, graduations, fights, make-up sex, and the like. California’s Constitution recognizes that each citizen has a right to privacy. That right to privacy means that California citizens have the right to prevent private or intimate moments from being publicized to the world. So, in the abstract, publication of home videos between J-Lo and Noa would violate J-Lo’s right to privacy.
However, the right to privacy must always be balanced against the First Amendment rights of freedom of speech and freedom of the press — and the First Amendment usually tips the scales. As a general principle, it is perfectly legal to disclose private or intimate details about someone if those details are “newsworthy.” In the age of reality TV, Twitter, and TMZ, though, virtually all information about celebrities and their private lives is considered “newsworthy.” Therefore, California’s right of privacy laws generally do not protect celebrities and public figures from disclosure of private info contained on videos, at least unless there has been some sort of physical intrusion or trespass in order to obtain them. Here, because Noa and J-Lo were married, the home videos and other materials Noa is trying to sell were presumably obtained with J-Lo’s permission and without a physical intrusion or trespass. (Of course, if Noa had surreptitiously filmed J-Lo without her knowledge, that might be a different story). So, California’s privacy laws wouldn’t protect J-Lo here.
The next question is: who actually owns the copyright in the videos Noa is trying to sell? As we’ve discussed on this blog, copyright law is often applied in creative and unexpected ways to block the re-publication of information a celebrity wants kept under wraps. Under U.S. Copyright law, ownership of a copyright initially vests in the author of the work. The legal “author” of an audiovisual work can be the person who actually shoots the footage, the person who directs the video or the person who pays for the camera, tapes and the like. Unless every video was shot entirely by Noa, with his own equipment and tapes and without any direction or creative contribution from J-Lo, it is likely that both J-Lo and Noa are the authors of their own home videos. Moreover, even if Noa could claim to be the sole author of those videos, if J-Lo and Noa were living in California during their marriage, the copyrights in the videos would be community property, meaning Noa and J-Lo own equal shares in the copyright. Accordingly, Noa and J-Lo are probably co-owners of the copyright. Celebrities couples who are still playing nice with each other can use their status as co-owners to block anyone else from reproducing private videos without permission. Of course, J-Lo and Noa are hardly playing nice.
As a co-owner of the copyright in the couple’s movies, Noa would have the right to authorize others to reproduce and distribute those videos. But unless all co-owners — i.e., J-Lo — are on board, Noa cannot unilaterally enter into an exclusive license, or sale, of the right to distribute the videos. Even if it sometimes seems like the celebrity “press” are all reporting the same story — if you watched Extra and Access Hollywood on the same day, would you even know the difference? — the real value from videos like this flows to whoever can get the exclusive scoop. Typically, distributors will only pay real money for an exclusive license, because they can only make money if the public has nowhere else to go to check out the latest tawdry celebrity dirty laundry. Which means that, as a practical matter, Noa’s inability to grant exclusive rights makes the home videos virtually worthless to him.
Moreover, under Copyright law, if Noa enters into a non-exclusive license for distribution of the J-Lo videos, he owes a fiduciary duty to J-Lo to account for 50% of the profits earned from the license. Therefore, even if Noa could convince a distributor to take a non-exclusive license for the home videos, he would be required to account to J-Lo for one-half of any money he made. Probably not the lucrative golden parachute he was looking for. (And can you imagine the awkwardness of cutting — or depositing — that check every month!)
However, nothing in the Copyright law prevents Noa from granting a non-exclusive license if he wants to. So, if Noa wanted to disseminate the home videos out of spite, or simply to prolong his fifteen minutes of fame, there is nothing J-Lo can do under the Copyright Act to stop him.
That is, there would be, if J-Lo didn’t have that ace up her sleeve we referred to earlier — in this case, Noa has already signed away any right he might have had sell videos of J-Lo. As his relationship with J-Lo fell apart, Noa signed two contracts, a divorce settlement agreement, and a later settlement agreement resolving claims arising from his employment at J-Lo’s Pasadena restaurant. Each of these contracts reportedly contains a broad confidentiality and non-disparagement clause, which would prohibit Noa publicizing any private or intimate details about J-Lo or about their relationship. J-Lo already successfully used these confidentiality provisions to stop Noa’s book deal, and will likely use them again to stop the sale of these home videos.
So it looks like Noa will have to find some other way to spin 10 months of failed marriage into a lifetime of D-minus-list celebrity status. And J-Lo can just go back to spinning 39 episodes of telling American Idol contestants how great they are into an $8 million raise. Something tells me one of them needs the money from this video more than the other.