The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
This action by Chelsea Frederick ("Frederick") and Ferrara Daum ("Daum") against The Biography Channel, A&E Television Networks LLC and the Greif Company (collectively "Media Defendants") as well as the City of Naperville ("City") stems from a highly disturbing outgrowth of a collaborative arrangement entered into in September 2007 between Media Defendants and City. All defendants have joined in filing a Fed. R. Civ. P. ("Rule") 12(b)(6) motion to dismiss the Complaint, and plaintiffs' counsel has filed a 15-page responsive memorandum as to Count One. Because those submissions have met head-on, the motion is ripe for decision-- and for the reasons stated here, it is denied.
Media Defendants conceived a TV series entitled "Female
Forces" that would feature City's female law enforcement officers and would be telecast on The Biography Channel (Complaint ¶6). That plan was memorialized in a September 19, 2007 agreement ("Agreement") between A Day With, Inc. (the entity utilized by Media Defendants for that purpose) and City, a copy of which Agreement plaintiffs' counsel has attached to plaintiffs' responsive memorandum. Media Defendants and City proceeded with the filming of the TV series in accordance with the Agreement.
At some point during 2008 Naperville resident Frederick, then 20 years old, was subject to an outstanding warrant stemming from her failure to have appeared at a traffic court hearing (Complaint ¶8). When a male Naperville police officer went to the apartment building in which Frederick lived to arrest her on that outstanding warrant (id.), Frederick and her older sister Daum came out of the apartment building "to go for a meal at a local drive-thru restaurant, dressed very casually in pajama pants and not intending to be seen by anyone" (id. ¶9).
Although the male officer could readily (and immediately) have arrested Frederick on the warrant or asked for a suitable bond, he detained both Frederick and Daum to await the arrival of a female Naperville officer and the camera crew that was assigned to film Female Forces, doing so for the express purpose of having the arrest filmed for the TV show (id. ¶10). When the female officer and camera crew arrived, the camera crew staff told Frederick and Daum "that they were filming a 'documentary' about the Naperville Police" (id. ¶11). Frederick responded "that she did not want to be filmed or shown on television, especially informally dressed in pajama bottoms" (id. ¶12).*fn2
Both Naperville officers and the camera crew ignored Frederick's objection to filming (id. ¶14), and the officers proceeded to arrest her "because she was unable at that moment to post a modest bond with cash or a credit card" (id. ¶15). At that point the camera crew filmed the arrest for the Female Forces TV series (characterized in Complaint ¶16 as a "commercial" series, not a "documentary" film), with Frederick unable to prevent that filming because of the officers' presence and her compelled presence due to the arrest (id. ¶17).*fn3
Frederick was not only arrested but was searched and handcuffed (id. ¶19), with her pajama bottoms falling down her hips--something that she could not prevent because of the handcuffs (id. ¶20). Her statements of concern (id. ¶21) were ignored, with the camera crew filming her being led in handcuffs to the police car (id. ¶22) and "focus[ing] attention on Chelsea Frederick's falling pink Hello Kitty pajama bottoms and indecently exposed skin about the waistband of her pajamas (id. ¶23)."
Next Frederick was placed in a holding cell at the Naperville Police Station (id. ¶25). Though that was a secure restricted area not accessible to the public (id. ¶25), a member of the camera crew was admitted to that area by the Naperville Police (id. ¶26) and proceeded to ask her to sign a release form authorizing the use of her likeness and identity (id. ¶27). Frederick refused (id. ¶28). Frederick's custodial status was later terminated when Daum posted bail for her (id. ¶31).
With Media Defendants having captured the just-described episode on both film and a sound recording, it was included in Episode 5 of Female Forces, which was telecast about November 2, 2008 on The Biography Channel throughout the United States and then later in foreign countries (id. ¶33). Although some segments of Episode 5 blurred and rendered nonidentifiable the likenesses and identities of some other persons (id. ¶35), the portion dealing with Frederick's arrest "prominently and clearly show[ed] the likenesses and identities of Chelsea Frederick and Ferrara Daum, both of whom did not want to be shown on television" (id. ¶36).
Moreover, Media Defendants' production of that incident edited the voice portion to delete Frederick's statements that she did not want to be filmed or shown on television (id. ¶37).
In addition, the aired episode "contains a voice-over by the female Naperville police officer that the twenty-year old girl being arrested was 'concerned about the state of her pants'" (id. ¶40).
There is more, but a good portion of it is primarily relevant to plaintiffs' state law claims that are not addressed in this opinion. What has been said here suffices to provide the framework for ...