Dr. Dre’s “Up in Smoke” Lawsuit: All Smoke, No Fire?
By Sarah Berent
The summer of 2000 marked the much-anticipated launch of the Up In Smoke tour featuring artists Dr. Dre, Eminem, Snoop Dog and Ice Cube, among others. The tour’s legacy, at least for legal-geeks like us, lies within the now ten year legal battle over behind the scenes footage released on the tour’s DVD, showing a backstage dispute between Detroit city officials and the concert promoters.
On July 6, 2000, the tour was scheduled to perform at Detroit’s Joe Louise Arena. Before the concert began, three city officials met with the concert organizers about the city’s concerns with an eight-minute video clip to be played before the performances. The video contained certain violent and sexual images the city deemed inappropriate that if shown during the concert, would violate Detroit city ordinances. Dr. Dre and his posse shelved the video clip.
One month later, however, Dr. Dre slapped the city of Detroit with a twenty-five million dollar lawsuit for infringing his right to free speech; in October, 2001 the parties settled out of court. Under the terms of the settlement, the city had to issue a formal apology for the incident, provide First Amendment sensitivity training to its police force, and cough up a cool twenty-five thousand dollars to cover Dre’s legal fees.
No hard feelings, right? Wrong. The The Up in Smoke Tour DVD was released in December 2000 and included the July 2000 backstage confrontation with the three Detroit city officials – without getting the city officials’ okay. In 2002, the three city officials joined forces and sued Dr. Dre, the concert promoters, the DVD producers and a whole slew of retail chains (pretty much everyone involved in the DVD) for invasion of privacy. Requested damages totaled a whopping three billion dollars.
After being dismissed at the trial level, the city officials gained a victory in 2009, when the Michigan Court of Appeals ruled in their favor. Dr. Dre’s team appealed that ruling and the Michigan Supreme Court has now agreed to take the case.
While the media has reported on the facts of the case, there hasn’t been much of a discussion of the legal issues or the parties’ chance of success. We did some research and here’s what we think.
The law at issue in the case is Michigan Penal Code Section 750.539c reads:
“Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto…is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.”
The Michigan Supreme Court, when agreeing to take the case, instructed the parties to focus on two issues when they present their arguments: 1) whether the recorded conversation was a “private conversation” within the meaning of the statute and 2) whether the pubic officials involved, including the Detroit police commander, have an expectation of privacy when they are talking with private citizens in their attempts to enforce the law.
Although a “private conversation” is not defined in the state’s penal statute, in 2001 the Michigan Supreme Court interpreted the phrase. In that case, a wife sued her estranged husband for using a neighbor’s police scanner to eavesdrop on telephone calls she made with a cordless telephone. The question was whether the wife’s conversations were considered “private conversations” or not. The court stated that private conversations are those “that a person reasonably expects to be free from casual or hostile intrusion or surveillance” and “intended and reasonably expected” are private.” (Since there was conflicting testimony regarding whether the wife knew that her neighbor had a scanner with the ability to intercept her phone calls, the case was sent back for a jury trial.)
According to the testimony of the three city officials, they requested a private meeting with the Tour organizers to discuss the broadcast of the explicit video; they also allege that they did not see any cameras taping their meeting. One official even says that they requested that the meeting not be videotaped and the condition was agreed to in advance by the tour representatives.
But the conversation took place in a room with an open door, and the videotape shows that it was a hectic environment, with many people uninvolved in the discussion close by and clearly listening. From this standpoint, it’s unlikely that the officials held an expectation of a conversation free from “casual or hostile intrusion or surveillance”.
There is also the issue of whether the officials could have had an expectation of privacy when they are acting within the scope of their public duties. Consider a 2010 federal case heard in Maryland. In this particular case, a motorcyclist was pulled over by a Maryland state troopers for speeding and he recorded the ensuing interaction on a camera in his helmet without informing the troopers of the recording. The video caught the trooper pulling out a gun, and after the video was posted on YouTube, the motorist was arrested for violating Maryland’s wiretapping statute, which prohibits the interception of “wire, oral, or electronic communication”. The YouTube video concerns “oral communication” and this term is defined in Maryland’s statute as “any conversation or words spoken” in a “private conversation”.
The court had to find whether or not the conversation between the troopers and the defendant is considered “private” which would make the helmet recording illegal. The court answered “no” and dismissed the case because the troopers, or any public officials, could not have a “reasonable expectation of privacy in encounters with citizens in public places”.
The decision on the legality of the recording shown in the Up in Smoke DVD will come down to how public the backstage area really was and whether the public officials had a reasonable expectation of privacy.
It’s now up to the Michigan Supreme Court to either dismiss all of the claims against Dr. Dre, effectively ending the case, or send the case back to a trial court to allow a jury to decide. We’ll keep you updated.
UPDATE: March 21: Doctor Dre can celebrate. The lawsuit’s up in smoke.