NEW YORK—A Denver man seeking to eliminate the public airing of video of killer whales attacking him 20 years ago at Sea World cannot expect privacy after he once licensed rights to the footage to two television programs, a judge has ruled.
U.S. District Judge Shira A. Scheindlin wrote in a ruling dated Monday that it was unreasonable for Jonathan E. Smith to expect the March 4, 1987, attack by two killer whales in San Diego would never be seen.
Smith may be limited in the damages he can collect from two companies which admit releasing a portion of the video for broadcast without licensing the copyright, the Manhattan court ruling said.
“As a matter of law, Smith could not have a reasonable expectation of privacy in a video that he had previously licensed for broadcast on national television,” Scheindlin said, rejecting Smith’s claims that once-public facts can become private again.
His lawyer, Elliot J. Stein, said Smith mainly wanted to prevent the video from being shown again although he was interested in damages to force the companies to honor his copyrights and stop airing the footage.
“He doesn’t want his kids to see him being attacked by the big fish,” Stein said of the attack at Sea World in San Diego that left Smith with broken bones, a damaged spleen and occasional flashbacks to the moment when two whales tried to crush him against the bottom of the tank.
Stein said Smith, who performed as an animal trainer as he finished college, now works as a manager for a telephone company in Denver.
Smith had sued NBC Universal, MG Perin Inc. and Universal Television Networks. Scheindlin dismissed the claims against NBC, saying Smith had offered no evidence to show the network violated his copyrights. The outcome of his remaining claims will be determined by a jury trial.
Smith gained ownership of a five-minute video after an audience member who recorded the attack with a camcorder visited him in the hospital and assigned him the copyright.
The attack was broadcast in 1987 after Smith licensed the video to a local ABC affiliate in San Diego for $300 and was interviewed about the attack, the judge wrote.
In 1988, he licensed the video for broadcast on “A Current Affair” for $500 and granted an interview to the Fox Broadcasting Co. program, she said.
In 1994, Smith filed a copyright lawsuit after MG Perin distributed a segment of the television series “The Extraordinary” containing several portions of the Fox interview and 37 seconds of the video, the judge said.
The case was settled in September 1996 with Fox and MG Perin agreeing never to duplicate or distribute the video again without a license from Smith. The judge said Smith was paid $40,000 in the settlement.
In August 2003, MG Perin violated the agreement by accepting $200,000 from Universal Television Networks to license 10 segments of “The Extraordinary” including one containing portions of Smith’s video, the judge said. Smith brought the current lawsuit in February 2006.
The judge noted that MG Perin and UTN have conceded that they violated Smith’s copyright to the video.
Scheindlin said the episode’s value was not enhanced by Smith’s likeness or identity because it featured him only because he happened to be the victim of an attack. She also said he was not entitled to a portion of the $200,000 received by MG Perin because his alleged damages have nothing to do with the company’s profits.
“This would constitute an undeserved windfall,” she wrote.
In his lawsuit, Smith had asked for $300,000 and legal fees.
Harry W. Lipman, a lawyer for the defendants, said he was pleased with Scheindlin’s ruling.
He said the episode containing the footage was broadcast because it was numbered incorrectly, enabling it to be included in a package of episodes that was not supposed to contain any of the Smith video.
“It was a mistake, as the testimony will show at trial,” he said.
