Supreme Court Takes a Pass on Wisconsin Woman's Privacy Suit Against Google

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The United States Supreme Court last week denied certiorari in Stayart v. Google, Inc. (Docket No. 12-1417), upholding the United States Court of Appeals for the Seventh Circuit's dismissal of a Wisconsin woman's invasion of privacy suit against search engine colossus Google, Inc.

Beverly Stayart filed suit against Google, alleging misappropriation (Wis. Stat. 995.50(2)(b)) and invasion of her right to publicity, based on an alleged search engine query that linked her name to Levitra, a PDE5 inhibitor drug used to treat erectile dysfunction. In refusing to hear her appeal, the High Court sided with the Seventh Circuit finding that Google could defend against the bev stayart levitra search result allegation by asserting the public interest and incidental use defenses.

The appellate court  decision noted that Stayart had sued Yahoo! in January 2010, regarding the same search phrase, one month before that result allegedly began appearing in Google searches, as illustrated by the purported April 2010, Google search results appended to her Complaint as exhibits. Essentially, both the trial and appeals courts said Stayart's own actions generated "public interest" because court documents are a matter of public interest and search engines that lead those submitting queries to those documents should be protected by the public interest defense.

Google's successful defense to the misappropriation claim is grounded in Wisconsin's law that requires "a substantial rather than an incidental connection between the use [of a person's name for commercial purposes] and the defendant's commercial purposes." The court said Stayart failed to prove Google's purported efforts to derive revenues through linking her name and levitra was substantial.

9th Circ.: Monroe Heirs Can't Benefit from Calif. Privacy Law

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Although Hollywood sex symbol Marilyn Monroe died of a drug overdose at age 36 in 1962, her image and persona have continued to generate millions of dollars for her heirs. But following an adverse ruling last week by the United States Court of Appeals for the Ninth Circuit in Milton H. Greene Archives, Inc. v. Marilyn Monroe, LLC et al (Case No. 08-56471),  her beneficiaries may have crossed the River of No Return (1954).

According to accounts in The New York Times and THR, Esq., the appellate court ruled that the Delaware-formed Marilyn Monroe LLC cannot benefit from California's right of publicity statute [Cal. Civ. Code sec. 3344] that allowed her estate to reap the financial rewards of holding onto the rights of a celebrity's name, likeness and image. Monroe was born Norma Jean Mortenson in Los Angeles, but was a New York resident when her untimely death occurred, the Ninth Circuit concluded, and the Empire State's right of publicity statute [N.Y. CLS Civ. R. sec. 50(2000] does not recognize posthumous privacy rights.

Forbes Magazine's "Top Earning Dead Celebrities" macabre feature indicates Monroe generated $27 million in income in 2011, placing her behind only Michael Jackson and Elvis Presley in that category in which stars are not eager to be recognized, for obvious reasons. Her litigious Estate sued to prevent a San Francisco company from selling images of the actress without permission, perhaps following the imperative of one of the actress's films, Let's Make It Legal (1951), but ultimately, its tax planning strategy worked against it in the Ninth Circuit decision. As another of Monroe's films noted, Something's Got to Give (1961).

UPDATE: Judge Nixes Facebook 'Sponsored Stories' Suit Settlement Deal

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Earlier this month, United States District Court for the Northern District of California Judge Richard Seeborg withheld his blessings from the proposed $20 million settlement in Fraley v. Facebook (Case No. 5:11-cv-01726), a putative class action suit arising from Facebook's Sponsored Stories ads.

Under the proposed settlement, Facebook would revise its Statement of Rights & Responsibilities to give members more of a voice in how their personal information is used and agree to dispense $10 million in cy pres payments among various children's, electronic privacy and consumer advocacy groups. Judge Seeborg caught the case after presiding Judge Lucy H. Koh recused herself the day before the settlement hearing (see "TUOL" post 7/12/12). Plaintiffs contend that the Sponsored Stories ads violate California's Right to Publicity ("ROP") statute [Calif. Civ. Code sec. 3344] (see "TUOL" post 12/22/11).

Judge Seeborg refused to sign off on the settlement agreed-to by the parties in part, because it allows for $10 million in legal fees, but nary a penny for the Facebook users purportedly harmed by the Sponsored Stories ads. The $10 million that would be distributed to the various nonprofit advocacy groups is based on ROP, which assesses $750 in statutory damages per infraction. Judge Seeborg said the parties failed to justify the cy pres payments to the groups merely on the argument that it would be unfeasible to divvy up the amount among the "injured" Facebook users.

The court invited the parties either to modify the proposed settlement or to resubmit the resolution with further legal arguments about why it should be approved. Stay tuned.

Barry Diller Sues BarryDriller

(Photo credit: Wikipedia)Pity the docket and courtroom clerks at the United States District Court for the Central District of California, who are trying not to confuse separate Barry Diller and BarryDriller lawsuits.

A little more than a week after a copyright and trademark infringement suit, Fox Television Services, Inc. et al. v. BarryDriller Content Systems Plc (Case No. 12-cv-6921), was filed in the federal court in Los Angeles (see "TUOL" post 8/14/12), along comes Barry Diller v. BarryDriller Content Systems Plc (Case No. 12-cv-7200). Diller, one-time head of Paramount Pictures and Fox and an investor in Aereo, a rival of the defendant that also streams broadcast television signals on Internet-enabled devices, has sued the defendant, which is owned by Alki David, for cybersquatting, alleged violation of his right to publicity, and for trademark abuse under the Lanham Act [15 U.S.C. sec. 1125].

As reported in The Los Angeles Times, THR, Esq. CNN.com and elsewhere, Diller accuses David's company of implying a false endorsement by him by adopting the name "BarryDriller."  The Complaint alleges the defendant is using his name in its business to: "(1) associate their service with Plaintiff and (2) mislead the public into believing that Defendants' service has been judicially sanctioned." The Complaint immodestly refers to the plaintiff as one of the best-known business leaders in the U.S. Diller is asking Judge Margaret M. Morrow for punitive damages and injunctive relief against the Defendant.

The concerned staff of "TUOL" hopes for the sake of the court's personnel that no litigation ensues over the Estate of comedian Phyllis Diller, as "TUOL" already has had its fill-er of Diller & Driller lawsuits.

UPDATE: Judge Withdraws from Facebook Privacy Case Day Before Settlement Hearing

(Photo credit: Wikipedia)United States District Court for the Northern District of California Judge Lucy H. Koh has recused herself without explanation from hearing Fraley v. Facebook (Case No. 5:11-cv-01726) the day before a scheduled settlement hearing, Reuters reports.

In a 38-page decision last year, Judge Koh denied the social media giant's motion to dismiss the putative class action suit based on Facebook's "Sponsored Story" Ads, finding the plaintiffs presented an actionable claim under California's Right of Publicity law [Calif. Civ. Code sec. 3344]. (See "TUOL" post 12/22/11.)

The parties reached a settlement under which Facebook purportedly would pay $20 million and users would have more of a say in how their personal information was used, according to the Reuters article.  The terms of any proposed resolution of the case, however, require the presiding judge's approval.

Scheduled dates to hear motions in the case were vacated by Judge Koh and she has asked that another judge take over the matter.

Burberry Scores a Bogie in Federal Suit

(Photo credit: Wikipedia)Courtroom lawyers are accustomed to fighting in the trenches, but battling over trenchcoats is unusal.

In the United States District Court for the Southern District of New York, Judge Paul G. Gardephe is presiding over Burberry Ltd. & Burberry Group, PLC v. Bogart, LLC (Case No. 1:2012-cv-03491) in which the clothier is seeking declaratory judgment in a right of publicity and trademark infringement [15 U.S.C. sec. 1125] action involving the entity that owns the rights to Hollywood screen legend Humphrey Bogart.

As with seemingly every legal dispute nowadays, it all begins with Facebook. Burberry's Facebook page includes an historical timeline featuring famous people wearing its line of clothing, including actor Robert Mitchum, decked out in a trenchcoat worn in his tough-guy role from Out of the Past (1947) and actor Tyrone Power similarly attired from Razor's Edge (1946).

Currently missing is Humphrey Bogart wearing a trenchcoat that no doubt set Ingrid Bergman's heart aflame in Casablanca (1942). According to the plaintiffs' complaint, Bogart LLC allegedly fired off a cease & desist letter and sought damages for common law claims, right to publicity, a cousin of an invasion of privacy appropriation claim; and trademark infringement.

Presumably, the defendant's position would be that the clothier is capitalizing on Bogie's image without permission and that consumers would be confused over whether the since-removed image of the actor from the timeline constituted an endorsement of the product. As there is no specific line of "Bogiecoats" or ads marketing the actor, it would appear Burberry is asking the court for a ruling that it is within its First Amendment rights to acknowledge on its Web site that Bogart wore a trenchcoat in films, including Casablanca.

Under New York's right to publicity law, the nation's oldest, dating back as far as the Roberson case in 1902, a famous individual's image and persona may only be exploited commercially as a commodity during the famous person's lifetime. In California, however, where Bogart LLC is based, the right of publicity protection extends beyond the celebrity's death, so the case is no cakewalk for Judge Gardephe.  Fun fact: both Mitchum and Bogart donned their trenchcoats to play Raymond Chandler's detective creation Philip Marlowe in screen versions of The Big Sleep, though some 32 years apart. You're welcome.

UPDATE: 11th Cir. Sides with Hustler in Benoit Privacy Suit

The United States Court of Appeals for the Eleventh Circuit last week in LFP Publishing Group d/b/a Hustler Magazine v. Maureen Toffoloni, Admin. of the Estate of Nancy E. Benoit (Docket No. 11-cv-12922) refused to reinstate a  near $20 million 2011 jury award against the adult magazine for publishing nude photos of the spouse of professional wrestler Chris Benoit, who strangled her and the couple's son in a murder-suicide in 2007 (see "TUOL" post 1/27/12).

The appellate court ruled that although Hustler wrongly published the then-24-year-old photos of former model and wrestler Nancy Benoit, its actions did not warrant the $19.6 million punitive damages (later reduced by a District Court judge to $250,000) assessed by the jury. Georgia recognizes a right of publicity/invasion of privacy action that allows a plaintiff to recover for the commercial use of his or her image without permission. Though Hustler was misguided in its belief, the appellate court found the magazine had a good-faith belief that the photos satisfied the "newsworthiness" defense to a right of publicity claim because of Nancy Benoit's violent death.

Calif. Federal Judge Denies Facebook Motion to Dismiss Privacy Suit

Image via WikipediaImage via CrunchBaseImage by Getty Images via @daylifeIn her 38-page decision last week in Fraley v. Facebook (Case No. 5:11-cv-01726), United States District Court for the Northern District of California Judge Lucy H. Koh refused to dismiss a putative class action suit against  Facebook based on the social media leviathan's use of "Sponsored Story" ads.

Although she dismissed an unjust enrichment count against Facebook, Judge Koh found Angel Fraley and her co-plaintiffs had legal standing to proceed with their claims of unfair competition and violation of California's Right of Publicity statute [Calif. Civ. Code sec. 3344]. The plaintiffs contend Facebook, without their consent, appropriated their names, likenesses and photographs for use in Facebook's "Sponsored Story" paid advertisements.

A "Sponsored Story" ad is generated when a Facebook user clicks on the raised thumb Like icon concerning a product or service, which then appears on the user's friends' Facebook page. At issue is whether that turns the user into a spokesperson/endorser of that product or service.

As reported in the Financial Times and elsewhere, Judge Koh kept the plaintiffs' suit afloat by finding "logical" the plaintiffs' argument that they should benefit from the ad revenues flowing to the defendant social network from their unwitting endorsements.  Unequivocally, Facebook's "Sponsored Story" marketing strategy has been successful.

Judge Koh specifically ruled that Facebook cannot benefit from the defense afforded by Section 230(c)(1) of the Communications Decency Act of 1996 that shields Internet Service Providers from liability as publishers. Facebook has also raised a First Amendment argument that the "Sponsored Story" ads are newsworthy, which characterizes the plaintiffs as public figures rendering newsworthy consumer opinions.

Keeping Up With Kardashian Litigation: Kim Sues Over Ad Look-alike

Image by Getty Images via @daylifeIn Kim Kardashian v. The Gap, Inc., Old Navy, LLC et al (Case No. 2:2011cv05960) filed this week in the U.S. District Court for the Central District of California, reality tv star and model Kim Kardashian alleges the defendants violated her right of publicity with its Super C-U-T-E ad blitz launched last February featuring Canadian singer/actress Melissa Molinaro, who resembles Kardashian.

Kardashian is seeking compensatory and punitive damages in the $15 million to $20 million range, according to accounts by TMZ.com, The Idaho Statesman and elsewhere, over the multimedia Super C-U-T-E campaign that allegedly has been viewed more than two million times on Old Navy's YouTube channel. The 31-year-old Kardashian, described in her complaint as an "internationally known celebrity, model, television personality, actress, entrepreneur and pop culture icon," claims the defendants' use of purported look-alike Molinaro may confuse consumers regarding Kardashian's actual endorsements, which include a shoe line and clothing store. She claims the ads infringe on her identity and persona.

The complaint alleges the plaintiff "has invested substantial time, energy, finances and entrepreneurial effort in developing her considerable professional and commercial achievements and success, as well as in developing her popularity, fame, and prominence in the public eye." A lofty description for the E! series Keeping Up With the Kardashians co-star whose initial claim to fame included friendship with Paris Hilton and her own sex tape.

Molinaro, 29, is not a defendant in the suit. Ironically, TMZ.com reports that Molinaro has been romantically linked to New Orleans Saints star Reggie Bush, the plaintiff's former flame, so look-alike may only be the half of it.

Federal Judge Says Twitter Impersonator May Be Liable to Real Tweeter

Image via WikipediaBird impressions may make you the life of some parties, but impersonating a Tweeter could expose you to liability under federal law, according to a judge in the U.S. District Court for the Northern District of Illinois.

As first reported by MediaPost.com, Judge Amy J. St. Eve declined to dismiss claims of violation of right of publicity and violation of the Lanham Act [15 U.S.C. sec. 1051 et seq.] in a case brought by an employee against her boss whom she alleges sent Tweets from her account while she was incapacitated. Construing the facts most favorably for the plaintiff in weighing the defendants' motion to dismiss, Judge St. Eve said the plaintiff has alleged "a commercial injury based on defendants' deceptive use of her name and likeness."

As marketing director for Chicago-based Susan Fredman Design Group, Jill Maremont heavily relied on social media to promote the interior designer, posting updates on Twitter concerning local designers and interior decorating and writing a blog about the company. Maremont suffered a brain injury after she was hit by an automobile and was incapacitated for roughly nine months, unable to Tweet because it made her dizzy.

While hospitalized, Maremont learned that her Twitter account was still being updated. She sued her employer, alleging her name and image were being used in a misleading way. The defendant counters that because the Twitter account was being used to promote her company, at most, she did the plaintiff's job without her permission.

Besides the claims raised in the case, an Internet law specialist contacted by MediaPost.com suggests that the defendant might face liability for privacy invasion under the federal Stored Communications Act [18 U.S.C. secs. 2701-2712].

Fake Celebrity Twitter accounts are commonplace, but this uncharted territory is on its way to being mapped by cases such as this.

MJ Estate Moonwalks Corporations into Court on Trademark Claims

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Slightly more than three months after his death, the Estate of Michael Jackson has filed its first lawsuit in the U.S. District Court for the Central District of California against two companies it accuses of exploiting registered trademarks.

Special Administrators of the Estate, John G. Branca and John McClain, along with Jackson trademark owner Triumph International, Inc. sued Heal the World Foundation (HTWF) and its affiliate, United Fleet (Case No. 09-07084), alleging trademark infringement, violation of the federal Anti-cybersquatting Consumer Protection Act, unfair competition, violation of the right of publicity and seeking the cancellation of the defendants' registered trademarks.

According to the complaint filed by the estate, the defendants co-opted trademarks registered to Jackson, including "King of Pop" and "Thriller," to create the false impression that they were affiliated with the late pop singer and his charity. The plaintiffs, who are seeking a permanent restraining order against HTWF and United Fleet, allege that the defendant corporations, which were formed in 2008, already have registered a half-dozen Jackson-related trademarks and applied for more than 40 additional trademarks.

Jackson's family has been struggling internally over the late singer's assets since his death June 25 at age 50. Borrowing from the discography of the "King of Pop," the special administrators believe the defendants' conduct is "Bad," "Dangerous," and "Off-the-Wall." Anyone expecting a "Thriller" in the courtroom has never sat through a trademark infringement case.

Paris' "Hot" Lawsuit: A Legal Hallmark?

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Whether celebrity heiress Paris Hilton's lawsuit succeeds is in the cards--Hallmark Cards, that is.

Hilton sued the Kansas City, Missouri-based greeting cards maker in U.S. District Court for the Central District of California in 2007(Case No. 2:07-cv-05818) alleging misappropriation of publicity (i.e., invasion of privacy),false designation under the Lanham Act, and infringement of a federally registered trademark. Hallmark, in turn, filed an anti-SLAPP motion against Hilton, arguing her suit was frivolous and violated the company's First Amendment free speech right.


The row involves a greeting card that superimposes Hilton's head onto a cartoon body of a waitress serving food to a male customer, warning: "Don't touch that, it's hot." The customer responds: "What's hot?," eliciting HIlton's hilarious rejoinder: "That's hot!." Inside, the card reads: "Have a smokin' hot birthday."

Hilton registered the phrase "That's hot!" with the U.S. Patent & Trademark Office. She frequently uttered the expression on her fish-out-of-water reality series "The Simple Life," that featured Hilton and her former "BFF" Nicole Ritchie as privileged "princesses" engaged in rustic or working-class settings, such as feeding livestock.

Hilton claimed the Hallmark card employing her catchphrase was lifted from the exciting episode of her series entitled "Paris' First Day as a Waitress" in which she toiled for the Sonic Burger fast-food eatery. The district court tossed Hilton's trademark infringement claim, but rejected Hallmark's anti-SLAPP motion.

This week, a three-judge panel of the U.S. Circuit Court of Appeals for the Ninth Circuit weighed in (Hilton v. Hallmark Cards. Docket No. 08-55443). The appellate court upheld the dismissal of the anti-SLAPP motion and was unpersuaded by Hallmark's transformative use defense, remanding the case to the district court where Hilton may proceed on her privacy/publicity claim.  Hallmark is considering appealing the ruling to the full bench of the Ninth Circuit or the Supreme Court.

The appellate court decision, in rejecting the anti-SLAPP motion, said that although Hilton's claim does not merit judgment in her favor as a matter of law, "she has at least some probability of prevailing on the merits before a trier of fact."

In the wake of this litigation, don't expect any greeting card company to take a flyer on a line of "Thinking of You" cards featuring images from the heiress' iconic Internet sex tape.