Tuesday, March 12, 2013

First Amendment protects WWE's statements about wrestler even if "fictional"

Somerson v. World Wrestling Entertainment, Inc., 1:12-CV-00043-MHS (N.D. Ga. Mar. 7, 2013)

Douglas Somerson, a pro wrestler, sued WWE for invasion of privacy; unauthorized use of intellectual property; unjust enrichment; violation of the Georgia Uniform Deceptive Trade Practices Act; violation of the right of publicity; and negligent supervision.  Initially, the court found that Somerson was a public figure, making his privacy and publicity claims coterminous in Georgia.  Then, the court found that claims based on video recordings of Somerson’s wrestling performances were preempted by the copyright act because his rights fell within the subject matter of copyright and were equivalent to the exclusive rights granted by §106.  (Why won’t courts just do conflict preemption analysis here?  It would make things so much simpler, and not lead to such a strange divergence between treatment of photos and treatment of videos and sound recordings.)  The court dismissed the other claims as well, but directed Somerson to file an amended complaint specifying what merchandise allegedly contained his name and likeness.

The amended complaint alleged only invasion of privacy/violation of the right of publicity.  Somerson alleged that he was a highly successful pro wrestler and entertainer who began his career in 1967 and worked under the name/persona “Pretty Boy” Doug Somers, known and loved worldwide. Due to injuries sustained in his work, he stopped working in 2012.

WWE allegedly used his name and likeness without his permission, including on its website in at least nine different places, and put his image on the cover of at least one DVD.  As to the websites, WWE argued that the First Amendment protected its uses, given that it used his name either to describe his participation in particular matches aired on the WWE’s television network or to describe his role in a tag team with another wrestler in the context of historical narratives of notable WWE performers and events.  Somerson responded that WWE was using fictional narratives about him as part of its advertising efforts, not as a matter of public interest.

Here are some examples of the website text: “Summary: Good 01' St. Mick Foley presents memorable matches and moments from Holidays past. The Midnight Rockers, Shawn Michaels and Marty Jannetty, battle Buddy Rose and Doug Somers in a Steel Cage at AWA Brawl in St. Paul. From 12/25/86.”  “In 1986, Rose returned to Minneapolis, and while competing anew in the a WA, he and his tag team partner Pretty Boy Doug Somers had an intense rivalry against the young, upstart team of Shawn Michaels and Marty Jannetty, then known as The Midnight Rockers.”  “It was during this time that [Sensational Sherri] began perfecting her skills as a manager, leading ‘Playboy’ Buddy Rose and ‘Pretty Boy’ Doug Somers to the AWA Tag Team Championship.”

In Georgia, private citizens have a right of privacy and public figures have a similar right of publicity; Somerson pled that he was a public figure.  Georgia law protects against the appropriation of another’s name and likeness without consent and for the financial gain of the appropriator.  However, under the Restatement (Second) of Torts, which Georgia follows, “No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter, and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right to privacy is invaded.”

Also, the right of publicity is in tension with the First Amendment, which means that there’s a newsworthiness exception. Newsworthiness can depend on several factors: (1) "the depth of the intrusion into the plaintiff’s private affairs"; (2) "the extent to which the plaintiff voluntarily pushed himself into a position of public notoriety"; and (3) "whether the information is a matter of public record." The first and third factors favored WWE: the information on the website didn’t intrude into Somerson’s private affairs and was a matter of public record.  “The information is essentially a timeline of plaintiff’s wrestling activities,” and was available on numerous other websites.  Liability can’t attach to giving further publicity to already-public information. Likewise, the extent to which the plaintiff voluntarily pushed himself into a position of public notoriety also weighed against Somerson.  He was a pro, not a hobbyist or amateur, and alleged he’d developed a world-renowned persona. “‘Pretty Boy’ was plaintiff’s public image versus the private life of Doug Somers.”

The court analogized this case to Gionfriddo v. Major League Baseball, 114 Cal. Rptr. 2d 307 (Cal. Ct. App. 2001), which rejected a claim by former pro baseball players against MLB and others who sold media related to baseball that included references to the plaintiffs’ names and statistics, as well as in video depictions and still photos of their play/from their playing days. These were matters of legitimate public interest, even as to days gone by, given the public’s “enduring fascination” with the history.  Like the baseball players, Somerson put himself in front of thousands of spectators, and “must have understood the important role media publicity played in promoting his ‘Pretty Boy’ persona and the public's interest in professional wrestling in general.”  The information about him on the WWE website was part of pro wrestling history, and that history was “integral to the full understanding and enjoyment” of current matches and wrestlers.

Somerson argued that the newsworthiness exception didn’t apply because WWE was using his identity solely to further its own commercial efforts to market its own product, pro wrestling. Georgia courts have distinguished commercial use from newsworthy use, with the state supreme court opining that “[t]here is in the publication of one's picture for advertising purposes not the slightest semblance of an expression of an idea, a thought, or an opinion, within the meaning of the constitutional provision which guaranties to a person the right to publish his sentiments on any subject.”  (This is constitutional under Central Hudson why?  Never mind.) 
The court here considered whether the public interest aspect of the website was “merely incidental” to its commercial purpose, following the guide of the Restatement (Third) of Unfair Competition in distinguishing between use in advertising/putting indicia of identity on merchandise versus use of identity in  “news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses.”  The court found that WWE’s use fell into the latter category.  Somerson’s identity wasn’t being used to sell a product in an ad, but instead referred to as a part of wrestling history.  Though he argued that WWE’s product was wrestling, and that WWE was trying to increase demand for that product, the uses still weren’t ads.  At most, there was incidental advertising on the site—on other pages one could purchase DVDs or buy tickets to matches.  But Somerson’s identity wasn’t being used to endorse or sell those products, and those separate pages didn’t refer to him.  It was ok for WWE to obtain an incidental commercial advantage if people were drawn to the websites because of Somerson’s biographical information and historical wrestling facts.  Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996), on which Somerson relied, was distinguishable because that case involved an ad.  Here, there was no endorsement or link between Somerson and a product.

Last, Somerson argued that WWE was using his identity in a “fictionalized narrative” developed by WWE itself.  But he didn’t allege that the facts about him on the WWE site were fictional.  There were no allegations of false light.  Even if what he meant to argue was that the WWE controlled who won matches, so the story of “Pretty Boy” was fictional, the events on the website still occurred as part of that story. Also, Somerson alleged in his complaint that he was a “culprit” in maintaining this story.  “If not a sport in the true sense of the word, then professional wrestling and the historical information about it is at least a form of entertainment, which is protected by the First Amendment.”

Somerson also alleged that WWE used his image on the cover of at least one DVD, but WWE argued without contradiction that there was no such image of him on the cover (and the DVD was essential to the complaint, so the court could look at it on a motion to dismiss).  Instead, his name was referenced in a booklet available inside the DVD case, available only to people who already owned the DVD.  Thus, there was no use in marketing or publicity.

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