Category Archives: Image aned Likeness

Just Another Pretty Face – Pretty Boy Somers Loses His Bid to Keep His Name and Likeness from WWE

Pretty BoyAn interesting decision came down this week upholding the 1st Amendment rights of  World Wrestling Entertainment, Inc. or the WWE. Former wrestler “Pretty Boy” Doug Somers, had sued WWE because he didn’t like the fact that it was using his name and likeness on its website. Finding that it was similar to historical references to famous baseball players, U.S. District Judge Marvin H. Shoob said the WWE had a 1st Amendment Right to include Somers on its website because the public is constitutionally entitled to be informed about the history of events that were widely publicized when they happened:

“Similar to these baseball players, plaintiff placed himself before the public. Plaintiff appeared in wrestling matches before thousands of spectators,” the judge wrote. “Plaintiff 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.”

Judge Shoob went on to hold that the history of the so-called sport is “integral to the full understanding and enjoyment of the current professional wrestling matches and current wrestlers,” and ultimately concluded that “the information on WWE’s websites … is a matter of public interest and protected by the First Amendment.”

While Somers had argued that the WWE’s historical use of Somers’ name and likeness were exempt from free-speech protection because it was commercial in nature, Judge Shoob was not persuaded:

“WWE is not using plaintiff’s identity to advertise WWE’s goods or services or in connection with such goods and services,” the order said. “Plaintiff’s identity is not being used to sell a product in an advertisement, but instead, is referred to as part of the historical events of professional wrestling.”

The ruling dismissed the case with prejudice and even ordered Somers to pay the WWE’s costs. What guidance is provided by this decision? If you need to include the name and likeness of a public figure to be historically accurate about past events, it is probably OK, so long as the purpose is not primarily for commercial use. In this case, the Judge held that historical facts about Pretty Boy’s career on a website to promote the sport of wrestling was not commercial use, even though other products were sold on that website, because the commercial use was “incidental” to the factual use of Pretty Boy’s image and likeness. However, the result might have been different if WWE had used Pretty Boy’s image and likeness in an actual advertisement for goods, rather than in a historical recitation of past events. All in all, it was a bad day for Pretty Boy but a good one for folks interested in wrestling “history.”

The case is Douglas Duane Somerson v. Vincent K. McMahon et al., case number 1:12-cv-00043, in the U.S. District Court for the Northern District of Georgia.

Top Five Ways to Protect Your Website

Below are the top five things to consider to ensure that your website and its content are adequately protected:

1.      Own Your Own Content

As a threshold matter, you need to create all the content yourself or, if it is created by others, it must be done pursuant to a “work for hire” agreement. If not, the person writing the content or providing the graphic or photographs owns the content, not you or      Continue reading

Tennessee Personal Rights Protection Act: There Has to Be Use In Advertising

The above picture is one Lauren Gauck, a Fox news anchor  in Memphis, Tennessee. Ms. Gauck sued Karamian, the owner of a gossip (sorta) website called “The Dirty.com”  that allows users to post pictures of women in order to ask Karamian and “the Dirty Army” (the site’s readers)  whether the women are “hot” or not. The Dirty Army also posts pictures of people, mostly women, who they want to “slam” or ridicule. Karamanian posts what are supposed to be witty comments on the pictures, which mostly consist of his opinion that the women are not “hot” enough. The Dirty.com supposedly published photos of Ms. Gauck and her friends, along with a pornographic picture (though redacted) of a woman who was represented to be Ms. Gauck, but in fact, was not her. Karamanian posted a couple of snarky comments about how it was time for her and her friends to “go to a one-piece.”

    Ms. Gauck sued under Tennessee’s Personal Rights Protection Act (“TPRPA”) (and asserted various tort theories under Tennessee common law), but was not successful in obtaining an injunction against the future posting of the material because the court found that she was not likely to succeed on the merits of her TPRPA claim. In short, the court found that Tennessee’s Personal Rights Protection Act is more restrictive than the Restatement approach adopted by other states. Under Tennessee law, as contrasted with states that follow the Restatement approach, to succeed on a TPRPA claim, the plaintiff has to show that  the Defendant used her image or likeness in advertisement or solicitations, rather than for the defendant’s “own purposes and benefit.” Because Ms. Gauck was unable to show a causal connection between thedirty.com’s use of her name and image and an increase in visitors to the site or advertising revenue, she was unable to show that her image was being used as an advertisement or solicitation. Consequently, her claims failed and she was not able to enjoin the site from publishing her image and likeness in the future (although the opinion indicates that the defendant had pulled the photos down and that defense counsel had stated that Karamian had no intention of republishing the post pertaining to Ms. Gauck.

Bottom Line: To win on a TPRPA claim, the plaintiff has to show that her image or likeness was used in advertising…simply showing that the defendant received a benefit from the use of the image or likeness is not enough under Tennessee’s narrowly drawn statute.

Gauck v. Karamian, et. al, No. 2:11-cv-02346,  2011 WL 3273123 (W.D. Tenn. July 29, 2011).