An 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 Finding that it was similar to historical references to famous baseball players, U.S. District Judge Marvin H. Shoob said the WWE had a 1st Amendment Right to include Somers on its website because the public is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.