Right of publicity case against Shaquille O’Neal over a photo he tweeted and posted to Instagram moves forward


A federal court has held that a plaintiff has successfully pled a claim of “appropriation” (essentially, right of publicity claim) against former NBA star Shaquille O’Neal, for Shaq’s use of plaintiff’s photo on Twitter and Instagram. The case is useful inasmuch as it shows how courts will consider social media as providing a benefit to its user.

Shaq acquired a photo of plaintiff, who suffers from a condition that affects his hair, skin and teeth, then placed a photo of himself making a contorted face next to the photo, apparently to imitate the way plaintiff appeared. Given that Shaq has millions of followers, this garnered many, many likes and comments. (I of course won’t republish the image here, but if you really want to see it, just do a Google Image search using the parties’ last names.)

Plaintiff sued under several theories, including intentional infliction of emotional distress, appropriation, and unjust enrichment. Shaq moved to dismiss most of the claims. The court did throw out some of the claims (e.g., negligence — plaintiff has pled Shaq acted intentionally). On the appropriation claim, the court, applying Michigan law, held that Shaq had made use of the plaintiff’s name or likeness for his own purposes and benefit. The court rejected Shaq’s argument that plaintiff lacked any pecuniary interest in his identify, holding that the tort of appropriation under Michigan law “is not limited to commercial appropriation” and “applies also when the defendant makes use of the plaintiff’s name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one.”

The court went on to clarify that even if the tort of appropriation under Michigan law did require a plaintiff to demonstrate a significant commercial or pecuniary interest in his identity, plaintiff’s case still survived the motion to dismiss. “[A] plaintiff need not be a national celebrity to demonstrate significant commercial value.”

Binion v. O’Neal, No. NO. 15-60869, 2016 WL 111344 (S.D. Fla., Jan. 11, 2016).

Evan Brown is a Chicago attorney advising enterprises on important aspects of technology law, including software development, technology and content licensing, and general privacy issues.

California court okays lawsuit against mugshot posting website

The Court of Appeal of California has held that defendant website operator – who posted arrestees’ mugshots and names, and generated revenue from advertisements using arrestees’ names and by accepting money to take the photos down – was not entitled to have the lawsuit against it dismissed. Defendant’s profiting from the photos and their takedown was not in connection with an issue of public interest, and therefore did not entitle defendant to the relief afforded by an anti-SLAPP motion.

Plaintiff filed a class action lawsuit against defendant website operator, arguing that the website’s practice of accepting money to take down mugshots it posted violated California laws against misappropriation of likeness, and constituted unfair and unlawful business practices.

Defendant moved to dismiss, arguing plaintiff’s claims comprised a “strategic lawsuit against public participation” (or “SLAPP”). California has an anti-SLAPP statute that allows defendants to move to strike any cause of action “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue …, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

The court held that the posting of mugshots was in furtherance of defendant’s free speech rights and was in connection with a public issue. But the actual complained-of conduct – the generating of revenue through advertisements, and from fees generated for taking the photos down – was not protected activity under the anti-SLAPP statute.

Because the claims did not arise from the part of defendant’s conduct that would be considered “protected activity” under the anti-SLAPP statute, but instead arose from other, non-protected activity (making money off of people’s names and photos), the anti-SLAPP statute did not protect defendant. Unless the parties settle, the case will proceed.

Rogers v. Justmugshots.Com, Corp., 2015 WL 5838403, (Not Reported in Cal.Rptr.3d) (October 7, 2015)

Evan Brown is an attorney in Chicago helping clients manage issues involving technology and new media.

Court denies request of plaintiffs in right of publicity suit to exhume the body of Aunt Jemima

The great-grandsons of Anna S. Harringon, whose image formed the basis for Aunt Jemima, sued Quaker Oats Company and others for $2 billion claiming that defendants failed to pay royalties to Harrington’s estate after her death in 1955. One of the allegations in the case is that defendants played a role in Harrington’s death. Apparently, in an effort to support those allegations, plaintiffs sought an order from the US District Court for the Northern District of Illinois (where the matter is pending) allowing them to exhume the body of their great-grandmother for evidence of this malfeasance.

The court denied the request. Apart from it being just a bizarre ask, it turns out the “evidence” upon which the defendants’ role in Aunt Jemima’s death was based on a parody article from Uncyclopedia. In denying the motion, the court found the following:

The motion is primarily based on statements purportedly made by Quaker Oats executives about the death of the woman who had been identified as “Aunt Jemima.” But the source of the information is an uncyclopedia.wikia.com article, which is a parody website of Wikipedia. Uncyclopedia proudly bills itself as “an encyclopedia full of misinformation and utter lies.” See uncyclopedia.wikia.com/wiki/Uncyclopedia:About.

The court also threatened the pro se plaintiffs: “Plaintiffs must take greater care in their submissions to the Court, or else face sanctions and, if litigation abuse continues, outright dismissal of the case.”

Hunter et al. v. PepsiCo Inc. et al., No. 1:14-cv-06011 (N.D. Ill. October 21, 2014)

BTW: Some info about Anna Harrington’s grave.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

The trademark and right of publicity woes of having a cryptocurrency named after you

Not too surprisingly, Kanye West’s lawyers have demanded the developers of the Coinye West cryptocurrency not use his name. The somewhat obnoxious letter shows that Kanye’s lawyers are asserting, among other things, trademark infringement and right of publicity misappropriation.

Russell Brandom at the Verge observes that “[o]nce the code is public, the original coders will be unable to prevent its use, forcing West’s legal team to prosecute every instance of Coinye individually.”

That observation raises a couple of interesting points. The first one is more of a clarification — once the code is in the wild, we should assume Kanye would only care to stop the use of his name, and would not seek (nor have any basis upon which) to stop anyone from using the code.

Stopping users of a cryptocurrency from using the name of that cryptocurrency could be a bit tough. Kanye’s lawyer threatens to “purse all legal remedies against any business that accepts the purported COINYE WEST currency.”

Infringement and misappropriation both depend on a use of the offending term in a commercial way. But users of the decentralized system, and the vendors who accept that currency, are not providers of any goods or services onto which Kanye’s identity will be attached. If one is merely using the currency as a tool, it’s hard to see how that’s any different from implicating the rights of the historical figures who appear on paper currency. So might it all be about the Benjamins? Maybe not at all.

1 2