TheDirty Defeats Publicity Rights Claims–Gauck v. Karamian
By Eric Goldman
Gauck v. Karamian, 2011 WL 3273123 (W.D.Tenn. July 29, 2011)
TheDirty.com has an increasingly active litigation docket. This case comes from Lauren Lee Gauck Giovanetti, a TV news reporter for Fox 13 in Memphis, Tennessee. She sued over two user-submitted posts to TheDirty that claimed she “used illicit drugs, was sexually promiscuous, exchanged sexual favors in return for drugs and money, and assaulted an unknown person.” The posts contained photos of her and several nude photos that also claimed to be of her, but she denied that claim. As usual, Nik Richie added his terse and snarky comments to the user posts. He also watermarked the photos and covered up portions of the nude photos.
Gauck sought an injunction based on her publicity rights. The court sidesteps the obvious 47 USC 230 defense, assuming without deciding that the publicity rights claim would fit into 230′s IP exception.
Instead, the court rejects the injunction request on the merits of the publicity rights claim. This is based on the specific wording of Tennessee’s publicity rights statute, which applies only to advertisements or solicitations. TheDirty made a commercially motivated editorial usage of Gauck’s name and image. This type of usage gives courts fits, especially when the editorial publication isn’t a traditional journalistic enterprise like a print newspaper. (See more about that problem in trademark law). Even so, there was no way to interpret TheDirty’s “editorial content” as an advertisement or solicitation. The court says:
Plaintiff has offered no evidence that Defendants marketed their site by emphasizing Plaintiff’s appearance on the site, used portions of the posts in teasers on other sites to draw more visitors, prominently displayed the posts regarding Plaintiff on the site, advertised Plaintiff’s appearance in connection with the sale of any of Defendants’ products, or charged higher premiums to advertisers for advertising space on the pages pertaining to Plaintiff.
The court rejects Gauck’s generalized assertion that TheDirty’s editorial content generates more ad money because it deals with celebrity gossip:
Plaintiff has suggested, at most, a currently unsubstantiated connection between the general
use of celebrity personas on the site and an increase in traffic and/or advertising revenue.
I think that line of inquiry was irrelevant if we maintain the artificial distinction between editorial content and advertising. If the statute applies only to advertising, then it shouldn’t matter if editorial content becomes more interesting because it addresses third party personalities. But the distinction truly is artificial–editorial content is its own form of marketing, i.e., more interesting editorial content naturally draws in more readers. The court didn’t make a misstep here, but it could have been sharper or more succinct.
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