Supreme Court Will Not Review Application of “Single Publication Rule” Barring Chuck Yeager’s Publicity Rights, Lanham Act Claims

This posting was written by John W. Arden.

The U.S. Supreme Court has refused to review the Ninth Circuit’s application of the “single publication rule” to an allegedly unauthorized endorsement posted on a website in 2003, effectively barring on statute of limitations grounds Chuck Yeager’s claims brought under California right of privacy and publicity laws and the federal Lanham Act. The high court today denied the petition for certiorari in Yeager v. Bowlin, Docket No. 12-1047, filed February 22, 2013.

In 2008, well known pilot Yeager brought an action against Connie and Ed Bowlin, claiming that statements on their “Aviation Autographs” website violated California’s common law right of privacy and right of publicity statute and that the use of his name, likeness, and identity to market memorabilia violated the Lanham Act. The federal district court in Sacramento dismissed the claims, applying the single publication rule, holding that the claims accrued in 2003, and concluding that the claims were time-barred.

In an opinion addressing the California claims, the Ninth Circuit ruled that there was no evidence in the record that the Bowlins added or changed any statements about Yeager after October 2003 and thus the right of privacy and publicity claims were barred by the two-year statute of limitations.

In a separate unpublished memorandum decision, the Ninth Circuit held that Yeager’s Lanham Act false endorsement claim also was barred by the single-publication rule. The appeals court acknowledged that it had not resolved whether a statute of limitations defense applies to claims under the Lanham Act, which are of “equitable character.” However, the court declined to address the issue on the theory that Yeager waived this argument by failing to raise it in the district court in his opposition to a defense motion for summary judgment.

The single publication rule limits tort claims premised on mass communication to the original publication date. While created to apply to print publications, the single publication rule also governs publications on the Internet, according to the appeals court. “In print and on the internet, statements are generally considered ‘published’ when they are first made available to the public.”

Under the single publication rule, the statute of limitations is reset when a statement is republished. A statement in a printed publication is republished when it is reprinted in something that is not part of the same “single integrated publication.” One general rule is that a statement is republished when it is repeated or recirculated to a new audience. As previously held by the Ninth Circuit, website operators did not republish a statement by simply continuing to host the website.

Yeager argued that the website was republished—and the statute of limitations restarted—every time the website was added to or revised, even if the new content did not reference or depict Yeager. The Ninth Circuit disagreed. “We reject Yeager’s argument and hold that, under California law, a statement on a website is not republished unless the statement itself is substantively altered or added to, or the website is directed to a new audience.”

In his petition for review, Yeager asked: “Does California’s single-publication rule govern the accrual of a Lanham Act claim arising from a web-based merchant’s refusal to remove a celebrity’s unauthorized endorsement from a merchant’s website?”

Blogging in Absent Employee’s Name Could Be False Endorsement

This posting was written by Cheryl Beise, Editor of CCH Guide to Computer Law.

A former employee of an interior design firm who had a personal Twitter following of approximately 1,250 people had standing to pursue a Lanham Act false endorsement claim against the firm for its alleged use of her personal Twitter and Facebook accounts to promote its business when the former employee was in the hospital, the federal district court in Chicago has ruled.

The former employee satisfied the prudential standing requirement for a false endorsement claim because she had developed a protected, commercial interest in her name and identity through her use of social media in the Chicago design community, according to the court.

There was undisputed evidence in the record that during the former employee’s hospitalization, design firm employees accessed her personal Facebook account and accepted friend requests at least five times and posted 17 Tweets on her personal Twitter account.

Stored Communications Act

The court said that the firm’s unauthorized access to the former employee’s Twitter and Facebook accounts could constitute violations of the Stored Communications Act (SCA) if the former employee could show that she suffered actual damages as a result of the firm’s unlawful access to her accounts. The SCA claim required further discovery on the issue of damages.

Right to Publicity

The former employee could not pursue an lllinois Right of Publicity Act claim, the court held. The firm’s employees who used the account did not pass themselves off as the plaintiff and thus did not appropriate her identity within the meaning of the Act, the court determined. Before leaving the firm, the former employee had publicly thanked her temporary replacements for their “amazing posts.”

The decision is Maremont v. Susan Fredman Design Group, Ltd., CCH Guide to Computer Law ¶40,312.

Further information regarding CCH Guide to Computer Law appears here.

Former Players Can Pursue Publicity Rights Claims Against NFL

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Former professional football players’ right of publicity claims against the National Football League could not be dismissed on the theory that NFL promotional videos did not constitute commercial speech and were entitled to First Amendment protection as expressive works, the federal district court in St. Paul has ruled.

The NFL allegedly violated the right of publicity statutes and common law of the 50 states by using the players’ names and images in promotional videos such as the “History” series, which included videos called the “Fabulous Fifties” and “Sensational 60s.”

Commercial Speech v. Expressive Works

While the films were not pure infomercials, their overwhelmingly positive tone belied the NFL’s contention that they were documentaries and supported the player’s contention that they were advertisements, according to the court.

Giving the players the benefit of all reasonable inferences at the stage of a motion to dismiss, they made out a plausible claim that the films referenced a specific product, NFL football, and that the constitutional protection to be afforded the films did not outweigh the players’ interests in their own identities.

Copyright Preemption

The Copyright Act did not preempt the right of publicity claims. The subject of a right of publicity—the name and likeness of a celebrity or other individual—was not a “work” within the subject matter of copyright law, the court reasoned.

Lanham Act False Endorsement

On Lanham Act false endorsement claims, a determination could not be made on the pleadings alone that the NFL’s use in promotional videos of former professional football players’ names and images was not “explicitly misleading” or likely to cause confusion, the court held.

The opinion in Dryer v. National Football League will be reported at CCH Advertising Law Guide ¶63,807.