Alaskasland.com, LLC v. Cross, 357 P.3d 805

Background

Alaskasland developed and marketed the "Susitna Shores" gated subdivision, using a distinctive concrete entrance sign and unregistered trade name; it invested substantial time and money in promotion and sold 15 of 37 lots by 2013.
The Goode property, surrounded on three sides by Susitna Shores, was listed for sale by realtor Kevin Cross; Cross’s assistant took three photos from Alaskasland’s website (including the Susitna Shores sign) and an appraisal by Brooker was attached to the realtor-only MLS (FlexMLS) listing.
Alaskasland sued the realtors for misappropriation of advertising materials (photos), trade name/trademark infringement (use of the sign photo), defamation (statements in the appraisal), interference/conspiracy/negligent supervision, and sought injunctions and damages; copyright and statutory claims were waived.
The superior court granted summary judgment to the realtors on all claims, finding (inter alia) no damages shown for misappropriation/passing off and trade name claims, and limited publication for the defamation claim; the appraisal and photos had been removed from public access prior to judgment.
On appeal, the Alaska Supreme Court affirmed: it held the Copyright Act preempted the state misappropriation claim as to two photos; found any non-preempted "passing off" theory failed for lack of proof of deception or damages with respect to the sign photo; sustained that appraisal statements were non-defamatory opinions; and affirmed an enhanced attorney’s fee award to defendants.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether state misappropriation claim for use of photographs is preempted by the Copyright Act	Photos embody Alaskasland's investment and goodwill; misappropriation claim protects "sweat equity" and advertising value beyond mere copying	Photographs are within Copyright Act subject matter and plaintiff's claim lacks an "extra element" distinct from exclusive federal copyright rights	Preempted as to the Mt. McKinley and fishing photos; copying those photos is within federal copyright scope and no extra element was shown
Whether a "passing off" or common-law misappropriation claim survives preemption for use of the Susitna Shores sign photo	Use of sign photo amounted to passing off — creating impression Goode property was part of Susitna Shores — and thereby misappropriating goodwill, entitling Alaskasland to damages or reasonable royalty	Passing off (if recognized) requires proof of deception and actual damages; Alaskasland produced no evidence any purchaser was deceived or that it suffered pecuniary loss	Not preempted by Copyright Act, but fails on the merits for lack of evidence of deception or actual damages (claim dismissed)
Whether statements in the appended appraisal are defamatory	Appraisal falsely asserted (1) Susitna Shores’ electric service "may be subject to legal issues" and (2) Goode access could defeat gated security; these harmed reputation and were published via FlexMLS	Statements are professional opinions, hedged and based on disclosed facts and maps in the appraisal; therefore non-actionable as defamation	Statements are non-defamatory opinions (unverifiable/speculative, hedged and based on disclosed facts), so defamation claim fails
Whether enhanced attorney’s fees under Alaska R. Civ. P. 82 were appropriate	Fee award was excessive given no final injunction removal was the only partial relief; defendants’ fees unnecessary because case did not go to trial	Plaintiff pressed novel and expansive claims without evidentiary support, increasing litigation complexity and fees; prevailing party status appropriate	No abuse of discretion: defendants were prevailing party and trial court permissibly enhanced fees based on complexity, lack of merit, and increased litigation costs

Key Cases Cited

Int’l News Serv. v. Associated Press, 248 U.S. 215 (U.S. 1918) (historic recognition of misappropriation doctrine and scope of federal protection over news/commodities)
Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (framework distinguishing non-actionable opinion from factual assertions for defamation law)
Del Madera Props. v. Rhodes & Gardner, Inc., 820 F.2d 973 (9th Cir. 1987) (misappropriation of copyrightable development materials held preempted absent an extra element)
Alderman v. Iditarod Props., Inc., 32 P.3d 373 (Alaska 2001) (trade name/trademark infringement principles and secondary meaning analysis)
Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514 (Alaska 2014) (standard of review for summary judgment)