Slip Opinion
N.D. OhioMar 2, 2020Background
- Plaintiff Clayton Morris, a former TV anchor and real-estate influencer, alleged defendants James Wise and Holton‑Wise Property Group used his copyrighted photograph, name, likeness, voice, and derogatory imagery (including a T‑shirt) in online ads, YouTube thumbnails/videos, and merchandising without permission.
- Morris owned a copyright in a photograph (registration effective Oct. 10, 2019); defendants allegedly used the image in an email/YouTube thumbnail on Oct. 3 and again after registration on Oct. 22, 2019.
- Defendants allegedly used an off‑the‑record phone recording of Morris in a video and listed merchandise (e.g., a toilet‑paper joke shirt) tied to his name to drive search traffic to their sites.
- Morris asserted claims for federal copyright infringement; Pennsylvania statutory/common‑law misappropriation and privacy; Ohio/common‑law trademark infringement; Ohio wiretapping; and unfair competition.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6). The Court applied Ohio choice‑of‑law principles, found the complaint insufficient as a matter of law, and granted the motion, dismissing the case with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright — fair use | Morris: defendants reproduced his copyrighted photo in ads/thumbnail without permission (infringement). | Wise/HWPG: use was commentary/criticism of a public figure and therefore fair use (transformative, nonmarket usurpation). | Court: Use was transformative/commentary on a public figure; fair use applies. Copyright claim dismissed. |
| Choice of law for state claims | Morris: asserts Pennsylvania statutory/common‑law claims (he is domiciled in PA). | Defendants: contacts support application of Ohio law. | Court: Most conduct occurred in Ohio; Ohio has stronger relationship. Pennsylvania claims dismissed. |
| Trademark / unfair competition | Morris: "Clayton Morris" is a common‑law mark and defendants used his name to drive traffic and confuse consumers (likelihood of confusion). | Defendants: use was not a source‑identifying trademark use but disparaging/commentary; no likelihood of confusion. | Court: Allegations show disparagement/non‑trademark use, not source‑identifying use; no plausible likelihood of confusion. Trademark and unfair competition claims dismissed. |
| Wiretapping (Ohio Rev. Code) | Morris: Wise recorded phone calls and used the audio in videos without consent (statutory violation). | Defendants: Wise was a party to the calls; Ohio law permits a party to record absent intent to commit a criminal/tortious act. | Court: Recording by a party is permitted and Morris’ asserted torts (copyright/trademark/misappropriation/unfair competition) fail on the merits, so no unlawful purpose to defeat the statutory exception. Wiretapping claim dismissed. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard: plausibility requirement)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: plausibility and legal conclusions)
- Princeton Univ. Press v. Mich. Doc. Servs., Inc., 99 F.3d 1381 (6th Cir. 1996) (fair‑use factors applied flexibly; transformative use guidance)
- Interactive Prods. Corp. v. a2z Mobile Office Solutions, Inc., 326 F.3d 687 (6th Cir. 2003) (trademark law does not reach non‑trademark uses of a mark)
- New Kids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302 (9th Cir. 1992) (distinguishing non‑trademark expressive uses from infringement)
- Champions Golf Club, Inc. v. The Champions Golf Club, Inc., 78 F.3d 1111 (6th Cir. 1996) (likelihood‑of‑confusion factors for trademark claims)
- Water Management, Inc. v. Stayanci, 15 Ohio St.3d 83 (Ohio 1984) (scope of unfair competition under Ohio law)