Somerson v. World Wrestling Entertainment, Inc.
956 F. Supp. 2d 1360
N.D. Ga.2013Background
- Plaintiff Somerson, a professional wrestler, sued WWE, Vincent McMahon, and Linda McMahon in Georgia Superior Court alleging invasion of privacy, unauthorized use of intellectual property, unjust enrichment, GUDTPA, right of publicity, and negligent supervision for using his name and likeness in merchandise without royalties or consent.
- Defendants removed the case to federal court asserting federal question and/or diversity jurisdiction; the court later determined diversity jurisdiction existed.
- An August 23, 2012 order granted the McMahon defendants’ motion to dismiss for lack of personal jurisdiction and insufficient service of process.
- With respect to WWE, the court concluded that claims based on DVDs/video recordings were preempted by the Copyright Act and that certain claims were inadequately pled under Iqbal and Twombly, leading to a more definite statement request for other merchandise claims.
- The court allowed an amended complaint limited to the WWE defendant, focusing on use of Somerson’s name and likeness in other merchandise; WWE then moved to dismiss under Rule 12(b)(6).
- The court ultimately granted WWE’s second Rule 12(b)(6) motion, dismissing the action in its entirety.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do the侵犯 of privacy/right of publicity claims survive First Amendment scrutiny? | Somerson argues the rights are violated by commercial use of his name and likeness. | WWE argues the First Amendment newsworthiness/public interest exception protects its website uses. | Claims barred by First Amendment newsworthiness exception. |
| Are WWE's website uses of Somerson's identity commercial in nature? | The uses are commercial to promote WWE products. | Uses are historical, informational, and entertainment in nature, not advertising. | Not commercial; protected as newsworthy/entertainment. |
| Are the claims preempted by the Copyright Act as to video/DVD material? | Video/ DVD uses fall outside copyright preemption requirements. | Video recordings are within copyright subject matter; claims preempted. | Video-related claims preempted; no recovery for those aspects. |
| Did WWE impermissibly place Somerson's image on the DVD cover? | Front/back cover shows his image or likeness. | No image of Somerson appears on front/back; only internal booklet references. | No cover image; claim dismissed. |
| Should unjust enrichment, GUDTPA, and unauthorized use of intellectual property be considered viable claims in amended complaint? | These claims should proceed if properly pleaded. | Court previously concluded these claims failed to plead viable theories under Iqbal/Twombly. | Claims dismissed; only remaining viable claims were invasion of privacy/right of publicity, which were resolved against plaintiff. |
Key Cases Cited
- Toffoloni v. LFP Publ’g Group, LLC, 572 F.3d 1201 (11th Cir. 2009) (restatement of right of publicity; public figure distinction and newsworthiness relevance)
- Gionfriddo v. Major League Baseball, 94 Cal.App.4th 400 (Cal. Ct. App. 2001) (historic, factual data about athletes protected as public-interest information)
- Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996) (illustrates distinction when identity used in advertising requires different analysis)
- Lucas v. Fox News Network, LLC, 248 F.3d 1180 (11th Cir. 2001) (speech/entertainment protections extend to information that informs or entertains)
- Cox Communications, Inc. v. Lowe, 173 Ga.App. 812, 328 S.E.2d 384 (Ga. Ct. App. 1985) (no liability when publishing information already public)
- Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (U.S. Supreme Court 1975) (news reporting/public interest exception to privacy rights)