Thursday, October 17, 2013
The Supreme Court has denied cert in Stayart v. Google, in which Beverly Stayart alleged that Google infringed her right of publicity when its search engine turned up results for her coupled with the drug called "levitra," resulting in advertising for that drug's manufacturer. Ms. Stayart thus argued that Google fell afoul of Wisconsin's misappropriation statute, 995.50(2)(b).
The Seventh Circuit ruled in Google's favor, finding that two exceptions in the statute offered Google a defense. One was public interest, and the other was incidental use.
The search term "bev stayart levitra" is a matter of public interest primarily because Stayart has made it one—and, given the current lawsuit, ensures that it remains so. In January 2010—four months before she filed this lawsuit—she filed a lawsuit against Yahoo! in federal court, alleging that its search assist feature suggested the phrase "bev stayart levitra" when she typed "bev stayart," in violation of Wisconsin's misappropriation law. See Stayart v. Yahoo! Inc., No. 2:10-cv-00043-LA (E.D. Wis. filed Jan. 19, 2010). In her complaint in the instant case, Stayart alleges that "Google's misappropriation of Bev Stayart's name and likeness began at least as early as February 1, 2010 . . . ," the month after she sued Yahoo! over the same search phrase. And all the searches she attaches to her complaint were executed in April 2010.
Court documents, including Stayart's complaint and the district court's 2011 order dismissing that complaint, are matters of public interest. ... The public has an interest in the fairness of courts and judges, and the public has a right of access, "guaranteed by the first amendment, to information before the court relating to matters of public interest."). It follows that if court documents warrant the public interest exception, the search providers and indexes that lead the public to those documents or that capture key terms related to them are likewise entitled to that exception.To the extent that Stayart has or would argue that Google'ss profit motives undermine the reliance on the public interest argument, the exception applies even when the entities sharing the information do so "largely, and even primarily, to make a profit." ...
The incidental use exception also limits the application of Wisconsin's misappropriation law. .. "For use of a person's name for advertising or trade purposes to be actionable under Wisconsin law, 'there must be a substantial rather than an incidental connection between the use and the defendant's commercial purpose.'" ... Nothing in Stayart's thirty-page complaint—139 pages with attachments—suggests that the connection between Stayart's name and Google's efforts to generate revenues through its use is "substantial rather than incidental." Id. (quotation marks omitted). In fact, Stayart's complaint and the hundreds of pages of attachments and supplemental documents she has filed suggest that the term "levitra" and not Stayart's name triggers the erectile dysfunction ads. But even if Google's use of her name were substantial, it would still be entitled to the public interest exception.