Trevor Bauer, Fame, and the Right of Publicity

by
August 23, 2018

It didn’t get nearly as much press coverage as fake news tweets about CIA nanites, but back in June, injured Indians hurler Trevor Bauer filed a lawsuit against a company called Top Velocity, LLC, alleging that Top Velocity and its owner, Brett Pourciau, illegally used his license in violation of federal, Texas, and Louisiana law. You can read his Complaint here.

There’s a lot to unpack. Remember that this is, as always, a simplified overview: don’t go practicing law or filing lawsuits based on what you see here.

Let’s start with the crux of what Bauer is saying.

This might seem kind of funny (Bauer is alleging he is World Famous!), but it’ll be important later. Now to what Bauer is saying Top Velocity and Pourciau did wrong:

Bauer also alleges that his attorney made repeated requests that Pourciau and Top Velocity remove Bauer’s name and likeness from their website. According to Bauer, after some back-and-forth, they agreed.

So why is there a lawsuit? Because Bauer’s attorney allegedly asked for proof that Bauer was off of Top Velocity’s website, including printouts of the website and an affidavit from Pourciau. However, Bauer says that the Defendants never complied with that request.

So this is an open-and-shut case, right? We know Bauer’s likeness and name were used without permission. And because, at the pleading stage — that is, the part of the case when a complaint and answer are filed — the judge has to assume the factual allegations of the Complaint are true, this shouldn’t be particularly complex.

Regarding that, a couple points. First, there is the matter of Bauer’s complaint. Bauer’s causes of action (i.e., what is the name of what he’s suing for?) are kind of a mess. Pleading rules in most jurisdictions are governed by the Rules of Civil Procedure, and since we’re in federal district court (the United States District Court for the Eastern District of Louisiana, to be precise), the Federal Rules of Civil Procedure apply. Pleadings, which are a type of filing that includes complaints and answers, are generally governed by Rules 8 and 10, reproduced in part here. (One mistake a lot of new lawyers make is thinking that motions are pleadings too. They’re not.)

Whatever else Bauer’s Complaint is, it probably doesn’t comply with Rules 8 and 10. Its lengthy paragraphs probably don’t comply with the “short and plain statement” rule. Remember that, although a complaint in federal court must plead enough facts to establish a cognizable cause of action, federal courts follow “notice pleading” guidelines, which means it’s not necessary to plead every single allegation. This is a mistake a lot of lawyers make. Multiple allegations in a single sentence, and multiple sentences in a single numbered paragraph, make a complaint harder to read and easier to dismiss. But Bauer’s Complaint has another problem, too: his first count alleges 11 different causes of action, which is just plainly improper.

Every one of those causes of action is supposed to get its own, separate count, even when they’re all alleged as violations of the same law, because the elements you have to plead and prove are different. Here, most (but not all) of those 11 causes of action are under the Lanham Act, which is the federal law governing trademarks. Now, based on what the Complaint says, I think Bauer does, at the very least, have a decent claim under 15 U.S.C. 1125 of the Lanham Act, which prohibits

“us[ing] in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which . . . is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” 

But his complaint is so badly drafted, and his Count I so convoluted, that he’s likely not getting any relief on it unless he amends his Complaint (which usually isn’t hard to do).

Bauer’s best claim, however, at least in the current iteration of the Complaint, isn’t under the Lanham Act at all. It’s for infringement of something called a right of publicity, which is the coolest intellectual property that no one knows about. A right of publicity, distilled to its simplest form, is your right to control who uses your likeness and name. With the exception of Jay-Z or Beyonce, most people don’t trademark their names, so the law has come up with an alternative way to protect them from being exploited for another’s commercial gain. In most states, everyone has a right of publicity, whether you’re famous or not — you, me, Michael Jordan, Trevor Bauer, and Dan Szymborski. There’s a lot of variation between states regarding what the right of publicity protects. For instance, in Indiana, which has one of the broadest rights of publicity in the country, the right of publicity includes voice as well as likeness and name, and survives the person’s death. Massachusetts, on the other hand, protects only a person’s name, portrait, or picture. In Wyoming, there’s no right of publicity at all. (Sorry, Wyoming.) Bauer is suing under the laws of Texas and Louisiana. Texas law is far more expansive than Louisiana’s is.

In any event, using a person’s name or face to sell a product without permission is pretty much the textbook case of a right-of-publicity violation. Michael Jordan once famously sued a grocery store for running an advertisement with his name, and won millions:

An Illinois jury awarded Michael Jordan $8.9 million in damages in his case against Dominick’s Finer Foods LLC (now owned by Safeway Inc.) arising out of a one-time violation of his publicity rights under the Illinois Right of Publicity Act. The case concerned Dominick’s unauthorized use of his name and his iconic number “23” in a full-page ad in a commemorative issue of Sports Illustrated magazine celebrating Mr. Jordan’s career. The ad featured the tagline “You are a cut above” with a coupon for $2.00 off Rancher’s Reserve tender angus steak.

Pourciau, on social media, has admitted using Bauer’s likeness, which is probably not the best defense strategy when facing a right-of-publicity suit. He claims that he hasn’t profited from it, however.

Except, that’s not entirely true, as some Twitter users pointed out.

He also made a fair use argument in this video:

Before continuing, this seems like an opportune moment to note that, if you’re being sued, it’s best to avoid addressing it on social media. As for Pourciau’s contention regarding fair use, meanwhile, the problem there is that, in right-of-publicity jurisprudence, there is generally no “fair use” defense. There is a similar doctrine in some states, called “transformative use,” but it’s not the same: it requires a “significant transformative or creative contribution” be made by the person using the image. That’s really not the case here. A better argument might be that if Top Velocity were merely analyzing Bauer using publicly available video. There’s nothing technically illegal about that, unless such analysis were used to sell a product. That’s because the right of publicity prohibits the unauthorized use of another’s likeness for commercial gain (i.e., in connection with the sale or endorsement of a product), but doesn’t bar most non-commercial uses. Given the tweets above, that’s an open question.

And finally, one last point. Although the statute of limitations for privacy torts in Texas is unclear, there’s at least some circumstantial evidence that Bauer was on notice that Top Velocity was using his name and likeness two full years ago, because he tweeted at Top Velocity, and Top Velocity was making and posting videos about Bauer well before then. Under the single publication rule, the statute of limitations began to run when the material was first posted, not when Bauer found out about them.

This is a tricky case to analyze because, so far, both sides have made some pretty avoidable mistakes. And from the complaint we have, it’s hard to know for sure if Bauer even has a cognizable claim. If an amended complaint is filed, we should have some clarity on where the case goes from there. As it is, I have a hard time seeing this complaint making it past a motion to dismiss entirely intact, but I also can’t see a court dismissing it in its entirety with prejudice.





 

Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.

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some guy
5 years ago

Point of contention: Dan Szymborski is not famous. He is rumored to have trademarked his true identity: Digital Dandy.

Interesting piece Sheryl. It’s a good read.

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