Free Speech

The Medal of Honor Recipient vs. The Historian, and the Right of Publicity

"The more research Mr. Rigg did for the book, the more discrepancies appeared."

|The Volokh Conspiracy |

The defendant, Bryan Mark Rigg, is the author of (among other books) Hitler's Jewish Soldiers: The Untold Story of Nazi Racial Laws and Men of Jewish Descent in the German Military, which won the 2003 William E. Colby Award for writing about the military; here is the background, as alleged in the defendant's motion to dismiss. (Naturally, this is just the defendant's side of the story; I plan on doing a follow-up when the plaintiff files a response, though in the meantime you can see the general assertions in the Complaint.)

In 2015, Mr. Rigg had decided to write a new book about the Pacific campaign of World War II. As part of his research, he began interviewing numerous veterans and gathering their written materials—both American and Japanese—about their experiences in the war and he traveled to numerous archives throughout the world in China, Japan, Guam, Germany and the United States to gather primary source materials. As part of his work, he traveled to Guam and Iwo Jima with several Americans who had fought on the islands. While there, he met Plaintiff in 2015.

Plaintiff is currently a 96-year old living legend. Plaintiff was drafted into the Marines in 1943 and was sent to the Pacific theater where he saw action at the Battle of Guam. In February of 1945, he fought at the Battle of Iwo Jima as a corporal and earned renown for his use of a flamethrower to destroy enemy pillboxes in battle. For his heroism, he was awarded the Medal of Honor, the highest U.S. military decoration for valor, which was personally pinned on him by President Harry Truman at the White House on October 5, 1945.

Mr. Rigg was pleased to meet Plaintiff and interviewed him numerous times for the book he was writing. Plaintiff was gracious, willing to talk, and shared stories from his life. While most of those stories had already been reported—not surprisingly, Plaintiff has been interviewed for hundreds (if not thousands) of articles about his life and exploits—Mr. Rigg began to think that Plaintiff's life could provide an effective vehicle to tell readers the stories of all the servicemen who fought in the campaigns mentioned above

Thus Mr. Rigg quickly decided that the book he was writing about the Pacific campaign would tell the stories of many brave Marines and Sailors and would spend considerable time talking about two men on opposite sides of the Battle of Iwo Jima: Plaintiff and Japanese General Tadamichi Kuribayashi.

Mr. Rigg Begins the Long Process of Research and Writing His Book.

Critically, as Plaintiff knew and was repeatedly told, Mr. Rigg is a historian. Mr. Rigg is not a biographer and he does not write accounts of people's lives as they tell them. Facts are researched, the truth is discovered and supported with evidence, and facts—both good and bad—must be told.

Plaintiff placed no limitations on Mr. Rigg and asked for nothing. While researching the book, Mr. Rigg interviewed fifty-six subjects, including Plaintiff. Mr. Rigg also traveled around the world locating primary source material on the war. Mr. Rigg interviewed Plaintiff numerous times and, each time, conducted further research or interviews as needed to flesh out the stories or find support for the facts mentioned by Plaintiff.

For example, Plaintiff was very adamant that Mr. Rigg interview Corporal Darol E. "Lefty" Lee who Plaintiff claimed was a witness to all his heroic acts on Iwo Jima. Indeed, prior to Mr. Rigg, Cpl. Lee had been interviewed numerous times about Plaintiff and has constantly shared stories of Plaintiff's heroism that he personally witnessed.

However, during his research, Mr. Rigg found out that Cpl. Lee had lied about his experiences on Iwo Jima and never witnessed anything Plaintiff did while fighting on the island (as Cpl. Lee was aboard the USS Bayfield being treated for "combat fatigue/shell shock" on the day in question). In fact, Mr. Rigg's discovery helped the World War II Museum stop a historical documentary it was about to do about Plaintiff and Cpl. Lee once they saw that Cpl. Lee was a "Stolen Valor" case who lied about his combat experiences. This is just one example showing why Mr. Rigg insists on first-hand evidence and has earned a reputation for finding information and separating fact from fiction….

The more research Mr. Rigg did for the book, the more discrepancies appeared. As to Plaintiff, while much of this could be ascribed to a 90+ year old individual trying to recall facts from more than seventy years ago, the simple fact is Plaintiff—while undoubtedly a heroic and legendary figure—has uttered many statements over the years that simply were proving to be false.

For example, Plaintiff had always insisted that he volunteered for service as soon as he could (and that his height kept him from volunteering earlier). But the government's records clearly show both that the height requirement was not an impediment to his service and that, rather than volunteering, Plaintiff was drafted. Moreover, there are problems with Plaintiff's story of how one of his friends, Vernon Waters, died; how many children his mother had and how many died; how he behaved with his girlfriends; how he remembered his platoon commander, Howard Chambers; how he reported his actions on Iwo Jima; how he has changed his story since a Man's Magazine article in 1966; and how he remembered actions on Guam. Of more concern, however, was what the historical records said about Plaintiff's Medal of Honor.

To be clear, all of the research performed by Mr. Rigg shows that Plaintiff was a true hero on Iwo Jima. However, there are numerous discrepancies and unusual circumstances that surround Plaintiff being awarded the Medal of Honor. (Purely as one example, Plaintiff was the only Iwo Jima Medal of Honor recipient who never received an endorsement for the award from either the Fleet Marine Force, Pacific Commander, Lt. General Roy S. Geiger, and his board; Marine Corps Commandant Alexander A. Vandegrift; or the Pacific Fleet Commander, Admiral Chester Nimitz, and his board, all of whom were concerned about the lack of evidentiary support for Plaintiff's actions.) Indeed, many of the "facts" that were put into the draft of his Medal of Honor citation had to be dramatically altered at the last moment, right before President Truman signed off on the award, due to unsubstantiated facts having to be removed, many of which seem to have been entered into the historical record due to Plaintiff's self-reporting of the event. Moreover, had these original "facts" not been put into the record, there was a good chance that Plaintiff's captain would never have recommended him for the Medal of Honor.

As a historian, Mr. Rigg felt the need to accurately report the facts as he discovered them. Plaintiff's representatives, however, were only interested in articles that were fully flattering to him. Once made aware of the discrepancies in the book, they tried to shut it down….

Mr. Rigg's book has undergone numerous revisions since discussions with Plaintiff ended. Although the book still has a lot of information about Plaintiff, it is now much more than a book about just one Marine. Much of the book is now focused on many other heroic Marines and American commanders. Moreover, the book also focuses on General Kuribayashi and Japanese atrocities that were committed under his command and under the command of his fellow officers. Significant controversy arose over some of the facts discovered about General Kuribayashi, and numerous groups have asked Mr. Rigg to not report those facts for fear of angering the Japanese government. Mr. Rigg has not given in to such threats since they violate the First Amendment and the pursuit to remember the victims of fascist regimes of World War II….

Plaintiff eventually sued, for (among other things) infringement of the right of publicity, but I think that claim is unsound, for reasons set forth in the motion to dismiss; though the right does limit the commercial use of a plaintiff's name or likeness in most advertising, and possibly in some merchandising (e.g., on T-shirts and the like), it doesn't apply to biographies:

The right of publicity cannot stop "the free dissemination of thoughts, ideas, newsworthy events, and matters of public interest" guaranteed by the First Amendment to the United States Constitution. This district specifically held that any right of publicity in West Virginia does not extend to writings about public figures or matters of legitimate public interest. Curran, 2008 U.S. Dist. LEXIS 12479, at *25-26…. "Courts long ago recognized that a celebrity's right of publicity does not preclude others from incorporating a person's name, features or biography in a literary work, motion picture, news or entertainment story. Only the use of an individual's identity in advertising infringes on the persona." …

There can be no doubt that the First Amendment bars Plaintiff's claim here. Mr. Rigg is a historian writing a book about history. Plaintiff is a public figure. This district has already held that the public interest exception of the First Amendment applies to books, such as this. Curran, 2008 U.S. Dist. LEXIS 12479, at *28. Indeed, allowing the "right of publicity" to prevent historians from researching and writing biographies of historical figures would be catastrophic. That is why courts routinely hold that any right of publicity does not extend to unconsented works of an individual's life story, such as an unauthorized biography. E.g., Matthews v. Wozencraft, 15 F.3d 432, 436 (5th Cir. 1994) (no right to privacy related to publication of biographical novel); Rosa & Raymand Parks Inst. for Self Dev. v. Target Corp., 90 F. Supp. 3d 1256, 1263 (M.D. Ala. 2015) (no right to publicity related to sale of biographical books and movies of Rosa Parks); Seale v. Gramercy Pictures, 949 F. Supp. 331, 337 (E.D. Pa. 1996) (no right of publicity for founding member of Black Panthers to prevent movie and book about his accomplishments); see also Restatement (Third) of Unfair Competition § 47 cmt. (1995) ("[T]he right of publicity is not infringed by the dissemination of an unauthorized print or broadcast biography").

Plaintiff's lawsuit also claims that there was an oral agreement giving him a share in editing the book, and in the profits; defendant argues that this claim is barred by the statute of frauds (which requires proof of a written agreement in certain situations), but I won't focus on that here—you can read more in the Complaint and in the motion to dismiss. And the lawsuit claims that defendant failed to return certain materials that plaintiff had lent him; defendant argues that he had returned everything, and that the Complaint doesn't adequately indicate just which items supposedly weren't returned.

An interesting case, which I look forward to discussing further as it develops; I e-mailed plaintiff's lawyer for comment, but haven't heard back, though I hope there will be blogworthy material in the plaintiff's eventual response to the motion. Thanks to the Media Law Research Center's MediaLawDaily newsletter for the pointer.

NEXT: Why Do Environmentalists Seem Determined To Torment, Rather Than Convince?

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  1. Very interesting. It makes me think of the non-legal psychology aspects of the story.

    “Plaintiff has been interviewed for hundreds (if not thousands) of articles about his life and exploits”

    Every time a memory is retrieved, it might be told with slight embellishments. The embellished version then becomes part of the subject’s memory. Memories of the original incident and the retold incident merge in the subject’s mind. Over many retellings, the embellishments grow and become entrenched in the subjects mind, impossible to separate from the original “truth”.

    One can speculate that if Plaintiff had not been interviewed before, whether the first retelling of the story might be more accurate.

    Back to the legal. IANAL, but I can understand why contemporary statements weigh more than later statements.

    1. It sounds like he had been making up stuff since the beginning, though. I don’t think this is just misremembering.

    2. That is a standard account of how memory works. The first time you remember the event, the next time you remember remembering it; You’re playing a game of “telephone” with yourself.

      That’s why false memories are so easy to implant during therapy.

  2. Can the complaint be dismissed because it has an error?

    Harry S. Truman should be Harry S Truman (para 8).

    1. Truman signed his name as “Harry S. Truman”.

    2. “[T]he right of publicity is not infringed by the dissemination of an unauthorized print or broadcast biography”

      Is this correct? It sure sounds infringed. Further analysis should conclude, though, that freedom of speech holds supremacy.

      1. I thought “right of publicity” was only implicated in the context of advertising — usually where a seller uses someone’s image convey an endorsement of the seller’s wares.

      2. It is correct because the ‘right of publicity’ never extended that far in the first place.

        It’s like if you accuse me of infringing on your property (trespassing) as I cut through the houses on my way to school but your actual property line stopped two feet short of the path I took.

      3. The Restatement of Unfair Competition, which is generally seen as a sound summary of the common-law rule, makes clear that “the right of publicity is not infringed by the dissemination of an unauthorized print or broadcast biography” — that is part of the definition of the tort.

        It’s true that the right is sometimes described as a general right to control the commercial use of one’s name or likeness — but that’s an overstatement, which would suggest that it bars unauthorized biographies, newspaper and magazine articles, and much more.

      4. The other commentators have it right. Right of publicity protects ones right to use your persona for commerical endorsements and the like. Think Michael Jordan endorsing sneakers. It does not cover unauthorized biographies.

        Which means that that claim can be dismissed without even getting into the First Amendment issues. Which is generally the correct approach under the doctrine of Constitutional avoidance.

  3. What stood out to me about this is that it’s a motion to dismiss with a long recitation of facts that doesn’t once cite to the Complaint (or any other document in the record for that matter). But it doesn’t matter what the defendant says about his version of the events because the judge looks only to the allegations in the Complaint and determines whether there are any facts consistent with that theory that would state a plausible claim.

    Now, it may not matter because the arguments are still based on purely legal questions that apply to the general thrust of Plaintiff’s allegations. But whatever the outcome, it shouldn’t be based on the Defendant’s recitation of the underlying facts (which the Court should ignore entirely).

  4. Now I really want to read this book.

  5. His story sounds suspicious to me, in that much of the citation was from his own account.

    I knew a Medal of Honor winner a few years back. He saw his action on Okinawa, but he never talked about it. His kids found out he ‘won’ the Medal of Honor when one of their friends saw their father’s pictures in an old issue of of Life magazine in the school library.

  6. Not withstanding the virulent attitude most Marines felt toward the Japanese, I can’t imagine any more horrific job in combat than the guy with the flame thrower. I suspect that images are burned into his brain that he can’t let go of and the rest of the surrounding circumstances are just noise.

  7. Even if the Plaintiff-Congressional Medal of Honor recipient defeats the motion to dismiss on the statute of frauds issue, I can’t imagine how he’s ever going to prove that oral agreement.

    He would have us believe that a professional historian orally agreed with an 90-something interview subject to allow that subject the right to edit a work of scholarly research? There’s just no way that ever happened, and not only that, but the finding that Plaintiff is lying about that is going to hurt his image and his other claims.

  8. One quibble: It should be “recipient” and not “winner.” It isn’t a contest.

    1. Fair point, changed the title accordingly.

    2. I disagree. “Winner” is fine.

      The entire mystique around Congressional Medal of Honor winners is ridiculous. Other then active members of the military (who are supposed to salute them), there’s no reason anyone should be on pins and needles about terminology.

      1. Considering the fact that most of them are awarded posthumously I’d say “winner” rings a bit hollow.

  9. I served in the US’s last great conscript army in Vietnam. I also grew up in a family of working class WW II veterans, some of whom had a long hard war and some who never left Ft. Dix. At the Legion Halls in the 1950s holders of major awards above the Bronze Star routinely acknowledged that they did nothing that everyone else was not also doing but they happened to be noticed.

    In those days we well knew that major awards for valor given to enlisted men were awards to their units and awards made chiefly for purposed of propaganda. We knew that the important individual awards to the enlisted men were the Bronze Star and the Combat Infantryman’s Badge, the Air Medal (here you count the oak leaf clusters) and air crewman’s badge, their campaign ribbons and associated stars and arrowheads. But If, and only if, all this was confirmed by their shoulder sleeve insignia; the rest simply did not matter.

    I’ve only known two Silver Star recipients in my life. One was my next door neighbor in the 1960s. He was in the 3rd ID from 1942-46. He drank, smoked, cried, rarely dressed and only showed me his award once. The other was in my company in Viet Nam. His UH-1D went down and he was the only survivor. It was said that he was using his M-60 to hold off the VC until he was rescued. He wouldn’t talk about it but two weeks later he killed himself.

    Any creep like Mr. Rigg who wants to dredge all this up now is a vulture and hyena intent on feathering his own nest. Damn him to hell.

    1. Let’s assume that the Congressional Medal of Honor winner here volunteered to do extensive interviews with Rigg, knowing what the project was.

      Why, exactly, is it Rigg’s fault if he finds out that the CMoH winner is lying about stuff? I mean, “if you are lying about stuff, don’t volunteer to be at the center of a major scholarly project where you might get found out” is good advice, isn’t it?

      1. Why do you assert the plaintiff, Hershel Williams, was lying?

        He was a 22 year old rifleman in the 21st Marines, 3rd MarDiv, on Iwo Jima on February 25, 1944. He was nominated by his immediate superior officer for a Congressional Medal of Honor that was actually awarded. No one suggests he wasn’t there, no one suggests he didn’t do something involving close combat and flame throwers very much like what the award relates. He seems to have spent the 25 years closely associated with the Marine Corps Reserves.

        Mr. Rigg seems to have concluded that the citation was insufficiently documented for his tastes and that Williams enjoyed telling too many war stories and wants to reveal that to the world.

        If the Marines accepted the validity of his award for 24 years after 1945 that’s good enough for me.

        I’ll tell you why. I happen to know a 96 year old ex-Marine who actually was a Marine Raider on Guadalcanal and Bougainville. When I talk to him he always mixes past fantasy recollected with actual facts. He was in Edson’s Battalion but he routinely related stories that would have you believe he was in at least one other Raider battalion, he wasn’t. But he definitely was a Marine rifleman on Guadalcanal and Bougainville and later was a Marine rifleman with the 4th Marines on Guam and Okinawa.

        Sometimes they remember what they saw and did and sometimes they remember what they heard. That doesn’t really matter because they were actually there and we weren’t.

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