The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

No Injunction Against Using Person's Name/Likeness in Promoting Free Podcasts …

even when the podcast producer tries to make money from them.


There is some fractally weird stuff, leading to weird pro se litigation, in Sweigert v. Goodman (S.D.N.Y.). The 2017 Charleston port dirty bomb hoax is just part of the backstory (see also here). Another is the allegedly defamatory statement (which Magistrate Judge Stewart D. Aaron has since concluded is not defamatory) that "Jason Goodman is the CEO of a company which is operating the world's most advanced commercial HD video drone in Ukraine at the exact time a Western-backed coup breaks out there." Indeed, the Dec. 11, 2020 order by Judge Valerie Caproni in this case (Dkt. 175) recites,

WHEREAS the Court has recognized that this dispute primarily serves as a forum for the two pro se litigants to rehash "incomprehensible and illogical online conspiracy theories," Dkt. 87 at 1; see also Dkt. 140 ….

Still, in today's Report and Recommendation by Magistrate Judge Aaron, there's a manageable and interesting purely legal nugget:

Plaintiff seeks an Order enjoining Defendant from using video podcast "wrappers" that include Plaintiff's "persona, name or likeness," but does not seek to enjoin the podcasts themselves. {Plaintiff defines "wrappers" as "thumb nails, titles and video descriptions."}

Under New York law, P can successfully sue D for using P's name or likeness without D's permission, if the use is "for purposes of trade." Not all uses, though, are for purposes of trade, even if they aim to make money; generally speaking, the uses can be broken down into four categories:

  1. Advertising for some product (e.g., using a celebrity's name in an ad for soap).
  2. Merchandising, such as T-shirts, coffee mugs, and the like.
  3. News/entertainment that mentions P, for instance books, movies, newspapers, broadcasts, podcasts, etc.
  4. Advertising for such news/entertainment about P (for instance, if P's and likeness is used on the cover of an unauthorized biography of P).

Generally, 1 and 2 are actionable, but 3 and 4 are not.

Sweigert is essentially claiming that the use of his name falls into box 1, because Goodman has "inserted [Sweigert's name] into innumerable podcasts that [have] content with no relationship to [Sweigert]." But the Magistrate Judge was unpersuaded, apparently chiefly because Goodman's potential to profit from the podcasts was too indirect:

Defendant's podcasts are publicly available on various platforms. Defendant's videos on YouTube are publicly available without charge. The fact that Defendant solicits visitors to his platforms to make payments in order to become "patrons" does not establish that Defendant's use of Plaintiff's name and likeness in his podcasts and/or in the wrappers was for advertising purposes or for the purposes of trade [and thus actionable under New York's equivalent of a right of publicity statute].

The "[r]epresentative example of thumb nails with Plaintiff's likeness" that is depicted in Plaintiff's Amended Motion does not make any solicitation for the public to become one of Defendant's "patrons." …

And in any event, Judge Aaron concludes, there's no basis for an injunction here:

[E]ven if there is a fair ground for litigation over the issue of whether Defendant used Plaintiff's name and picture in Defendant's podcasts for advertising purposes or for the purposes of trade, given the First Amendment considerations inherent in the determination of newsworthiness and in the other limitations of the New York Civil Rights Law, the Court finds that the balance of equities at present favors Defendant, such that preliminary injunctive relief should be denied.