District Court Rejects Right of Publicity Claim on "Parody" Grounds

From Steele v. Goodman, decided Thursday by Judge John A. Gibney, Jr. (E.D. Va.):

The plaintiffs assert that [Jason] Goodman violated [the right of publicity statute] by publishing videos and selling merchandise on the website Red Bubble that depicted [David] Steele's face on the hind end of an animal and on a cartoon body. The Court finds that Goodman's creations, while repugnant, are parody images protected by the First Amendment.

Courts are sharply divided on when (especially outside the context of commercial advertising) the First Amendment preempts the "right of publicity," which is the right to control the commercial use of one's name, likeness, and other attributes of identity, whether in comic books, video games, greeting cards, or elsewhere. But there is general agreement that parodic uses are protected, and this fits that well.

Here's the backstory, which also led to a libel claim that the court declined to dismiss:

Goodman … "owns, maintains[,] and operates multiple Internet and social media properties, including YouTube channels and a Twitter account." "The name of Goodman's social media properties is 'Crowdsource The Truth' ('CSTT')." On June 13, 2017, Steele—EIN's founder—participated in an interview in Oakton, Virginia, with an "agent" of CSTT, George Webb. {The complaint provides a litany of Steele's purported accomplishments. The Court will not recite them here, save to note that prior to his death, Steele—through EIN—ran an "educational campaign" called #UNRIG, with the stated purpose of communicating "to all citizens the possibility of an ethical, legal, non-violent restoration of integrity to the United States Government."} During the interview, Steele discussed "his views on 9/11, pedophilia[,] and the purpose of #UNRIG."

Goodman and another CSTT associate Patricia Negron live-streamed the interview, and Goodman published it to his YouTube channel. During the live stream, Goodman encouraged his viewers to donate to the #UNRIG Indiegogo campaign. That day, EIN received $9,827.01 in donations from 175 donors. Steele planned to participate in another interview with Goodman and Negron on June 15, 2017.

On June 14, 2017, however, Goodman published a video containing false information about a potential "dirty bomb" aboard "transoceanic container ship, Maersk Memphis." Goodman "encouraged the 'Crowdsource community' to spring into action and alert the United States Coast Guard" of the threat by "[c]all[ing] the port authority." The "terminal at the Port of Charleston, South Carolina, [was] shut down" because of Goodman's video, and the Federal Bureau of Investigation subsequently opened an investigation into the false report.

Consequently, Steele pulled out of the planned July 15 interview and sought to distance himself from Goodman. In response, Goodman, acting in "concert" with two other internet personalities, Susan Holmes and Negron, "began a[ ] … social media smear campaign against [Steele] and EIN that continues to this day." Over many months, Goodman, Holmes, and Negron repeatedly accused Steele of "felony charity fraud," "interstate wire fraud," theft, lying, and "abusive behaviors," and used Steele's name and image on doctored images, including CSTT merchandise. Goodman's actions allegedly damaged Steele's and EIN's reputations and caused personal donations to EIN to decrease by approximately $29,000 per month. The plaintiffs assert that "there was no basis in fact or law for any claim that [Steele] or EIN ha[ve] committed 'felony charity fraud," that Steele and EIN have never been investigated for or charged with criminal fraud, and that Goodman has "never reported [Steele] or EIN to the [New York] Attorney General or to any law enforcement agency or regulatory authority." …

Comments

[apedad]

(from the decision)

"As to the dismissal of the individual claims, the Court finds that the plaintiffs' claims are timely, that the plaintiffs have sufficiently pleaded claims for defamation and business conspiracy, and that Goodman's various denials and defenses as to Claims One (Lack of Jurisdiction, Statute of Limitations, etc.), and Two (Failure to Plead Claim, No Conspiracy with Others, etc,), are not properly before the Court at this stage of the proceedings. Accordingly, the Court will deny Goodman's motions as to these claims."

Just wanted to add this to show Goodman isn't walking away scotch-free.

[gormadoc]

If he's not scotch-free I'd say he's doing pretty well for himself.

[Bored Lawyer]

These kind of cases usually can be disposed of on non-First Amendment grounds. Right of publicity is not an all-encompassing right to control your name or image, only when used to promote products or services. The use here does not seem to fit that. (Although I have not reviewed the Virginia statute and case law.)

[ah....Clem]

Anti-vaxx conspiracy theorist David Steele died of Covid several years ago.

Normally, one can't defame the deceased. But I suppose that since the alleged libel occurred while Steele was still alive means that the case can go forward. Do I have this right? The defendant didn't argue for dismissal on those grounds, and if it were possible I'd expect he would have.