Google, Erectile Dysfunction, and a Wisconsin Woman
by Jerry Glover
March 11, 2013
The Chicago-based U.S. Court of Appeals for the Seventh Circuit recently decided a case involving Wisconsin’s right of publicity statute as it applies to the results of a Google internet search which led to one including the plaintiff’s name combined with a commercial product. Stayart v. Google, Inc., 2013 WL 811773 (7th Cir., March 6, 2013).
Beverly Stayart claims to be a well-known scholar of genealogy and a leader in the animal rights movement so that, in her opinion, her name carries significant commercial value. Stayart alleged that when she plugged her name into Google’s search engine the results included “bev stayart levitra.” Levitra is a drug to treat male erectile dysfunction. (Stayart…erectile dysfunction medication…get it?). Stayart claimed that this search result violated Wisconsin’s right of publicity statute (Wis. Stat. Sec. 995.50)(2)(b)) that prohibits “the use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person….”
By now, most people are aware of how Internet search engines work. When a user enters one or more words or a phrase into a search engine like Google, the engine generates a list of search results relevant to the user input. These results are often the result of algorithms used by the search engine. Google has three search engines:
Google Suggest—When a user begins to type in a search word Google Suggest recommends additional search queries. In this case, when plaintiff typed in her name Google suggested the additional search “bev stayart levitra.”
Google AdWords—Companies and individuals bid on a word/phrase. When a user types in that word/phrase the company’s or individual’s web site will be included in a “sponsored links” section of the search results. Every time a user clicks on that company’s/person’s web site listed in the Sponsored Links, the advertiser pays Google a fee. Here, again, “bev stayart levitra” led to a display of the Levitra web site in the Sponsored Link’s section of the search page results.
Google Related Searches—Searches that are deemed related to the search entered by the user are displayed on the left hand side of the search results page. For the search query “bev stayart levitra” Google displayed links to additional searches related to “bev stayart” and “Levitra.”
The Seventh Circuit noted that the Wisconsin right of publicity statute must be narrowly construed to avoid conflicting with the right of free speech concerning matters of public interest. The court stated that whether something is a matter of public interest is a question of law for the court to determine. The court added that the phrase “matter of public interest” must be broadly defined noting that in other jurisdictions consumer interest articles, scientific interest pieces, political reports, social trends, movies and documentaries had been deemed matters of public interest.
According to the court, the plaintiff had made herself a matter of public interest by filing the lawsuit. As a matter of fact, Stayart had filed a lawsuit against Yahoo! only four months before filing the suit against Google alleging the same thing. The court documents associated with these lawsuits are matter of public interest, the court held. And, the court noted, any search providers that lead the public to those documents are entitled to that same public interest exemption. The court added that the public interest exception in right of publicity cases applies even if the defendant’s enterprise is a commercial one.
The court stated that an additional exception to the right of publicity statute—the incidental use exception—also applies to this case. Here, the court explained, there was no substantial connection between the use of plaintiff’s name and Google’s commercial purpose adding that even if there had been a substantial connection the public interest exception would nevertheless trump that commercial purpose.