Lawyers Mix It Up

Lawyers Mix It Up

by Jerry Glover
March 14, 2013

The Wisconsin right of publicity statute has really been getting a work out lately. See our article below.  In this case, lawyers are the parties to the lawsuit. Habush v. Cannon, 2013 WL 627251 (Wis. App. February 21, 2013).

In this case, the defendant law firm successfully bid on the names of plaintiffs who were members of a competing law firm with Yahoo!, Google and Bing as “keywords” in searches so that when a computer user entered one of the plaintiff’s name into a search engine, the defendant’s law firm would appear in the “sponsored link” section of the search results. The defendants pay the search engine a fee every time someone clicks on their link. The plaintiffs sued defendant for violation of their individual rights of publicity under Wis. State. Sec. 995.50(2)(b).

The Wisconsin right of publicity statute requires a plaintiff to prove (1) use of plaintiff’s name, portrait or picture; (2) use that is for advertising purposes or for purposes of trade, and (3) use without written consent.

The court first determined that the word “use” as used in the right of publicity statute was ambiguous and susceptible to more than one reasonable meaning. The plaintiffs contended that “use” covers any kind of use of a name if that uses takes advantage of the commercial value of a persons’ identity. The plaintiffs added that the only kind of use not covered by the statute was “incidental” use which does not attempt to benefit from the commercial value of a person’s name. The court concluded this was a reasonable interpretation of the “use” requirement.

But the court also believed the defendant’s “use” definition was reasonable. The defendants argued that “use” means the use of a person’s name or image is visible to the public in or on a product or solicitation for a service. No computer user would know that the defendants had used the plaintiffs’ names as key words. The court concluded that this was the more reasonable interpretation of the two proffered.

The court limited its holding, however, to the type of “non-visible” use in this case noting that the defendants’ use of the plaintiffs’ name as key words was akin to the defendants locating a new branch office of their law firm next to an established office of plaintiffs’ firm to take advantage of the flow of people seeking out the plaint4iff firm because of the value associated with the defendants’ names. This “invisible” use of plaintiffs’ names was akin to defendants’ invisible use of the plaintiffs’ names as key words. The court, leery of “invisible” uses that could not be anticipated at this time, limited its holding to the facts of this case: use of names as keywords search terms.

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