Bosley v. Wildwett.Com, No. 4:04-CV-393.

• Citation: 310 F.Supp.2d 914
• Decision Date: 31 March 2004
• Docket Number: No. 4:04-CV-393.
• Parties: Catherine BOSLEY, et al., Plaintiffs, v. WILDWETT.COM, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

310 F.Supp.2d 914

Catherine BOSLEY, et al., Plaintiffs, v. WILDWETT.COM, et al., Defendants.

No. 4:04-CV-393.

United States District Court, N.D. Ohio.

March 31, 2004.

COPYRIGHT MATERIAL OMITTED

Mark S. Colucci, Youngstown, OH, for Catherine Bosley, Richard Brown, Plaintiffs.

Coffinz, c/o Steve Arend, Peoria, AZ, Pro se, Lisa S. DelGrosso, Brouse McDowell, John C. Fairweather, Brouse McDowell, Akron, OH, John B. Juhasz, Jr., Ingram & Ingram, Theodore T. Macejko, Jr., Youngstown, OH, Alisa L. Wright, Roetzel & Andress, Akron, OH, Derek A. Newman, Newman & Newman, Seattle, WA, Ronald S. Kopp, Roetzel & Andress, Stephen W. Funk, Roetzel & Andress, Akron, OH, Slatner.com, Bryan Erik Slatner, Charlotte, NC, Pro se, Frederick M. Lombardi, Buckingham, Doolittle & Burroughs, Akron, OH, Jennifer Reh, Ruden McClosky, PA, Robert W. Boos, Ruden McClosky, PA, Tampa, FL, Philip R. Wiese, Buckingham, Doolittle & Burroughs, Akron, OH, for Wildwett.com, Blabbingmike News Blab, aka Newsblab.Com, Coffinz, aka Coffinz.Com, Cheef Dot Com, aka Cheef.com, Fleshbot.com, My Way, aka Myway.Com, Bugs Ltd., S.K. Entertainment, Internet Key Inc., Bomis Inc., eXostream Communications, Digitaleffex, Marvad Corporation, Perrenial Corp. N.V., aka Sexbrat.com, Navensink House Ltd., aka Pornking.com, Slatner.com, eZanga.com, Illcash, Dream Girls, Inc., Defendants.

MEMORANDUM, OPINION, AND ORDER

GWIN, District Judge.

Pending before the Court is Plaintiffs' motion for a preliminary injunction. For the reasons described below, the Court grants the motion, and requires that Plaintiffs post a bond of one hundred dollars ($100).

I. BACKGROUND

Plaintiff Catherine Balsley (known in the reporting business as "Catherine Bosley") previously worked as a television news reporter for WKBN, Channel 27, the CBS television affiliate in Youngstown, Ohio. She worked for WKBN as a news anchor for approximately ten years, leading to her status as regional celebrity.

In March of 2003, while she was on vacation, Plaintiff Bosley and her husband went to a Florida nightclub. On that night, the nightclub held a "wet t-shirt" contest. Plaintiff Bosley participated. While participating in the contest, Plaintiff Bosley removed her clothing. Plaintiffs assert that, without notice, or consent, Dream Girls Inc. ("Dream Girls") videotaped Plaintiff Bosley's performance for publication and reproduction in the form of videos and DVDs. Dream Girls is a video production company based out of Tampa, Florida. Jim Faile, President of Dream Girls, describes the productions of Dream Girls as being similar to Girls Gone Wild.

Since the incident, images of the Plaintiff have been displayed on the internet through a series of web sites, advertising pictures and videos of the "naked anchor woman." In May of 2003, Defendant Dream Girls, d/b/a DreamGirlsVideos.com, released a video of the wet t-shirt contest, entitled "Dream Girls' Spring Break 2003, volume one." Thereafter, Defendant Dream Girls, d/b/a WildWetT.com, released a second version of the video, emphasizing the appearance of Catherine Bosley or the "naked anchor woman" on the tape.

The Spring Break 2003 video displays wet t-shirt contests, with no commentary or script other than the emcee soliciting contestants to take their clothes off. The WildWetT video shows the wet t-shirt contest that Bosley participated in, a montage of pictures of Bosley in various states of undress, and additional film clips of women (not Bosley) masturbating and engaging in other sexual acts. Again, the tapes have no plot or commentary apart from pictures of naked women engaged in sexual acts or displays.

On February 5, 2004, Marvad Corporation ("Marvad"), d/b/a SexBrat.com, states that it obtained a license of the video of Plaintiff Bosley's performance from Defendant Dream Girls (collectively "Defendants"). SexBrat.com is a website involved in the distribution of adult entertainment material through a subscription service on the Internet. Defendant Marvad allowed members who paid the SexBrat.com membership fee ($ 37.12 per month) to see portions of Plaintiff Bosley's performance, as well as other images available on the "members only" portion of their website.

For a period of time, website searches related to Catherine Bosley outnumbered those related to Paris Hilton as the most popular search on the World Wide Web. Indeed, Defendant Marvad reports a significantly greater number of hits during the time it presented the images of Plaintiff Bosley. For example, on February 23, 2004, there were 9,457 hits on SexBrat.com. Yet, on February 24, 2004, the day after the images of Plaintiff Bosley were posted, there were 111,663 hits on SexBrat.com. The number of hits subsequently diminished.

Finally, Plaintiffs claim that Defendants, especially Defendants Marvad and Dream Girls, used depictions of her as an advertisement to promote the sexually-related materials marketed by Defendants. Plaintiff Bosley asserts that she did not give her consent for such an endorsement.

Due to the publicity generated by this incident, in December of 2003, Plaintiff Bosley resigned from her position as an anchor at WKBN. Plaintiff Bosley asserts that Defendants' unauthorized use of her image caused her employer to request that she resign. In addition, she says that Defendants' continued use of her image prevents other employment in the television news field, the only career she has had.

On March 8, 2004, this Court issued a temporary restraining order ("TRO"), prohibiting Defendants from selling the video of Plaintiff Bosley's performance or otherwise using depictions of Plaintiff Bosley on their websites. On March 19, 2004, the Court issued a revised TRO, clarifying that the TRO only prohibits Defendants from selling images of Plaintiff Bosley or otherwise using images of her to promote the sale of Defendants' sexually-related goods. Importantly, the Court did not enjoin Defendants from mentioning Plaintiff Bosley or engaging in a public discourse about the incident in question. For example, the Court clarified that Defendants could post on their websites links to newspaper articles about the Bosley incident.

On March 24, 2002, the Sixth Circuit issued a stay with regard to the TRO. This Court proceeded to consider Plaintiffs' motion for a preliminary injunction. On March 29, 2004, the Court concluded its hearing with respect to the preliminary injunction. The Court now rules on the merits of that motion.

II. LEGAL STANDARD AND ANALYSIS

The Court applies the traditional four-part test for determining whether a preliminary injunction under Fed.R.Civ.P. 65(a) is appropriate: (1) whether there is a substantial likelihood of success on the merits, (2) whether the injunction is necessary to prevent irreparable injury, (3) whether the injury to the plaintiff outweighs any harm to the nonmovant, and (4) whether the injunction would serve the public interest. In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985). The Court will analyze each factor in turn.

A. Likelihood of Success on the Merits

Plaintiff Bosley alleges that Defendants' sale of the video tape of her performance and Defendants' use of her images of her on their websites violated her statutory and common law rights.¹ To determine if Plaintiffs have established substantial likelihood of success on the merits, this Court delves into the applicable law. Since there is no significant difference between Ohio and Florida law as to the issues of concern at this stage of the litigation, the Court does not find it necessary to engage in a choice of law analysis at this time.²

1. Applicable Law

At common law, invasion of the right to privacy is a tort. This tort consists of four separate causes of action:

1. Intrusion upon the plaintiffs seclusion or solitude, or into this private affairs.

2. Public disclosure of private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

Restatement (Second) of Torts, § 652A (1977); see also W. Prosser, Law of Torts 804-14 (4th ed.1971); W. Prosser, Privacy, 48 CAL. L. REV. 383 (1960). Florida has adopted all four of these classifications.³ Meanwhile, Ohio has adopted three of the above classifications, but not false light.⁴

In asserting that Defendants breached her "common law right to persona and image," Plaintiff Bosley alleges the fourth cause of action — appropriation of her name or likeness for the defendant's advantage. (Pls.' am. compl. at 8). Under common law, "[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy, and the use or benefit need not necessarily be commercial." Zacchini v. Scripps-Howard Broadcasting Co., 47 Ohio St.2d 224, ¶ 1, 351 N.E.2d 454 of syllabus (Ohio 1976), rev'd on other grounds, 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977) (emphasis added). Thus, Ohio law prohibits the publication of another's name or likeness in a commercial use that draws from that persons "reputation, prestige, or other value associated with him, for purposes of publicity." Id. at 231, 351 N.E.2d 454.

Nevertheless, several exceptions exist to this common law right. First, incidental use of one's name or likeness is permissible. See e.g., Vinci v. American Can Company, 69 Ohio App.3d 727, 591 N.E.2d 793 (Ohio 1990) (holding that informational blurbs about Charles Vinci, the 1956 and 1960 weight-lifting Olympic gold medalist, on Dixie Cups was merely incidental to the promotion of the Dixie Cups and, thus, permissible.) Second, one's name and appearance, in and of themselves, are not private and, therefore, may be brought before the public. Id. Third, and most importantly, a legitimate public interest exception exists. "One of the primary limitations upon the right of privacy is that this right does not prohibit the...