Matthews v. Wozencraft

• Decision Date: 03 March 1994
• Docket Number: No. 93-4434,93-4434
• Citation: 15 F.3d 432
• Parties: , 22 Media L. Rep. 1385 Creig MATTHEWS, et al., Plaintiffs, Creig Matthews, Plaintiff-Appellant, v. Kim WOZENCRAFT, Random House, Inc., Ballantine Books, a Division of Random House, Inc., the Zanuck Company, and Metro-Goldwyn-Mayer Inc., f/k/a MGM/Pathe Communications Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 432

15 F.3d 432

30 U.S.P.Q.2d 1025, 22 Media L. Rep. 1385

Creig MATTHEWS, et al., Plaintiffs Creig Matthews, Plaintiff-Appellant, v. Kim WOZENCRAFT, Random House, Inc., Ballantine Books, a Division of Random House, Inc., the Zanuck Company, and Metro-Goldwyn-Mayer Inc. f/k/a MGM/Pathe Communications Company, Defendants-Appellees.

No. 93-4434.

United States Court of Appeals Fifth Circuit.

March 3, 1994.

Joe Chumlea, Bragg, Chumlea, McQuality, Smithers & Curry, Dallas, TX, for Creig Matthews.

Charles L. Babcock, David C. Myers, Jackson & Walker, Dallas, TX, for Wozencraft, et al.

Rayburn M. Nall, Jr., Nall, Pelley & Wynne, Sherman, TX, for MGM/Pathe, Zanuck Fnd., Zanuck Co. and MGM.

Appeal from the United States District Court for the Eastern District of Texas.

Before HENDERSON, ^* SMITH, and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.

A.

Prior to 1979, Creig Matthews was an undercover narcotics officer with the Plano, Texas, police department, in charge of the criminal investigation division. Kim Wozencraft (Kim Ramsey at the time) was hired as a police officer. Matthews trained and then worked with her as an undercover narcotics officer making drug purchases. Both of them used drugs, primarily marijuana and cocaine, while on the Plano drug assignment.

In August 1978, Matthews was hired by the Tyler, Texas, police department as an undercover narcotics officer, where he used the aliases "Jim" and "Jim Myers." Early the next year, Wozencraft joined him in Tyler as an undercover drug officer. Together they conducted a drug investigation that lasted until April 24, 1979. During this time, they became romantically involved and began living together.

Their primary target in Tyler was Ken Bora, for whom Matthews worked undercover as a bartender. After several futile attempts to buy drugs from Bora, Matthews and Wozencraft, on instruction from Tyler police chief Willie Hardy, made a phony "stash" case on Bora.

During the investigation, Matthews and Wozencraft used drugs both to make drug cases and for personal use, eventually becoming addicted. They informed Hardy of Matthews's drug problem. He gave them several days off but insisted that they continue with the investigation. At the end of the Tyler investigation, Matthews and Wozencraft assembled over 200 drug cases, involving the arrest of 100 defendants.

At the conclusion of the investigation, Matthews and Wozencraft were attacked by a shotgun-wielding assailant at Wozencraft's mobile home. She returned fire and was not seriously hurt; Matthews was severely wounded in the arm and leg and was hospitalized for over a month. After being released from the hospital, Hardy placed them in a house on the outskirts of Tyler. While there, they were visited by H. Ross Perot, who at the time was serving as chairman of a special crime commission. Perot moved them to a secure safe-house in the Dallas area and arranged for Matthews to receive medical treatment for his wounds.

During this time, Matthews and Wozencraft began testifying at the trials of some of the drug defendants. They falsely denied using drugs during the investigation and falsely testified that they had bought cocaine from Bora.

Evidence arose of their misconduct. Eventually they confessed, pleaded guilty to criminal informations alleging civil rights violations, and were sentenced to terms in federal prison.

B.

While in prison, Wozencraft, Matthews, and fellow inmate John Rubien signed the contract at issue in this case (the "Prison Agreement"). Matthews and Wozencraft were married at the time the contract was formed, and Wozencraft is identified in it as "Kimberly Ramsey Matthews." The contract specifies that Wozencraft and Rubien were to co-author a book based upon Matthews and Wozencraft's story about the undercover investigations.

Wozencraft was released from prison in the spring of 1983. She divorced Matthews and moved to New York City to join Rubien. She already had started writing the book. She described events in the book, linking them to specific events that had transpired during the investigations. The co-authored book by Wozencraft and Rubien was not finished during the one-year period provided for by the Prison Agreement.

Wozencraft received a masters degree from Columbia University. Her thesis became the basis for the book entitled RUSH. She sold her manuscript to Random House and sold the movie rights for one million dollars.

There is substantial evidence that the character "Jim Raynor" in RUSH is based upon Matthews and that the public recognized him as that character. ¹ Nonetheless, the book is labeled as a novel and states on its copyright page that it "is a work of fiction. Any resemblance its characters may have to persons living or dead is purely coincidental."

Matthews concedes that the issue raised in RUSH, i.e., corruption of law enforcement officers, is a matter of public concern. His willingness to discuss the book with the media has made him a public figure. Furthermore, prior to the publication of RUSH, Matthews cooperated with an author named David Ellsworth in publishing SMITH COUNTY JUSTICE, a non-fiction book detailing Matthews's life and the events surrounding the Tyler operation.

Matthews has received no compensation for the defendants' use, portrayal, or promotion of his likeness in the book and movie.

II.

A.

Matthews filed a diversity suit alleging breach of contract, division of marital asset, and misappropriation/invasion of privacy against Wozencraft and misappropriation and invasion of privacy against Random House, Zanuck, and MGM. The defendants filed motions for summary judgment, which the district court granted.

B.

We review a grant of summary judgment de novo. Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). After a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Hanks, 953 F.2d at 997.

We begin our determination by consulting the applicable substantive law to determine what facts and issues are material. King v. Chide, 974 F.2d 653, 655-56 (5th Cir.1992). We then review the evidence relating to those issues, viewing the facts and inferences in the light most favorable to the non-movant. Id. If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327, 106 S.Ct. at 2554-2555.

C.

The district court granted summary judgment on Matthews's appropriation claim because Texas law does not recognize a cause of action for appropriation of one's life story and because if it did, there would be an exception for biographies and "fictionalized biographies." We affirm the summary judgment.

"One 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." RESTATEMENT (SECOND) OF TORTS (the "RESTATEMENT") Sec. 652C (1977). See also Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719, 722 (Tex.Civ.App.--Eastland 1975, writ ref'd n.r.e.). There are three elements to a misappropriation claim under Texas law: (i) that the defendant appropriated the plaintiff's name or likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose; (ii) that the plaintiff can be identified from the publication; and (iii) that there was some advantage or benefit to the defendant. See J. HADLEY EDGAR & JAMES B. SALES, TEXAS TORTS AND REMEDIES Sec. 53.06; Faloona v. Hustler Magazine, 799 F.2d 1000 (5th Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1295, 94 L.Ed.2d 151 (1987). Under this test, Matthews is unable to create any issue of material fact as to liability.

There is no question that Matthews can be identified from the publication, at least to the point of creating a genuine issue of fact as to the identity of the Jim Raynor character. He claims that his life story was appropriated for Wozencraft's commercial benefit. The protection of "name or likeness" under Texas law, however, does not include a person's life story. If Texas law did protect such a right, it was not "appropriated." And, even if Matthews could state a claim, Wozencraft would be protected by an exception in the state tort law.

Tortious liability for appropriation of a name or likeness is intended to protect the value of an individual's notoriety or skill. Thus, the RESTATEMENT notes, "In order that there may be liability under the rule stated in this Section, the defendant must have appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff's name or likeness." RESTATEMENT Sec. 652C, comment c. The misappropriation tort does not protect one's name per se; rather, it protects the value associated with that name.

Appropriation of a name or likeness generally becomes actionable when used "to advertise the defendant's business or product, or for some similar commercial purpose." RESTATEMENT Sec. 652C, comment b. The value of one's likeness is not "appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.... It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other...