August/September 2011 Issue
Habush v. Cannon,
09-CV-18149 (Milwaukee County Cir. Ct. June 8, 2011)
The parties were competing personal-injury lawyers. Defendants purchased plaintiffs’ surnames in keyword advertising and plaintiffs sued under Wisconsin’s right-of-publicity statute. The court granted defendants’ motion for summary judgment, holding that although the defendants invaded the plaintiffs’ privacy, the invasion was not “unreasonable.”
Plaintiffs Habush and Rottier were highly acclaimed personal-injury lawyers in Wisconsin. Defendants Cannon and Dunphy were also highly regarded personal-injury lawyers in Wisconsin. Beginning in 2009, defendants purchased “Habush” and “Rottier” as search-engine keywords. When users searched online for either “Habush” or “Rottier,” the search results displayed the defendants’ advertisements in the paid sponsored links. The ads did not contain plaintiffs’ names. Plaintiffs sued defendants for invasion of privacy under Wis. Stat. § 995.50, Wisconsin’s “right-of-publicity” statute.
The Milwaukee County Circuit Court granted defendants’ motion for summary judgment and dismissed the case. It held that while the defendants did invade the plaintiffs’ privacy, defendants’ keyword advertising was not an “unreasonable” invasion of privacy. The court also rejected defendants’ First Amendment and “unclean hands” affirmative defenses.
The court started by analyzing defendants’ affirmative defenses. It held that a hidden process, like utilizing a computerized system to display advertisements based on keywords automatically, was not speech. Accordingly, the First Amendment did not apply. Regarding the unclean hands defense, defendants claimed that plaintiffs engaged in conduct similar to the actions plaintiffs sought to enjoin by placing ads on yellowpages.com, anywho.com, and 411.yellowpages.com. The court rejected this defense, distinguishing plaintiffs’ keyword advertising that targeted generic subjects like “personal injury attorney” from defendants’ advertising that targeted individual names like “Habush.”
Turning to the merits of plaintiffs’ right-of-publicity claim, plaintiffs had to prove (1) the use, (2) for advertising purposes, (3) of the name of any living person, (4) without having first obtained the written consent of the person. Plaintiffs also had to prove that the invasion was “unreasonable.” First, defendants “used” plaintiffs’ names in keyword advertising by providing the search engines with plaintiffs’ names when purchasing the advertisements. Second, the keyword advertising was “for advertising purposes.” Although plaintiffs’ names were not included in the ads themselves, the keyword ads linked to defendants’ website, which contained promotional materials for defendants’ law firm. Third, the ads utilized the “name . . . of [a] living person,” i.e., Habush and Rottier. Finally, defendants did not obtain written consent from plaintiffs. Although plaintiffs entered into contracts with search engines for their own advertising purposes, the court held that it was not a form of consent under the statute. The court thus held that defendants invaded the privacy of plaintiffs.
The court then weighed, based on the totality of the circumstances, whether the invasion of privacy was “reasonable.” It first considered the “fundamental policy” of business competition, equating keyword advertising to setting up a business across the street from a competing business, or setting up a billboard next to a competitor’s billboard. The court held that keyword advertising, like these actions, was consistent with principles of business competition and was not “unreasonable.”
Next, the court considered whether the secondary meaning in the names “Habush” and “Rottier” influenced the reasonableness of defendants’ advertising practices. It found that the “right-of-publicity” statute protected individuals, not businesses, and that plaintiffs’ names, over time, became inseparable from their law firm. This dual meaning of plaintiffs’ names reduced the “unreasonableness” of the invasion of privacy. The court also weighed the impact of user confusion and found it unlikely that consumers would be confused. Plaintiffs presented no evidence of actual confusion, neither defendants’ sponsored ads nor its linked website contained plaintiffs’ names, and the court noted that search-engine users have learned to be “skeptical” about web pages and commercial advertisements. The court also considered the constant developments in advertising, finding that in the innovative world of Internet advertising, a permanent injunction might prevent future advertising that did not invade the plaintiffs’ privacy. Finally, the court analyzed whether defendants acted unethically in their business practices. Although plaintiffs asserted that defendants’ actions violated the principles of attorney conduct, the court found no authority to support this assertion.
Accordingly, the court held that defendants’ use of plaintiffs’ names was a “reasonable” invasion of privacy, and granted defendants’ motion for summary judgment and dismissed the case.
This decision is important as it appears to be the first decision regarding the use of state right-of-publicity statutes to attack keyword advertising. In addition, although the court held for defendants, it based its ruling on the inclusion of “reasonableness” in the Wisconsin statute. This is important because many state right-of-publicity statutes do not include a “reasonableness” requirement.