The opinion of the court was delivered by: LAMBERTH
Defendant Random House, Inc. has moved for dismissal of Plaintiff Mark Lane's complaint pursuant to Fed. R. Civ. P. 12(b)(6). Alternatively, Random House has moved for summary judgment under Fed. R. Civ. P. 56. Upon consideration of the filings of counsel and the relevant law, Random House's motion for summary judgment is hereby GRANTED on all counts.
Random House has also requested costs and attorneys' fees. As prevailing party, Random House is entitled to costs as specified by Fed. R. Civ. P. 54(d)(1) and Local Rule 214. The request for attorneys' fees is DENIED.
Because the parties have submitted evidence outside of the complaint, including copies of the disputed advertisement and book, the court will treat Random House's motion as one for summary judgment. Fed. R. Civ. P. 12(b)(6). Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Inferences drawn from the facts must be viewed in the light most favorable to the party opposing the motion. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). If summary judgment is to be denied, there must be evidence on which the jury could reasonably find for the plaintiff. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). But if the plaintiff "fails to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] will bear the burden of proof at trial," summary judgment may be granted. Celotex, 477 U.S. at 322.
As this case arises under the District Court's diversity jurisdiction, 28 U.S.C. § 1332, the law of the District of Columbia governs. The Rules of Decision Act, and hence Erie Railroad v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), do not strictly apply with respect to D.C. law; nonetheless, the court will apply D.C.'s substantive law for reasons of uniformity and respect for the D.C. Court of Appeals. Anchorage-Hynning & Co. v. Moringiello, 225 U.S. App. D.C. 114, 697 F.2d 356, 360-61 (D.C. Cir. 1983).
Based upon these standards, the court concludes that summary judgment in favor of Random House is appropriate on all of Lane's claims.
This is a libel case concerning an advertisement that appeared in The New York Times on two occasions in late August, 1993. The advertisement announced publication by Random House of Gerald Posner's Case Closed, a book supporting the Warren Commission's conclusion that Lee Harvey Oswald, acting alone, assassinated President John F. Kennedy. The theme of the book is captured near the bottom of the advertisement -- "ONE MAN. ONE GUN. ONE INESCAPABLE CONCLUSION." -- followed by the promotional exhortation to "READ: CASE CLOSED BY GERALD POSNER."
Immediately after the advertisement appeared, Lane protested to both The New York Times and Random House. His demand for a retraction was rejected. Random House indicated that it would not re-run the advertisement -- but only because the pre-publication promotional campaign for Posner's book was finished.
Lane does not deny the quote attributed to him in the advertisement: "There is no convincing evidence that Oswald fired a gun from the sixth-floor window of the Book Depository or anywhere else on the day of the assassination." Still, Lane argues that he was injured in two respects. First, he objects to the unauthorized use of his photograph, name and notoriety in promoting the sale of Case Closed. Second, he seeks damages for the disparagement of his integrity and candor arising from the perceived suggestion in the advertisement that he has been intellectually dishonest with the American people.
The first three counts alleged by Lane deal with misappropriation. Count one is infringement of right of publicity; i.e., violation of Lane's exclusive right to publicize and benefit from the value of his identity, reputation and work. Count two is misappropriation of celebrity; i.e., non-consensual use of Lane's name, likeness and reputation to promote and sell the book Case Closed. Count three is appropriation of personal identity; i.e., exploitation of Lane's identity and persona as the most prominent and recognizable Warren Commission critic.
The second distinguishable claim by Lane is contained in his fourth count -- the tort of false light. Lane claims that Random House sullied his reputation and disparaged his credibility by knowingly depicting him in a false light and thereby intentionally causing him mental anguish and emotional distress.
Finally, in count five, Lane claims defamation. According to Lane, Random House knew or could easily have determined that Lane had not been charged with nor convicted of fraud on the American public. Nevertheless, with actual malice or extreme recklessness, Random House twice published the offending advertisement. Because the falsity of the statement, "GUILTY OF MISLEADING THE AMERICAN PUBLIC," was objectively determinable, and because the statement was likely to be believed as factual, Lane contends that he was defamed. The appellation "GUILTY" was untrue; Lane was neither charged with nor convicted of misleading his readers.
As a result, Lane says he has not experienced the demand of previous years for his views and commentary; he has encountered increased difficulty in securing production for his other written works; and he anticipates reduced lecture bookings, fewer opportunities for publication, and diminished ability to attract significant clients for lucrative retainers. These concerns have caused Lane mental anguish and emotional distress. He places a $ 10 million price tag on these assorted grievances, in the form of actual, compensatory, presumed and punitive damages. Additionally, he requests attorneys' fees and costs.
Random House, in its motion for summary judgment, advances these arguments: (1) the advertisement in question contains protected opinion rather than a verifiably false statement of fact; (2) the advertisement constitutes privileged fair commentary on Lane's conspiracy theory; (3) the "newsworthiness" and "incidental use" privileges bar liability for misappropriation, as does the First Amendment; and (4) Lane can not satisfy the standards for the tort of false light. Random House also requests attorneys' fees and costs.
The court will consider separately Lane's major claims -- misappropriation, false light and defamation -- then briefly address the issue of attorneys' fees.
Conceding that an advertiser's purpose in using someone's identity is central, Lane argues that Random House has exploited his individuality by portraying him in an advertisement for mere commercial gain. See, e.g., Midler v. Ford Motor Co., 849 F.2d 460, 462 (9th Cir. 1988) (unauthorized use of sound-alike voice is exploitation if not done for informative or literary purpose). According to Lane, his identity and likeness were misappropriated to promote a book not about him personally, but about conspiracy arguments in which he has been involved as a disputant. See Tellado v. Time-Life Books, Inc., 643 F. Supp. 904, 914 (D.N.J. 1986) (plaintiff's picture used solely to hype product, not to depict history of Vietnam war).
These arguments are without merit. Among the principal objectives of Case Closed, as set forth in the book's preface, is to resolve the "arguments raised by leading conspiracy critics, such as Anthony Summers, Mark Lane, Jim Marrs, and others . . . ." Mark Lane is clearly more than a single combatant in a pervading conflict. He is one of the protagonists; without Lane and his cohorts, the controversy over the Kennedy assassination may well have been put to rest by the Warren Commission.
Because Lane's picture and quotation are newsworthy and incidentally related to a protected speech product, they cannot form the basis for a successful misappropriation claim. Random House may invoke either the newsworthiness privilege or the incidental use privilege.
A. Newsworthiness Privilege
The newsworthiness privilege applies to advertisements for books, films, and other publications concerning matters of public interest. A plaintiff cannot recover for misappropriation based upon the use of his identity or likeness in a newsworthy publication unless the use has "no real relationship" to the subject matter of the publication. Klein v. McGraw-Hill, Inc., 263 F. Supp. 919, 921 (D.D.C. 1966) (quoting Dallesandro v. Henry Holt & Co., 4 A.D.2d 470, 166 N.Y.S.2d 805, 806 (Sup. Ct. 1957)).
Lane cannot seriously contend that the discussion of him in Case Closed is not newsworthy. Moreover, "it has always been considered a defense to a claim of invasion of privacy by publication . . . that the published matter complained of is of general public interest." Pearson v. Dodd, 133 U.S. App. D.C. 279, 410 F.2d 701, 703 (D.C. Cir.), cert. denied, 395 U.S. 947, 23 L. Ed. 2d 465, 89 S. Ct. 2021 (1969). Nor can Lane credibly maintain that he has "no real relationship" to Posner's book. Lane has devoted much time and effort establishing himself as paladin of the conspiracists. It is too late for him to retreat to the sidelines as a means of shielding himself from criticism.
In a case not unlike this one, the newsworthiness privilege was upheld as a defense against the unauthorized use of author Ayn Rand's name in a promotion of a book by another writer. The advertisement suggested that Rand would have approved of the ideas presented in the new book. But the court concluded that "a comparison to another author is, of necessity, always newsworthy and of interest to the public, which must consider whether or not to purchase the book." Rand v. Hearst Corp., 31 A.D.2d 406, 298 N.Y.S.2d 405, 412 (Sup. Ct. 1969), aff'd, 26 N.Y.2d 806, 257 N.E.2d 895, 309 N.Y.S.2d 348 (N.Y. Ct. App. 1970).
Lane's position is even weaker than Rand's. Her name was appropriated to suggest that someone else's ideas might be compatible with her own. Lane's name was appropriated to suggest that his own writings, scrutinized in Posner's book, were themselves the raison d'etre for the book's publication.
To discredit this rather unvarnished application of the newsworthiness privilege, Lane seeks refuge in commercial speech doctrine. Even if a critique of his book is deemed newsworthy, Lane contends that an advertisement comprising a critique of his book is entitled to a lesser degree of protection. However, "it is a far-fetched contention that [a photograph] is used for purposes of trade merely because it is employed to illustrate a book ...