Antitrust Law Daily Wrap Up, ADVERTISING—Cal. App.: Kurt the CyberGuy’s consent dooms misappropriation of name, likeness claims, (Sep 12, 2016)

By Greg Hammond, J.D.

A technology reporter failed to prove that he did not consent to having his name and likeness used on a television station’s website after he was terminated. A trial court’s denial of summary judgment against his misappropriation of name and likeness claims was therefore vacated by the California Appellate Court in Los Angeles (Local TV, LLC v. Superior Court of Los Angeles County, September 2, 2016, Raphael, M.).

Kurt Knutsson, a technology reporter who created "Kurt the CyberGuy" video segments used on television news programs and station websites, filed suit against television station KTLA, Inc., Local TV Finance, LLC (LTV), and several television stations operated by Tribune Broadcasting Co., bringing claims for misappropriation of name and likeness and unfair business practices under California’s Unfair Competition Law (UCL). The claims arose from KTLA’s use of CyberGuy content after KTLA terminated a contract with Knutsson. The contract gave KTLA complete ownership over, and the virtually unfettered right to use, Knutsson’s work. The lower court denied summary judgment against Knutsson’s claims. LTV appealed.

Misappropriation of name, likeness. Knutsson argued that LTV’s use of a heading on its web page entitled "Kurt the CyberGuy" and his picture, which remained on LTV’s website after Knutsson’s employment was terminated, as well as links to his CyberGuy material, exceeded his consent because it violated the provision of the agreement that allowed KTLA to use his material in advertising and publicizing KTLA. The advertising provision, however, did not apply to the facts alleged by Knutsson, the appellate court concluded. The use of Knutsson’s name and picture was not used for advertising and publicizing the stations or their content. Rather, LTV’s use of Knutsson’s name and photo occurred only on the LTV sites, not in communication sent or shown elsewhere, and were used to identify his material for readers. This use, according to the court, fell under the consent that Knutsson gave for LTV and its licensee stations to use the CyberGuy material. Consequently, the material displayed on LTV’s sites—the CyberGuy material, which KTLA was the owner of "forever," and the identifying heading and photo—were themselves not misappropriation of Knutsson’s name or likeness.

Knutsson also argued that the way his materials were arranged on some LTV web pages indicated that he was "endorsing their new technology reporter, Rich DeMuro." This argument failed for two reasons: (1) Knutsson expressly consented to allow KTLA, and therefore LTV, to present the CyberGuy material along with any other content; and (2) even absent express consent, Knutsson failed to show a lack of consent to combining the CyberGuy material, and its neutral heading, with other material on the same web page.

Finding that Knutsson could not demonstrate lack of consent to LTV’s use of the CyberGuy material, summary judgment in favor of LTV was warranted on the common law misappropriation of name and likeness cause of action. The appellate court also determined that summary judgment against Knutsson’s commercial misappropriation and UCL claims should have been granted. The lower court’s order denying summary judgment was therefore vacated.

The case is No. B271883.

Attorneys: Vincent Cox (Leopold, Petrich & Smith PA) for Local TV, LLC and Local TV Finance, LLC. Nathan Goldberg (Allred Maroko & Goldberg) for Kurt Knutsson.

Companies: Local TV, LLC; Local TV Finance, LLC

Cases: Advertising StateUnfairTradePractices CaliforniaNews