Hart v. World Wrestling Entertainment Inc et al

Filing 74

ORDER granting 32 Motion to Strike ; granting 34 Motion to Dismiss; granting in part and denying in part 36 Motion to Dismiss. Signed by Judge Stefan R. Underhill on 3/28/12. (Hungerford, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MARTHA HART,
Plaintiff,

No. 3:10cv0975 (SRU)

v.
WORLD WRESTLING ENTM‟T, INC., et
al.,
Defendants.
ORDER ON MOTIONS TO DISMISS
This claim arises from a former business relationship between the plaintiff‟s deceased
husband and one of the defendants. The defendants are World Wrestling Entertainment
(“WWE”) and its CEOs, Vince and Linda McMahon (“Vince” and “Linda,” or collectively “the
McMahons”). The plaintiff is Martha Hart (“Martha”), wife of Owen Hart (“Owen”). Owen
was a wrestler affiliated with WWE. In 1996 Owen and WWE entered into a contract that
governed WWE‟s right to use Owen‟s image, and Owen‟s right to receive profits from WWE‟s
use of his image. Martha, on behalf of herself and the Estate of Owen Hart (“the Estate”), has
filed suit against the defendants alleging breach of contract, unjust enrichment, false association,
invasion of privacy, accounting, violation of the Connecticut Unfair Trade Practices Act
(“CUTPA”), violation of the right of publicity, and negligent supervision. WWE and the
McMahons have both filed motions to dismiss the plaintiff‟s first amended complaint. Docs. ##
34, 36. The defendants have also filed a motion to strike certain allegations in the first amended
complaint. Doc. # 32. For the reasons that follow, the McMahons‟ motion to dismiss is
granted, and WWE‟s motion to dismiss is granted in part and denied in part. The motion to
strike is granted.
I. Background

On July 1, 1996, Owen signed a Booking Agreement with Titan Sports, Inc., the
predecessor to WWE (“Booking Agreement”). Amend. Compl. at ¶ 12. That agreement is at the
heart of the breach of contract claims.
The Booking Agreement distinguished between two kinds of intellectual property. The
first was “Original Intellectual Property;” those rights were assigned to Titan/WWE, but were to
revert to Owen upon termination of the agreement. Id. at ¶¶ 14-15. The Booking Agreement
states in section 3.1 that:
[A]ll service marks, trademarks and any and all other distinctive and identifying indicia
under which WRESTLER claims any rights, including but not limited to his/her legal
name, his/her ring name, likeness, personality, character, caricatures, voice, signature,
costumes, props, gimmicks, gestures, routines and themes, which are owned by
WRESTLER or in which WRESTLER has any rights anywhere in the world
(collectively, the “Original Intellectual Property”) are described in Schedule A hereto.
Id., Ex. A at 4. Schedule A of the Booking Agreement, which is entitled “Original Intellectual
Property,” is blank. Id. at 21.
The second category of intellectual property was “New Intellectual Property,” which was
defined as:
With the exception of the Original Intellectual Property, service marks, trademarks and/or
distinctive and identifying indicia, including ring name, likeness, personality, character,
caricatures, voice, signature, costumes, props, gimmicks, gestures, routines, themes, used
by or associated with WRESTLER‟s performance in the business of professional
wrestling or sports entertainment during the term of this Agreement.
Id. at ¶ 16. Those rights were assigned to Titan/WWE in perpetuity, notwithstanding any
termination of the Booking Agreement. Id.
Owen was to receive 25% of net receipts from licensed commercial products utilizing
Owen‟s Original and/or New Intellectual Property, or his pro rata share of 25% of the proceeds
of such licensed products, when used in conjunction with other talent (“licensed product
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royalties”). Id. at ¶ 18. He was also to receive 5%1 of the net receipts from the direct sale of
commercial products utilizing Owen‟s Original and/or New Intellectual Property or his pro rata
share of 25% of sale proceeds when Owen‟s Original and/or New Intellectual Property was used
in conjunction with other talent (“direct sales royalties”). Id. at ¶ 19. Finally, Owen was to
receive 25% of the net receipts from video products utilizing Owen‟s Original and/or New
Intellectual Property or his pro rata share of 25% of such proceeds when Owen‟s Original and/or
New Intellectual Property was used in conjunction with other talent (“video royalties”). Id. at ¶
20.
According to the plaintiff, Owen and Titan/WWE agreed that the Booking Agreement
would terminate upon Owen‟s death, but that Titan/WWE‟s royalty payment obligations did not
end. Id. at ¶ 21. On May 23, 1999, Owen was killed while performing a wrestling stunt during a
WWE event. The plaintiff alleges that royalties are due and owing to the Estate. Id. at ¶ 101.
After Owen‟s death, Martha started the Owen Hart Foundation (“the Foundation”), which
is devoted to charitable causes, including scholarships and housing. Id. at ¶ 27. Martha believes
that the Foundation is the “antithesis” of the work done by the defendants, and has sought to
distance the Foundation from the defendants. Id. at ¶¶ 27, 30-31. The Foundation is not a
plaintiff in this case.
The plaintiff‟s complaint centers on WWE‟s production and sale of a video called Hart &
Soul: The Hart Family Anthology. Id. at ¶ 34. The video purports to chronicle the history of the
Hart family of wrestlers, including Owen, his parents, and siblings. Id. at ¶ 35. It uses Owen‟s
legal name, and contains several family photos of him. Id. at ¶¶ 38-40. The plaintiff claims that

1

This figure appears to be a typographical error, but the contract does say 5% rather than 25%.
-3-

the defendants have used Owen‟s name and likeness to associate him with WWE, which has
tarnished the reputation of the Foundation. Id. at ¶ 44. Martha also alleges that WWE, under the
direction of the McMahons, has made other commercial uses of Owen‟s name and likeness,
including multiple DVDs, television programs, the WWE website, and online subscription
service through WWE.com and the WWE Encyclopedia. Id. at ¶¶ 48-49.
Before bringing this case, the plaintiff filed a motion for an interim injunction in
Canadian court. See Mot. to Dismiss, Ex. 4. The injunction sought to bar release of the Hart &
Soul video. The Canadian court denied the injunction and stayed the case, stating that future
proceedings should occur in Connecticut courts.
II. Standard of Review
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is designed
“merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which
might be offered in support thereof.” Ryder Energy Distribution Corp. v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d
636, 639 (2d Cir. 1980)).
When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the
material facts alleged in the complaint as true, draw all reasonable inferences in favor of the
plaintiff, and decide whether it is plausible that the plaintiff has a valid claim for relief. Ashcroft
v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50 (2009); Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555-56 (2007); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
Under Twombly, “factual allegations must be enough to raise a right to relief above the
speculative level,” and assert a cause of action with enough heft to show entitlement to relief and
“enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 555, 570; see also
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Iqbal, 129 S.Ct. at 1940 (“While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”). The plausibility standard set forth in Twombly
and Iqbal obligates the plaintiff to “provide the grounds of his entitlement to relief” through
more than “labels and conclusions, and a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555 (quotation marks omitted). Plausibility at the pleading stage is
nonetheless distinct from probability, and “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of [the claims] is improbable, and . . . recovery is very
remote and unlikely.” Id. at 556 (quotation marks omitted).
III. Discussion
A. Contract Claims2
1. Breach of Contract – Unauthorized Use of Original Intellectual Property
Martha alleges that WWE breached its contract with the decedent through its
unauthorized use of Original Intellectual Property. As noted above, Schedule A, the section of
the contract that was supposed to list all Original Intellectual Property, is blank. Under the
contract, all intellectual property that is not listed as Original Intellectual Property is classified as
New Intellectual Property.
The defendants argue that the absence of any intellectual property listed in Schedule A
means there is no Original Intellectual Property. Martha responds that Schedule A is blank
because Owen retained his right to any Original Intellectual Property, and never bestowed it on
the defendants in the first place. Plaintiff‟s argument goes against the plain language of the
Booking Agreement. Section 3.2 of the Booking Agreement clearly states that:

2

All parties agree that, under the Booking Agreement‟s choice-of-law clause, all contract claims
should be interpreted in accordance with Connecticut law.
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With the exception of the Original Intellectual Property, any service marks, trademarks
and/or distinctive and identifying indicia, including ring names, likeness, personality,
character, caricatures, voice, signature, costumes, props, gimmicks, gestures, routines,
themes, used by or associated with WRESTLER’s performance in the business of
professional wrestling or sports entertainment during the term of this Agreement
(collectively the “New Intellectual Property”) are hereby assigned to and shall belong to
PROMOTER in perpetuity with PROMOTER retaining all such ownership rights
exclusively throughout the world notwithstanding any termination of this Agreement.
Amend. Compl., Ex. A at 4 (emphasis added). By failing to designate any intellectual property
as “Original Intellectual Property,” the decedent transferred all intellectual property that could be
classified as New Intellectual Property to the defendants.
Martha argues that legal names are included in the list of intellectual property that could
possibly be designated as “Original Intellectual Property,” but not in the list of intellectual
property that could be designated “New Intellectual Property.” Although that is true, it is
irrelevant. Nowhere in the Booking Agreement does it state that Owen has exclusive rights to
his legal name, or that WWE will refrain from using his legal name.
Moreover, New Intellectual Property is explicitly defined to include ring names. In its
motion to dismiss, WWE asserts that “[f]or most of his career, Owen‟s ring name was his real
name.” WWE‟s Mot. to Dismiss at 7 n.6. Martha‟s complaint fails to allege that “Owen Hart”
was not Owen‟s ring name. Absent that allegation, the complaint fails to plead a plausible claim
that WWE breached its contract with Owen by using the name “Owen Hart.” Thus, the motion
to dismiss count three, unauthorized use of intellectual property, is granted.
2. Breach of Booking Agreement – Failure to Pay Royalties
Martha also alleges that the defendants breached the Booking Agreement by failing to
pay royalties they owed. Under sections 7.2 and 7.3 of the Booking Agreement, Owen – and
now his Estate – is entitled to licensed product royalties from commercial products using Owen‟s
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Original and/or New Intellectual Property. Under sections 7.5 and 7.6 of the agreement, the
Estate may be entitled to direct sales royalties from direct sale commercial products using
Owen‟s Original and/or New Intellectual Property. Finally, in section 7.8 of the agreement, the
Estate is entitled to video royalties from video products in which Owen appears. The complaint
alleges that Owen‟s New Intellectual Property has been used and no royalties have been paid,
thereby stating a claim for breach of contract.
WWE argues that Martha is barred from bringing her contract claim because of a 2000
release signed by the defendants and the plaintiff. WWE‟s Mot. to Dismiss at 11. That release
bars “all claims . . . from the beginning of time to the date of this Agreement, that the Releasing
Parties had or may now have against any of them, as may have arisen or has arisen in connection
with all matters arising out of or relating to the death of Owen Hart.” Id. at 12. According to
WWE, because Martha states that the defendants‟ right to use Owen‟s Original Intellectual
Property terminated with his death, any claims involving that agreement are a claim “arising out
of or relating to the death of Owen Hart.” Id. No Original Intellectual Property was listed in the
Booking Agreement, however, and thus any royalty claims must be based on use of New
Intellectual Property. The obligation to pay royalties for use of New Intellectual Property is not
affected by Owen‟s death, and WWE‟s argument is therefore unpersuasive.
WWE‟s final argument is that the breach of contract claim must be dismissed because it
was raised outside the statute of limitations. The Connecticut statute of limitations for contract
claims is six years. Conn. Gen. Stat. § 52-576. The defendants argue that the contract was
allegedly first breached in 1999, and as such, any breach of contract claim is outside the statute
of limitations.

-7-

The defendants are incorrect. Martha‟s complaint states that the Booking Agreement was
repeatedly breached within the last six years. Every time a DVD sale was made and the plaintiff
did not receive royalties, the Booking Agreement may have been breached. Because “[a] cause
of action accrues when the breach occurs,” Conn. Gen. Stat. § 42a-2-724(2), at least some of
Martha‟s contract claims fall within the statute of limitations. Therefore, the motion to dismiss
count five is denied.
3. Unjust Enrichment3
A claim for unjust enrichment exists where “justice requires compensation to be given for
property or services rendered under a contract, and no remedy is available by an action on the
contract.” Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282
(Conn. 1994); see also Alstom Power, Inc. v. Schwing America, Inc., No.3:04cv1311, 2006 WL
2642412, at *5 (D. Conn. Sept. 14, 2006) (claim for unjust enrichment allows plaintiff to
“recover the benefit conferred on a defendant in situations where no express contract has been
entered into by the parties”) (internal citations and quotations omitted).
WWE claims that Martha‟s unjust enrichment claim must fail because it is based only on
its alleged breach of contract, and thus breach of contract, not unjust enrichment, is the
appropriate cause of action. WWE‟s Mot. to Dismiss at 38. Martha does not dispute that an
unjust enrichment claim cannot be based on a breach of contract. Instead, Martha argues that her
unjust enrichment claim is based on WWE‟s use of Owen‟s legal name. Opp‟n to WWE‟s Mot.
to Dismiss at 38. According to Martha, Owen‟s legal name was either was not included as
“Original Intellectual Property,” or was included and WWE‟s right to it expired on May 23,
1999.
3

The parties agree that I should apply Connecticut law to resolve the unjust enrichment claim.
-8-

Again, this claim must fail as implausible because Martha has failed to allege that
Owen‟s legal name was not also his ring name. If Owen‟s legal name was also his ring name,
then WWE had a contractual right to use it, and there can be no claim for unjust enrichment.
Accordingly, WWE‟s motion to dismiss the unjust enrichment claim is granted.
B. Privacy Tort Claims
Martha alleges that the defendants impermissibly have used Owen Hart‟s name and
likeness beyond the rights that were granted to them for New Intellectual Property in the
Booking Agreement, and that in doing so, the defendants have invaded Owen‟s privacy and
violated his right of publicity. Amend. Compl. at ¶¶ 70-74.
Although Martha classifies “invasion of privacy” and “violation of the right of publicity”
as two separate torts, “invasion of privacy” is actually a category of tort. “„The four categories
of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A as follows: (a)
unreasonable intrusion upon the seclusion of another; (b) appropriation of another‟s name or
likeness; (c) unreasonable publicity given to the other‟s private life; or (d) publicity that
unreasonably places the other in a false light before the public.‟” Brown-Criscuolo v. Wolfe, 601
F. Supp. 2d 441, 455 (D. Conn. 2009) (quoting Goodrich v. Waterbury Republican-American,
Inc., 188 Conn. 107, 128 (1982)).
Martha‟s invasion of privacy claim appears to be a claim for unreasonable publicity.
That claim provides a cause of action against “[o]ne who gives publicity to a matter concerning
the private life of another . . . if the matter publicized is of a kind that (a) would be highly
offensive to a reasonable person, and (b) is not of legitimate concern to the public.” Rest. 2d
Torts § 652D.

-9-

Martha‟s claim for “right to publicity” appears to be a claim for “appropriation of the
other‟s name or likeness.” That claim provides a cause of action against “[o]ne who appropriates
to his own use or benefit the name or likeness of another.” Rest. 2d Torts § 652C.
The parties disagree about what jurisdiction‟s law should govern the invasion of
privacy/unreasonable publicity and right to publicity/appropriation of likeness claims. Martha
maintains that Canadian law governs her privacy claims, and WWE insists that Connecticut law
governs those claims. The bulk of WWE‟s argument centers on the text of the Booking
Agreement. WWE argues that, because the Booking Agreement had a forum-selection clause
mandating litigation in Connecticut, Connecticut law should govern all claims. The Booking
Agreement has two relevant clauses: one a jurisdictional clause, and one a choice-of-law clause.
The jurisdictional clause states that,
In the event that there is any claim, dispute, or other matter in question arising out of or
relating to this Agreement, the enforcement of any provisions therein, or breach of any
provisions thereof, it shall be submitted to the Federal, state or local courts, as
appropriate, in the State of Connecticut.
Amend. Compl. Ex. A at section 13.8. The choice-of-law clause states that “[t]his Agreement is
made in Connecticut and shall be governed by and interpreted in accordance with the laws of the
State of Connecticut, exclusive of its provisions relating to conflicts of law.” Id. at section 13.7.
The defendants reason that “[t]he operative contract governing WWE‟s rights to publicize Owen
Hart provide that it „is made in Connecticut and should be governed by and interpreted in
accordance with the laws of the State of Connecticut.‟” WWE‟s Mot. to Dismiss at 22.
Although the jurisdictional forum-selection clause is quite broad, the choice-of-law
clause is relatively narrow. The tort claims do not involve interpretation of the Booking

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Agreement,4 and the choice-of-law clause does not apply here. Thus, I must look to
Connecticut‟s choice-of-law provisions in order to determine the operative law. See Lee v.
Bankers Trust Co., 166 F.3d 540, 545 (2d Cir. 1999) (holding that a “federal court sitting in
diversity applies the choice of law rules of the forum state”).
The first step in a Connecticut choice-of-law analysis is to determine whether there is an
outcome-determinative discrepancy between Connecticut law and the foreign law. If there is no
outcome-determinative discrepancy, the Court will apply the law of the forum state. O’Connor
v. Norman, No. 3:08cv1773, 2011 WL 2198311, at *6 (D. Conn. June 6, 2011) (holding that
because the parties had not identified any possible outcome-determinative discrepancies, the
Court would apply Connecticut contract law). Martha puts forth two conflicts between
Connecticut and Canadian privacy law: (1) that WWE‟s copyright defense will not be available
under Canadian law, and (2) that Canadian law is more protective of privacy than Connecticut
law.
The first alleged conflict is a nonstarter. WWE‟s copyright defense maintained that
WWE had a copyright in Owen‟s “appearance, performance, commentary, and any other work
product for any or all of the Events.” Martha, as discussed in depth below, has only stated a
potentially valid claim for right to publicity/appropriation of likeness with respect to the
defendants‟ use of Owen‟s personal photos. Because the defendants admittedly do not own the
copyright to those photos, the copyright defense is inapplicable, and not an “outcomedeterminative discrepancy.”

4

To the extent that WWE argues that the tort claims are preempted by the contract, the terms of
the contract will be construed using Connecticut rules of interpretation.
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Martha‟s second argument is that Canadian law, specifically the law of Alberta Province,
is more protective of privacy, while Connecticut law is more protective of freedom of
expression. The plaintiff cites no cases indicating that is true with respect to privacy torts.5
Thus, the plaintiff has failed to demonstrate an outcome-determinative discrepancy between
Canadian and Connecticut law. In any case, the choice-of-law issue is immaterial, because the
result would be the same under either jurisdiction‟s law.
Martha lists three specific instances in which the defendants used Owen‟s name and
likeness in connection to the Hart & Soul DVD: (1) the use of Owen‟s legal name, (2) the
wrestling photos of Owen, and (3) family photos of Owen.
1. Legal Name and Wrestling Photos
It is undisputed that the Hart & Soul video uses the name “Owen Hart” on its packaging
and in the video‟s contents. What is unclear is whether “Owen Hart” was also Owen‟s ring
name, as WWE has asserted. That dispute has significance because under the Booking
Agreement WWE retains the rights to:
identifying indicia, including ring name, likeness, personality, character, caricatures,
voice, signature, costumes, props, gimmicks, gestures, routines, [and] themes, used by or
associated with WRESTLER‟S performance in the business of professional wrestling or
sports entertainment during the term of this Agreement.
Amend. Compl., Ex. A at 4 (emphasis added). Martha does not dispute that Owen occasionally
wrestled under “Owen Hart,” and does not allege that “Owen Hart” was not his ring name. If
5

For the proposition that Canadian law is more protective of privacy than U.S. law, the plaintiffs
cite Grant v. Torstar Corp., [2009) 3 S.C.R. 640 (libel claim); Canada (Attorney General) v. JTIMacDonald Corp., [2007] 2 S.C.R. 610 (constitutionality of statute restricting advertising); Hill
v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 (libel claim); R. v. Keegstra, [1990] 3
S.C.R. 697 (constitutionality of criminal statute). Martha later cites to other, more relevant,
cases, but not cases that illuminate a difference between Connecticut and Alberta law (indeed,
many of the cases are from provinces other than Alberta).
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“Owen Hart” was Owen‟s ring name, then as a matter of law WWE had the right to use that
name. Thus, the motion to dismiss the invasion of privacy/unreasonable publicity and right of
publicity/appropriation of likeness claims concerning use of Owen‟s name is granted.
Similarly, the Booking Agreement clearly grants WWE rights to Owen‟s likeness that are
associated with his professional wrestling performances during the term of the Booking
Agreement. Thus, the motion to dismiss the invasion of privacy and right of publicity claims
regarding any wrestling photos is granted.
2. Family Photos
Martha‟s final invasion of privacy/unreasonable publicity and right of
publicity/appropriation of likeness claims involve the defendants‟ use of personal photographs of
Owen.
a. Invasion of Privacy/Unreasonable Publicity
As noted above, Martha‟s invasion of privacy claim is a claim for unreasonable publicity.
In order to succeed on that claim, Martha must have pled facts indicating that the matter
publicized “is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not
of legitimate concern to the public.” 3 Restatement (Second), Torts § 652D. Martha‟s claim
must fail, because publication of the family photographs at issue here is not the kind of
publication that would be highly offensive to a reasonable person. See Beckner v. Connecticut
Community for Addiction Recovery, Inc., No. CV095005324S, 2010 WL 4226736, at *3 (Conn.
Super. 2010) (disclosure that an individual has psoriasis would not constitute unreasonable
publicity); Gleason v. Smolinski, No. NNHCV065005107S, 2009 WL 2506607, at * (Conn.
Super. 2009) (not unreasonable publicity for newspaper to publish details of plaintiff‟s life,
including her children‟s suicide, drug overdose, and incarceration, or to publish pictures of her).
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Accordingly, the motion to dismiss Martha‟s claim of invasion of privacy/unreasonable publicity
is granted.
b. Right of Publicity/Appropriation of Likeness
i.

WWE

As noted above, Martha‟s “right of publicity” claim is a claim for “appropriation of the
other‟s name or likeness.” WWE argues that the right of publicity/appropriation of likeness
claim cannot be brought under Connecticut law because the use of someone‟s likeness is only
actionable “„when the publicity is given for the purpose of appropriating to the defendant‟s
benefit the commercial or other values associated with the name or likeness that the right of
publicity is invaded.‟” WWE‟s Mot. to Dismiss at 25 (citing Restatement (Second) of Torts, §
652C, comment d). WWE argues that Hart & Soul is a piece of art or entertainment, but that is
not clear, as a matter of law. The DVD could also be viewed as a feature-length commercial for
WWE programming, and thus the right of publicity/appropriation of likeness claim survives
under Connecticut law.
Similarly, WWE argues that, under Canadian publicity law, the plaintiff must
demonstrate that the defendant used his image in an endorsement-type situation. WWE argues
that, under Canadian jurisprudence, the right of publicity has “not been successfully invoked
when used to question thoughts, ideas, newsworthy events or matters of public interest.”
WWE‟s Response to Pl.‟s Supp. Brief Concerning Choice of Law at 21. But again, it is not clear
here that Hart & Soul was a matter of public interest, as opposed to a commercial or
endorsement.
WWE also argues that Owen consented to the use of his image, and therefore a right of
publicity claim must fail under either Canadian or Connecticut law. Id. at 15-19. It is true that
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Owen consented to the use of his wrestling persona, but nothing suggests that Owen consented to
the use of personal family photos. Any arguments based on consent must fail at this stage.
Thus, WWE‟s motion to dismiss the right of publicity/appropriation of likeness claim related to
the use of Owen‟s family photos is denied.
ii.

Vince and Linda McMahon

Martha alleges that Vince and Linda McMahon are liable for any invasion of privacy
committed by WWE. In Connecticut, corporate officers can be found liable if they personally
committed the tort in question or ordered the tort done, even if the tort was committed by the
officer‟s corporation.6 Sturm v. Harb Dev., LLC, 298 Conn. 124, 132 (2010).
Martha alleges that Linda McMahon personally participated in the decision to release
Hart & Soul. Amend. Compl. at ¶¶ 57-58, 117-22. But Martha has failed to allege that Linda
had knowledge that Hart & Soul contained Owen‟s personal photo. Therefore, Linda may not be
held liable for the invasion of privacy and right of publicity torts, and her motion to dismiss those
claims is granted.
Martha has not alleged that Vince was involved with the production or sale of Hart &
Soul. Thus, Vince‟s motion to dismiss the privacy tort claims is granted.

6

The parties did not brief the issue of vicarious liability for corporate officers under Canadian
law. Thus, at this stage the Court will assume that Canadian courts would treat the matter the
same as Connecticut courts. See Philips v. Audio Active Ltd., 494 F.3d 378, 386 (2d Cir. 2007)
(noting that where parties had not briefed foreign law, the court “will assume from the parties‟
briefing that they do not rely on any distinctive features of [foreign] law and apply general . . .
law principles and federal precedent”); O’Connor, 2011 WL at *6 (“Because neither party has
identified any other possible outcome-determinative discrepancies [between] Connecticut [and
foreign] law, the Court will apply the . . . law principles of Connecticut, the forum state, in order
to resolve this case.”).
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C. Negligent Supervision7
Martha alleges that Vince and Linda McMahon were responsible for supervising the
actions of WWE‟s marketing personnel, and that their failure to do so led to the unlawful use of
Owen‟s name and his family photos in WWE merchandise. Amend. Compl. at ¶¶ 124-28.
“To prove a claim of negligent supervision under Connecticut law, a plaintiff must plead
and prove that he suffered an injury due to the defendant‟s failure to supervise an employee
whom the defendant had a duty to supervise. A defendant does not owe a duty of care to protect
a plaintiff from another employee‟s tortious acts unless the defendant knew or reasonably should
have known of the employee‟s propensity to engage in that type of tortious conduct.” Burford v.
McDonald’s Corp., 321 F. Supp. 2d 358, 366 (D. Conn. 2004).
Martha‟s negligent supervision claim against Linda is rooted in the fact that Linda was
personally involved in the decision to publish Hart & Soul. Amend. Compl. at ¶¶ 57-58. Martha
has not alleged, however, that Linda was aware of the contents of Hart & Soul. The only
potentially wrongful materials in the DVDs were the personal photos of Owen Hart,8 and those
pictures constitute a very small percentage of the DVD. I cannot assume that Linda knew Hart
& Soul contained those pictures, and thus I cannot assume that Linda knew or reasonably should
have known about any tortious conduct. As a result, Linda‟s motion to dismiss the negligent
supervision claim is granted.

7

The parties stipulate that Connecticut law governs the negligent supervision claim.

8

Although Martha asserts that the use of Owen‟s legal name was also wrongful, Martha, as
noted above, has failed to allege that Owen‟s legal name was not also his ring name. The use of
Owen‟s ring name was not wrongful, and thus Martha has failed to allege facts from which a jury
could find that the use of Owen‟s legal name was wrongful.
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Martha has alleged even fewer facts indicating that Vince knew or should have known
about his employees‟ tortious conduct. Instead, she only alleges that he had the right to control
production of Hart & Soul “by virtue of his executive position at and ownership interest in
WWE.” Id. at ¶ 92. Indeed, Martha‟s opposition to the McMahons‟ motion to dismiss does not
even address the motion to dismiss the negligent supervision claim against Vince. Therefore,
Vince‟s motion to dismiss the claim of negligent supervision against him is granted.
D. Violations of the Lanham Act
Martha alleges that the Estate retains sole legal right over the name and likeness of Owen,
exclusive of New Intellectual Property, and that the defendants have impermissibly appropriated
Owen‟s name, likeness, and other Original Intellectual Property in their videos and packaging.
Amend. Compl. at ¶¶ 61-62, 65. According to Martha, the defendants‟ unauthorized use of
Owen‟s name and likeness falsely suggests that the Estate and/or the Foundation have endorsed
the defendants, and is likely to cause confusion as to the association of the defendants with the
Estate and/or Foundation, in violation of the Lanham Act, 15 U.S.C. § 1125.9 Id. at ¶¶ 66-69.
Martha focuses in particular on (1) Owen‟s legal name, (2) wrestling photos of Owen, and (3)
childhood and other family photos of Owen.

9

The Lanham Act provides that:
Any person who, or in connection with any goods or services, or any container for goods,
uses in commerce any word, . . . name, . . . or any combination thereof, or any false
designation of origin, false or misleading description of fact, or false or misleading
representation of fact, which is likely to cause confusion, or to cause mistake, or to
deceive as to affiliation, connection, or association of such person with another person, or
as to the origin, sponsorship, or approval of his or her goods, services, or commercial
activities by another person . . . shall be liable in a civil action by any person who
believes that he or she is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1).
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As noted above, WWE has the contractual right to use the name “Owen Hart” if that was
Owen‟s ring name. The motion to dismiss the Lanham Act claim involving use of Owen‟s name,
therefore, is granted. Similarly, because the Booking Agreement grants WWE rights to use
Owen‟s likeness if that likeness is associated with his wrestling performances, the motion to
dismiss the Lanham Act claim regarding any wrestling photos is granted.
Martha also argues that the defendants violated the Lanham Act by using childhood
pictures of Owen, and other photos taken before his relationship with WWE began. For an
unregistered trademark, such as these photographs, to be protected under Section 43(a) of the
Lanham Act, it “must either be inherently distinctive, i.e., intrinsically capable of identifying its
source, or have acquired secondary meaning.” Brooks ex rel. Estate of Bell v. Topps Co., No.
6cv2359, 2007 WL 4547585, at *6 (S.D.N.Y. Dec. 21, 2007) (citing Louis Vuitton Malletier v.
Dooney & Bourke, Inc., 454 F.3d 108, 116 (2d Cir. 2006)) (internal punctuation omitted).
“Personal names and photographs are not inherently distinctive, and therefore are „protected only
if, through usage, they have acquired distinctiveness and secondary meaning.‟” Id. (quoting
Pirone v. MacMillan, Inc., 894 F.2d 579, 583 (2d Cir. 1990)).
“„Secondary meaning‟ is a term of art referencing a trademark‟s ability to „identify the
source of the product rather than the product itself.‟” ITC Ltd. v. Punchgini, Inc., 482 F.3d 135,
167 (2d Cir. 2007) (quoting Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 766 n.4
(1992)). In this case, Martha has failed to allege that the photographs used have acquired a
secondary meaning that identifies them with the Estate. Because this is a necessary element for a

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false endorsement claim under the Lanham Act,10 the defendants‟ motion to dismiss the Lanham
Act claim is granted.
E. Copyright Infringement
Martha alleges that she owns a copyright to two holiday cards that appeared in Hart &
Soul, and as such, WWE and Vince McMahon have violated copyright law. Amend. Compl. at
¶¶ 81-94. At oral argument, Martha admitted that she did not own the copyrights when she
commenced this action. Martha contends that she is still entitled to sue, however, because her
ownership of the copyrights is “by way of an assignment that specifically transfers to her, among
other things, the previous owner‟s right to sue for past, present and future infringements.” Opp‟n
to WWE‟s Mot. to Dismiss at 37. “Where the assignment of an exclusive right under a
copyright expressly includes the right to prosecute accrued claims for infringement, that right
passes to the assignee.” Two Pepper Music v. Rhino Records, Inc., 173 F.3d 846, 1999 WL
264927, at *1 (2d Cir. 1999).
Martha did not allege in her complaint that it was the former copyright owner whose
copyright had been infringed, or that the former copyright owner had assigned to her the right to
prosecute claims for infringement. Without that allegation, Martha cannot bring claims based on

10

But see Chambers v. Time Warner, 282 F.3d 147 (2d Cir. 2002). In Chambers, the Second
Circuit held that the district court had erred in dismissing a Lanham Act claim where the
plaintiff-singers alleged the use of their names and likenesses on a website might lead consumers
to believe that they were affiliated with that website. The Second Circuit‟s decision contained no
discussion of secondary meaning, and instead remanded the case, stating that the district court
had erred in failing to consider all conduct raised by plaintiffs‟ allegations. Id. at 155. The
Court also emphasized the liberal pleading standard of the day: “it is not beyond doubt that
plaintiffs can prove no set of facts which would entitled them to relief.” Id. (internal citations
and punctuation omitted). The Supreme Court has since imposed a stricter pleading standard on
plaintiffs. See Ashcroft v. Iqbal, 129 S. Ct. 1937.
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a violation of rights of the original owner. See ABKCO Music, Inc. v. Harrisongs Music, Ltd.,
944 F.2d 971, 980 (2d Cir. 1991) (“[A] copyright owner can assign its copyright but, if the
accrued causes of action are not expressly included in the assignment, the assignee will not be
able to prosecute them.”). Thus, the motion to dismiss is granted.
F. Accounting Claim
Martha acknowledges that the accounting claim is not a separate cause of action, but is
instead an attempt to obtain discovery on potential damages. Therefore, the parties agree that the
accounting claim should be dismissed without prejudice to their seeking discovery.
G. CUTPA
Finally, Martha brings a claim for violation of CUTPA.11 A CUTPA violation must
involve “unfair methods of competition” or “unfair or deceptive acts or practices in the conduct
of any trade or commerce.” Conn. Gen. Stat. § 42-110b.
Connecticut courts look to the “cigarette rule” to determine whether a practice is unfair
under CUTPA:
(1) Whether the practices, without necessarily having been previously considered
unlawful, offends public policy as it has been established by statutes, the common law, or
otherwise – in other words, it is within at least the penumbra of some common law,
statutory, or other established concept of unfairness; (2) whether it is immoral, unethical,
oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers,
competitors or other businesspersons. . . All three criteria do not need to be satisfied to
support a finding of unfairness. A practice may be unfair because of the degree to which
it meets one of the criteria or because to a lesser extent it meets all three.

11

Even though CUTPA is a Connecticut statute, a CUTPA violation may occur outside of
Connecticut when the violation is tied to trade or commerce intimately associated with
Connecticut, or when Connecticut choice-of-law principles apply and such principles mandate
application of Connecticut law. Reiling Assoc. v. Fisher-Price, Inc., 406 F. Supp. 2d 200 (D.
Conn. 2005). All parties agree that Connecticut law governs here.
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Willow Springs Condo. Ass’n v. Seventh BRT Dev. Corp., 245 Conn. 1, 43 (1998) (internal
citations and punctuation omitted).
Martha first argues that her CUTPA claim against the defendants survives, because a
violation of the Lanham Act is a per se CUTPA violation. As noted above, however, the motion
to dismiss Martha‟s Lanham Act claim has been granted. The only remaining claims against the
defendants are a claim for breach of contract for the failure to pay royalties, and claim for
appropriation of likeness.
In order to plead a prima facie violation of CUTPA, generally there needs to be more
than merely a breach of contract. Gabriele v. Sanzaro, No. 3:10cv38, 2010 WL 2860730, at *3
(D. Conn. July 19, 2010). Specifically, Connecticut courts have held that there must be some
“[s]ignificant aggravating circumstances.” Empower Health LLC v. Providence Health Solutions
LLC, No. 3:10cv1163, 2011 WL 2194071, at *7 (D. Conn. June 3, 2011) (internal quotation
marks omitted). Martha suggests in her opposition brief that the aggravating factors are the fact
that the defendants “unscrupulously profit[ed] from the legal name of a wrestler that the
defendants agreed not to use, and then systematically hid[] any proceeds from such profits from
the decedent‟s widow.” Pl.‟s Opp‟n to WWE‟s Mot. to Dismiss at 31. But as previously noted,
Martha has failed to allege that the defendants had agreed not to use Owen‟s legal name. There
are also no allegations in the complaint that the defendants actively hid any proceeds from
Martha; the allegations only state that Martha did not know about them.
Because Martha has failed to allege that the defendants acted with bad faith, or that there
were significant aggravating circumstances to their behavior, the motion to dismiss the CUTPA
claim is granted.
H. Motion to Strike
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The defendants have filed a Rule 12(f) motion to strike certain allegations against them
involving Owen‟s death. Doc. 32. Specifically, they seek to strike the claims that (1) WWE
insisted and required Owen to perform the stunt that resulted in his death despite knowing he
disapproved of it; (2) the defendants have engaged in blatantly disrespectful acts in regard to
Owen since his death; (3) the defendants had a role in causing Owen‟s death; and (4) by
countersuing Martha, the defendants tried to intimidate her in the wrongful death suit in the same
way they rule their wrestlers with intimidation and high pressure. Those allegations are both
unnecessary and inflammatory, and the motion to strike is granted.
IV. Conclusion
For the reasons stated above, the defendants‟ motions to dismiss are granted in part and
denied in part. The motions to dismiss the following claims are granted: the breach of contract
claim regarding the unauthorized use of Original Intellectual Property, the negligent supervision
claim, the invasion of privacy/unreasonable publicity claim against all defendants, the right of
publicity/appropriation of likeness claims regarding the use of Owen‟s wrestling photos against
all defendants, the right of publicity/appropriation of likeness claim regarding the use of Owen‟s
name against WWE, all right of publicity/appropriation of likeness claims against Vince and
Linda McMahon, the Lanham Act claim, the copyright infringement claim, the unjust
enrichment claim, and the CUTPA claim. The accounting claim is dismissed without prejudice
to the plaintiff seeking appropriate discovery.
The motions to dismiss the following claims are denied: the breach of contract claim
regarding failure to pay royalties, and the right to publicity/appropriation of likeness claim
regarding the use of personal photos against WWE.

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The defendants‟ motion to strike certain allegations in the first amended complaint is
granted. The plaintiff shall file a second amended complaint consistent with this decision within
thirty days.
It is so ordered.
Dated at Bridgeport, Connecticut this 28th day of March 2011.

/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge

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